                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RICARDO CENDEJAS,                               DOCKET NUMBER
                 Appellant,                          SF-0752-15-0441-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: February 18, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL *

           Peter J. Horton, Esquire, Westlake Village, California, for the appellant.

           Richard D. Ruppe, Esquire, San Diego, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction pursuant to an appeal rights waiver in
     a last chance settlement agreement (LCA). For the reasons discussed below, we
     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Remand Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2         The agency removed the appellant, a GS-06 Police Officer, on two charges,
     failure to follow standard operating procedure and sleeping on duty, and the
     parties settled the appellant’s subsequent Board appeal of that action with an
     LCA. Initial Appeal File (IAF), Tab 6 at 191-202; Cendejas v. Department of the
     Navy, MSPB Docket No. SF-0752-14-0180-I-1, Initial Decision (Apr. 2, 2014).
     Pursuant to the parties’ agreement, in pertinent part, the agency agreed to cancel
     the appellant’s removal and he agreed to waive his Board appeal rights such that
     the agency may effect his removal under the cancelled action “if at any time
     within the next 24 months his performance, conduct, and/or attendance are less
     than satisfactory.” IAF, Tab 6 at 192.
¶3         The agency reassigned the appellant in keeping with the parties’ agreement
     and, at his supervisor’s request, the appellant volunteered to attend training at the
     Federal Law Enforcement Training Center (FLETC) in Georgia. Id. at 191-92;
     IAF, Tab 5 at 24. The appellant attended the training and experienced several
     injuries, including a fractured rib; he attempted to continue the training but failed
     two exams, which made him ineligible to graduate from the FLETC program and
     required him to return immediately to his duty station. IAF, Tab 5 at 24, Tab 6
     at 14-15. The agency subsequently reinstated the prior removal action pursuant
     to the LCA, notifying the appellant that, due to his failure to complete the FLETC
     training, he had failed to demonstrate acceptable performance and to meet a
     condition of employment, and that he therefore had violated the terms of the
     parties’ agreement. IAF, Tab 6 at 11-13.
¶4         The appellant subsequently filed this appeal in which he argued that his
     failure to pass the FLETC exams did not indicate poor performance and that,
     because he volunteered for the FLETC training, it was not a condition of his
     employment. IAF, Tab 1. The administrative judge gave the appellant notice of
     the elements and burdens of establishing jurisdiction over an action involving an
     LCA. IAF, Tab 2; see, e.g., Link v. Department of the Treasury, 51 F.3d 1577,
                                                                                       3

     1582 (Fed. Cir. 1995). The parties responded and the agency moved to dismiss
     the appeal for lack of jurisdiction. IAF, Tabs 5-7. Without holding the requested
     hearing, the administrative judge granted the agency’s motion and dismissed the
     appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously
     allege that he complied with the LCA or that the agency breached it. IAF, Tab 8,
     Initial Decision (ID) at 1, 5-7.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         In his petition for review, the appellant argues for the first time that the
     agency breached the agreement when it failed to give him notice of his alleged
     breach within 30 days, and he reiterates his argument that his failure to complete
     FLETC training did not demonstrate poor performance.          Petition for Review
     (PFR) File, Tab 1 at 7-8. The appellant argues that the agreement is ambiguous
     because the agency has not established a link between performance and training,
     and he requests a hearing to submit parol evidence as to the parties’ intent in
     drafting the agreement. Id. at 8. He also argues that he received a satisfactory
     performance evaluation just prior to the FLETC training, and he reiterates that the
     training at issue was not required for his position and his performance standards
     do not indicate that the completion of such training is an element in the
     evaluation of an officer’s performance. Id. at 9. In that regard, the appellant
     implicitly accuses the agency of bad faith in relying on his training failure as
     evidence of unsatisfactory performance because he volunteered to attend, and
     neither the LCA nor, as noted above, his performance standards explicitly link
     performance with training. Id. at 8-9. The agency responds in opposition. PFR
     File, Tab 3.
¶6         The Board does not have jurisdiction over an action taken pursuant to an
     LCA in which the appellant waives his Board appeal rights, unless he shows that
     the waiver is unenforceable.       E.g., Smith v. Department of the Interior,
     113 M.S.P.R. 592, ¶ 6 (2010). To establish that the waiver of appeal rights in an
                                                                                       4

     LCA is unenforceable, the appellant must show that: (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.   Where an employee 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.     Stewart v. U.S. Postal
     Service, 926 F.2d 1146, 1148 (Fed. Cir. 1991).      More importantly, where an
     appellant makes a nonfrivolous allegation of fact that he did not breach an LCA, a
     jurisdictional hearing is warranted to resolve the issue of compliance.          See
     Williams v. Department of the Treasury, 52 M.S.P.R. 344, 347 (1991).              A
     nonfrivolous allegation of fact in this instance is one that, if proven, would
     establish a prima facie case that the appellant did not breach the LCA.          See
     Briscoe v. Department of Veterans Affairs, 63 M.S.P.R. 137, 140 (1994), aff’d,
     55 F.3d 1571 (Fed. Cir. 1995) (Table). In determining whether the appellant has
     made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the
     administrative judge may consider the agency’s documentary submissions;
     however, to the extent that the agency’s evidence constitutes mere factual
     contradiction of the appellant’s otherwise adequate prima facie showing of
     jurisdiction, the administrative judge may not weigh evidence and resolve
     conflicting assertions of the parties and the agency’s evidence may not be
     dispositive. E.g., Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994).
¶7        Based on the appellant’s sworn statement, in which he asserts that he
     volunteered for the FLETC training course, the successful completion of which
     was not required as a condition of his employment, and that he was unable to pass
     the course based on medical reasons, we find that the appellant nonfrivolously
     alleged that he did not breach the LCA. IAF, Tab 5 at 23-25. Accordingly, we
     conclude that a jurisdictional hearing is warranted to resolve the issue of
     compliance. Williams, 52 M.S.P.R. at 344.
                                                                                    5

¶8        In removing the appellant for violating the LCA, the agency indicated that
     his failure to complete the FLETC training demonstrated unacceptable
     performance. IAF, Tab 6 at 11. The agency also stated that his failure to
     complete the training resulted in a failure to meet a condition of employment.
     Id. The administrative judge found that completion of the FLETC training
     “appear[ed]” to be a condition of the appellant’s employment. ID at 7. She then
     found that, in any event, “the agency did not remove the appellant for failure to
     meet a condition of employment.” Id. That statement seems to conflict with the
     removal notice itself, which cites the appellant’s alleged failure to meet a
     condition of employment in determining that he failed to demonstrate acceptable
     performance. IAF, Tab 6 at 11. On remand, the administrative judge should
     examine what effect, if any, the agency’s reference to the appellant’s alleged
     failure to meet a condition of employment has on its removal action pursuant to
     the LCA considering it is unclear based on the existing record that a failure to
     complete the training was performance related. In conducting the analysis, she
     should also determine whether completion of the FLETC training was in fact a
     condition of the appellant’s employment, a matter over which there appears to be
     a genuine dispute, see IAF, Tab 5 at 13-14, Tab 7 at 7.
¶9        Although the appellant claims that the agency breached the agreement by
     not providing him with notice of his alleged breach within 30 days, PFR File,
     Tab 1 at 7, he did not make this argument below, and the Board generally will not
     consider an argument raised for the first time in a petition for review absent a
     showing that it is based on new and material evidence not previously available
     despite the party’s due diligence, e.g., Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980).          The appellant makes no such showing.
     Nevertheless, even if the agency failed to provide the required notice of breach,
     that alone would not be a material breach of the parties’ agreement because such
     notice was not a “major benefit” that the appellant received through the
     agreement. Cf. Galloway v. Department of Agriculture, 110 M.S.P.R. 311, ¶ 8
                                                                                        6

      (2008) (observing that the appellant did not materially breach the settlement
      agreement by failing to give notice before filing an enforcement action because
      the notice provision was not a matter of vital importance going to the essence of
      the contract).
¶10         Finally, because we have determined that the appellant is entitled to a
      jurisdictional hearing, the timeliness of the instant appeal is once again at issue.
      ID at 7 n.2; see IAF, Tab 2 at 2-3; Tab 5 at 14; Tab 6 at 5 n.1. On remand, the
      administrative judge may make findings as to the jurisdictional and timeliness
      issues at her discretion, including whether to hold a hearing prior to issuing a new
      initial decision, should she find it necessary for proper adjudication.

                                            ORDER
¶11         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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