Whiteman v. Dep't of Transp.
| Decision Date | 10 August 2012 |
| Docket Number | No. 2011–3165.,2011–3165. |
| Citation | 688 F.3d 1336 |
| Parties | Anne WHITEMAN, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
OPINION TEXT STARTS HERE
Matthew D. Estes, Tully Rinckey, PLLC, of Washington, DC, argued for petitioner. On the brief was Steven L. Herrick.
Stacey K. Grigsby, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were Alexandra R. Randazzo and Brett Daee, Office of the Chief Counsel, Federal Aviation Administration, of Washington, DC.
Before DYK, O'MALLEY, and REYNA, Circuit Judges.
Anne Whiteman appeals the decision of the Merit Systems Protection Board (“MSPB”) dismissing her whistleblower retaliation action. The MSPB concluded that Whiteman was collaterally estopped from bringing her post-settlement retaliation claim by an earlier district court action she had filed and that she had waived her remaining claims by means of a settlement agreement.
Because the MSPB incorrectly concluded that Whiteman's post-settlement retaliation claim was collaterally estopped, we reverse the dismissal as to that claim only. We affirm as to the remaining claims because the MSPB's conclusion that the settlement agreement is enforceable is supported by substantial evidence and correctly applies the well-established law in this area.
Whiteman was employed by the Federal Aviation Administration (“FAA”) as an Air Traffic Control Specialist. Beginning as early as 1997, she reported to the Office of Special Counsel (“OSC”) various violations of laws, rules, or regulations, as well as mismanagement and abuses of authority by the FAA. Whiteman alleged that in retaliation for these disclosures, her colleagues and supervisors began to threaten, harass, and intimidate her. In response, Whiteman filed two separate Equal Employment Opportunity (“EEO”) actions. She claimed that her supervisors and colleagues continued the harassment, which on one occasion she reported to the local police.1
According to Whiteman, events came to a head when a fellow controller intentionally directed a plane into the airspace of an aircraft that Whiteman was directing. Although a collision was avoided, the harassment continued and ultimately resulted in Whiteman being excluded from the radar room and stripped of all her duties. She claims that she was placed in a room and under watch by her supervisor and given “no real job assignment” during this seclusion. A63. 2 When she asked how long her seclusion would last, she was given no response. She was not allowed to leave the office except to use the bathroom. Shortly thereafter, she was reassigned to the control tower instead of her previous job in the radar room. Whiteman “perceived this as a major step backward in [her] career” given that she had been certified to work in the radar room for over fifteen years and had worked in the control tower prior to that. A64.
On February 5, 2003, Whiteman entered into a settlement agreement with the FAA resolving all claims against the FAA, including “complaints, actions, disputes, controversies, or issues, pending or otherwise, known or unknown ... as of the date of the Settlement Agreement.” A35. In exchange, she received a guaranteed one-time priority consideration for the next available funded operations supervisor position at the Dallas Fort Worth Tower. The agreement defined “priority consideration” as “bona fide consideration given to an employee by the selecting official before any other candidates are referred for the position to be filled,” and required that Whiteman “is not to be considered in competition with other candidates and is not to be compared with other candidates.” A34. Whiteman and her attorney, as well as the air traffic division manager and an attorney for the FAA, signed the settlement agreement and acknowledged that she had voluntarily and freely entered into the agreement.
On October 8, 2003, the FAA posted a supervisory position vacancy without first notifying Whiteman of the vacancy. When the FAA realized that Whiteman was entitled to priority consideration for the position, it cancelled the vacancy announcement, notified Whiteman of the vacancy, and requested that she provide written notification if she intended to seek priority consideration. On December 9, 2003, Whiteman applied for the position. No other applicants were considered.
On December 18, 2003, the FAA adopted agency-wide air traffic pay scale changes, which reduced the salary of the supervisory position. The incumbent of the supervisory position to which Whitemanhad applied retired on January 3, 2004. Whiteman's application was ultimately accepted and she started her new job in the supervisory position in April 2004.
On June 1, 2004, Whiteman sued the FAA in the Eastern District of Texas, alleging that the FAA's delay in notifying her of the vacancy in October 2003 constituted a breach of the settlement agreement. Whiteman argued that the delay in hiring caused a reduction of her earnings due to pay scale changes affecting positions assumed after December 18, 2003. The court found that the undisputed facts showed that the FAA had not breached the settlement agreement because Whiteman had been given priority consideration. The court also found that, even if the FAA had breached the agreement, Whiteman had suffered no damages because she could not have assumed the supervisory position prior to the December 18, 2003, change in pay scale since the vacancy did not exist until the employee she replaced retired on January 3, 2004. Accordingly, the district court concluded that there was no remaining controversy and dismissed Whiteman's case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
On November 16, 2008, Whiteman filed an individual right of action (“IRA”) appeal before the MSPB contending that the FAA had unlawfully retaliated against her for her whistleblowing activities during the period from 1998 and October 3, 2003. In particular, she argued that the FAA intentionally delayed considering and promoting her and that it had exerted improper duress and coercion to induce her to sign the settlement agreement. Whiteman contended that as a result, she was precluded from obtaining the additional pay from the approximately three-month period between January 4, 2004, when the position first became vacant, and April 2004, when she was hired. The Administrative Judge (“AJ”) found that by the terms of the settlement agreement, Whiteman had waived her claims for retaliatory actions occurring prior to the date of the settlement. The AJ also determined that the settlement agreement was valid and enforceable. With respect to the alleged post-settlement delay in notifying Whiteman of the job opening, the AJ concluded that Whiteman was collaterally estopped from raising that issue by the district court proceeding she had previously brought for breach of the settlement agreement. Because Whiteman had identified no personnel action that was not waived, time-barred, or collaterally estopped, the AJ concluded that the Board lacked jurisdiction over her appeal.
Whiteman petitioned for review, and the MSPB affirmed and made final the dismissal by the AJ. The MSPB agreed with the AJ that Whiteman's execution of the settlement agreement was not the result of duress or coercion, but instead “a considered choice among undesirable options.” A19. With respect to collateral estoppel, the MSPB found that “[i]n both this appeal and the [d]istrict [c]ourt action, [Whiteman] raised the issue of whether the agency breached the settlement agreement in October 2003, thereby resulting in her non-selection for a promotion.” A22. It therefore concluded that the AJ had “properly found that this issue was already decided by the [d]istrict [c]ourt.” A22.
Whiteman appeals the MSPB's decision that she was collaterally estopped from litigating her post-settlement promotion delay claims by the district court proceedings and that certain of her claims were waived by the settlement agreement. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
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