UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JIMMY R. HILL, Appellant,

v.
UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT

- 0752

- 14

- 0779

- I

- 1

DATE: December 17, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jimmy R. Hill , Jonesboro, Georgia, pro se.

W. Randle Smith , A tlanta , 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 his 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 signific antly 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 resulti ng 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 concl ude 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 On May 7, 2013, the agency issued a notice proposing to remove the appellant from his Mail Handler position for F ailure to b e Regular in Attendance. Initial Appeal File (IAF), Tab 4, Subtab 4G. In June 2013, the parties resolved the proposed removal by entering into a Last Chance Settlement Agreement (LCA). Id. , Subtab 4F. Under the LCA, the agency agreed to hold the implementation of the removal action in abeyance for 14 months from the date of the signing of the agreement
, 2 while t he appellant agreed to maintain s atisfactory

a ttendance for the full term of the agreement by having no more than t hree
unscheduled a bsences during any 6

- month period of the LCA and no instance of
Absence Without Leave. Id. at 1

- 2. The LCA provide d that absences covered by the provisions of the Family Medical Leave Act (FMLA) would not be cited or applied to the LCA; however, the appe llant was responsible for ensuring that his

2 The appellant and the agency representative signed the LCA on June 14, 2013, and the appellant’s union representative signed the LCA on Jun e 26, 2013. IAF, Tab 4, Subtab 4F at 5.3

FMLA certification was current
, and he was required to “adhere to the frequency and duration stipulated for any FMLA approved case.” Id. The LCA also provided that any violation of its terms wo uld be considered justification for the appellant’s removal, and that, if the appellant were removed for violating the
LCA , he would forego any appeal of the removal action in any forum, including
the Board. Id. at 2

- 3. The LCA included a statement signe d by the appellant
, in

w hich he asserted as follows : he had read and understood the conditions and restrictions set forth in the LCA; he was mentally and physical ly fit so as to be
able to understand the agreement in its entirety; and he had freely entere d into the
LCA

. Id. at 6. ¶3 On M arch 28, 2014
, the agency issued the appellant a notice of removal alleging that he had violated the LCA by incurring thirteen unscheduled absences
from January 2, 2014, through March 7, 2014, none of which were protected
under the FMLA. IAF, Tab 4, Subtab 4B. The appellant filed an appeal with the
Board challenging his removal . IAF, Tab 1. T he administrative judge issued an
order to show cause in which he explained the appellant’s burden of proving that the Board had j urisdiction over his a ppeal in light of the LCA and ordered the appellant to “ provide evidence and argument that he did not violate the LCA, that the agency failed to comply with the terms of the LCA in a material way, or that
he did not enter the LCA volu ntarily.” IAF, Tab 5 at 3 . The appellant did not respond to the order. ¶4 Without holding a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). The administrative judge found that the appellant had failed to make a nonfrivolous allegation that he did not violate the agreement, that the4

agency acted in bad faith, or that he did not voluntarily enter into the agreement. 3

ID at 1. ¶5 The appellant has filed a petition for review. 4 Petition for Review (PFR) File, Tab 1. The agency has not filed a response to the petition for review.

ANALYSIS ¶6 The appellant bears the burden of proving that his appeal is within the
Board’ s jurisdiction. 5 C.F.R. § 1201.56 (a)(2)(i). The Board lacks jurisdiction over an action taken pursuant to an LCA in which an appellant waives his right t o appeal to the Board. Willis v. Department of Defense
, 105 M.S.P.R. 466 , ¶ 17 (2007). To establish that a waiver of appeal rights in the LCA should not be enforced, an ap pellant must s how one of the following: (1) h e 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. ¶7 T he administ rative judge found that: the agency submitted undisputed evidence that the appellant had thirteen unscheduled absences between January 2, 2014, and March 7, 2014 ; these unscheduled absences violated the LCA , which specified that the appellant would be rem oved without appeal rights if he incurred more than three unscheduled absences during any 6

- month period beginning on June 26, 2014; and there is no evidence in the record casting doubt on the validity

or enforceability of the LCA. ID at 2

- 3 ; see IAF, Tab 4, Subtabs 4D

- 4E. Therefore, the administrative judge found, the appeal rights waiver contained in the LCA is valid and deprives the Board of jurisdiction over this appeal. ID at 3.

3 Although the administrative judge states in the initial decision that no hearing was held because the appellant fail ed to make a nonfrivolous al legation of jurisdiction, ID at 1, there is no indication in the record that the appellant requested a hearing.

4 The appellant submits three documents with his petition for review. PFR File, Tab 1 at 2

- 5. Because the se doc uments a re already part of the record, we have not considered the m

. See IAF, Tab 1 at 6, 8, 14, Tab 4, Subtab 4A; see also Meier v. Department of the Interior
, 3 M.S.P.R. 247 (1980).5

¶8 T he appellant argues for the first time on review that he did not violate the
LCA because his unscheduled absences should have been covered by the FMLA
due to the fact that he had an FMLA certification pending at the time of his
removal. PFR File, Tab 1 at 1. He further contends that his immediate supervisor
was aware of his thirteen absence s between January 2, 2014, and March 7, 2014, and was “working with him.” Id. More specifically, he asserts that his immediate supervisor was aware of the pending FMLA certification, and was provided with d ocumentation a nd an explanation for each unscheduled absence he
incurred , but continued to allow him to work because she considered his absences
valid and unavoidable. Id. ¶9 We find these arguments unpersuasive. A lthough the LCA provided that absences covered by the F MLA would “ not be cited or applied to [the LCA],” the appellant was required to adhere to the frequency and duration stipulated for any FMLA approved case. IAF, Tab 4, Subtab 4F at 2. The documentation in the record includes an FMLA approval form dated A pril 18, 2014 , which identifies the frequency and duration of the appellant’s absences covered by the FMLA as follows: “1 time per 3

- 6 months and 1

- 3 days per episode.” Id. , Subtab 4A. Thus, even assuming the agency’s a pproval of the appellant’s FMLA request applied retroactively to the relevant time frame (i.e., January 2, 2014, to March 7, 2014), the appellant still incurred more than three unscheduled absences during that time period that were not covered by the FMLA, in viol ation of the LCA.
See id. , Subtab 4E. ¶10 We also find unpersuasive the appellant’s apparent contention that he did
not violate the LCA because his unscheduled absences were “unavoidable” and
for a valid reason. See PFR File, Tab 1 at 1. The key issue for p urposes of determining whether the appellant violated the LCA is not whether the appellant’s absences during the relevant time frame were for a valid reason but, rather, whether they were unscheduled or covered by the FMLA.6

¶11 The appellant also appears to ra ise a disparate treatment claim for the first
time on review, alleging that the agency officials who signed his notice of removal have “single [sic] [him] out for discipline and have failed to treat [his]
attendance record with the same measures as others. ” PFR File, Tab 1 at 1. The appellant’s argument concerning alleged dissimilar treatment of other employee s for similar conduct is immaterial to the question of whether the appellant’s waiver of appeal rights is unenforceable absent any allegation that t he allegedly dissimilar treatment evidenced bad faith on the agency’s part. ¶12 T he appellant also argues for the first time on review that the LCA is
invalid

. PFR File, Tab 1 at 1. He asserts that the agreement is unlawful and involuntary because he was never informed or advised by the agency or his union of what he was signing or the possible consequences of what he was signing , and
the union never notified him that he would be removed without his appeal rights.
Id. In addition, the appellant contends that the agreement was unlawful and a mutual mistake because all the parties who signed the agreement were never in the same room together and the union representative did not sign the agreement
until 14 days after he did

. ¶13 The LCA clearly provides that , in the event that the appellant violated the LCA and the agency removed him for doing so, he agree d to waive any right to appeal his removal to any administrative forum, including the Merit Systems Protection Board. IAF, Tab 4, Subtab 4F at 3

. As previ ously noted, the appellant signed the statement on the last page of the LCA, thereby a cknowledging that he
read and understood the terms of the agreement, that he was able to understand the agreement in its entirety, and that he entered into the agreement freely. Id.

at 6. Thus, we find that the appellant knew or should have known that he waived Board appeal rights at the time he entered into the agreement. Therefore, the appellant’s claim that the LCA is invalid because he entered into it without understanding the consequences of signing the agreement is not supported by the
record evidence.7

¶14 Further, t o the extent that the appellant a rgues that the waiver of his Board appeal rights should not be enforced because h is union representative failed to

p roperly advise him of the terms of the agreement , his assertion is without merit. It is well settled that the appellant is responsible for the errors of his chosen representative . Sofio v. Internal Revenue Service
, 7 M.S.P.R. 667 , 670 (1981). ¶15 Lastly, we find unavailing the appellant’s argument that the LCA should be
set aside on the basis of mutual mistake. A mutual mistake is a shared, mistaken belief of the parties regarding a material assumption of fact underlying their agreement. Brown v. Department of the Army
, 108 M.S.P.R . 90 , ¶ 5 n.1 (2008).
N either the fact that the parties to the agreement were never in the same room together nor the approximately 2

- week interval between the day that the appellant signed the agreement and the day that his union representative signed the agreement support the appellant’s contention that the agreement was the result of
a mutual mistake. ¶16 In sum, t he appellant has not shown that the LCA he entered into is invalid or otherwise should not be enforced. Conseq uently, the administrative judge correctly found that the appellant failed to show that the Board has jurisdiction over the appellant’s removal.

NOTICE TO THE APPELL ANT 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.8

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
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:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board