The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. HARDY, DOCKET NUMBER
Appellant, AT-0752-14-0344-I-1
v.
DEPARTMENT OF THE ARMY, DATE: December 5, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Joshua Klinger, Denver, Colorado, for the appellant.
Anne M. Norfolk, Fort Benning, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appellant’s removal appeal for lack of jurisdiction pursuant to an
appeal rights waiver in a last chance settlement agreement (LCA). For the
reasons discussed below, we GRANT the appellant’s petition for review and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 The agency proposed to remove the appellant, a GS-8 lead firefighter, for
use of a controlled substance after he tested positive for marijuana use. Initial
Appeal File (IAF), Tab 5, Subtab 13. In lieu of removal, the parties entered into
a LCA, in which the agency agreed to hold the removal in abeyance for 1 year,
and the appellant agreed to participate in a drug rehabilitation program, provide
proof of his enrollment, and submit to drug testing. Id., Subtab 9 at 1. He also
agreed not to report to work under the influence of any drug or engage in any
misconduct or unprofessional behavior and waived his Board appeal rights if the
agency reinstated his removal due to any violation of these terms. Id. at 1-2.
¶3 The agency later reinstated the removal based on the appellant’s alleged
breach of the LCA. IAF, Tab 5, Subtabs 4-5. The agency charged that the
appellant violated the LCA when, on November 20, 2013, he was the initial fire
officer on scene but failed to observe adequate safety policy and procedures
associated with the mitigation of a natural gas leak and was derelict in the
performance of his duties because he “spent less than seven minutes investigating
the scene, failed to use the appropriate detection equipment or even observe the
lock on the gas line before declaring the scene safe.” IAF, Tab 5, Subtab 5 at 1-2.
The agency appears to contend that the appellant should have used the
Combustible Gas Indicator (CO1 or “sniffer”) instead of or in addition to the
multi-gas (“4 gas”) monitor and that he was negligent when he declared the scene
“fire safe” over the radio while the odor of natural gas was still easily detectible.
See id.; see also Petition for Review (PFR) File, Tab 3 at 6-7.
¶4 The appellant timely appealed the removal to the Board, arguing that he did
not violate the LCA and that the action was based on racial discrimination and
retaliation for whistleblowing. IAF, Tab 1 at 4. The agency moved to dismiss the
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appeal for lack of jurisdiction pursuant to the appeal rights waiver in the LCA.
IAF, Tab 3 at 3. The appellant responded that the Board should find jurisdiction
over his appeal because: (1) he did not breach the LCA; and (2) the agency
materially breached the LCA. IAF, Tab 6 at 4-8. The administrative judge issued
an initial decision without holding the requested hearing, finding that the Board
lacked jurisdiction because the LCA was valid; the appellant violated the LCA
when he failed to perform his duties satisfactorily and completely on November
20, 2013; and the appellant failed to show that the agency breached the LCA.
IAF, Tab 7, Initial Decision (ID) at 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant has filed a petition for review, arguing that the administrative
judge erred by: (1) failing to provide notice of the jurisdictional issue;
(2) improperly making credibility determinations, weighing evidence, and
resolving conflicting assertions without a hearing; and (3) denying the appellant a
jurisdictional hearing although he made a nonfrivolous allegation of jurisdiction.
PFR File, Tab 1 at 6-12. The agency has responded in opposition, and the
appellant has submitted a reply. PFR File, Tabs 3-4.
¶6 As a preliminary matter, we find that the administrative judge’s failure to
provide the appellant with Burgess notice—i.e., explicit information about the
evidence and arguments he must present in order to nonfrivolously allege the
Board’s jurisdiction—was cured because the agency’s motion to dismiss put the
appellant on notice of what he must do to establish jurisdiction. See Burgess v.
Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); Scott v.
Department of Justice, 105 M.S.P.R. 482, ¶ 6 (2007). Specifically, the agency
explained that in order to establish that the waiver of appeal rights should not be
enforced, the appellant must show that: he complied with the agreement; the
agency materially breached the agreement or acted in bad faith; he did not
voluntarily enter into the agreement; or the agreement resulted from fraud or
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mutual mistake. IAF, Tab 3 at 3 (citing Easterling v. U.S. Postal Service,
110 M.S.P.R. 41, ¶ 12 (2008)). Thus, the appellant was informed below of his
jurisdictional burden. IAF, Tab 6; see Scott, 105 M.S.P.R. 482, ¶ 6.
¶7 As the appellant was provided adequate notice, we turn to whether he made
a nonfrivolous allegation that he complied with the LCA. Where an employee
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. Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir.
1991). Further, where an appellant makes a nonfrivolous allegation of fact that
he did not breach a LCA, a jurisdictional hearing is warranted to resolve the issue
of compliance. See Williams v. Department of the Treasury, 52 M.S.P.R. 344,
347 (1991). A nonfrivolous allegation of fact is one that, if proven, would
establish a prima facie case that the appellant did not breach the LCA. See
Briscoe v. Department of Veterans Affairs, 63 M.S.P.R. 137, 140 (1994), aff’d,
55 F.3d 1571 (Fed. Cir. 1995) (Table). Here, as discussed below, we find that the
appellant’s assertions that he did not violate the LCA are nonfrivolous.
¶8 First, in his sworn statement, the appellant asserts that that he did not
breach the LCA because he properly handled the natural gas leak and followed all
agency policies on November 20, 2013. See IAF, Tab 6 at 13-15. Three of the
appellant’s coworkers attested that either the 4 gas monitor or the CO1 was an
appropriate detection device to use when responding to a natural gas leak. 2 Id. at
10, 11, 16-17. Further, in an apparent factual contradiction to the agency’s
allegation that the appellant failed to “observe the lock on the gas line,” IAF, Tab
5, Subtab 5 at 2, the appellant attested that he “notic[ed] that the gas meter had
been locked out,” IAF, Tab 6 at 14. For the agency’s part, it failed to submit
documentary evidence regarding adequate handling of a natural gas leak to
2
The appellant’s co-workers refer to Standard Operating Procedure #10, section 4.3,
which apparently governs the protocol for responding to natural gas emergencies, IAF,
Tab 6 at 9-10, 12, but neither party submitted a copy of it.
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support its position. See IAF, Tab 5. Specifically, the agency has not provided
any documentary evidence to support its apparent contentions that using the 4 gas
meter rather than the CO1 and/or declaring the facility or scene “fire safe” after
determining that there was no leak inside the building, proceeding to monitor the
outside area, and calling in additional resources from the gas company constituted
a dereliction of duty or was inconsistent with agency policy. See IAF, Tabs 3, 5;
see also PFR File, Tab 3. As such, the administrative judge erred by accepting
the agency’s mere factual contradiction of the appellant’s nonfrivolous
allegations of jurisdiction. See McLoughlin v. Department of the Treasury,
78 M.S.P.R. 150, 155 (1998). Accordingly, on remand the administrative judge
must undertake additional fact-finding to determine whether the appellant failed
to observe established policy and procedure and/or was derelict in the
performance of his duties.
¶9 Second, the appellant nonfrivolously alleged that, even if the agency’s
allegations were true, such conduct did not constitute a breach of the LCA. IAF,
Tab 6 at 7. A party breaches a contract when he is in material noncompliance
with the terms of the contract. Walker-King v. Department of Veterans Affairs,
119 M.S.P.R. 414, ¶ 9 (2013). A breach of a settlement agreement is material
when it relates to a matter of vital importance or goes to the essence of the
contract. Kitt v. Department of the Navy, 116 M.S.P.R. 680, ¶ 11 (2011). The
Board interprets settlements pursuant to principles of contract law and examines
whether the written understanding is clearly stated and, if ambiguous, ascertains
the parties’ intent at the time the agreement was made. See King v. Department
of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997). Pursuant to the express terms
of the LCA, paragraph 4, the parties agreed that violation of the “terms stated
below,” in paragraph 4(a)—misconduct, unprofessional behavior, or reporting to
work under the influence of drugs—would result in breach of the agreement,
immediate reinstatement of the removal without prior notice to the appellant, and
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waiver of the appellant’s right to appeal the removal. 3 IAF, Tab 5, Subtab 9 at
1-2. The administrative judge relied on paragraph 3, not paragraph 4, of the LCA
to find breach, concluding that the appellant failed to comply with the LCA
because he “failed to perform his duties satisfactorily and completely on
November 20, 2013.” ID at 3. Unlike paragraph 4, which expressly states which
terms the appellant must satisfy to avoid breach, paragraph 3 generally provides
that the decision to hold the appellant’s removal in abeyance is an “opportunity”
for the appellant to demonstrate “that he can be rehabilitated, perform his duties
satisfactorily and completely, and conduct himself properly.” 4 IAF, Tab 5,
Subtab 9 at 1. It appears that paragraph 3 does not impose an affirmative
obligation on the appellant but, rather, is descriptive of the purpose of the
3
In relevant part, paragraph 4 states:
The Employee voluntarily agrees to comply with the terms stated below. The
Employee agrees that failure to satisfy any of these terms will result in breach of
this agreement and management may initiate the Employee’s removal from federal
service; the removal will be effected immediately without prior notice; and such
removal would promote the efficiency of the service. The proposed removal that is
being held in abeyance will be the stated basis for the removal from federal service.
The Employee’s removal will be effective on a date chosen by the Agency, and the
Employee waives any entitlement to advanced written notice of removal. The
Employee also waives any and all rights to pursue further administrative or legal
action against the Agency or its employees regarding the removal . . . .
In relevant part, paragraph 4(a) states:
Employee will not engage in any misconduct in the workplace or which has a nexus
to his employment; will not report to work under the influence of drugs, including
properly–prescribed drugs that affect his ability to perform his duties; and will
conduct himself in a professional manner at all times.
IAF, Tab 5, Subtab 9 at 1-2.
4
In full, paragraph 3 provides:
The decision to hold the Employee’s removal in abeyance is a last chance
opportunity for the Employee to demonstrate that he can be rehabilitated, perform
his duties satisfactorily and completely, and conduct himself properly without
violating the law, [Department of Defense] or Army Regulations and policies, and
management directives, as more fully described in paragraph 4 below.
IAF, Tab 5, Subtab 9 at 1.
7
agreement. Accordingly, on remand, the administrative judge must determine
whether the appellant’s alleged failure to follow established policy and procedure
and/or derelict performance of duties on November 20, 2013, amounted to a
material breach of the LCA.
¶10 Lastly, pursuant to the express terms of the LCA, the appellant agreed to
waive his notice and appeal rights only if he engaged in misconduct, arrived at
work under the influence of any drug, or acted in an unprofessional manner;
however, he retained those rights in relation to an action taken for any other
reason. See IAF, Tab 5, Subtab 9; see also Harris v. Department of the Air
Force, 81 M.S.P.R. 537, ¶¶ 5, 12-13 (1999) (where the agreement specifically
linked the waiver of appeal rights to drug-related misconduct, the appellant
retained the right to appeal actions taken against him that were not related to drug
activity). The agency has not alleged that the appellant was under the influence
of drugs, and the administrative judge made no finding as to whether the
appellant’s alleged dereliction of duties and failure to observe adequate safety
policy and procedures, even if true, amounted to misconduct or unprofessional
behavior. See IAF, Tabs 3, 5. Accordingly, on remand, the administrative judge
must determine whether the appellant’s actions constitute “misconduct” or
“unprofessional” behavior as set forth in the LCA so as to result in immediate
reinstatement of the removal and waiver of the appellant’s rights to advanced
notice and to appeal his removal to the Board.
ORDER
¶11 For the reasons discussed above, we REMAND this case to the regional
office for a jurisdictional hearing, additional fact-finding, and further
adjudication to determine whether: (1) the appellant was derelict in his duties
and/or failed to observe established policy and procedures on November 20,
2013; (2) if so, whether the appellant’s actions constituted a material breach of
the LCA; and (3) if so, whether the appellant’s actions constituted “misconduct”
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or “unprofessional” behavior as to invoke the advanced notice and appeal rights
waivers of the LCA. If the administrative judge resolves any of the above in the
negative, the appellant’s removal must be reversed and he is entitled to notice and
an opportunity to respond to any subsequent adverse action based upon the
occurrences of November 20, 2013. See Harris, 81 M.S.P.R. 537, ¶ 5.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.