The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIAN D. GADDY, DOCKET NUMBER
Appellant, AT-0752-14-0313-I-1
v.
DEPARTMENT OF LABOR, DATE: September 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chungsoo J. Lee, Feasterville Trevose, Pennsylvania, for the appellant.
Amy R. Walker, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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, and based on the following
points and authorities, 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).
BACKGROUND
¶2 The agency removed the appellant from her position as a GS-11 Claims
Examiner effective May 5, 2012, for poor performance. Initial Appeal File (IAF),
Tab 5 at 38-39. The appellant appealed her removal to the Board, which the
parties resolved through a last chance settlement agreement (LCA). Id. at 40-50.
Pursuant to the LCA, the appellant agreed that if she failed to achieve a
performance rating of at least “minimally successful” by the end of fiscal year
(FY) 2013, her removal would be reinstated immediately and she would not be
entitled to an advanced notice period or the opportunity to respond. Id. at 43-44.
The LCA further provided that the appellant waived her right to appeal the
reinstated removal to the Board. Id. at 44. The administrative judge found the
LCA to be lawful on its face, that the appellant represented that she understood
the agreement and that she entered into it voluntarily, and the administrative
judge entered it into the record for purposes of enforcement by the Board in a
September 21, 2012 initial decision dismissing the case as settled. Gaddy v.
3
Department of Labor, MSPB Docket No. AT-0432-12-0550-I-1, Initial Decision
at 1-2 (Sept. 21, 2012).
¶3 On November 18, 2013, the agency reinstated the removal action effective
November 21, 2013, based on the appellant’s failure to meet the minimum level
of acceptable performance for FY 2013, as stipulated in the LCA. 2 IAF, Tab 5
at 65. The appellant filed a new appeal of the reinstated removal to the Board,
alleging that it was improper because she “did not fail all of [her] standards.”
IAF, Tab 1 at 6. In support, she provided a “Quarter FY-10 Operations Summary
Report for Unit H,” which she had apparently prepared, and a brief timeline of
her employment with the agency from 2005 through the date of her removal. Id.
at 5-8. The appellant further argued that the removal action was based on
discriminatory and retaliatory motivations and “pretext associated with the
improper Last Chance Agreement.” Id. at 5. The agency moved to dismiss the
appeal for lack of Board jurisdiction, as the appellant had waived her right to
appeal the reinstated removal in the LCA. IAF, Tab 5. The administrative judge
issued a jurisdictional order explaining that the Board may not have jurisdiction
over the appeal given the appeal rights waiver in the LCA. IAF, Tab 7. The
appellant responded that the Board should find jurisdiction because the appeal
rights waiver was essentially invalid and unenforceable, and because the agency
breached the LCA when it reinstated her removal 2 days prior to the date of the
November 20, 2013 unsatisfactory performance rating. IAF, Tab 8 at 4-11.
¶4 In an April 10, 2014 initial decision, the administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to establish that
the appeal rights waiver was invalid or unenforceable, or that the agency had
materially breached the LCA. IAF, Tab 9, Initial Decision at 3-4.
2
The appellant’s performance appraisal and rating dated November 20, 2013, reflects
that the appellant’s performance for the period from October 1, 2012, to September 30,
2013, was rated as unsatisfactory. IAF, Tab 5 at 55-62.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant filed a petition for review of the April 10, 2014 initial
decision, arguing again that the Board should find jurisdiction to review her
removal because the appeal rights waiver was invalid and unenforceable, and
because the agency had breached the LCA. Petition for Review (PFR) File,
Tab 1. The agency responded that the appellant failed to establish a basis for
Board review. PFR File, Tab 3.
¶6 The Board does not have jurisdiction over a personnel action taken pursuant
to an LCA in which an appellant waives her right to appeal to the Board. Willis v.
Department of Defense, 105 M.S.P.R. 466, ¶ 17 (2007); Rosell v. Department of
Defense, 100 M.S.P.R. 594, ¶ 7 (2005), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
The appellant bears the burden of proving that her appeal is within the Board’s
jurisdiction. Rosell, 100 M.S.P.R. 594, ¶ 7. To establish that a waiver of appeal
rights in an LCA should not be enforced an appellant must show one of the
following: (1) she complied with the LCA; (2) the agency materially breached
the LCA or acted in bad faith; (3) she did not voluntarily enter into the LCA; or
(4) the LCA resulted from fraud or mutual mistake. Willis, 105 M.S.P.R. 466,
¶ 17. Where an appellant raises a nonfrivolous factual issue of compliance with
an LCA, the Board must resolve that issue before addressing the scope and
applicability of a waiver of appeal rights in the LCA. Id., ¶ 18; Zordel v.
Department of Defense, 99 M.S.P.R. 554, ¶ 13 (2005). Further, where an
appellant makes a nonfrivolous allegation of fact that she did not breach an LCA,
a jurisdictional hearing is warranted to resolve the issue of compliance. Gibbons
v. Department of Agriculture, 74 M.S.P.R. 33, 36 (1997). Nonfrivolous
allegations of Board jurisdiction are allegations of fact which, if proven, could
establish a prima facie case that the Board has jurisdiction over the matter at
issue. Willis, 105 M.S.P.R. 466, ¶ 18.
¶7 First, the appellant has failed to make a nonfrivolous allegation that she did
not breach the LCA. On review, the appellant does not allege that she complied
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with the LCA by achieving a performance rating of at least minimally satisfactory
by the end of FY 2013. See PFR File, Tab 1. Although she generally disputed
her unsuccessful performance rating below, she failed to nonfrivolously allege
that she did not breach the LCA because her performance was at least minimally
satisfactory by the end of FY 2013. See IAF, Tab 1 at 6 (“I did not fail all of my
standards”), Tab 8 at 6 (“Appellant rigorously disputes the [performance]
rating”), 56, ¶ 30 (“I dispute the rating of ‘unsatisfactory’ performance”). Even if
proven true, these allegations would not establish that the appellant had
satisfactory performance, but only that she disagrees with the rating. Further, the
operations summary report from FY 2010, even if proven true, does not constitute
a nonfrivolous allegation that the appellant had satisfactory performance in
FY 2013. As such, these vague allegations do not constitute a nonfrivolous
allegation that she complied with the LCA and are insufficient to warrant a
jurisdictional hearing to resolve the issue of compliance.
¶8 Second, the appellant’s arguments that the agency materially breached the
LCA are unpersuasive. On review, the appellant argues that the agency violated
the LCA by reinstating her removal 2 days prior to issuing the unsatisfactory
performance rating and because the rating was never “finalized,” as it lacks the
reviewing official’s signature. PFR File, Tab 1 at 6-7. For an appellant to prove
Board jurisdiction over an appealable matter on the basis that an agency breached
an LCA, she must establish that the agency breached the agreement in a material
way, regardless of motive, or otherwise breached the agreement by acting in bad
faith. Link v. Department of Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). A
breach is material when it relates to matters of vital importance, or goes to the
essence of the contract. Gilbert v. Department of Justice, 334 F.3d 1065, 1071
(Fed. Cir. 2003). We do not find that reinstating the appellant’s removal 2 days
prior to issuing the unsatisfactory performance rating, or the fact that it was not
signed by the reviewing official, are of vital importance to the contract. Further,
we do not find that these allegations indicate that the agency acted in bad faith.
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We therefore agree with the administrative judge that the agency did not
materially breach the LCA.
¶9 Finally, we will not consider whether the LCA was involuntary or the result
of fraud or mutual mistake. On July 30, 2014, the Clerk of the Board issued a
show cause order to the appellant instructing her to clarify the basis of her
petition for review; specifically, whether she sought to challenge the validity of
the LCA. PFR File, Tab 4. The show cause order advised that an attack on the
validity of a settlement agreement must be made in the form of a petition for
review of the initial decision dismissing the case as settled. Id.; see Weldon v.
Department of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013); Lange v.
Department of the Interior, 98 M.S.P.R. 146, ¶ 3 (2005). As such, to the extent
the appellant was seeking to challenge the validity of the LCA, the order
explained that the Clerk of the Board would docket her filing as a petition for
review of the September 21, 2012 initial decision dismissing the case as settled
and allow her an opportunity to show good cause for the untimely challenge to the
LCA. PFR File, Tab 4 at 2. The order further provided that if the appellant
failed to respond within 15 days, the Board would conclusively determine that she
has decided not to contest the validity of the settlement agreement. Id. at 2-3.
The Board did not receive any response from the appellant. Accordingly, we
have conclusively determined that the appellant does not seek to challenge the
validity of the LCA and, for the purposes of this appeal, it is presumed valid and
enforceable.
¶10 Based on the above, we agree with the administrative judge that the Board
lacks jurisdiction to review the appellant’s reinstated removal, as the appellant
failed to establish that the appeal rights waiver in the LCA should not be
enforced.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.