                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TYLER A. MELLICK,                               DOCKET NUMBER
                   Appellant,                        SF-0752-16-0121-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: July 8, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

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

           Felippe Moncarz, Esquire, Boise, Idaho, 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. 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 Order.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The agency removed the appellant from the position of Electrician based on
     his violation of a last-chance settlement agreement (LCA) provision that, during
     the 2-year term of the agreement, he would comply with all applicable rules,
     management directives/instructions, regulations, policies, and laws required of
     him by the agency, and that any misconduct that would warrant a suspension or
     greater discipline would be a breach. 2 Initial Appeal File (IAF), Tab 7, Subtab 4
     at 19, 83.   Specifically, the agency charged the appellant with four acts of
     misconduct that violated the agreement:        (1) ranting at a coworker during a
     meeting using obscene language; (2) failing to follow a supervisory instruction to
     return to the meeting after he left; (3) placing the only working elevator on hold,
     endangering others who might need the elevator in an emergency; and (4) putting
     his arms around a coworker and licking his ear. Id. at 21.
¶3         The appellant appealed the agency’s action. IAF, Tab 1. He asserted that
     he was provoked by coworkers into the actions listed in the agency’s charges, and
     thus he did not breach the LCA, and the agency did not restrain the coworkers
     despite the appellant’s request for help. Id. He also asserted that the agency
     committed a due process violation by denying his request for an extension to
     reply to the notice that he had breached the LCA. Id. During proceedings below,
     the appellant alleged further that the agency breached the agreement by revealing
     its terms to his coworkers. IAF, Tab 6.
¶4         In his initial decision, the administrative judge found that the appellant
     failed to show that he complied with the LCA, and that therefore, the waiver of
     Board appeal rights in the agreement was enforceable.             IAF, Tab 9, Initial
     Decision (ID) at 9.    Further, the administrative judge found that the appellant
     failed to show that the agency breached the agreement by disclosing its existence

     2
      The parties entered into the LCA to resolve a Board appeal of the appellant’s removal.
     Mellick v. Department of the Interior, MSPB Docket No. SF-0752-15-0111-I-1, Initial
     Decision (Mar. 5, 2015).
                                                                                       3

     to the appellant’s coworkers or acted in bad faith by allowing employees to
     provoke the appellant. ID at 9-11. Finally, the administrative judge found that,
     without jurisdiction over the appeal, he could not address the appellant’s
     allegations of disability discrimination, reprisal for filing an equal employment
     opportunity complaint, and due process violations. ID at 11-12.
¶5        In his petition for review, the appellant alleges that the administrative judge
     erred by weighing conflicting assertions as dispositive at the jurisdictional stage
     to find that the appellant failed to make a nonfrivolous allegation of fact that he
     did not engage in the charged misconduct. He contends further that the removal
     was a new adverse action, not the reinstatement of the adverse action that led to
     and resulted in the LCA, and thus he was denied due process to reply to the new
     adverse action. He also reasserts that the agency breached the confidentiality of
     the agreement by revealing some of its terms to his coworkers, and the
     administrative judge erred by not allowing or rejecting any consideration for the
     appellant to conduct discovery on the issue. Petition for Review File, Tab 1.
¶6        The Board does not have jurisdiction over a personnel 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); Rosell v. Department of
     Defense, 100 M.S.P.R. 594, ¶ 7 (2005), aff’d, 191 F. App’x 954 (Fed. Cir. 2006).
     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. Willis, 105 M.S.P.R. 466, ¶ 17.
¶7        As noted, the appellant argues that the administrative judge erred in
     weighing the parties’ evidence concerning whether the appellant made a
     nonfrivolous allegation that he did not breach the LCA regarding the sole charge
     that the administrative judge adjudicated; namely, that he ranted at a coworker
     during a meeting using obscene language.        A nonfrivolous allegation is an
                                                                                              4

     allegation of fact that, if proven, could establish a prima facie case that the Board
     has    jurisdiction     over   the     appeal.        Weed     v.     Social       Security
     Administration,   113 M.S.P.R.       221,   ¶ 18   (2010);   Ferdon    v.   U.S.    Postal
     Service, 60 M.S.P.R. 325, 329 (1994). 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. Weed, 113 M.S.P.R. 221, ¶ 19; Ferdon, 60 M.S.P.R. at 329.
¶8         The appellant contends that his not remembering whether he disrupted the
     staff meeting, combined with his supervisor not mentioning that the appellant
     used profanity at the meeting, rises to the level of a nonfrivolous allegation of
     fact entitling him to a jurisdictional hearing. We find, however, that even if the
     appellant could prove his assertion of fact—that he cannot remember his actions
     at the meeting—and that this assertion could be considered with the supervisor’s
     sworn statement, it does not constitute a nonfrivolous allegation that he did not
     act as charged.       Two witnesses’ statements indicate that the appellant used
     profanity during a rant at the meeting. IAF, Tab 7 at 27-30. The supervisor’s
     statement is not inconsistent with these two other statements.          He stated that,
     during the meeting, the appellant stood up, was quite loud, and yelled at a
     coworker.   Id. at 31.    Thus, the administrative judge properly considered the
     agency’s evidence in support of its charge and found that the agency proved the
     charged misconduct through the generally consistent statements of three
     employees who were present at the meeting and could observe the appellant’s
     behavior. Id. at 27-31; see Weed, 113 M.S.P.R. 221, ¶ 19; Ferdon, 60 M.S.P.R.
                                                                                                 5

      at 329. Under these circumstances, we find that the administrative judge properly
      found that the appellant breached the LCA.
¶9          The appellant asserts that the removal was a new adverse action, not the
      reinstatement of the adverse action that led to and resulted in the LCA and thus he
      was denied due process by not being allowed to reply to the new adverse action.
      The appellant raises this argument for the first time on petition for review.
      Generally, the Board 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. Banks v. Department
      of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such
      showing, and so we need not address it.
¶10         In any event, even if we were to address it, the appellant’s assertion is
      unavailing. The LCA did not provide that, in the event of breach, the agency
      would reinstate the removal action that was settled by the LCA. Rather, the LCA
      provides that, if the appellant commits one infraction or incident of misconduct of
      any type that would merit disciplinary action of suspension or higher and he
      does not submit a voluntary resignation, the agency would separate him for
      violating   the   LCA.       IAF,      Tab 7   at 83.      Cf.    Fiori   v.    U.S.   Postal
      Service, 104 M.S.P.R. 278, ¶ 7 (2006) (finding that an employee may waive the
      right to appeal a disciplinary action to the Board in an LCA; however, the Board
      may have jurisdiction over an appeal where an agency has effected a new and
      different action that was not subject to the waiver).
¶11         As    noted,   the   appellant     contends   that    the    agency      breached   the
      confidentiality of the agreement by revealing some of its terms to his coworkers.
      The administrative judge correctly found that there is no confidentiality term in
      the LCA itself.      See IAF, Tab 7 at 83.      However, the LCA was attached and
      incorporated by reference into the settlement of the Board appeal of the
      appellant’s removal, Mellick v. Department of the Interior, MSPB Docket
      No. SF-0752-15-0111-I-1. The settlement agreement, which was submitted into
                                                                                         6

      the record (with the LCA) and made enforceable by the Board, provides that
      “[t]he parties agree to keep the terms and conditions of the Settlement Agreement
      confidential and will not release its contents.”           IAF, Tab 7 at 81, 83-85
      (Exhibit A). Under these circumstances, we find that the terms of the LCA were
      an integral part of the settlement agreement and were subject to the agreement’s
      confidentiality provision.
¶12         The agency’s promise of confidentiality regarding the terms and facts of an
      agreement goes to the essence of the settlement.           Thomas v. Department of
      Housing & Urban Development, 124 F.3d 1439, 1442 (Fed. Cir. 1997). When a
      party to a settlement agreement materially breaches the confidentiality term of the
      agreement, the nonbreaching party may elect either to enforce the terms of the
      agreement or to rescind the agreement and reinstate the appeal.             Powell v.
      Department of Commerce, 98 M.S.P.R. 398, ¶ 14 (2005); Betterly v. Department
      of Veterans Affairs, 47 M.S.P.R. 63, 66 (1991).
¶13         If the appellant’s contention—that the agency breached the confidentiality
      provision when the Power Manager told some agency employees of the
      appellant’s LCA—were true, IAF, Tab 6, such a breach would be material
      because it defeats the obvious purpose of the provision to prevent other
      employees from gaining knowledge of the agreement’s terms, Diehl v. U.S. Postal
      Service, 82 M.S.P.R. 620, ¶ 8 (1999).        The appellant’s allegation of fact, if
      proven, could establish a prima facie case that the agency breached the
      confidentiality provision of the settlement agreement and that the Board has
      jurisdiction over the appeal. In other words, the appellant’s allegation constitutes
      a nonfrivolous allegation of Board jurisdiction, and he is entitled to a
      jurisdictional   hearing.    See,   e.g.,   Burrell   v.   Environmental   Protection
      Agency, 81 M.S.P.R. 427, ¶ 15 (1999).
¶14         Further, the appellant is entitled to engage in discovery regarding the issue
      of whether the agency breached the settlement agreement. Nothing contradicts
      the appellant’s assertion that he initiated discovery regarding the alleged breach.
                                                                                           7

      In his response to the jurisdictional show-cause order, the appellant stated that he
      was unable to provide additional jurisdictional information because he had not
      received a response to his outstanding discovery request. IAF, Tab 6. Under
      some circumstances, prior to holding a jurisdictional hearing, an administrative
      judge may afford the parties a reasonable opportunity to complete discovery and
      order the parties to submit any other evidence that they deem necessary to
      adjudicate the jurisdictional issue.    On remand, the administrative judge here
      shall allow the parties an opportunity to engage in discovery on the question of
      agency breach.
¶15           Consistent with this Remand Order, the administrative judge shall issue a
      new initial decision that makes a finding as to whether the appellant established
      that the agency breached the confidentiality term of the settlement. Id. However,
      if the appellant meets his burden, an order of enforcement with the terms of the
      agreement would not be an effective remedy when, as here, the agency already
      has established that the appellant violated the LCA. 3 Diehl, 82 M.S.P.R. 620,
      ¶ 14.    Therefore, if the appellant meets his burden to show that the agency
      breached, he is entitled to rescind the agreement and reinstate his removal appeal.



      3
        The clean hands doctrine “closes the doors of a court of equity to one tainted with
      inequitableness or bad faith relative to the matter in which he seeks relief, however
      improper may have been the behavior of the defendant.” Precision Instrument
      Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814
      (1945); Special Counsel v. Filiberti, 27 M.S.P.R. 37, 39 (1985) (explaining that the
      clean hands doctrine holds that “the person who seeks equity must do equity”), modified
      on other grounds, 27 M.S.P.R. 577 (1985).
      We believe, on remand, that application of the “unclean hands” doctrine could be
      appropriate in this matter. The allegation that the agency breached the agreement
      before it became aware of the appellant’s breach, and the agency’s purported breach
      violating the confidentiality provision would, if proven, clearly be a material one.
      Under these circumstances, we conclude that the agency’s actions would be tainted with
      inequitableness or bad faith relative to the matter in which it sought relief, however
      improper may have been the behavior of the appellant. See Precision Instrument
      Manufacturing Co., 324 U.S. at 814.
                                                                              8

                                    ORDER
     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:                          ______________________________
                                        Jennifer Everling
                                        Acting Clerk of the Board
Washington, D.C.
