                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JANICE E. WHITTAKER,                            DOCKET NUMBER
                    Appellant,                       DA-0752-15-0157-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 3, 2017
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Daniel J. Gamino, Oklahoma City, Oklahoma, for the appellant.

           Joan M. Green, Esquire, Oklahoma City, Oklahoma, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     administrative 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.       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, 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).
¶2        The agency decided to remove the appellant from her Clinical Dietetic
     Technician position based on the charge of providing inaccurate information, i.e.,
     telling her supervisor that she had a teaching schedule at Langston University
     when in fact she had not been employed by the University for more than 10 years.
     Initial Appeal File (IAF), Tab 7 at 36, 102. On July 29, 2014, before the effective
     date of the removal, the agency and the appellant entered into a last‑chance
     settlement agreement (LCA) that provided that the agency would hold the
     decision to remove in abeyance for 3 years and rescind the removal after that
     time, assuming that during those 3 years the appellant did not engage in any
     conduct deemed by the agency to be an offense punishable by discipline under the
     agency’s table of penalties. Id. at 32. The LCA provided that, if the appellant
     engaged in any such conduct, the agency would reinstate the removal. Id. The
     LCA also provided that, in the event that the agency reinstated the removal, the
     appellant waived her right to appeal the removal to the Board. Id. The agency
     reinstated the removal, effective September 29, 2014, stating that the appellant
     had demonstrated misconduct under the provision of the agency’s table o f
     penalties defining Careless or Negligent Workmanship Resulting in Waste or
     Delay. Id. at 31.
                                                                                      3

¶3        The appellant appealed the agency’s action.             IAF, Tab 1.       The
     administrative judge issued a jurisdictional order, specifically informing the
     appellant of what she needed to establish in order for the Board to have
     jurisdiction over her appeal. IAF, Tab 2.
¶4        Based on the record, including the hearing testimony, the administrative
     judge found that the appellant failed to show that she complied with the terms of
     the LCA. IAF, Tab 29, Initial Decision (ID) at 7. He found that the appellant’s
     supervisor credibly testified that the appellant’s patient assessments were replete
     with errors, including errors that had the potential to compromise patient care,
     and that such errors were punishable by discipline as Careless or Negligent
     Workmanship Resulting in Waste or Delay. ID at 7-8. He also found that the
     appellant failed to show that the agency breached the agreement or acted in bad
     faith. ID at 8-9. He found, moreover, that the appellant voluntarily waived her
     right to appeal her removal to the Board. ID at 9.
¶5        In her petition for review, the appellant asserts that her actions did not
     result in patient neglect or harm. She contends that, if her supervisor had any
     reservations about her work, the supervisor would not have allowed the appellant
     to continue in her position for 2 weeks after she found errors in the patient chart
     entries made by the appellant. The appellant asserts that she properly used a copy
     and paste method to make entries to the patient’s charts , a method approved by
     the agency. She also asserts, as she did below, that the agency failed to give her
     notice of the basis for reinstating the removal action. Additionally, she asserts
     that her removal does not promote the efficiency of the service.       Petition for
     Review (PFR) File, Tab 1.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        The appellant bears the burden of proving that an appeal is within the
     Board’s jurisdiction.     5 C.F.R. § 1201.56(b)(2)(i)(A).      The Board lacks
     jurisdiction over an action taken pursuant to an LCA in which an appellant waives
                                                                                     4

     her 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) 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.       Id.; Covington v. Department of the Army,
     85 M.S.P.R. 612, ¶ 12 (2000). When an appellant raises a nonfrivolous factual
     issue of compliance with an LCA, the Board must resolve that issue before
     addressing the scope of and applicability of a waiver of appeal rights in the LCA.
     Stewart v. U.S. Postal Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991); Covington,
     85 M.S.P.R. 612, ¶ 12.
¶7        Here, the appellant’s primary argument is that she complied with the LCA.
     PFR File, Tab 1. First, she asserts that she did not violate the agreement because
     her actions did not result in harm to a patient. However, the agency’s table of
     penalties lists the charged misconduct as “Careless or Negligent Workmanship
     Resulting in Waste or Delay.”      IAF, Tab 7 at 336.    Thus, on its face, this
     misconduct need not result in actual harm. Further, while the lack of patient
     harm may be a mitigating factor in a penalty determination, it does not mean that
     the alleged misconduct did not occur. See Dwight v. Veterans Administration,
     7 M.S.P.R. 37, 39 (1981) (finding mitigation appropriate, when the misconduct
     was established, but the medical center engineer’s negligence did not result in
     harm).   Mitigation is not an appropriate consideration here, given that the
     appellant’s removal penalty was effected pursuant to an LCA in which she waived
     her Board appeal rights to challenge that penalty.
¶8        The appellant also asserts that she complied with the LCA because she
     was not immediately removed from performing the duties of her position. PFR
     File, Tab 1. As the administrative judge found, however, the delay in processing
     the removal was reasonable because it took the appellant’s supervisor time to
     review the appellant’s patient records and then to discuss her findings with her
                                                                                      5

      supervisor after she received an August 12, 2014 email from a dietician
      complaining about the appellant’s work. ID at 9.
¶9         As she did below, the appellant asserts that her errors resulted from her
      copying information from a patient’s prior record and pasting the information into
      the patient’s current record. The appellant asserts that using this copy and paste
      method for patient entries was proper for her position.      At the hearing, the
      appellant’s supervisor explained that the appellant, as a Clinical Dietetic
      Technician, was responsible for conducting nutrition screenings and identifying
      patients who were at a greater risk of malnutrition.       After the appellant’s
      screenings, a registered dietician would then assess those patients and determine
      if early intervention was appropriate. ID at 5. The administrative judge found
      not credible the appellant’s assertion that the copy and paste method was proper
      for conducting nutrition screenings.   Rather, he credited the testimony of the
      appellant’s supervisor who emphasized the importance of accuracy in medical
      records, and explained that copying and pasting could result in information that
      was not current or valid being placed into a patient’s file, and was not an
      acceptable method for making entries into patient charts . ID at 8. The Board
      must defer to an administrative judge’s credibility determinations when, as here,
      they are based, explicitly or implicitly, on observing the demeanor of witnesses
      testifying at a hearing; the Board may overturn such determinations only when it
      has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
      288 F.3d 1288, 1301 (Fed. Cir. 2002) . We find that the appellant has not provided
      any reason to overturn the administrative judge’s credibility determination
      regarding whether the appellant failed to comply with the LCA .
¶10        Regarding the appellant’s assertion that the agency failed to notify her of
      the basis for reinstating the removal action, PFR File, Tab 1, the administrative
      judge properly noted that there are no due process concerns of notice and an
      opportunity to respond at stake in circumstances involving an agency’s invocation
      of an LCA’s provision reinstating a removal action, ID at 9 n*. The record shows
                                                                                            6

      that the appellant received notice and an opportunity to respond to the charges
      that were the basis of the original removal action. IAF, Tab 7 at 36-102. The
      administrative judge nonetheless considered the appellant’s assertion that the
      agency failed to give her notice and an opportunity to respond as an allegation
      that the agency acted in bad faith in invoking the LCA.          He found that the
      appellant’s supervisor credibly testified that, during a meeting on August 29,
      2014, she showed the appellant specific patient records about which she had
      concerns and gave the appellant an opportunity to respond to them. Notes taken
      from that meeting show that the appellant’s supervisor showed or gave the
      appellant a copy of nine patients’ records and that the appellant had an
      opportunity during the meeting to explain her work.           IAF, Tab 18 at 9-14.
      Therefore, we find that the administrative judge correct ly determined that the
      agency’s actions did not amount to bad faith. ID at 8 -10.
¶11         Finally, the appellant’s argument that her removal does not promote the
      efficiency of the service is unavailing.       PFR File, Tab 1.      The Board has
      addressed whether removal for violating an LCA promotes the efficiency of the
      service and has found that violating a LCA demonstrates a lack of dependability
      that undermines management’s confidence in an employee’s ability to perform his
      duties. Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 22 (2005). Here, the
      appellant waived her Board appeal rights.        Absent a finding of jurisdiction,
      consideration of the efficiency of the service is outside the scope of this appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit. You must submit your reques t to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439
                                                                                  7

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
