                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHAUNA CONNOLLY,                                DOCKET NUMBER
                 Appellant,                          DC-0752-14-1120-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 25, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.

           Jason P. Cooley, and Robin Matthew, Washington, D.C., 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 for lack of jurisdiction her appeal of her removal pursuant to a last
     chance agreement (LCA). 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 regulation or the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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.   Except as expressly MODIFIED by this Final Order to find that
     (1) the agency did not rely on ¶ 2(j) of the LCA as a basis for invoking the
     agreement, and (2) the decision of an unemployment compensation examiner may
     be material to the jurisdictional question of whether an employee breached an
     LCA, we AFFIRM the initial decision.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On petition for review, the appellant contends that the administrative judge
     erred in failing to consider the impact of the collective bargaining agreement
     (CBA), in particular the following sections of Article 20:
           Section 7
           Unavoidable or necessary absence from duty of less than one hour
           may be handled administratively by the authorizing official in one of
           the following ways:
           (a) By excusing the employee for adequate reasons.
           (b) By requiring work time equivalent to the period of absence.
           (c) By charging (in 15-minute units) against any leave time the
               employee may have to his or her credit.
           Section 8
           While an isolated instance of an unapproved absence of short
           duration (e.g., tardiness) may normally be handled as provided in
           Section 7, unapproved absences that are lengthy may be charged as
                                                                                     3

           absence without leave.       Unapproved absences, even of short
           duration, may be a basis for disciplinary action.
           Section 13
           Annual leave may be advanced as along as the employee would
           accrue that amount of annual leave during the remainder of the leave
           year. Employees do not have an entitlement to advanced annual
           leave.
     Initial Appeal File (IAF), Tab 19 at 131. The appellant reasons that, under these
     provisions, her supervisor was not required to charge her with absence without
     leave (AWOL) for her 1-hour absence on July 24, 2014, but had discretion to
     choose other options, such as requiring her to work an additional hour on a later
     date or advancing leave to make up the deficiency. Petition for Review (PFR)
     File, Tab 1 at 12-18.
¶3        The appellant further argues that the administrative judge erred in requiring
     her to demonstrate bad faith on the part of the agency. She argues that, contrary
     to the administrative judge’s analysis, the “good faith” required by the implied
     covenant of good faith and fair dealing means something other than the mere
     absence of bad faith.    Id. at 18-22. Hence, the appellant argues, even if the
     agency’s conduct did not sink to the level of bad faith, the administrative judge
     should have considered whether it acted in good faith when the appellant’s
     supervisor charged her with AWOL instead of choosing another option allowed
     under the CBA. Id.
¶4        There is some dispute as to whether the Article 20 provisions are applicable
     in the first instance.   The agency contends that the cited provisions were
     superseded by the more stringent leave-requesting procedures required under
     ¶ 2(j) of the LCA:
           [The appellant] agrees that before the last Friday of each pay period,
           she will notify her immediate supervisor of her proposed maxi-flex
           schedule for the upcoming pay period, and no changes to such
           schedule will be allowed unless specifically approved in advance by
           her immediate supervisor.
                                                                                             4

     IAF, Tab 14 at 44. 2 For her part, the appellant argues that the LCA could not
     have modified the CBA, as a unilateral modification of the CBA by the agency
     would be an unfair labor practice. PFR File, Tab 1 at 15. We need not resolve
     this question, however, because even assuming that Article 20 controls, the
     appellant has not shown that the agency failed to act in good faith when it
     charged her with 1 hour AWOL and invoked the LCA.
¶5         As an initial matter, we reject the appellant’s suggestion that the agency
     bears the burden of proof on this issue. Rather, it is the appellant who bears the
     burden of proving by a preponderance of the evidence that a waiver of appeal
     rights in an LCA should not be enforced.           Willis v. Department of Defense,
     105 M.S.P.R. 466, ¶ 17 (2007). 3        There is also no merit to the appellant’s
     suggestion that the CBA is designed to “require” leniency in excusing short
     unapproved absences. PFR File, Tab 1 at 22. While the cited CBA provisions
     allow for leniency, they also plainly contemplate that the agency has discretion to


     2
       While it is undisputed that the appellant did not seek advance approval for a change to
     her schedule, the agency did not cite ¶ 2(j) as a basis for invoking the LCA. IAF,
     Tab 14 at 11-14. To the extent the administrative judge relied on a finding that the
     appellant breached ¶ 2(j), we agree with the appellant that her analysis was in error. Cf.
     Lizzio v. Department of the Army, 534 F.3d 1376, 1384 (Fed. Cir. 2008) (finding that
     the full Board violated the petitioner’s due process rights by relying on a ground for
     breach different from the one found by the administrative judge to have been asserted
     by the agency in the notice of breach). However, the error is of no consequence,
     because the administrative judge also agreed with the agency’s determination that the
     appellant’s 1 hour of AWOL was an incident of misconduct warranting disciplinary
     action, and hence a breach of the LCA under ¶ 2(e). See Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to
     a party’s substantive rights provides no basis for reversal of an initial decision).
     3
       Where, as here, an appellant seeks to prove Board jurisdiction over an appealable
     matter by showing that the agency breached an LCA waiving her right to appeal, 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, 1582-83 (Fed. Cir. 1995). As discussed above, the appellant
     takes the position that, even in the absence of bad faith, an agency may materially
     breach an LCA by failing to act in good faith. If so, the burden of proof nonetheless
     remains with the appellant.
                                                                                       5

     charge an employee with AWOL and take disciplinary action on that basis even
     where an unapproved absence is isolated and of brief duration.
¶6        The appellant objects that her supervisor did not “specifically apply” these
     provisions, or explain how they entered into her decision to charge her with
     AWOL. Id. at 17. However, the provisions in question essentially amount to a
     grant of discretion, and offer no guidance as to how that discretion should be
     exercised. The appellant suggests that the Board undertake an inquiry akin to an
     analysis of the factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280,
     306 (1981), and consider the factors that may weigh in favor of leniency, see PFR
     File, Tab 1 at 22-23, but nothing in the CBA requires such an analysis. Had the
     appellant shown that the agency departed from an established practice of excusing
     absences in similar circumstances—i.e., where an employee attends an off-site
     agency event at the end of the day and leaves before the end of duty hours
     without a prior grant of administrative leave—this might serve as evidence that
     the agency failed to act in good faith. However, the record does not show even a
     single instance where the agency excused a similar absence.          Moreover, we
     previously have held that it is not arbitrary, capricious, or an abuse of discretion
     for an agency to invoke an LCA based on 1 hour of AWOL. See Gonzales v.
     Department of the Air Force, 38 M.S.P.R. 162, 167 (1988).
¶7        The appellant also contends that the administrative judge failed to consider
     the weight or significance of an unemployment compensation decision, which
     found that her 1 hour of AWOL on July 24, 2014, did not constitute disqualifying
     misconduct. PFR File, Tab 1 at 23-24; see IAF, Tab 19 at 63-71 (Exhibit NN).
     We agree that the decision of an unemployment compensation examiner may be
     material to the jurisdictional question of whether an employee breached an LCA.
     See Willis, 105 M.S.P.R. 466, ¶ 15. Here, however, the compensation decision
     carries little weight, because the examiner explicitly refrained from making a
     finding as to whether the appellant committed a breach of the LCA warranting her
     removal:
                                                                                  6

      [A]ssuming, for argument purposes, that Claimant’s one hour of
      AWOL on July 24, 2014, was appropriately utilized by Employer to
      terminate her employment pursuant to the Agreement, it does not,
      alone, rise to the level of misconduct under the unemployment
      statute.
IAF, Tab 19 at 68. Hence, to the extent the administrative judge may have failed
to address the compensation decision, her error did not affect the appellant’s
substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).    Accordingly, we affirm the initial decision, as modified, that
dismissed the appellant’s appeal for lack of jurisdiction.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
                                                                                      7

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