NOTE: This disposition is nonprecedential. 

 

United States Court of Appeals for the Federal Circuit 

2008-3125 

WILFREDO RAMOS, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

 Wilfredo Ramos, of Bronx, New York, pro se. 

 Teresa A. Gonsalves, Appellate Counsel, Appellate Division, Law Department, 

United States Postal Service, of Washington, DC, for respondent. With her on the brief 

were Lori J. Dym, Chief Counsel; and Gregory G. Katsas, Acting Assistant Attorney 

General, Civil Division, United States Department of Justice, of Washington, DC. Of 

counsel was Douglas K. Mickle, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC. 

Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3125 

WILFREDO RAMOS, 

 Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

Petition for review of the Merit Systems Protection Board in 

NY-0752-07-0082-I-1. 

____________________________ 

DECIDED: September 4, 2008 

____________________________ 

Before MICHEL, Chief Judge, MAYER, Circuit Judge, and STEARNS,*

 District Judge. 

PER CURIAM. 

DECISION 

 Wilfredo Ramos seeks review of a final decision of the Merit Systems Protection 

Board (“MSPB” or “Board”) dismissing for lack of jurisdiction his appeal relating to his 

removal for violating a last chance settlement agreement (“Agreement”). See Ramos v. 

U.S. Postal Serv., No. NY-075-07-0082-I-1 (M.S.P.B. May 4, 2007) (“Bench Decision”), 

review denied, Ramos v. U.S. Postal Serv., No. NY-0752-07-0082-I-1 (M.S.P.B. Nov. 

 *

 Honorable Richard G. Stearns, District Judge, United States District Court 

for the District of Massachusetts, sitting by designation. 
21, 2007) (“Final Order”). Because we agree with the MSPB that Ramos failed to 

establish the Board’s jurisdiction over his appeal, we affirm. 

BACKGROUND 

Ramos was employed as a Letter Carrier with the United States Postal Service 

(“USPS”) in Flushing, New York. On September 6, 2005, he entered into a written Last 

Chance Settlement Agreement, in exchange for modifying an August 22, 2005 

proposed removal to a 14-day suspension. As part of the Agreement, he affirmed that 

the proposed removal was “[j]ust and [p]roper” and he agreed to “adhere to Postal rules 

and regulations, conduct himself in a professional, pleasant and safe manner . . . [and] 

maintain satisfactory work performance.” The Agreement defined “satisfactory work 

performance” as “completing the grievant’s job assignment in the allotted time, and 

abiding by all Postal rules and Regulations, including but not limited to the Employee & 

Labor Relations manual, and the M-41 City Carriers duties and Responsibilities.” The 

Agreement stipulated that Ramos would be placed on general probation for two years, 

and his failure to abide by the terms of the agreement would be “considered JUST

CAUSE FOR REMOVAL.” (emphasis in original). Ramos also agreed to “waive any 

and all administrative appeals and/or judicial actions relative to the removal” if he failed 

to comply with the Agreement terms.

On September 2, 2006, Ramos was assigned to Parcel Post Route 46. His 

supervisor, Michael Gallo, testified that after Ramos completed his parcel deliveries that 

afternoon and had returned to the Post Office, Gallo noticed several priority packages 

still on the platform. When questioned about them, Ramos told Gallo the packages 

were for businesses closed on Saturday and could thus be held until Monday. Gallo 

2008-3125 2
saw apartment numbers on the packages and told Ramos that they needed to be 

delivered. Gallo testified that Ramos then “blew up and used profanity,” and that when 

he told Ramos to stop cursing and to deliver the packages, Ramos stated in response, 

“F--- you. I ain’t doing it.” Ramos then went to lunch before leaving for the day. 

Another USPS employee, Anne Napoli, was in the vicinity when the confrontation 

occurred, and her testimony regarding the incident corroborated Gallo’s testimony. 

Andrew Amitrano, Manager of Customer Service, also testified that about three or four 

months prior to the September 2 incident, there had been another incident involving a 

loud outburst by Ramos towards another supervisor.

Ramos’ account of the incident is entirely different. He testified that he was 

eating lunch when Gallo informed him that he needed to go back out to deliver the 

remaining packages. When he told Gallo that he was on his lunch break, Gallo 

appeared upset and walked away. Gallo then returned and told Ramos he was giving 

him a direct order. Ramos testified that when he asked Gallo if he could finish his 

lunch, Gallo offered no response and simply walked away.

The USPS held a pre-disciplinary interview on September 7, 2006, with Ramos 

and his union representative. Though Ramos later contested it, Gallo’s notes from the 

interview indicate that Ramos admitted in the interview that “he might have used 

profanity once” during the confrontation in question. Amitrano was also present at the 

pre-disciplinary interview and corroborated Gallo’s testimony concerning Ramos’ 

statement. On September 30, 2006, Gallo issued a Notice of Proposed Removal to 

Ramos for violating the Last Chance Settlement Agreement, specifically noting his use 

of profanity with a supervisor and his failure to follow the instructions he was given to 

2008-3125 3
deliver the remaining parcels. On November 16, 2006, a Letter of Decision was issued 

to Ramos, detailing that his removal would be effective November 24, 2006. Ramos 

filed a grievance with the USPS and a decision was issued on December 28, 2006, that 

found Ramos’ grievance to be without merit because of his “failure to comply” with the 

direct orders of a supervisor, use of profanity and “very poor record of discipline.”

Ramos appealed his removal to the MSPB, and the Administrative Judge (“AJ”) 

determined that the Board lacked jurisdiction over the appeal because “the 

preponderant credible evidence does not support a determination that [Ramos] did not 

breach the last chance agreement.” Bench Decision at 19. In November 2007, the 

Board denied Ramos’ petition for review. Final Order at 2.

DISCUSSION 

This court must affirm a decision of the MSPB unless it is “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation having been followed; or (3) 

unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Whether the Board has 

jurisdiction is a question of law that we review de novo, but we must uphold the Board’s 

underlying factual findings “unless those findings are not supported by substantial 

evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). 

“Substantial evidence is defined as ‘the degree of relevant evidence that a reasonable 

person, considering the record as a whole, might accept as adequate to support a 

conclusion even though other reasonable persons might disagree,’” and is “‘a lower 

standard of proof than preponderance of the evidence.’” Giove v. Dep’t of Transp., 230 

F.3d 1333, 1338 (Fed. Cir. 2000) (quoting 5 C.F.R. § 1201.56(c)(1)). 

2008-3125 4
Here, Ramos argues that there were insufficient facts in the record to establish 

just cause for termination. However, the Agreement explains that a failure on Ramos’ 

part to comply with the stipulations contained in the Agreement provides “JUST CAUSE 

FOR REMOVAL.” (emphasis in original). Additionally, the Agreement stipulates that 

Ramos’ failure to abide by the Agreement terms will result in a waiver as to “all 

administrative appeals” relative to his removal. It is well settled that an employee can 

waive his right to appeal in a last chance settlement agreement, Gibson v. Dep’t of 

Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998), and that after such a waiver, the 

employee may only establish the MSPB’s jurisdiction over his appeal if he proves by a 

preponderance of the evidence that: (1) he complied with the terms of the Agreement; 

(2) the employer breached the Agreement in some way; or (3) he did not knowingly and 

voluntarily enter into the Agreement. Link v. Dep’t of Treasury, 51 F.3d 1577, 1582 

(Fed. Cir. 1995). 

Ramos contends in his reply brief that he was forced to sign the Agreement, and 

only signed under protest. But the AJ found that Ramos willingly and voluntarily entered 

into the Agreement, and this finding is supported by substantial evidence. Ramos was 

represented by a union official while discussing the terms of the Agreement, and he 

acknowledged that he “underst[ood] this Agreement without reservation, duress, or 

coercion on the part of anyone.” Ramos may have faced an unpleasant choice between 

signing the Agreement and contesting his August 22, 2005 proposed removal, but that 

does not render his choice coerced. Cf. Schultz v. United States Navy, 810 F.2d 1133, 

1136 (Fed. Cir. 1987) (“[W]here an employee is faced merely with the unpleasant 

2008-3125 5
alternatives of resigning or being subject to removal for cause, such limited choices do 

not make the resulting resignation an involuntary act.”). 

The AJ also found that Ramos breached the Agreement, basing this finding 

primarily on credibility determinations as to the witnesses providing testimony. The AJ 

credited the testimony of Gallo over that of Ramos, particularly noting that Gallo’s 

testimony was corroborated by the testimony of Napoli, whom the AJ determined had 

“testified calmly, deliberately, without any hesitation, clearly, consistently and 

convincingly.” The AJ determined that Ramos’ testimony was “inconsistent in a material 

way” and caused him “to have doubts about the reliability of the version of events that 

was given by [Ramos].” In order for the AJ to have concluded that Ramos’ testimony 

was credible, as opposed to that of Gallo, the AJ would have had to disregard the 

testimony of Gallo, Napoli, and Amitrano – essentially concluding that the three 

witnesses were lying. This court has consistently held that “the evaluation of witness 

credibility is a matter within the discretion of the AJ and is virtually unreviewable.” Frey 

v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (internal quotations omitted). 

As such, we must accept the AJ’s determination of credibility because the testimony 

relied on here was not “inherently improbable or discredited by undisputed evidence or 

physical fact.” Gibson, 160 F.3d at 726 (internal quotation omitted). 

Finally, although Ramos does not directly contend that the USPS breached the 

Agreement, he argues that the AJ failed to consider the fact that he was on an 

authorized lunch break at the time the orders were given to him, and that this was in 

direct violation of the Fair Labor Standards Act (“FLSA”). However, there is no indication 

in the record that Ramos raised this claim before the AJ or the Board. Because this 

2008-3125 6
2008-3125 7

court does not allow appellants to “raise issues on appeal for the first time,” Kachanis v. 

Dep’t of Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000), the issue of whether Gallo’s 

direct order violated the FLSA is not properly before us. Further, even if Gallo’s action 

was improper, Ramos should nevertheless have complied with the order under § 665.15 

of the Employee & Labor Relations Manual (“ELM”), which states that employees are 

obligated to “obey the instructions of their supervisors.” The ELM also explains that in 

the event “an employee has reason to question the propriety of a supervisor’s order, the 

individual must nevertheless carry out the order and may immediately file a protest in 

writing . . . or may appeal through official channels.” Thus, if Ramos believed the order 

from Gallo was improper, he should still have complied with the order and later followed 

up through the appropriate channels. 

CONCLUSION 

For the foregoing reasons, we affirm the decision of the Board dismissing 

Ramos’ appeal for lack of jurisdiction. 

COSTS 

No costs.