Barnett v. Department of Agriculture , 113 F. App'x 908 ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3276
SANDRA F. BARNETT,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
_________________________
DECIDED: November 4, 2004
_________________________
Before MAYER, Chief Judge, LOURIE and DYK, Circuit Judges.
PER CURIAM.
Sandra F. Barnett appeals from the final decision of the Merit Systems Protection
Board denying her petition for enforcement of a settlement agreement. Barnett v. Dep’t
of Agric., No. AT-0752-02-0853-C-1 (M.S.P.B. March 10, 2004) (“Final Order”). We
affirm.
BACKGROUND
Sandra F. Barnett was a Food Safety inspector, GS-7, for the Department of
Agriculture, Food Safety and Inspection Service, Moselle, Mississippi (“the agency”).
Barnett v. Dep’t of Agric., No. AT-0752-02-0853-C-1 (M.S.P.B. Feb. 13, 2003).
Effective August 18, 2002, Barnett was removed from her position for allegedly failing to
report for duty as scheduled. On September 9, 2002 she appealed her removal to the
Merit Systems Protection Board.
On February 6, 2003, the Administrative Judge (“AJ”) conducted a hearing on
Barnett’s appeal from the agency’s action. Id. During the hearing, Barnett and the
agency reached a settlement on the appeal. Id. The settlement agreement called for
Barnett’s resignation from the agency. The agreement also required the agency to
remove the Notice of Removal from Barnett’s official personnel file. With respect to
confidentiality, the agreement provided that: “[T]he settlement agreement will not be
discussed with, disclosed or released to anyone who does not need the information to
implement the agreement. . . .”
On February 18, 2003, Barnett filed an appeal at the Board accusing the agency
of breaching the settlement agreement. Barnett v. Dep’t of Agric., No. AT-0752-02-
0853-C-1, slip op. at 1 (M.S.P.B. June 10, 2003) (“Initial Decision”). Barnett contended
that the agency materially breached the agreement by failing to keep the terms of the
agreement confidential. She asserted that unauthorized agency employees were
informed of the settlement agreement.
The AJ determined that several agency employees present at Barnett’s February
6, 2003 hearing were informed of a possible settlement agreement between Barnett and
the agency. Id. at 3. An affidavit from Barbara Cooley, one of the agency employees
present at the hearing, testified:
Dr. Calloway . . . said that they were “compromising.” I took
that to mean Sandra [the appellant] and the agency were
coming to an agreement. Later, I recalled that Joyce, Dr.
Calloway and I were in the room when Dr. deMola made the
comment that he had offered to let her sign that she would
resign in place of the discharge. . . . Dr. deMola didn’t say
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anything about whether she actually signed or that the
information was confidential and should not be shared with
anyone. . . .
Id. at 3-4. Neither party disputes that within the following day, Ms. Cooley informed
other individuals in the agency of the settlement itself. Id. at 4.
With respect to materiality, Barnett argued that the confidentiality provision was
“of vital importance” because she wanted to protect the agency workforce from allegedly
“intolerable” working conditions. Id. at 5. By continuing with the February 6, 2003
hearing, Barnett speculated that she could have improved the working environment “by
showing the consequences of what was occurring in the [agency].” Id. Barnett claimed
that she sought to keep the agreement confidential because “she felt she let employees
in the plant down when she signed the agreement.” Id.
The agency argued that it did not intentionally violate the settlement agreement
because Ms. Cooley was not specifically told of the settlement terms. Id. at 4. The AJ
found the question of intent irrelevant because the mere act of “re-telling . . . one of the
settlement terms is the gravamen of the violation.” Id. Accordingly, the AJ held that Ms.
Cooley’s communication of the settlement to other agency employees breached the
agreement’s confidentiality provision. Id.
The AJ determined, however, that the agency’s breach of the confidentiality
provision was not material. Id. at 6. The AJ recognized that under the terms of the
agreement, Barnett was not going to return to the agency. Id. According to the AJ, as
far as the other agency employees knew, only one of two things could have happened
to Barnett after the February 6, 2003 hearing: her removal was upheld or she entered
into a settlement agreement. Id. Under either circumstance, nondisclosure of the
settlement terms in the workplace would not have furthered Barnett’s stated reason why
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the confidentiality provision was “of vital importance,“ i.e., to protect the workforce. Id.
at 6. On the contrary, the AJ posited that the disclosure of the settlement arguably
conveyed that Barnett had achieved some measure of relief regarding her claims. Id.
The AJ also determined that the purpose of the settlement agreement was to
allow Barnett to apply for other employment with a clean record. Id. To support that
finding, the AJ relied on “[t]he face of the agreement, as well as the pre-settlement
discussions to which the administrative judge were privy.” Id. Moreover, the AJ found
no settlement provision indicating Barnett’s desire to “protect other employees.” Id.
Accordingly, the AJ held that the agency’s disclosure of the settlement agreement to its
employees did not defeat the purpose of the confidentiality term.
Barnett petitioned the full Board for review of the Initial Decision. Concluding that
there was no new, previously unavailable evidence and that the AJ made no error in law
or regulation that affected the outcome of the appeal, the Board denied Barnett’s
petition, rendering the Initial Decision final. Final Order, slip op. at 1-2.
Barnett timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Congress has expressly limited the scope of our review in an appeal from the
Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.
Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard
04-3276 -4-
of review, a court will not overturn an agency decision if it is supported by ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison
Co. of N.Y. v. NLRB, 305 U.S. 197, 299 (1938)). Moreover, the Supreme Court has
explained that “the possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s findings from being supported by
substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
On appeal, Barnett makes two primary arguments. First, Barnett asserts that the
Board failed to consider the agency’s explicit representation that union president Joyce
Massey and Barnett’s supervisor, William Calloway, would not be informed of the
settlement agreement. Barnett appears to argue that the agency’s breach was material
because she would not have signed the settlement agreement if she knew that the
agency would inform those particular individuals of the agreement.
Barnett also argues that the disclosed settlement agreement will hinder future
attempts to improve the working conditions at the agency. Barnett speculates that the
disclosed agreement will discourage other employees from attempting to improve the
working conditions at the Food Safety and Inspection Service in Moselle, Mississippi.
To support her belief, Barnett cites the tenure of her employment at Moselle and the
resignations of other employees, but otherwise fails to explain how the disclosure of the
agreement will hinder future attempts to improve working conditions in Moselle with any
particularity.
We conclude that the Board did not err in determining that the agency did not
materially breach the settlement agreement. The agency does not dispute that it
04-3276 -5-
breached the agreement. Instead, the agency argues that Barnett has not identified any
evidence proving that the breach was material. In its opposition brief, the agency relies
on many of the AJ’s prior determinations to support its arguments. As the AJ previously
determined, the agency argues that the purpose of the confidentiality provision was to
allow Barnett to seek other employment without the stigma of removal. And nothing in
the record indicates that the limited disclosures shown here precluded Barnett from
obtaining other employment. The agency also cites the lack of evidence regarding how
the subsequent disclosure of the agreement was prejudicial to Barnett’s personal
motivation of improving the workplace.
In Thomas v. HUD, 124 F.3d 1439 (Fed. Cir. 1997), we stated that “[a] breach is
material when it relates to a matter of vital importance, or goes to the essence of the
contract.” Id. at 1442 (citing 5 Arthur L. Corbin, Corbin on Contracts § 1104 (1964)).
There is substantial evidence that the breach here does not “relate to a matter of vital
importance, or goes to the essence of the contract.” The agency is correct that Barnett
has not provided any evidence of material breach. Moreover, substantial evidence
supports the AJ’s finding that the purpose of the settlement was to allow Barnett to
apply for other employment with “a clean record,” i.e., pre-settlement discussions. Initial
Decision, slip op. at 6. In addition, we agree with the AJ that the settlement agreement
itself does not evince the intent to “protect other employees.” Id. at 5. The settlement
agreement itself stipulates that “this settlement is non-precedential and may not be cited
for any reason, including comparison, in any other proceeding in any forum.” Because
we conclude that the agreement does not evince the intent to protect other employees,
we need not decide whether such a provision would be enforceable by an employee
04-3276 -6-
who is not personally affected by the alleged breach. Accordingly, the Board’s holding
that the breach of the confidentiality provision of the settlement contract was not
material is supported by substantial evidence and was not contrary to law.
We have considered Barnett’s remaining arguments and find them unconvincing.
CONCLUSION
For the foregoing reasons, we affirm the Board’s decision.
04-3276 -7-