                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LILLIAN D. GADDY,                               DOCKET NUMBER
                   Appellant,                        AT-0752-14-0313-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: September 15, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Chungsoo J. Lee, Feasterville Trevose, Pennsylvania, for the appellant.

           Amy R. Walker, Atlanta, 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 her 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 significantly 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 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 agency removed the appellant from her position as a GS-11 Claims
     Examiner effective May 5, 2012, for poor performance. Initial Appeal File (IAF),
     Tab 5 at 38-39.    The appellant appealed her removal to the Board, which the
     parties resolved through a last chance settlement agreement (LCA). Id. at 40-50.
     Pursuant to the LCA, the appellant agreed that if she failed to achieve a
     performance rating of at least “minimally successful” by the end of fiscal year
     (FY) 2013, her removal would be reinstated immediately and she would not be
     entitled to an advanced notice period or the opportunity to respond. Id. at 43-44.
     The LCA further provided that the appellant waived her right to appeal the
     reinstated removal to the Board. Id. at 44. The administrative judge found the
     LCA to be lawful on its face, that the appellant represented that she understood
     the agreement and that she entered into it voluntarily, and the administrative
     judge entered it into the record for purposes of enforcement by the Board in a
     September 21, 2012 initial decision dismissing the case as settled.       Gaddy v.
                                                                                         3

     Department of Labor, MSPB Docket No. AT-0432-12-0550-I-1, Initial Decision
     at 1-2 (Sept. 21, 2012).
¶3         On November 18, 2013, the agency reinstated the removal action effective
     November 21, 2013, based on the appellant’s failure to meet the minimum level
     of acceptable performance for FY 2013, as stipulated in the LCA. 2 IAF, Tab 5
     at 65. The appellant filed a new appeal of the reinstated removal to the Board,
     alleging that it was improper because she “did not fail all of [her] standards.”
     IAF, Tab 1 at 6. In support, she provided a “Quarter FY-10 Operations Summary
     Report for Unit H,” which she had apparently prepared, and a brief timeline of
     her employment with the agency from 2005 through the date of her removal. Id.
     at 5-8.   The appellant further argued that the removal action was based on
     discriminatory and retaliatory motivations and “pretext associated with the
     improper Last Chance Agreement.” Id. at 5. The agency moved to dismiss the
     appeal for lack of Board jurisdiction, as the appellant had waived her right to
     appeal the reinstated removal in the LCA. IAF, Tab 5. The administrative judge
     issued a jurisdictional order explaining that the Board may not have jurisdiction
     over the appeal given the appeal rights waiver in the LCA. IAF, Tab 7. The
     appellant responded that the Board should find jurisdiction because the appeal
     rights waiver was essentially invalid and unenforceable, and because the agency
     breached the LCA when it reinstated her removal 2 days prior to the date of the
     November 20, 2013 unsatisfactory performance rating. IAF, Tab 8 at 4-11.
¶4         In an April 10, 2014 initial decision, the administrative judge dismissed the
     appeal for lack of jurisdiction, finding that the appellant failed to establish that
     the appeal rights waiver was invalid or unenforceable, or that the agency had
     materially breached the LCA. IAF, Tab 9, Initial Decision at 3-4.



     2
       The appellant’s performance appraisal and rating dated November 20, 2013, reflects
     that the appellant’s performance for the period from October 1, 2012, to September 30,
     2013, was rated as unsatisfactory. IAF, Tab 5 at 55-62.
                                                                                      4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        The appellant filed a petition for review of the April 10, 2014 initial
     decision, arguing again that the Board should find jurisdiction to review her
     removal because the appeal rights waiver was invalid and unenforceable, and
     because the agency had breached the LCA.        Petition for Review (PFR) File,
     Tab 1. The agency responded that the appellant failed to establish a basis for
     Board review. PFR File, Tab 3.
¶6        The Board does not have jurisdiction over a personnel action taken pursuant
     to an LCA in which an appellant waives her right to appeal to the Board. Willis v.
     Department of Defense, 105 M.S.P.R. 466, ¶ 17 (2007); Rosell v. Department of
     Defense, 100 M.S.P.R. 594, ¶ 7 (2005), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
     The appellant bears the burden of proving that her appeal is within the Board’s
     jurisdiction. Rosell, 100 M.S.P.R. 594, ¶ 7. To establish that a waiver of appeal
     rights in an LCA should not be enforced an appellant must show one of the
     following: (1) she complied with the LCA; (2) the agency materially breached
     the LCA or acted in bad faith; (3) she did not voluntarily enter into the LCA; or
     (4) the LCA resulted from fraud or mutual mistake. Willis, 105 M.S.P.R. 466,
     ¶ 17. Where an appellant 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 in the LCA.       Id., ¶ 18; Zordel v.
     Department of Defense, 99 M.S.P.R. 554, ¶ 13 (2005).           Further, where an
     appellant makes a nonfrivolous allegation of fact that she did not breach an LCA,
     a jurisdictional hearing is warranted to resolve the issue of compliance. Gibbons
     v. Department of Agriculture, 74 M.S.P.R. 33, 36 (1997).             Nonfrivolous
     allegations of Board jurisdiction are allegations of fact which, if proven, could
     establish a prima facie case that the Board has jurisdiction over the matter at
     issue. Willis, 105 M.S.P.R. 466, ¶ 18.
¶7        First, the appellant has failed to make a nonfrivolous allegation that she did
     not breach the LCA. On review, the appellant does not allege that she complied
                                                                                       5

     with the LCA by achieving a performance rating of at least minimally satisfactory
     by the end of FY 2013. See PFR File, Tab 1. Although she generally disputed
     her unsuccessful performance rating below, she failed to nonfrivolously allege
     that she did not breach the LCA because her performance was at least minimally
     satisfactory by the end of FY 2013. See IAF, Tab 1 at 6 (“I did not fail all of my
     standards”), Tab 8 at 6 (“Appellant rigorously disputes the [performance]
     rating”), 56, ¶ 30 (“I dispute the rating of ‘unsatisfactory’ performance”). Even if
     proven true, these allegations would not establish that the appellant had
     satisfactory performance, but only that she disagrees with the rating. Further, the
     operations summary report from FY 2010, even if proven true, does not constitute
     a nonfrivolous allegation that the appellant had satisfactory performance in
     FY 2013.    As such, these vague allegations do not constitute a nonfrivolous
     allegation that she complied with the LCA and are insufficient to warrant a
     jurisdictional hearing to resolve the issue of compliance.
¶8        Second, the appellant’s arguments that the agency materially breached the
     LCA are unpersuasive. On review, the appellant argues that the agency violated
     the LCA by reinstating her removal 2 days prior to issuing the unsatisfactory
     performance rating and because the rating was never “finalized,” as it lacks the
     reviewing official’s signature. PFR File, Tab 1 at 6-7. For an appellant to prove
     Board jurisdiction over an appealable matter on the basis that an agency breached
     an LCA, she must establish that the agency breached the agreement in a material
     way, regardless of motive, or otherwise breached the agreement by acting in bad
     faith. Link v. Department of Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995). A
     breach is material when it relates to matters of vital importance, or goes to the
     essence of the contract. Gilbert v. Department of Justice, 334 F.3d 1065, 1071
     (Fed. Cir. 2003). We do not find that reinstating the appellant’s removal 2 days
     prior to issuing the unsatisfactory performance rating, or the fact that it was not
     signed by the reviewing official, are of vital importance to the contract. Further,
     we do not find that these allegations indicate that the agency acted in bad faith.
                                                                                      6

      We therefore agree with the administrative judge that the agency did not
      materially breach the LCA.
¶9         Finally, we will not consider whether the LCA was involuntary or the result
      of fraud or mutual mistake. On July 30, 2014, the Clerk of the Board issued a
      show cause order to the appellant instructing her to clarify the basis of her
      petition for review; specifically, whether she sought to challenge the validity of
      the LCA. PFR File, Tab 4. The show cause order advised that an attack on the
      validity of a settlement agreement must be made in the form of a petition for
      review of the initial decision dismissing the case as settled. Id.; see Weldon v.
      Department of Veterans Affairs, 119 M.S.P.R. 478, ¶ 5 (2013); Lange v.
      Department of the Interior, 98 M.S.P.R. 146, ¶ 3 (2005). As such, to the extent
      the appellant was seeking to challenge the validity of the LCA, the order
      explained that the Clerk of the Board would docket her filing as a petition for
      review of the September 21, 2012 initial decision dismissing the case as settled
      and allow her an opportunity to show good cause for the untimely challenge to the
      LCA. PFR File, Tab 4 at 2. The order further provided that if the appellant
      failed to respond within 15 days, the Board would conclusively determine that she
      has decided not to contest the validity of the settlement agreement. Id. at 2-3.
      The Board did not receive any response from the appellant.       Accordingly, we
      have conclusively determined that the appellant does not seek to challenge the
      validity of the LCA and, for the purposes of this appeal, it is presumed valid and
      enforceable.
¶10        Based on the above, we agree with the administrative judge that the Board
      lacks jurisdiction to review the appellant’s reinstated removal, as the appellant
      failed to establish that the appeal rights waiver in the LCA should not be
      enforced.
                                                                                  7

                 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:
                          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
                                                                           8

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.
