Filed: May 20, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY D. MOZONE, DOCKET NUMBER Appellant, NY-0752-07-0164-C-1 NY-0752-07-0100-C-1 v. DEPARTMENT OF LABOR, Agency. DATE: May 20, 2016 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Anthony D. Mozone, Brooklyn, New York, pro se. Donyell Marie Thompson, Esquire, New York, New York, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which d
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY D. MOZONE, DOCKET NUMBER Appellant, NY-0752-07-0164-C-1 NY-0752-07-0100-C-1 v. DEPARTMENT OF LABOR, Agency. DATE: May 20, 2016 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Anthony D. Mozone, Brooklyn, New York, pro se. Donyell Marie Thompson, Esquire, New York, New York, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which de..
More
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY D. MOZONE, DOCKET NUMBER
Appellant, NY-0752-07-0164-C-1
NY-0752-07-0100-C-1
v.
DEPARTMENT OF LABOR,
Agency. DATE: May 20, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony D. Mozone, Brooklyn, New York, pro se.
Donyell Marie Thompson, Esquire, New York, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 In early 2007, the appellant had two matters before the Board. The first was
a petition for attorney fees stemming from his successful appeal of a suspension.
See Mozone v. Department of Labor, MSPB Docket No. NY-0752-07-0100-A-1,
Attorney Fees File (0100 AFF). The second was a separate appeal stemming from
his removal. See Mozone v. Department of Labor, MSPB Docket No.
NY-0752-07-0164-I-1, Initial Appeal File (0164 IAF). The parties entered into a
settlement agreement and submitted it into the records to dispose of both matters.
See, e.g., Mozone v. Department of Labor, MSPB Docket No. NY-0752-07-0164-
C-1, Compliance File (CF), Tab 20. Among other things, the agreement provided
that the removal action would be replaced with a resignation and the agency
would provide a lump sum payment. CF, Tab 20 at 2. It also provided
instructions pertaining to how both parties would handle future reference checks
from prospective employers of the appellant. Id. at 3.
¶3 The appellant filed a petition for enforcement in December 2013, alleging
that the agency had breached the portion of the settlement agreement concerning
reference checks. CF, Tab 1 at 3. He requested retroactive consideration for past
vacancy announcements, damages, and reinstatement. Id. After collecting
evidence from the parties, the administrative judge denied the petition for
3
enforcement. CF, Tab 21, Compliance Initial Decision (CID). 2 The appellant has
filed a petition for review. Mozone v. Department of Labor, MSPB Docket No.
NY-0752-07-0164-C-1, Compliance Petition for Review (CPFR) File, Tab 1. The
agency has filed a response. CPFR File, Tab 4.
¶4 A settlement agreement is a contract, and the Board will therefore
adjudicate a petition to enforce a settlement agreement in accordance with
contract law. Walker-King v. Department of Veterans Affairs, 119 M.S.P.R. 414,
¶ 9 (2013). The party seeking enforcement of the settlement agreement bears the
ultimate burden of showing that the other party breached the agreement. Id. To
establish a breach of a settlement agreement, the petitioning party “must show
material noncompliance” with a term of the contract. Id. (quoting Lutz v. U.S.
Postal Service, 485 F.3d 1377, 1381 (Fed. Cir. 2007)). A party’s breach of an
agreement is material when it relates to a matter of vital importance or goes to the
essence of the contract. Id.
¶5 In his petition for review, the appellant first questions the authenticity of
the settlement agreement included in the record. CPFR File, Tab 1 at 2. In doing
so, he notes that the administrative judge indicated that the National Record
Center had misfiled the underlying appeal, requiring recreation of the file based
on the Board’s records. Id.; see CID at 1 n.1. However, the appellant has
provided nothing more than speculation that the settlement agreement included in
the record may be a prior draft, rather than the final version, without any
argument or evidence supporting that possibility. CPFR File, Tab 1 at 2.
Moreover, the copy of the agreement in the compliance file has the signatures of
all relevant parties, including that of the appellant and the attorney that
2
The appellant’s petition for enforcement was initially docketed incorrectly. CID at 1
n.1. However, the administrative judge corrected the error by docketing the matter
under the joined MSPB Docket Nos. NY-0752-07-0164-C-1 and NY-0752-07-0100-C-1.
CID at 1; 5 C.F.R. § 1201.36(a), (b) (joinder of two or more appeals filed by the same
appellant is appropriate where doing so would expedite case processing and will not
adversely affect the parties’ interests). They remain joined on review.
4
represented him at the time, which is inconsistent with his suggestion that it could
be a prior draft. CF, Tab 20 at 6. That copy also matches the original included in
the file for the appellant’s prior removal appeal. 0164 IAF, Tab 22. Accordingly,
the appellant’s questioning of the veracity of the settlement agreement included in
the record does not provide any basis for disturbing the initial decision.
¶6 The appellant next reasserts that the agency violated his privacy rights.
CPFR File, Tab 1 at 3. When he raised this argument below, the appellant alleged
that he happened to run into an agency employee, D.S., and that individual
reportedly indicated that she had viewed the appellant’s records because they
were maintained in an unsecured area within the office. 3 CF, Tab 5 at 4-6, Tab 9
at 4, 11. The agency responded, in part, by providing a sworn declaration from
D.S. in which she acknowledged having a brief conversation with the appellant
after running into him. CF, Tab 18 at 4-7. However, D.S. denied that she had
viewed any records pertaining to the appellant or told him otherwise. Id. The
appellant seems to argue that the administrative judge should have conducted a
credibility analysis to address this matter. CPFR File, Tab 1 at 4. However, the
administrative judge dismissed the appellant’s privacy argument, finding that the
security of his records was not an issue that could be addressed in this
enforcement action. CID at 10-11. We agree.
¶7 The Board does not have the authority to remedy all matters alleged to be
unfair or incorrect; rather, the Board’s authority is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Accordingly, even if
the appellant had proven that the agency violated his privacy by leaving his
personnel records unsecured in an agency office, that issue is beyond the scope of
the instant enforcement action. See Mobley v. U.S. Postal
Service, 55 M.S.P.R. 467, 474 (1992) (finding that the Board will not imply a
3
Although the appellant’s allegations did not specify what records were reportedly
unsecured, he seems to imply that they were his employment records. CF, Tab 5 at 4.
5
term into an agreement that is unambiguous, and will not hear a party’s
complaints about matters that were not included in a settlement agreement). The
settlement agreement did not require the agency to store the appellant’s records in
any particular fashion, nor did it limit access of those records to certain agency
employees. CF, Tab 20; cf. Doe v. Department of the Army, 116 M.S.P.R. 160,
¶¶ 8-9 (2011) (recognizing that, when an agency has contractually agreed to
provide an employee with a clean record, the Board recognizes an implied
provision that precludes the agency’s disclosure of information regarding the
rescinded adverse action to third parties). Accordingly, the agency’s purported
violation of the appellant’s privacy cannot be addressed in this enforcement
action.
¶8 The appellant also reasserts that the agency violated the settlement
agreement by giving out his employment history to a prospective employer,
Federation of Multi-Cultural Programs, Inc., verbally, when it should have done
so in writing. CPFR File, Tab 1 at 3. We find that this argument does not
provide a basis for review.
¶9 It appears that the only evidence the appellant presented to establish that the
agency provided a verbal reference check to Federation of Multi-Cultural
Programs, Inc., is a form generally stating that the entity verified the appellant’s
employment and personal references in July 2008. CF, Tab 9 at 17, Tab 10 at 20.
The appellant has failed to identify any evidence to show that this included
verification of his employment at the agency or prove that such verification, if it
occurred, was verbal. Moreover, the administrative judge properly concluded that
the appellant, himself, was in breach of the settlement agreement because he
failed to formally notify the agency in advance of this and other reference checks.
CID at 8-10. While the settlement required the agency to utilize a previously
agreed upon written reference, the appellant was required to “notify the Agency
prior to any inquiries from non-[agency] employers for employment references.”
CF, Tab 20 at 3. Therefore, even if the agency provided a verbal verification of
6
the appellant’s employment to Federation of Multi-Cultural Programs, Inc., as
alleged, he is not entitled to any relief. See Wofford v. Department of
Justice, 115 M.S.P.R. 367, ¶¶ 15-16 (2010) (recognizing the unclean hands
doctrine, which “closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief,
however improper may have been the behavior of the defendant”) (quoting
Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324
U.S. 806, 814 (1945)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 4
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
4
The administrative judge did not provide the appellant notice of his mixed-case right
to appeal his discrimination claims to the Equal Employment Opportunity Commission
and/or the United States District Court. We notify the appellant of his proper appeal
rights in this Final Order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012); see
also Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 25 (2015).
7
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
