                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEON DESAUTEL,                                  DOCKET NUMBER
                  Appellant,                         SF-0752-14-0058-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: February 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Brook L. Beesley, Alameda, California, for the appellant.

           Felippe Moncarz, Esquire, Boise, Idaho, 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 the 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 interpretation of statute or


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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 resulting 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 conclude 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        The appellant was employed as an agency electrician. Initial Appeal File
     (IAF), Tab 7 at 19. The agency removed the appellant in September 2012, and
     the appellant filed a Board appeal.     DeSautel v. Department of the Interior,
     Docket No. SF-0752-13-0034-I-1. The parties settled that appeal and entered into
     a Last Chance Agreement (LCA) as part of the settlement, which specified that
     the appellant could be removed if he committed any misconduct that would merit
     disciplinary action at the level of a suspension or higher. IAF, Tab 7 at 31-33,
     75-77. Subsequently, the agency charged the appellant with violation of the LCA
     based upon 9 specifications of Failure to Follow Supervisory Instructions. Id. at
     25-30. The agency then removed the appellant. Id. at 19-22.
¶3        The appellant appealed his removal, claiming that he did not violate the
     LCA but that the agency violated its “spirit and intent.”      IAF, Tab 1.    After
     providing the parties an opportunity to respond to the issue of jurisdiction, IAF,
     Tab 2, and conducting a jurisdictional hearing, Hearing Compact Disc (HCD), the
                                                                                      3

     administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 24,
     Initial Decision (ID).
¶4         The appellant petitions for review, arguing that the agency’s time and
     attendance records contradict a finding that he failed to follow supervisory
     instructions concerning requesting leave and that an adverse action cannot be
     based on an employee’s approved use of leave. Petition for Review (PFR) File,
     Tab 5 at 1-2.      He also generally disagrees with the initial decision and, in
     particular, disagrees with both the administrative judge’s lack of consideration of
     the fact that he had informed a foreman about his absence and her failure to
     mention the testimony of a particular witness in the initial decision. Id. at 2, 4.
     Finally, the appellant raises certain issues concerning discovery and the
     development of the record. Id. at 3-4. The agency has responded in opposition.
     PFR File, Tab 7.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5         We first address the appellant’s arguments concerning certain discovery and
     evidentiary matters. He alleges that the administrative judge erred by failing to
     require the agency to respond to requests for admission and by denying his
     motion for incorporation of the record of his prior Board appeal into the current
     record. PFR File, Tab 5 at 3-4. The administrative judge, however, ultimately
     granted the appellant’s motion to compel as it related to the requests for
     admission, IAF, Tab 14 at 1, the agency responded to the requests for admission,
     and the appellant included those agency responses in his prehearing submission,
     IAF, Tab 17, Exhibit A.       In addition, the administrative judge denied the
     appellant’s motion to incorporate into the current record the record of his prior
     Board appeal, which the appellant raised for the first time at the start of the
     hearing. HCD. The agency objected to the motion, asserting that the record in
     the prior appeal was not relevant to the issues in this case and that the record in
     this case had, in any event, already closed. Id. We find that these actions did not
                                                                                      4

     constitute an abuse of discretion and therefore we do not disturb the
     administrative judge’s discovery and evidentiary rulings. See Fox v. Department
     of the Army, 120 M.S.P.R. 529, ¶ 42 (2014); 5 C.F.R. § 1201.58(c).

     The administrative judge properly found that the appellant breached the LCA.
¶6         Next, we find that the administrative judge correctly found that the
     appellant breached the LCA. ID at 10-12. The Board lacks jurisdiction over an
     action taken pursuant to an LCA in which an appellant waives his right to 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 an LCA should not be enforced, an
     appellant must show one of the following: (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.
¶7         The LCA provides that “any misconduct of any type that would merit
     disciplinary action at the level of a suspension or higher, consistent with the
     penalty imposed on others . . . for similar misconduct” would constitute a
     violation.     IAF, Tab 7 at 31.     The appellant was removed based upon 9
     specifications of Failure to Follow Supervisory Instructions. Id. at 20-22, 25-30.
     All of the specifications relate to attendance and leave. Id. at 25-30.
¶8         The Board has held that an agency establishes the charge of failure to
     follow supervisory instructions by showing that proper instructions were given to
     an employee and that the employee failed to follow them.          Hamilton v. U.S.
     Postal Service, 71 M.S.P.R. 547, 556 (1996). The appellant’s supervisor credibly
     testified that she informed the appellant through a New Employee Packet and in
     person multiple times that, if he were going to be late or needed to request leave,
     he was required to contact her first. HCD; see IAF, Tab 7 at 35-36. She further
     testified that she authored all the counseling and incident reports relating to the
     appellant’s attendance and leave violations. HCD; see IAF, Tab 7 at 51, 53-54,
     56-63, 68, 70-72. The administrative judge found this testimony more credible
                                                                                           5

      than the appellant’s statement that he was not tardy or absent or that he did not
      know the proper policy for requesting leave. ID at 11-12; see IAF, Tab 6 at 5.
      The administrative judge properly considered the factors under Hillen v.
      Department of the Army, 35 M.S.P.R. 453, 458 (1987), in making these credibility
      findings, and we discern no basis to disturb these well-reasoned findings on
      review. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980).
¶9         We next consider whether the appellant’s failure to follow supervisory
      instructions would merit disciplinary action at the level of a suspension or higher.
      We note that the charge of failure to follow supervisory instructions merits a
      penalty of a written reprimand to a 14-day suspension for a first offense and a
      14- to 30-day suspension for a second offense under the agency’s Table of
      Offenses and Penalties. IAF, Tab 18 at 21. The deciding official testified that he
      considered the appellant’s misconduct to be a second offense (presumably
      considering the misconduct underlying the LCA to be a first offense). 2 HCD.
      However, the administrative judge found that, considering that the appellant was
      charged with 9 instances of the same misconduct, his misconduct would merit
      discipline at the level of a suspension, even if it were considered a first offense.
      ID at 12. We agree with the administrative judge that the appellant’s misconduct
      merited discipline at the level of a suspension and therefore find that the
      appellant violated the LCA.
¶10        In making this finding, we have considered the appellant’s argument that
      his time and attendance records showed that he was on approved leave for all of
      the dates in question and that the agency’s time and attendance records were
      unclear. PFR File, Tab 5 at 1-4. As the appellant correctly notes, the Board has
      held that an agency generally may not discipline an employee for absences or
      tardiness when the agency has approved the employee’s leave.               Smisson v.
      Department of the Air Force, 85 M.S.P.R. 427, ¶ 4 (2000); see Hollingsworth v.
      2
        The settlement agreement resolving the appellant’s first removal appeal provided that
      the agency would replace the removal with a suspension. IAF, Tab 7 at 76.
                                                                                       6

      Department of the Air Force, 121 M.S.P.R. 397, ¶ 5 (2014).           However, the
      appellant’s removal was not based upon leave and attendance violations; instead,
      it was based upon his failure to follow supervisory instructions related to time
      and attendance procedures.    IAF, Tab 7 at 20-22.     The Board has held that a
      charge such as failing to properly request leave can be maintained by an agency,
      even if the agency approves the leave request. Wilkinson v. Department of the Air
      Force, 68 M.S.P.R. 4, 7 (1995).         Accordingly, regardless of whether the
      appellant’s leave was approved, we find that the agency appropriately disciplined
      him based upon his failure to comply with his supervisor’s instructions. 3
¶11        Likewise, we find that the fact that the appellant may have informed a
      foreman of his absence does not provide a basis for disturbing the administrative
      judge’s findings. PFR File, Tab 5 at 4. The appellant’s supervisor testified that
      employees were required to contact her if they were going to be late or if they
      needed to have leave approved.      HCD.    Furthermore, the administrative judge
      found that there was no evidence to support the appellant’s allegation that it was
      the agency’s practice to allow employees to request leave by informing a foreman
      if a supervisor were unavailable.    ID at 12.   This finding is supported by the
      record. Therefore, the appellant’s challenge to the administrative judge’s finding
      constitutes mere disagreement with the initial decision and provides no basis for
      reweighing the evidence or substituting our assessment of the record evidence for
      that of the administrative judge.    See Broughton v. Department of Health &
      Human Services, 33 M.S.P.R. 357, 359 (1987).
¶12        Additionally, we are unconvinced by the appellant’s argument that the
      administrative judge’s denial of witness testimony impaired his ability to litigate
      whether he breached the LCA, PFR File, Tab 5 at 4, because the appellant has not
      explained how the testimony, if admitted, would have affected the outcome of the

      3
        Because we find that the agency’s discip line is not dependent upon whether the
      appellant’s leave was eventually approved, we need not address his arguments
      concerning the ambiguity of the agency’s time and attendance records.
                                                                                         7

      case, see Roth v. U.S. Postal Service, 54 M.S.P.R. 290, 295-96 (1992). Based on
      the foregoing, we discern no reason for disturbing the administrative judge’s
      finding that the appellant violated the LCA.

      The administrative judge properly found that the appellant failed to show that the
      agency materially breached the LCA.
¶13        Next, we find that the agency did not materially breach the LCA or act in
      bad faith. In deciding whether the agency acted in “bad faith,” we note that this
      term “implies the conscious doing of a wrong because of dishonest purpose or
      moral obliquity.” Adams v. U.S. Postal Service, 72 M.S.P.R. 6, 11 (1996).
¶14        The administrative judge found that the appellant failed to meet his burden
      of showing that the agency breached the LCA or acted in bad faith, particularly
      considering that, although it could have enforced the LCA after the first instance
      of misconduct, there were 9 instances of failure to follow supervisory instructions
      prior to the appellant’s removal.    ID at 12-14.    The appellant challenges this
      finding, stating that the administrative judge did not address certain testimony
      regarding the agency’s motives.         PFR File, Tab 5 at 4.          However, an
      administrative judge’s failure to mention in the initial decision all the record
      evidence does not mean that she did not consider it in reaching her decision.
      Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 14 (2014).
      Accordingly, we agree with the administrative judge’s well-reasoned finding that
      the appellant failed to show that the agency materially breached the LCA.

      The administrative judge properly found that the waiver of appeal rights in the
      LCA was valid and enforceable.
¶15        Finally, we must determine whether the waiver of appeal rights can be
      enforced. Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991).
      It is well settled that a waiver of a statutory right, such as the right to appeal an
      adverse action to the Board, must be clear, unequivocal, and decisive. Jackson v.
      Department of Justice, 96 M.S.P.R. 498, ¶ 11 (2004). The LCA provides that:
                                                                                          8

       I, [the appellant], of my own free will, voluntarily waive any and all
       procedural rights that I may have, if any, concerning preexisting,
       current, and future claims or appeals arising from operation of this
       Agreement. I, [the appellant], understand that my waiver of these
       procedural rights includes, but is not limited to, future rights to
       challenge any subsequent resignation or removal resulting from my
       violation of this Agreement.

IAF, Tab 7 at 32.      The administrative judge found that the appellant had not
shown that the agency committed any acts of coercion, deception, or duress that
would make the settlement agreement or the LCA nonbinding. 4 ID at 14-15. On
petition for review, the appellant does not argue that he did not voluntarily enter
into the LCA or that the LCA resulted from fraud or mutual mistake. PFR File,
Tab 5. We discern no basis for disturbing the administrative judge’s finding that
this language constituted a clear and unequivocal waiver of the appellant’s right
to appeal the removal.       See Rhett v. U.S. Postal Service, 113 M.S.P.R. 178,
185-86 (2010). We therefore agree with the administrative judge that the Board
lacks jurisdiction over this removal appeal. 5 Id.

                 NOTICE TO THE APPELLANT 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:



4
  The initial decision states, “I find that the waiver of appeal rights is unenforceable.”
ID at 15. However, we find, based upon the context of the decision, which dismissed
the appeal for lack of jurisdiction, that this statement contains a typographical error that
nonetheless is harmless and provides no reason for reversal of the in itial decision
because it does not affect the appellant’s substantive rights. Roesel v. Peace Corps,
111 M.S.P.R. 366, ¶ 12 n.1 (2009).
5
  The administrative judge properly found that, absent an otherwise appealable action,
the Board does not have jurisdiction to address the appellant’s claims of disability
discrimination. ID at 10 n. 5. We therefore do not address these arguments. See
Wa lker v. Department of the Navy, 40 M.S.P.R. 600, 604 (1989).
                                                                                  9

                          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.
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
                                                                           10

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