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Federal Employees News Digest : Feb. 11, 2013
February 11, 2013 Vol. 62, No. 28 6 Visit us on the Internet at www.FederalDaily.com VA employee wins in involuntary retirement case Alma D. Hinton, a career employee with the Department of Veterans Affairs, won her recent appeal on her claim that she was coerced by agency officials into a settlement agreement and forced retirement. According to official documents in the case, Hinton argued that an "agency representative falsely accused her of being preju- diced." The representative then allegedly "instructed her" to sign an agreement that she would retire and accept a one-time payout of $27,000---ending her employment at the VA. The agreement would ensure her removal was changed "to reflect that she resigned" and had retired. The representative, Hinton stated, "told her that, if she did not sign the agreement, she would lose her retirement"---a very strong inducement to sign. Hinton signed. Later, Hinton appealed to the Merit Systems Protection Board, stating that she "had no choice but to sign the agreement," and that the agreement was "unlawful or the result of fraud." Next, the appellant avers that another official misled her---specifically that a Merit Systems Protection Board administrative judge said if her case "went to a hearing [she] would not receive her back pay, and that her high-3 salary for retirement would be deter- mined at the GS-4 grade level, rather than at the GS-7 grade level, as she believe[d] it should." Finally, she added that the agency representative deprived her of her "rights of freedom of speech," and that she was "wrongfully removed," which must be cured by reinstatement and compensa- tion. The VA for its part rejected and countered Hinton's claims. The full board found for the VA on several specifics, but in the end ruled in favor of Hinton. First, the MSPB noted that "a party may challenge the validity of a settlement agreement if she believes that it is unlawful, involuntary, or the result of fraud or mutual mistake," as illustrated in Sargent v. Department of Health and Human Services (2000) and Wade v. Department of Veterans Affairs (1994). Second, to prove fraud or coercion in a settlement agreement, one party must show that he or she "involuntarily accepted the other party's terms, that circumstances permitted no other alternative"---that is, that the other party had engaged in "coercive acts" (Potter v. Department of Veterans Affairs, 2009.) Third, a party challenging the validity of a settlement agreement "bears a heavy burden," the panel noted, citing Asberry v. Postal Service (1982). Mere "remorse" or "change of heart" does not con- stitute a reason to nullify a settlement agreement. Here, the MSPB determined that Hinton failed to provide enough evidence that there was coercion to sign the settlement agreement. MSPB noted, for example, that Hinton took the agreement to her financial adviser to examine, and that she was "already pursuing her retirement benefits" at the time. However, the MSPB ultimately ruled in favor of Hinton, due to other aspects of her appeal. First, Hinton had also alleged age discrimination was part of her coerced removal. MSPB noted both the AJ and the full board had earlier provided her two opportunities to back that claim, but she had yet to do so. However, based on the law, Hinton had not "waived her age discrimination claim based on her failure to respond to the [AJ's] initial order" on the issue. MSPB further noted that VA had failed comply with the Older Worker Benefit Protection Act (1990)---specifically, the agency failed to provide Hinton the statute's required study period before signing the agreement. For these and other reasons, the MSPB found for the appellant---and remanded the case to the AJ for readjudication. (Hinton v. Department of Veterans Affairs, MSPB Docket No. Docket No. AT-0752-11-0476-I-1, 1/17/13) SSA employee wins back pay appeal Jeffrey Paula, a Federal Agent with the Social Security Administration, won his recent appeal petitioning for back pay. On Nov. 20, 2009, the agency proposed removing Paula on charges of conduct unbecoming. On Feb. 12, 2010, the agency moved to remove him. At that point, Paula retired and pursued an appeal before the Merit Systems Protection Board, seeking to reverse the agency charges and removal. Paula lost his first appeal. But on April 21, 2010, the full MSPB reversed the removal---and ordered the agency to restore Paula, effective Feb. 12, 2010, and provide back pay, interest and ben- efits from that date. Yet, upon the order, the agency "cancelled the removal," but did not reinstate the appellant or furnish the back pay. Paula appealed again, to the MSPB. In response, the agency claimed that under Taylor v. U.S. (1979) the appellant's agreement to retire in fact "completely and permanently separated him from the Agency, and cannot be revoked or withdrawn." MSPB, however, found for Paula---and cited law passed since Tay l o r , 5 U.S.C. § 7701(j) (1990), stating that "[we] consistently have recognized that an appellant who retires in the face of a final removal decision, and whose removal is reversed, is entitled to all the relief he could have received if he had appealed the removal but had not retired." The full board, therefore, ordered SSA, within 20 days, to restore the appellant and give him back pay and interest. (Paula v. Social Security Administration, MSPB Docket No. PH-0752-10-0251-X-1, 1/23/13)
Feb. 4, 2013
Feb. 18, 2013