NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

 is not citable as precedent. It is a public record. 

United States Court of Appeals for the Federal Circuit

 04-3125 

 RAMON GUTIERREZ, 

Petitioner, 

 v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

DECIDED: July 14, 2005 

__________________________ 

Before MICHEL, Chief Judge, NEWMAN and LOURIE, Circuit Judges. 

PER CURIAM. 

Ramon Gutierrez petitions for review of the decision of the Merit Systems Protection 

Board, Docket No. SF0752010122-B-2, dismissing his appeal for lack of jurisdiction. We 

affirm the decision of the Board. 
04-3125 2 

Background

At the time of his resignation, Mr. Gutierrez was employed as a PS-4 garageman at 

an agency facility in Bakersfield, California. On Sept. 29, 1997 he was placed in an off duty 

status because of threatening remarks he had made to his supervisor. Mr. Gutierrez and 

the Postal Service eventually entered a last chance settlement agreement wherein he 

agreed to "not direct challenging, threatening, intimidating, and/or other confrontational 

language against any management or craft person" and to "conduct himself in a 

professional manner at all times." The agreement provided that if Mr. Gutierrez breached 

the agreement he would be terminated immediately with "no further rights of appeal in any 

forum." On January 28, 1998 Mr. Gutierrez was issued a Notice of Removal for threatening 

a co-worker. He was eventually permitted to resign, and he signed a document stating: 

"Ramon Gutierrez hereby voluntarily resigns effective Feb. 6, 1998. This resignation is 

non-revocable by any party." A Postal Service official also signed the agreement, along 

with the union president. 

Twenty-two months later Mr. Gutierrez appealed to the Board, alleging that his 

resignation had been coerced. The Administrative Judge issued an order warning Mr. 

Gutierrez of the apparent untimeliness of his appeal and that the Board lacked jurisdiction 

over voluntary resignations. In response, Mr. Gutierrez alleged that he had been promised 

that if he resigned he would be reinstated in a year, and that he had been misled by the 

agency into believing he had no appeal rights. The agency had not yet entered the last 

chance settlement agreement into the record. The AJ found Mr. Gutierrez' explanations 

inadequate and dismissed the appeal for lack of jurisdiction over a voluntary resignation. 

Mr. Gutierrez then sought review by the full Board, which reversed the Initial Decision, 
04-3125 3 

determining that if Mr. Gutierrez had been misled into believing that he had no appeal 

rights, his resignation could have been coerced. 

On remand, the agency produced the last chance agreement with its waiver of 

appeal rights. In light of the agreement, the AJ concluded that even if the agency had told 

Mr. Gutierrez that he had no appeal rights, that statement had not been misleading in view 

of the last chance agreement which waived appeal rights. The AJ concluded that Mr. 

Gutierrez had not been coerced into resigning by the statement, and dismissed the appeal. 

 Mr. Gutierrez again petitioned the full Board for review. The full Board, consisting of only 

two members at the time, divided on the disposition of the Petition for Review, and the 

Initial Decision became the decision of the Board. 

Discussion

It is well established that government employees may waive their right of appeal in 

exchange for a last chance opportunity to retain their employment. See, e.g., Stewart v. 

United States Postal Service, 926 F.2d 1146 (Fed. Cir. 1991); McCall v. United States 

Postal Service, 839 F.2d 664 (Fed. Cir. 1988). There is no dispute that Mr. Gutierrez 

entered such a last chance agreement, and he does not dispute that he breached it. Thus 

the agency could have removed him from employment and, had it done so, Mr. Gutierrez 

would have had no right to appeal to the Board. 

Instead, the agency permitted him to resign. Mr. Gutierrez now seeks Board review 

of the merits of his removal, by stating that the resignation was coerced. The agency 

points out that he waived such appeal when he signed the last chance agreement. We 

agree that this waiver remains in place, although the agency permitted him to resign rather 
04-3125 4 

than be removed. Mr. Gutierrez has not established improper acts on the part of the 

agency in connection with his resignation. See Staats v. United States Postal Service, 99 

F.3d 1120 (Fed. Cir. 1996) (in order to show coercion, the employee must establish that 

"the agency effectively imposed the terms of the employee's resignation or retirement, that 

the employee had no realistic alternative but to resign or retire, and that the employee's 

resignation or retirement was the result of improper acts by the agency.") (citing Schultz v. 

United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)). The agency did not act 

improperly in proposing to terminate Mr. Gutierrez for breach of the last chance agreement, 

hence the threat of termination did not convert his voluntary resignation into a coerced one. 

Mr. Gutierrez also states that the agency promised to reinstate him in a year and, 

since the agency had no such intention, he was tricked into resigning thereby. He offers no 

evidence of such a promise, although others, including the union president, were present 

when he signed the resignation statement. This unsupported statement is insufficient to 

render Mr. Gutierrez' resignation involuntary. 

For these reasons, the decision of the Board must be affirmed. 

No costs.