The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICARDO CENDEJAS, DOCKET NUMBER
Appellant, SF-0752-15-0441-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 18, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Peter J. Horton, Esquire, Westlake Village, California, for the appellant.
Richard D. Ruppe, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his 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 REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The agency removed the appellant, a GS-06 Police Officer, on two charges,
failure to follow standard operating procedure and sleeping on duty, and the
parties settled the appellant’s subsequent Board appeal of that action with an
LCA. Initial Appeal File (IAF), Tab 6 at 191-202; Cendejas v. Department of the
Navy, MSPB Docket No. SF-0752-14-0180-I-1, Initial Decision (Apr. 2, 2014).
Pursuant to the parties’ agreement, in pertinent part, the agency agreed to cancel
the appellant’s removal and he agreed to waive his Board appeal rights such that
the agency may effect his removal under the cancelled action “if at any time
within the next 24 months his performance, conduct, and/or attendance are less
than satisfactory.” IAF, Tab 6 at 192.
¶3 The agency reassigned the appellant in keeping with the parties’ agreement
and, at his supervisor’s request, the appellant volunteered to attend training at the
Federal Law Enforcement Training Center (FLETC) in Georgia. Id. at 191-92;
IAF, Tab 5 at 24. The appellant attended the training and experienced several
injuries, including a fractured rib; he attempted to continue the training but failed
two exams, which made him ineligible to graduate from the FLETC program and
required him to return immediately to his duty station. IAF, Tab 5 at 24, Tab 6
at 14-15. The agency subsequently reinstated the prior removal action pursuant
to the LCA, notifying the appellant that, due to his failure to complete the FLETC
training, he had failed to demonstrate acceptable performance and to meet a
condition of employment, and that he therefore had violated the terms of the
parties’ agreement. IAF, Tab 6 at 11-13.
¶4 The appellant subsequently filed this appeal in which he argued that his
failure to pass the FLETC exams did not indicate poor performance and that,
because he volunteered for the FLETC training, it was not a condition of his
employment. IAF, Tab 1. The administrative judge gave the appellant notice of
the elements and burdens of establishing jurisdiction over an action involving an
LCA. IAF, Tab 2; see, e.g., Link v. Department of the Treasury, 51 F.3d 1577,
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1582 (Fed. Cir. 1995). The parties responded and the agency moved to dismiss
the appeal for lack of jurisdiction. IAF, Tabs 5-7. Without holding the requested
hearing, the administrative judge granted the agency’s motion and dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously
allege that he complied with the LCA or that the agency breached it. IAF, Tab 8,
Initial Decision (ID) at 1, 5-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In his petition for review, the appellant argues for the first time that the
agency breached the agreement when it failed to give him notice of his alleged
breach within 30 days, and he reiterates his argument that his failure to complete
FLETC training did not demonstrate poor performance. Petition for Review
(PFR) File, Tab 1 at 7-8. The appellant argues that the agreement is ambiguous
because the agency has not established a link between performance and training,
and he requests a hearing to submit parol evidence as to the parties’ intent in
drafting the agreement. Id. at 8. He also argues that he received a satisfactory
performance evaluation just prior to the FLETC training, and he reiterates that the
training at issue was not required for his position and his performance standards
do not indicate that the completion of such training is an element in the
evaluation of an officer’s performance. Id. at 9. In that regard, the appellant
implicitly accuses the agency of bad faith in relying on his training failure as
evidence of unsatisfactory performance because he volunteered to attend, and
neither the LCA nor, as noted above, his performance standards explicitly link
performance with training. Id. at 8-9. The agency responds in opposition. PFR
File, Tab 3.
¶6 The Board does not have jurisdiction over an action taken pursuant to an
LCA in which the appellant waives his Board appeal rights, unless he shows that
the waiver is unenforceable. E.g., Smith v. Department of the Interior,
113 M.S.P.R. 592, ¶ 6 (2010). To establish that the waiver of appeal rights in an
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LCA is unenforceable, the appellant must show that: (1) he complied with the
LCA; (2) the agency materially breached the LCA or acted in bad faith; (3) he did
not voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual
mistake. Id. 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). More importantly, where an
appellant makes a nonfrivolous allegation of fact that he did not breach an 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 in this instance 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). In determining whether the appellant has
made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. E.g., Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶7 Based on the appellant’s sworn statement, in which he asserts that he
volunteered for the FLETC training course, the successful completion of which
was not required as a condition of his employment, and that he was unable to pass
the course based on medical reasons, we find that the appellant nonfrivolously
alleged that he did not breach the LCA. IAF, Tab 5 at 23-25. Accordingly, we
conclude that a jurisdictional hearing is warranted to resolve the issue of
compliance. Williams, 52 M.S.P.R. at 344.
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¶8 In removing the appellant for violating the LCA, the agency indicated that
his failure to complete the FLETC training demonstrated unacceptable
performance. IAF, Tab 6 at 11. The agency also stated that his failure to
complete the training resulted in a failure to meet a condition of employment.
Id. The administrative judge found that completion of the FLETC training
“appear[ed]” to be a condition of the appellant’s employment. ID at 7. She then
found that, in any event, “the agency did not remove the appellant for failure to
meet a condition of employment.” Id. That statement seems to conflict with the
removal notice itself, which cites the appellant’s alleged failure to meet a
condition of employment in determining that he failed to demonstrate acceptable
performance. IAF, Tab 6 at 11. On remand, the administrative judge should
examine what effect, if any, the agency’s reference to the appellant’s alleged
failure to meet a condition of employment has on its removal action pursuant to
the LCA considering it is unclear based on the existing record that a failure to
complete the training was performance related. In conducting the analysis, she
should also determine whether completion of the FLETC training was in fact a
condition of the appellant’s employment, a matter over which there appears to be
a genuine dispute, see IAF, Tab 5 at 13-14, Tab 7 at 7.
¶9 Although the appellant claims that the agency breached the agreement by
not providing him with notice of his alleged breach within 30 days, PFR File,
Tab 1 at 7, he did not make this argument below, and the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence, e.g., Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). The appellant makes no such showing.
Nevertheless, even if the agency failed to provide the required notice of breach,
that alone would not be a material breach of the parties’ agreement because such
notice was not a “major benefit” that the appellant received through the
agreement. Cf. Galloway v. Department of Agriculture, 110 M.S.P.R. 311, ¶ 8
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(2008) (observing that the appellant did not materially breach the settlement
agreement by failing to give notice before filing an enforcement action because
the notice provision was not a matter of vital importance going to the essence of
the contract).
¶10 Finally, because we have determined that the appellant is entitled to a
jurisdictional hearing, the timeliness of the instant appeal is once again at issue.
ID at 7 n.2; see IAF, Tab 2 at 2-3; Tab 5 at 14; Tab 6 at 5 n.1. On remand, the
administrative judge may make findings as to the jurisdictional and timeliness
issues at her discretion, including whether to hold a hearing prior to issuing a new
initial decision, should she find it necessary for proper adjudication.
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.