                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOUGLAS MARRISETTE,                             DOCKET NUMBER
                 Appellant,                          AT-0752-15-0680-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 11, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Douglas Marrisette, Jackson, Alabama, pro se.

           Luis E. Ortiz-Cruz, Esquire, Orlando, Florida, 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 for lack of jurisdiction the appeal of his removal pursuant to a last
     chance agreement (LCA).       For the reasons discussed below, we GRANT 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     appellant’s petition for review, VACATE the initial decision, and REMAND the
     case to the regional office for further adjudication in accordance with this Order.

                                      BACKGROUND
¶2        The appellant held the position of Electrician with the agency.          Initial
     Appeal File (IAF), Tab 1 at 1.      The agency removed him for the charge of
     unauthorized absence. IAF, Tab 7, Subtab 4g. However, in November 2012,
     prior to the effective date of his removal, the parties entered into an LCA, in
     which the agency agreed to hold his removal in abeyance. IAF, Tab 7, Subtab 4f.
     The appellant agreed in the LCA to, among other things, refrain from engaging in
     any misconduct and abide by all agency and Federal Government rules,
     regulations, and policies regarding the conduct of Federal employees over a
     2‑year period. Id. He also agreed that any violation of the LCA would result in
     his removal and to waive his right to appeal such a removal to the Board. Id.
¶3        On March 21, 2013, the appellant injured his back and tailbone, and had
     spinal surgery the following day.       IAF, Tab 7, Subtab 3b at 6.         He was
     hospitalized for 6 weeks and in rehabilitation for another 6 weeks.              Id.
     On March 25, 2013, the appellant submitted a request for 6 months of leave
     without pay (LWOP), which the agency denied. IAF, Tab 7, Subtab 4c at 1-5.
     The agency also determined that he had exhausted his annual entitlement to
     480 hours of protected leave under the Family and Medical Leave Act and all of
     his sick and annual leave. Id. at 6-7. The agency recorded the appellant as being
     absent without leave (AWOL) from March 21, 2013, until the effective date of his
     removal on July 1, 2013. IAF, Tab 7, Subtab 4d.
¶4        In a notice of termination dated June 25, 2013, the agency informed the
     appellant that he was being removed for allegedly violating the terms of the LCA.
     IAF, Tab 7, Subtab 4b.     The agency stated that his failure to report for duty
     resulted in an unauthorized absence violating Medical Center Policy 05-02. Id.
                                                                                       3

     The agency further stated that this alleged misconduct breached paragraphs 4 and
     11 of the LCA. Id.
¶5         On September 23, 2013, the appellant filed a formal equal employment
     opportunity complaint alleging discrimination based on disability and race. IAF,
     Tab 7, Subtab 3a, Subtab 3b at 4-5. In a final decision issued on May 22, 2015,
     the agency found that he failed to prove his discrimination claims. IAF, Tab 7,
     Subtab 3b at 12, 14.
¶6         The appellant then filed this Board appeal and requested a hearing. IAF,
     Tab 1 at 1-6. First, he alleged that he did not discuss an LCA with the Medical
     Center Director and that his supervisor told him that he had to sign the LCA to
     return to work. Id. at 6. Next, he claimed that he suffers from a mental condition
     and that harassment by his supervisor and coworkers led to his March 21, 2013
     injury. Id. He further alleged that he and two of his coworkers immediately
     notified his chain of command of his hospitalization and surgery, and that he kept
     his supervisor updated on his recovery and told him when he would be able to
     return to work. Id. Finally, he asserted that he followed the proper procedure for
     requesting leave. Id.
¶7         In an acknowledgment order, the administrative judge informed the
     appellant that the Board may not have jurisdiction over his appeal because he had
     signed an LCA waiving future appeal rights in the event he was removed for
     violating the agreement. IAF, Tab 2 at 2. He also apprised the appellant of his
     burden of making a nonfrivolous allegation of jurisdiction and ordered him to file
     evidence and argument on the jurisdictional issue. Id. The appellant requested an
     extension of time to respond to the order, but he did not file a response on the
     jurisdictional issue even after the additional time he sought had elapsed. IAF,
     Tab 4 at 4.
¶8         Without holding the requested hearing, the administrative judge issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
     Decision (ID) at 1, 4. He found that the appellant failed to make a nonfrivolous
                                                                                              4

      allegation that he did not violate the LCA, that the agency acted in bad faith, or
      that he did not voluntarily enter into the LCA. ID at 1-2. He further found that
      the appellant failed to make a nonfrivolous allegation that the LCA was invalid.
      ID at 3-4.
¶9          The appellant has filed a petition for review. Petition for Review (PFR)
      File, Tab 1. The agency has filed a response. PFR File, Tab 3. The Clerk of the
      Board then issued a show cause order requiring the agency to submit additional
      argument and evidence on whether the appellant breached the LCA. PFR File,
      Tab 5 at 2.     Specifically, the agency was ordered to submit Medical Center
      Policy 05-02 and any relevant policy on LWOP, and address whether its denial of
      LWOP was reasonable under the circumstances. Id. at 2-3. The agency has filed
      a response to the order, PFR File, Tab 7, and the appellant has filed a response to
      the agency’s submission, 2 PFR File, Tab 11.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶10         The Board’s jurisdiction is limited to those matters over which it has been
      given jurisdiction by law, rule, or regulation.            Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
      of proving the Board’s jurisdiction by a preponderance of the evidence. 3 5 C.F.R.
      § 1201.56(b)(2)(i)(A). If an appellant makes a nonfrivolous allegation 4 of Board
      jurisdiction over an appeal, he is entitled to a hearing on the jurisdictional


      2
       The Clerk of the Board extended the deadline for the appellant to file a response to the
      agency’s submission to June 13, 2016. PFR File, Tab 9. He filed a response
      on June 14, 2016. PFR File, Tab 11. We find good cause to accept the appellant’s
      untimely response because he submits evidence of being locked out of his e-Appeal
      account. Id. at 6-7; see 5 C.F.R. § 1201.114(g).
      3
       A preponderance of the evidence is the degree of relevant evidence that a reasonable
      person, considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
      4
        A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
      issue. 5 C.F.R. § 1201.4(s).
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      question.     Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344
      (Fed. Cir. 2006) (en banc).
¶11         The Board lacks jurisdiction over an action taken pursuant to an LCA in
      which an appellant waives his right to appeal to the Board. Rhett v. U.S. Postal
      Service, 113 M.S.P.R. 178, ¶ 13 (2010).      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. Id. If an appellant raises a
      nonfrivolous factual issue of compliance with a settlement agreement, the Board
      must resolve that issue before addressing the scope of and applicability of a
      waiver of appeal rights in the settlement agreement. Id.
¶12         In determining whether an 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 an 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. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
      329 (1994).
¶13         Here, the agency alleged in its notice of termination that the appellant
      breached paragraphs 4 and 11 of the LCA because his unauthorized absence
      violated Medical Center Policy 05-02. IAF, Tab 7, Subtab 4b at 1. Paragraph 4
      of the LCA states, in relevant part, the following:
            [The appellant] knows and fully understands that he must refrain from
            engaging in any conduct which, in the sole discretion of VA [Veterans
            Administration] Management, would justify a charge or charges of
            misconduct against him for the entire two (2) year period of this Agreement.
            He agrees to abide by all VA and federal government rules, regulations,
            manual provisions, policies and laws, regarding the conduct of federal
            employees for the entire two (2) year period of this Agreement.
                                                                                              6

      IAF, Tab 7, Subtab 4f at 1-2. On review, the agency asserts that the appellant’s
      unauthorized    absence   violated   its   attendance   policy,   which      states   that
      “[e]mployees are required to be punctual in reporting for duty and to be/stay on
      the job unless excused.” PFR File, Tab 7 at 6, 61. The agency also cites to its
      leave policy, which states that “[e]mployees must obtain from the supervisor for
      each absence from duty, approval in advance, or in case of emergency or illness,
      approval as early as practicable, and to the extent possible, at the beginning of
      their tour of duty but not later than two hours thereafter.” Id. at 6, 62.
¶14         In his petition for review, the appellant reasserts that his supervisor was
      immediately notified after his hospitalization on March 21, 2013, and he submits
      statements from two coworkers in support of this claim. PFR File, Tab 1 at 5,
      7‑10. He further claims that he followed the proper procedures for requesting
      leave, but he did not receive an explanation from the agency why his request was
      denied. Id. at 5. We interpret the appellant’s claims as disputing the agency’s
      claim that he breached the LCA. See Melnick v. Department of Housing & Urban
      Development, 42 M.S.P.R. 93, 97-98 (1989) (liberally construing a pro se
      appellant’s pleadings), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
¶15         We find that the record presents a legitimate factual issue of whether the
      appellant breached the LCA. See, e.g., Stewart v. U.S. Postal Service, 926 F.2d
      1146, 1148-49 (Fed. Cir. 1991) (vacating and remanding the Board’s decision to
      resolve the appellant’s nonfrivolous allegation that he did not violate an LCA
      because he complied with agency policy to report his unscheduled absence, which
      was due to a medical emergency, as soon as possible); May v. U.S. Postal Service,
      50 M.S.P.R. 654, 658-59 (1991) (finding that the record presented a legitimate
      factual issue of whether the appellant breached the LCA when he alleged that his
      unscheduled absences and tardiness were due to sudden illness).              The record
      contains evidence of the appellant’s incapacitation because of a medical
      emergency, and subsequent surgery and rehabilitation. IAF, Tab 7, Subtab 4c
      at 3-4.   Under Medical Center Policy 05-02, employees are required to obtain
                                                                                        7

      advance approval for absences. PFR File, Tab 7 at 62.            However, the policy
      reflects an exception for emergencies and illnesses.       Id.     In such cases, an
      employee must obtain approval “as early as practicable.” Id.
¶16        The appellant has submitted statements from two coworkers that they
      immediately notified his supervisor about his hospitalization on the day of his
      March 21, 2013 injury.      PFR File, Tab 1 at 4-5, 7-10; IAF, Tab 1 at 6. The
      appellant also alleged that he updated his supervisor throughout his recovery and
      informed him of his return date. IAF, Tab 1 at 6. Finally, the record contains
      evidence that the appellant properly requested leave after his injury and submitted
      medical documentation. IAF, Tab 7, Subtab 4c at 1-7. If the appellant cannot
      demonstrate that he complied with the LCA, he should be afforded an opportunity
      to prove that the appeals rights waiver should not be enforced for other reasons.
      Rhett, 113 M.S.P.R. 178, ¶ 13. For example, he may wish to present evidence and
      argument that, although he had exhausted his accrued leave, IAF, Tab 7 at 7, it
      was bad faith for the agency to deny his request for 6 months of LWOP, see
      Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011) (observing
      that, if an agency takes an adverse action for an employee’s absence after denying
      LWOP that she requested for medical reasons, the Board will examine the record
      as a whole to determine whether the agency’s denial of LWOP was reasonable
      under the circumstances).
¶17        Accordingly, we find that the appellant has made a nonfrivolous allegation
      of compliance with the settlement agreement and a jurisdictional hearing is
      required. If the administrative judge determines that the appellant breached the
      LCA, he then must address the scope and applicability of the asserted waiver of
      appeal rights in the LCA. If the administrative judge finds that the appellant did
      not breach the LCA, or that the LCA does not constitute a valid waiver of the
      appellant’s right to appeal to the Board, he shall find that this removal appeal is
      within the Board’s jurisdiction and adjudicate the merits of the appeal.
                                                                              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.
