Calhoun v. Gsa , 636 F. App'x 571 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IONA CALHOUN,
Petitioner
v.
GENERAL SERVICES ADMINISTRATION,
Respondent
______________________
2015-3198
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-14-0758-W-1.
______________________
Decided: January 12, 2016
______________________
IONA CALHOUN, Silver Spring, MD, pro se.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ELIZABETH
M. HOSFORD, ROBERT E. KIRSCHMAN, JR., BENJAMIN C.
MIZER.
______________________
Before PROST, Chief Judge, MOORE, and TARANTO, Circuit
Judges.
2 CALHOUN v. GSA
PER CURIAM.
Iona Calhoun worked for the General Services Admin-
istration for over twenty years before retiring in 2005. In
the present action, she alleges that the GSA had refused
to promote her—and thus had underpaid her—because of
protected disclosures she made while working at the
agency. The Merit Systems Protection Board dismissed
Ms. Calhoun’s claims for lack of jurisdiction. We affirm.
BACKGROUND
Ms. Calhoun worked for the GSA between 1977 and
2005. When she first transferred to the GSA from the
Office of Management and Budget, Ms. Calhoun’s em-
ployment level was GS-11. Eleven months after her
transfer to the GSA, Ms. Calhoun received a promotion to
level GS-12.
In 2007, after retiring, Ms. Calhoun sued the Admin-
istrator of the GSA in the United States District Court for
the District of Columbia, alleging violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.;
the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq.; and the Equal Pay Act, 29 U.S.C. § 206(d).
Calhoun v. Prouty, 643 F. Supp. 2d 87, 90 (D.D.C. 2009).
She alleged that the GSA discriminated (including retali-
ated) against her on the basis of age, sex, and race by not
selecting her for a GS-14 position she sought in December
2000. Id. at 93. The district court granted summary
judgment to the GSA on all of Ms. Calhoun’s claims. Id.
at 97. When Ms. Calhoun appealed, the United States
Court of Appeals for the District of Columbia Circuit
affirmed in part and reversed in part, remanding one of
Ms. Calhoun’s claims for trial. Calhoun v. Johnson, 632
F.3d 1259, 1264 (D.C. Cir. 2011).
In June 2012, Ms. Calhoun and the GSA settled their
dispute. In the settlement agreement, Ms. Calhoun
agreed “not to hereafter assert any claim or institute or
CALHOUN v. GSA 3
prosecute any civil action or other proceeding against . . .
the Agency . . . with respect to any event complained of” in
the 2007 district court action. J.A. 77. The agreement
states that Ms. Calhoun had 21 days to sign and seven
days to revoke after signing, and it advises her to consult
an attorney before signing. J.A. 76.
In September 2013, Ms. Calhoun filed a complaint
with the Office of Special Counsel under 5 U.S.C.
§ 1214(a), alleging that she was due back pay for what she
alleged to be unwarranted personnel actions. The Office
of Special Counsel declined to investigate her claims, and
in May 2014 she filed this Individual Right of Action
appeal with the Board under 5 U.S.C. §§ 1214(a)(3),
1221(a). She alleged that she was due back pay because
the GSA had failed to promote her from GS-11 to GS-12
until eleven months after she had started working there
in December 1977 and had later refused to promote her to
a GS-14 position despite the fact that she was performing
GS-14-level roles and carrying GS-14-level responsibili-
ties.
In June 2014, the Board ordered Ms. Calhoun to prove
that it had jurisdiction to hear her appeal. She responded
that she sought back pay for the GSA’s failure to promote
her to a GS-14 position and identified two disclosures that
she had made as president of her local union as motivat-
ing the GSA’s conduct. One was a class-action employ-
ment-discrimination complaint filed in 2001, the other an
overtime-pay grievance filed in 2002. She alleged that
her union activities and those disclosures contributed to
the GSA’s continuing decision not to promote her.
In October 2014, the Board again ordered Ms. Cal-
houn to demonstrate its jurisdiction over her appeal,
highlighting its concern that the 2012 settlement agree-
ment barred her claim. Ms. Calhoun responded that the
GSA’s prohibited personnel practices at issue were not
actually litigated in the 2007 district court action, and she
4 CALHOUN v. GSA
maintained that the Board had jurisdiction over her
appeal because she non-frivolously alleged that she had
made protected disclosures that contributed to prohibited
personnel practices against her. She demanded “back pay
that [she] earned from December 1977 through December
2000.” J.A. 98.
An administrative judge dismissed Ms. Calhoun’s
appeal based on issue preclusion, and Ms. Calhoun then
petitioned for review by the full Board. The Board, while
vacating the issue-preclusion ruling, denied her petition
for review. First, the Board determined that the settle-
ment agreement covered Ms. Calhoun’s claim that the
GSA violated 5 U.S.C. § 2302(b)(8) in denying her a
promotion to GS-14 in 2000; accordingly, Ms. Calhoun
had waived that claim. Second, the Board concluded that
Ms. Calhoun had failed to make non-frivolous allegations
of the elements needed for Board jurisdiction under
§§ 1214(a)(3) and 1221(e)(1) to hear the Individual Right
of Action appeal. In particular, the Board found no non-
frivolous allegations that her disclosures in 2001 and
2002 contributed to the GSA’s failure to timely promote
her to GS-12 in 1977. For those reasons, the Board dis-
missed Ms. Calhoun’s appeal for lack of jurisdiction. We
have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1)(B).
DISCUSSION
We review de novo the Board’s legal determination
that it lacked jurisdiction to hear Ms. Calhoun’s appeal.
Clark v. Merit Sys. Prot. Bd., 361 F.3d 647, 649 (Fed. Cir.
2004). We review the Board’s factual findings underlying
its jurisdiction determination for substantial evidence.
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998). Ms. Calhoun has the burden of establishing
the Board’s jurisdiction by a preponderance of the evi-
dence. Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210,
1212–13 (Fed. Cir. 2003). We review the Board’s inter-
CALHOUN v. GSA 5
pretation of a settlement agreement de novo. King v.
Dep’t of Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997).
Ms. Calhoun’s passing references to the GSA’s com-
mission of prohibited personnel practices under 5 U.S.C.
§ 2302(b)(1) do not satisfy her burden to show the Board’s
jurisdiction. Section 2302(b)(1) prohibits employees who
are authorized to take, recommend, or approve personnel
actions from discriminating against employees in viola-
tion of various federal statutes. Ms. Calhoun has not
alleged any facts showing discrimination on any basis
covered by § 2302(b)(1).
Ms. Calhoun has also presented no non-frivolous
allegations that the GSA’s failure to promote her in 1977
justifies the Board’s jurisdiction. To obtain a remedy
under § 1221(e)(1), Ms. Calhoun must show that she made
a protected disclosure, § 2302(b)(8), or engaged in a pro-
tected activity, § 2302(b)(9)(A)(i), (B)–(D), and that her
disclosure or activity contributed to the GSA’s decision to
commit a prohibited personnel practice as defined by
§ 2302(a). The Board found that Ms. Calhoun had alleged
that she made protected disclosures only in 2001 and
2002. Indeed, Ms. Calhoun has pointed to only two alleg-
edly protected disclosures: a class-action complaint filed
in 2001 and a grievance filed in 2002. Because these
disclosures post-date the GSA’s failure to promote Ms.
Calhoun in 1977, they cannot have contributed to the
GSA’s failure to promote her then. Davis v. Merit Sys.
Prot. Bd., 278 F. App’x 1009, 1012–13 (Fed. Cir. 2008);
Horton v. Dep’t of Navy, 66 F.3d 279, 284 (Fed. Cir. 1995).
Thus, the Board’s finding is supported by substantial
evidence and suffices to uphold the conclusion that the
Board lacks jurisdiction to consider Ms. Calhoun’s claim
that the GSA failed timely to promote her in violation of 5
U.S.C. § 1221(e)(1).
Ms. Calhoun also contends that she did not waive her
remaining claim in the 2012 settlement agreement be-
6 CALHOUN v. GSA
cause she entered into that agreement under duress. The
Board correctly concluded that the settlement agree-
ment’s waiver provision is enforceable. Under the agree-
ment, Ms. Calhoun had 21 days to consider its terms, and
she had express notice that by signing she
“acknowledge[d] that her decision . . . [was] knowing and
voluntary, and . . . not . . . induced by any threat, promise,
or other representation attributable to” the GSA. J.A. 76.
The agreement also states that Ms. Calhoun would have
seven days to revoke her agreement after signing and that
she should consult an attorney. Ms. Calhoun and her
attorney signed the agreement. Ms. Calhoun’s allegation
that “[m]entally, physically, and financially, after more
than twenty years, [she] could not afford to fight GSA any
longer,” J.A. 124, does not amount to sufficient duress to
invalidate the agreement. Long v. U.S. Postal Serv., 229
F. App’x 919, 921 (Fed. Cir. 2007).
Under the 2012 settlement agreement, Ms. Calhoun
waived her claim that the GSA’s failure to select her for a
GS-14 position in 2000 violates 5 U.S.C. § 2302(b). Ac-
cording to the settlement agreement, Ms. Calhoun agreed
“not to hereafter assert any claim or institute or prosecute
any civil action or other proceeding against . . . the Agency
. . . with respect to any event complained of therein.” J.A.
77. Ms. Calhoun applied but was not selected for a GS-14
Computer Specialist position in 2000. Prouty, 643 F.
Supp. 2d at 93. In the 2007 district court action, she
alleged that her non-selection for that position in 2000
violated Title VII of the Civil Rights Act of 1964. Id. at
93–94. Ms. Calhoun therefore is now asserting a claim
against the GSA concerning an event that she complained
of in the 2007 action. The settlement agreement covers
Ms. Calhoun’s claim regarding the GSA’s failure to pro-
mote her to a GS-14 position in 2000, and Ms. Calhoun
has waived that claim.
Moreover, Ms. Calhoun at most frivolously alleges
that the GSA violated 5 U.S.C. § 2302(b) by its continuing
CALHOUN v. GSA 7
decision not to promote her to a GS-14 level position. Ms.
Calhoun has demanded only “back pay that [she] earned
from December 1977 through December 2000,” J.A. 98,
and, as discussed above, she has not pointed to any agen-
cy actions post-dating her 2001 and 2002 disclosures.
The Board did not address Ms. Calhoun’s arguments
that the GSA breached the settlement agreement, and
rightly so. The Board’s jurisdiction is strictly limited to
that provided by statute, rule, or regulation. 5 U.S.C.
§ 7701(a); Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378,
1380 (Fed. Cir. 1996). Ms. Calhoun has pointed to no
statute providing the Board jurisdiction to enforce a
settlement agreement entered in a forum other than the
Board. See 5 C.F.R. § 1201.3; Berry v. Merit Sys. Prot.
Bd., No. 08-3235, 2009 WL 89668, at *2 (Fed. Cir. Jan. 15,
2009).
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Merit Systems Protection Board.
No costs.
AFFIRMED