April 1997, DOE found in Material Breach


Last Updated 05/22/01
 

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

JOSEPH CARSON, Appellant,

v.

DEPARTMENT OF ENERGY, Agency.

DOCKET NUMBER: SL-1221-94-0179-C-1

DATE: April 29, 1997

Robert C. Seldon, Esquire, Government Accountability Project, Washington, D.C., for the appellant.

Isiah Smith, Esquire, Washington, D.C., for the agency.

BEFORE

Stuart A. Miller

Administrative Judge

RECOMMENDATION

INTRODUCTION

On September 6, 1996, the appellant filed a petition for enforcement of the Board's decision in Carson v. Department of Energy, MSPB Docket No. SL-1221-94-0179-W-1 (Initial Decision, February 28, 1994). That decision, which became final on April 4, 1994, when neither party petitioned for review, dismissed the appellant's appeal based on a settlement agreement that was made a part of the record. See Initial Appeal File (IAF), Tab 12; Compliance File (CF), Tab 5 (subtab 4e). The appellant contends that the agency has failed to comply with the provisions of the settlement agreement. See CF, Tabs 1 and 4.

The Board has the authority to enforce the agreement since it was accepted into the record. See Miller v. Veterans Administration, 23 M.S.P.R. 410, 412 (1984). See also 5 U.S.C. 1204(a)(2). For the reasons below, the agency is found in NONCOMPLIANCE.

ANALYSIS AND FINDINGS

As shown above, the initial appeal in this case was resolved by the parties pursuant to a settlement agreement dated February 25, 1994. IAF, Tab 12; CF, Tab 5 (subtab 4e). The appellant alleges that the agency is in breach of the settlement agreement in that: (1) he has not been paid his costs and the matter has not been advanced to arbitration; and, (2) the agency has failed to devise a process to determine if his whistleblower allegations have merit. See CF, Tabs t and 4.(1) The relevant provisions of the settlement agreement are:

...the agency will pay reasonable attorney's fees and costs to Mr. Carson's counsel as he is a prevailing party. If the parties cannot come to an agreement on this issue, they will submit it to binding arbitration outside of the MSPB process. They will either agree on an impartial arbitrator or will each nominate an arbiter, and the two that they have selected will identify [an] impartial arbitrator. The standard for reasonableness will be that which is contained in the law regarding whistleblowers.

...Mr. Carson's allegations of whistleblower reprisal will be evaluated by the process directed by the Secretary of the Department of Energy (i.e. the mechanism described at the PEER Conference which Mr. Thomas McBride is now working on) to determine whether they were meritorious. ..

Id.

To prevail on his claim of breach, the appellant must prove that the settlement agreement has been beached by a preponderance of the evidence. See Fredenhall v. Veterans Administration, 38 M.S.P.R. 366, 371 (1988). The agency, however, as the alleged noncomplying party bears a burden of production and must File one of the following: (1) evidence of compliance; (2) evidence of compliance actions that have been taken, that are in process, and that remain, and a reasonable schedule for full compliance; or (3) a statement showing good cause for failure to comply completely. See Perry v. Department of the Army, 992 F.2d 1575, 1577 (Fed. Cir. 1993); 5 C.F.R. 1201.183(a)(1)(i)-(iii).

Payment of costs and arbitration

It is undisputed that the appellant's counsel has been paid his reasonable attorney fees in accordance with the third stipulation of the settlement agreement. However, the parties also agree that the appellant has not been paid his "costs" and the matter has not been advanced to arbitration. The agency contends that its attempts to comply with this provision of the settlement agreement have been frustrated by the appellant's lack of cooperation and thus, the agency has shown good cause for its failure to comply. I agree.

The record reflects that, by letter dated May 18, 1994, the agency disputed the appellant's claimed costs of $8,900.00.

Agency Response, Tab 4c. By memorandum dated July 20, 1994, the appellant informed the agency that he had instructed his attorney to defer the issue of his costs to the "resolution process" that was being developed in accordance with another provision of the settlement agreement. Id. at 4b. Nevertheless, by memorandum dated August 18, 1994, the agency notified the appellant that it was prepared to advance the matter to arbitration as required under the settlement agreement and stated, "As soon as you let us know, we will initiate the process, with your attorney, for procuring the services of an arbitrator." See Appeal File, Tab 9. The appellant, in a memorandum dated August 22, 1994, outright rejected the agency's attempts to advance the matter to arbitration. Id. Indeed, the appellant stated that, if he were unhappy with the arbitrator's ruling, he would just reopen the matter in the resolution process and the agency would be out the cost of the arbitration. Id. Thus, he "advised" the agency to reconsider its August 22 memorandum and his settlement offer in this matter. Id.

In construing the terms of a settlement agreement, the words of the agreement itself are of paramount importance in order to determine the intent of the parties at the time of the agreement. See Greaves v. United States Postal Service, 55 M.S.P.R. 337, 341 (1992). Here, there is no dispute that the parties bargained for arbitration of the appellant's costs if the parties could not reach an agreement. And, the express language of the agreement requires that the parties either agree on an arbitrator or each select an arbitrator who would jointly pick the arbitrator for the dispute. This procedure, by its very nature, requires cooperation among the parties. And, though the agency stood ready to initiate the process, the appellant rejected it, apparently based on his unjustifiable belief that he could raise the issue in the resolution process.

Thus, I find that the agency was thwarted in its attempts to comply with the settlement agreement as to this alleged breach and the agency has shown good cause for the noncompliance.

Evaluation of whistleblowing allegations

As shown above, the resolution provision required that the appellant's allegations of whistleblowing be referred to a process directed by the Secretary of the agency "to determine whether they were meritorious." The agency contends that they have complied with this requirement by referring the appellant's whistleblowing allegations to a mediation process under the Secretary's alternative dispute resolution program. See Cf, Tabs 5, 9 and 11. In the alternative, the agency contends that it will refer the appellant's whistleblowing allegations to its new employee concerns process to be in compliance. Id. at Tabs 8, 10 and 11. The appellant contends that both of these processes are dispute resolution processes and neither effectuate the terms of the settlement as bargained for by the parties, i.e., to have a determination of the merits of the appellant's whistleblowing allegations.

The record, indeed, reflects that the processes the agency used in response to this provision of the settlement agreement were mediation and alternative dispute resolution. See CF, Tab 11. And, the agency's efforts to resolve the appellant's concerns through mediation and alternative dispute resolution are commendable. However, the appellant correctly asserts that mediation and alternative dispute resolution are not the processes bargained for by the parties. For, neither mediation nor alternative dispute resolution, as defined by the agency (see CF, Tab 11), would result in a determination whether the appellant's whistleblowing allegations were meritorious. And, it was precisely this determination that was bargained for and agreed to by the parties expressly in the settlement agreement.

Thus, I find that the agency is in noncompliance as to this provision of the settlement agreement.

Thus, based on the above, I find the agency not in compliance. The appellant's petition for enforcement is GRANTED.

RECOMMENDATION

I recommend that, pursuant to the appellant's request to enforce the terms of the settlement agreement, the Board order the agency to create a process for determining the merits of the appellant's whistleblowing allegations and order both parties to immediately proceed to arbitration on the issue of the appellant's costs.(4)

FOR THE BOARD:

Stuart A. Miller

Administrative Judge

NOTICE TO PARTIES CONCERNING SETTLEMENT

The date that this initial decision becomes final, which is set forth below, is the last day that the administrative judge may vacate the initial decision in order to accept a settlement agreement into the record. See 5 C.F.R. 1201.112(a)(5).

NOTICE TO THE PARTIES

If the agency agrees to take all of the recommended actions, it must, no later than 15 calendar days after the date of this recommendation, file evidence that it has taken those actions with the Clerk of the Board.

If the agency refuses to take any of the recommended actions, it must, no later than 30 calendar days after the date of this recommendation, file both evidence of the actions it has taken and a brief supporting his her disagreement as to those actions it has not taken with the Clerk of the Board.

If the agency refuses to take all of the recommended actions, it must, no later than 30 calendar days after the date of this recommendation, file a brief supporting his/her disagreement with the Clerk of the Board.

The appellant may file a response to any agency's brief or evidence of compliance no later than 20 calendar days after the date shown on the agency's certificate of service.

The appellant's brief may contain a request that the Board review any finding of agency's compliance.

The address of the Clerk of the Board is:

The Clerk of the Board

Merit Systems Protection Board

1120 Vermont Avenue, NW., Suite 806

Washington, DC 20419

Any submission to the Board that lacks a statement that the submission has either been mailed or hand-delivered to the opposing party will be rejected and returned.

1. Initially, the appellant also alleged that the agency was in breach of the agreement by not having properly amended his performance appraisals for 1991 and 1992. However, upon receipt of the amended appraisals, the parties agreed that this issue was MOOT. See CF, Tab 10.

2. During the status conference of April 8, 1997, the appellant stated that his "revised" costs total $7,325.61 and that he communicated that amount to the agency as a settlement offer of this issue in October or November 1995. See CF, Tabs 8 and 1.

3. There is nothing in the agreement that would permit the appellant to raise the issue of his costs in the "resolution" process. Indeed, the resolution provision specifically lists those matters that the parties will "examine" following the evaluation/determination of the merit of the whistleblowing allegations and, conspicuous by its absence, is any reference to the appellant's costs.

4. In my view, as shown above, both parties have been derelict in carrying out their responsibilities under the settlement agreement. Therefore, I believe the parties should be returned to the status quo, i.e., both be required to carry out all of the remaining terms of the agreement. Accordingly, I have recommended both that the agency create the process to determine the merits of the whistleblowing allegations and that the parties be ordered to proceed to arbitration on the "costs" issue.

 

Questions or comments? Contact Joseph P. Carson, P.E.