              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
               is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit


                                         04-3125



                                    RAMON GUTIERREZ,

                                                       Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                       Respondent.



                            __________________________

                            DECIDED: July 14, 2005
                            __________________________




Before MICHEL, Chief Judge, NEWMAN and LOURIE, Circuit Judges.

PER CURIAM.




       Ramon Gutierrez petitions for review of the decision of the Merit Systems Protection

Board, Docket No. SF0752010122-B-2, dismissing his appeal for lack of jurisdiction. We

affirm the decision of the Board.
Background

       At the time of his resignation, Mr. Gutierrez was employed as a PS-4 garageman at

an agency facility in Bakersfield, California. On Sept. 29, 1997 he was placed in an off duty

status because of threatening remarks he had made to his supervisor. Mr. Gutierrez and

the Postal Service eventually entered a last chance settlement agreement wherein he

agreed to "not direct challenging, threatening, intimidating, and/or other confrontational

language against any management or craft person" and to "conduct himself in a

professional manner at all times." The agreement provided that if Mr. Gutierrez breached

the agreement he would be terminated immediately with "no further rights of appeal in any

forum." On January 28, 1998 Mr. Gutierrez was issued a Notice of Removal for threatening

a co-worker. He was eventually permitted to resign, and he signed a document stating:

"Ramon Gutierrez hereby voluntarily resigns effective Feb. 6, 1998. This resignation is

non-revocable by any party." A Postal Service official also signed the agreement, along

with the union president.

       Twenty-two months later Mr. Gutierrez appealed to the Board, alleging that his

resignation had been coerced. The Administrative Judge issued an order warning Mr.

Gutierrez of the apparent untimeliness of his appeal and that the Board lacked jurisdiction

over voluntary resignations. In response, Mr. Gutierrez alleged that he had been promised

that if he resigned he would be reinstated in a year, and that he had been misled by the

agency into believing he had no appeal rights. The agency had not yet entered the last

chance settlement agreement into the record. The AJ found Mr. Gutierrez' explanations

inadequate and dismissed the appeal for lack of jurisdiction over a voluntary resignation.

Mr. Gutierrez then sought review by the full Board, which reversed the Initial Decision,


04-3125                                      2
determining that if Mr. Gutierrez had been misled into believing that he had no appeal

rights, his resignation could have been coerced.

       On remand, the agency produced the last chance agreement with its waiver of

appeal rights. In light of the agreement, the AJ concluded that even if the agency had told

Mr. Gutierrez that he had no appeal rights, that statement had not been misleading in view

of the last chance agreement which waived appeal rights. The AJ concluded that Mr.

Gutierrez had not been coerced into resigning by the statement, and dismissed the appeal.

Mr. Gutierrez again petitioned the full Board for review. The full Board, consisting of only

two members at the time, divided on the disposition of the Petition for Review, and the

Initial Decision became the decision of the Board.


Discussion

       It is well established that government employees may waive their right of appeal in

exchange for a last chance opportunity to retain their employment. See, e.g., Stewart v.

United States Postal Service, 926 F.2d 1146 (Fed. Cir. 1991); McCall v. United States

Postal Service, 839 F.2d 664 (Fed. Cir. 1988). There is no dispute that Mr. Gutierrez

entered such a last chance agreement, and he does not dispute that he breached it. Thus

the agency could have removed him from employment and, had it done so, Mr. Gutierrez

would have had no right to appeal to the Board.

       Instead, the agency permitted him to resign. Mr. Gutierrez now seeks Board review

of the merits of his removal, by stating that the resignation was coerced. The agency

points out that he waived such appeal when he signed the last chance agreement. We

agree that this waiver remains in place, although the agency permitted him to resign rather



04-3125                                      3
than be removed. Mr. Gutierrez has not established improper acts on the part of the

agency in connection with his resignation. See Staats v. United States Postal Service, 99

F.3d 1120 (Fed. Cir. 1996) (in order to show coercion, the employee must establish that

"the agency effectively imposed the terms of the employee's resignation or retirement, that

the employee had no realistic alternative but to resign or retire, and that the employee's

resignation or retirement was the result of improper acts by the agency.") (citing Schultz v.

United States Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987)). The agency did not act

improperly in proposing to terminate Mr. Gutierrez for breach of the last chance agreement,

hence the threat of termination did not convert his voluntary resignation into a coerced one.

       Mr. Gutierrez also states that the agency promised to reinstate him in a year and,

since the agency had no such intention, he was tricked into resigning thereby. He offers no

evidence of such a promise, although others, including the union president, were present

when he signed the resignation statement. This unsupported statement is insufficient to

render Mr. Gutierrez' resignation involuntary.

       For these reasons, the decision of the Board must be affirmed.

       No costs.




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