John F. Gard v. Department of Education

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
06-3052
JOHN F. GARD,
Petitioner,
v.
DEPARTMENT OF EDUCATION,
Respondent.
________________________
DECIDED: April 11, 2006
________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and GAJARSA
Circuit Judge.
PER CURIAM.
DECISION
John Gard (“Mr. Gard”), a Systems Accountant in the Office of the Chief
Financial Officer with the Department of Education ("DOE"), petitions us from the final
order of the Merit Systems Protection Board (“Board”) affirming the Administrative
Judge's ("AJ's") decision not to enforce a settlement agreement. Gard v. Dep't of Educ.,
M.S.P.B. No. DC-1221-02-0128-C-2 (September 21, 2005) (“Final Order”). For the
reasons stated below, we affirm the Board's decision.

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BACKGROUND
Mr. Gard and the DOE executed a settlement agreement on May 20, 2002 to
resolve his whistleblower reprisal claims that were pending before the Board. Pursuant
to the agreement, Mr. Gard agreed to withdraw his pending appeal, and, with certain
exceptions, forbear from filing any lawsuits against the DOE for any circumstances
relating to his employment arising on or before the date of the agreement. In return, the
DOE agreed not to propose or implement an adverse action against Mr. Gard for any
employment related circumstance known to the DOE at the time of the agreement. The
DOE also agreed to allow Mr. Gard to stay at his current position, to not reassign
Mr. Gard without his approval for six months after recording the settlement agreement,
and to award him a one-step pay increase. The DOE complied with all the terms of the
settlement agreement.
In December of 2004, Mr. Gard filed a petition for enforcement of the settlement
agreement. He alleged that the DOE did not implement the settlement agreement in
good faith, and therefore, was not in compliance with the terms of the agreement.
Mr. Gard specifically claimed that the DOE violated the agreement by (1) giving him few
meaningful work assignments; (2) creating a hostile work environment; (3) denying a
request to attend a training class; and (4) refusing to allow him to work on his lawsuits
against the DOE at home on official government time.
On April 1, 2005, the AJ issued an initial decision denying Mr. Gard's petition for
enforcement of the settlement agreement. Gard v. Dep't of Educ., M.S.P.B. No.
DC-1221-02-0128-C-2 (April 1, 2005) (“Initial Decision”). According to the AJ, Mr. Gard
did not demonstrate how his claims reflected a bad faith implementation of the
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settlement agreement. Id. at 10. Particularly, Mr. Gard failed to illustrate a connection
between the terms of the settlement agreement and his perceived problem with the
DOE. Id. Furthermore, Mr. Gard was not able to show any motivation by his current
supervisor, Mr. Mueller, to act in a manner that could be attributed to the bad faith
performance of the settlement agreement. Id. Subsequently, the Board denied
Mr. Gard's petition to review the AJ's initial decision, thus rendering it final. Final Order
at 1. Mr. Gard timely appealed.
STANDARD OF REVIEW
We must affirm the decision of the Board unless the decision is: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Kievenaar v. Office of
Pers. Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). We have jurisdiction over “a
petition to review a final order or final decision of the Board.” 5 U.S.C. § 7703(b)(1)
(2000). Interpretation of the terms of a settlement agreement is a question of law which
we review de novo. See King v. Dep't of Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997).
DISCUSSION
In a settlement agreement, like any other contract, there is a requirement that the
parties fulfill their respective contractual obligations in good faith. Link v. Dep't of the
Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). Thus, a party may breach a settlement
agreement by acting in bad faith with respect to a settlement term. Id. Mr. Gard needs
to establish that the DOE breached the settlement agreement by showing that its
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actions constituted bad faith noncompliance with the terms. See Kuykendall v. Dep't of
Veterans, 68 M.S.P.R. 314, 323 (1995). Mr. Gard fails to establish this breach.
Mr. Gard agrees that the DOE met each of its obligations expressed in the
settlement agreement. Nevertheless, he claims that the DOE merely returned him to
his position, and did not honor the underlying, implied contract terms of providing
meaningful work assignments and a non-hostile working environment. See Id.
(construing . . . a settlement term as obligating the agency merely to technically and
facially reinstate the appellant would be unreasonable). Additionally, he claims that
after returning to work, the DOE breached the settlement agreement by acting in bad
faith in denying a request to attend a training class and refusing to allow him to work on
his lawsuits against the DOE at home on official government time.
In his complaint to the Board, Mr. Gard cites several occasions in which his
current supervisor, Mr. Mueller, did not give him meaningful work assignments. "A mere
showing of some frictions, misunderstandings, or unpleasantness between the appellant
and other employees or managers" is not sufficient to meet the burden to establish that
the DOE acted in bad faith with respect to the agreement. See id. at 325. Mr. Gard
alleges some complaints regarding the quality of his current assignments, but he mostly
cites unpleasant interactions with Mr. Mueller. Mr. Gard, however, fails to make a
connection between his current assignments, the friction with Mr. Mueller and the terms
of the settlement agreement. Without this connection, the AJ was unable to find that the
DOE acted in bad faith.
Mr. Gard also fails to support his claim that the DOE is creating a hostile work
environment as a breach of the settlement agreement. Mr. Gard only points to one
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limited encounter in which he was reprimanded by Mr. Mueller to support his claim.1
Mr. Gard, however, failed to produce evidence illustrating a pattern of such behavior
dating back to the settlement agreement implementation. Thus, Mr. Gard fails to show
how this one encounter demonstrates that the DOE provided a hostile work
environment and acted in bad faith.
Next, Mr. Gard's claim that the DOE acted in bad faith because it denied his
training request is equally lacking. First, there is no term in the settlement agreement
requiring the DOE to provide any training. Second, Mr. Gard has attended several
training classes since the settlement agreement was implemented.2 Third, Mr. Mueller
did not deny Mr. Gard's training request, but asked that he take a similar class offered
by a different class provider, Management Concepts. Mr. Gard was not able to take the
Management Concepts class and asked again to take the class with ESI, a different
class provider. Mr. Mueller denied the request. The denial of a single request, which
was not a term of the settlement agreement, is not a reflection of the DOE's bad faith.
Finally, Mr. Gard's claim, that the DOE's refusal to allow him to work on his
lawsuits against the DOE at home on official government time does not support his
1 On November 17, 2004, Mr. Gard distributed an email concerning a
potential change in employee cube location which was never confirmed, causing some
confusion in the office. Mr. Mueller reprimanded Mr. Gard for sending an email based
on rumor.
2 As recently as April of 2004, Mr. Mueller granted two of Mr. Gard's
requests to attend different training classes.
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claim of bad faith. Mr. Gard provided no evidence to the Board that indicated he and his
employer had such an arrangement. Moreover, this requested accommodation does
not appear in the settlement agreement, and the DOE is not required to allow such
absences from work. Thus, the DOE's denial of his request was not in bad faith.
Because the Board's decision is supported by substantial evidence and the DOE
did not implement the settlement agreement in bad faith, we affirm.
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