                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JIMMY R. HILL,                                  DOCKET NUMBER
                         Appellant,                  AT-0752-14-0779-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 17, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jimmy R. Hill, Jonesboro, Georgia, pro se.

           W. Randle Smith, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his removal appeal for lack of jurisdiction. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the 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, and based on the following
     points and authorities, 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 and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        On May 7, 2013, the agency issued a notice proposing to remove the
     appellant from his Mail Handler position for Failure to be Regular in Attendance.
     Initial Appeal File (IAF), Tab 4, Subtab 4G. In June 2013, the parties resolved
     the proposed removal by entering into a Last Chance Settlement Agreement
     (LCA).    Id., Subtab 4F.     Under the LCA, the agency agreed to hold the
     implementation of the removal action in abeyance for 14 months from the date of
     the signing of the agreement, 2 while the appellant agreed to maintain satisfactory
     attendance for the full term of the agreement by having no more than three
     unscheduled absences during any 6-month period of the LCA and no instance of
     Absence Without Leave. Id. at 1-2. The LCA provided that absences covered by
     the provisions of the Family Medical Leave Act (FMLA) would not be cited or
     applied to the LCA; however, the appellant was responsible for ensuring that his
     2
      The appellant and the agency representative signed the LCA on June 14, 2013, and the
     appellant’s union representative signed the LCA on June 26, 2013. IAF, Tab 4,
     Subtab 4F at 5.
                                                                                       3

     FMLA certification was current, and he was required to “adhere to the frequency
     and duration stipulated for any FMLA approved case.”           Id.   The LCA also
     provided that any violation of its terms would be considered justification for the
     appellant’s removal, and that, if the appellant were removed for violating the
     LCA, he would forego any appeal of the removal action in any forum, including
     the Board. Id. at 2-3. The LCA included a statement signed by the appellant, in
     which he asserted as follows: he had read and understood the conditions and
     restrictions set forth in the LCA; he was mentally and physically fit so as to be
     able to understand the agreement in its entirety; and he had freely entered into the
     LCA. Id. at 6.
¶3        On March 28, 2014, the agency issued the appellant a notice of removal
     alleging that he had violated the LCA by incurring thirteen unscheduled absences
     from January 2, 2014, through March 7, 2014, none of which were protected
     under the FMLA. IAF, Tab 4, Subtab 4B. The appellant filed an appeal with the
     Board challenging his removal. IAF, Tab 1. The administrative judge issued an
     order to show cause in which he explained the appellant’s burden of proving that
     the Board had jurisdiction over his appeal in light of the LCA and ordered the
     appellant to “provide evidence and argument that he did not violate the LCA, that
     the agency failed to comply with the terms of the LCA in a material way, or that
     he did not enter the LCA voluntarily.” IAF, Tab 5 at 3. The appellant did not
     respond to the order.
¶4        Without holding a hearing, the administrative judge issued an initial
     decision dismissing the appeal for lack of jurisdiction.       IAF, Tab 7, Initial
     Decision (ID). The administrative judge found that the appellant had failed to
     make a nonfrivolous allegation that he did not violate the agreement, that the
                                                                                          4

     agency acted in bad faith, or that he did not voluntarily enter into the agreement. 3
     ID at 1.
¶5         The appellant has filed a petition for review. 4 Petition for Review (PFR)
     File, Tab 1. The agency has not filed a response to the petition for review.

                                          ANALYSIS
¶6         The appellant bears the burden of proving that his appeal is within the
     Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). The Board lacks jurisdiction
     over an 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). To establish that a waiver of appeal rights in the 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.
¶7         The administrative judge found that:        the agency submitted undisputed
     evidence that the appellant had thirteen unscheduled absences between January 2,
     2014, and March 7, 2014; these unscheduled absences violated the LCA, which
     specified that the appellant would be removed without appeal rights if he incurred
     more than three unscheduled absences during any 6-month period beginning on
     June 26, 2014; and there is no evidence in the record casting doubt on the validity
     or enforceability of the LCA.       ID at 2-3; see IAF, Tab 4, Subtabs 4D-4E.
     Therefore, the administrative judge found, the appeal rights waiver contained in
     the LCA is valid and deprives the Board of jurisdiction over this appeal. ID at 3.

     3
       Although the administrative judge states in the initial decision that no hearing was
     held because the appellant failed to make a nonfrivolous allegation of jurisdiction, ID
     at 1, there is no indication in the record that the appellant requested a hearing.
     4
       The appellant submits three documents with his petition for review. PFR File, Tab 1
     at 2-5. Because these documents are already part of the record, we have not considered
     them. See IAF, Tab 1 at 6, 8, 14, Tab 4, Subtab 4A; see also Meier v. Department of
     the Interior, 3 M.S.P.R. 247 (1980).
                                                                                        5

¶8         The appellant argues for the first time on review that he did not violate the
      LCA because his unscheduled absences should have been covered by the FMLA
      due to the fact that he had an FMLA certification pending at the time of his
      removal. PFR File, Tab 1 at 1. He further contends that his immediate supervisor
      was aware of his thirteen absences between January 2, 2014, and March 7, 2014,
      and was “working with him.”         Id.   More specifically, he asserts that his
      immediate supervisor was aware of the pending FMLA certification, and was
      provided with documentation and an explanation for each unscheduled absence he
      incurred, but continued to allow him to work because she considered his absences
      valid and unavoidable. Id.
¶9         We find these arguments unpersuasive. Although the LCA provided that
      absences covered by the FMLA would “not be cited or applied to [the LCA],” the
      appellant was required to adhere to the frequency and duration stipulated for any
      FMLA approved case. IAF, Tab 4, Subtab 4F at 2. The documentation in the
      record includes an FMLA approval form dated April 18, 2014, which identifies
      the frequency and duration of the appellant’s absences covered by the FMLA as
      follows: “1 time per 3-6 months and 1-3 days per episode.” Id., Subtab 4A.
      Thus, even assuming the agency’s approval of the appellant’s FMLA request
      applied retroactively to the relevant time frame (i.e., January 2, 2014, to March 7,
      2014), the appellant still incurred more than three unscheduled absences during
      that time period that were not covered by the FMLA, in violation of the LCA.
      See id., Subtab 4E.
¶10        We also find unpersuasive the appellant’s apparent contention that he did
      not violate the LCA because his unscheduled absences were “unavoidable” and
      for a valid reason. See PFR File, Tab 1 at 1. The key issue for purposes of
      determining whether the appellant violated the LCA is not whether the appellant’s
      absences during the relevant time frame were for a valid reason but, rather,
      whether they were unscheduled or covered by the FMLA.
                                                                                       6

¶11         The appellant also appears to raise a disparate treatment claim for the first
      time on review, alleging that the agency officials who signed his notice of
      removal have “single [sic] [him] out for discipline and have failed to treat [his]
      attendance record with the same measures as others.” PFR File, Tab 1 at 1. The
      appellant’s argument concerning alleged dissimilar treatment of other employees
      for similar conduct is immaterial to the question of whether the appellant’s
      waiver of appeal rights is unenforceable absent any allegation that the allegedly
      dissimilar treatment evidenced bad faith on the agency’s part.
¶12         The appellant also argues for the first time on review that the LCA is
      invalid. PFR File, Tab 1 at 1. He asserts that the agreement is unlawful and
      involuntary because he was never informed or advised by the agency or his union
      of what he was signing or the possible consequences of what he was signing, and
      the union never notified him that he would be removed without his appeal rights.
      Id. In addition, the appellant contends that the agreement was unlawful and a
      mutual mistake because all the parties who signed the agreement were never in
      the same room together and the union representative did not sign the agreement
      until 14 days after he did.
¶13         The LCA clearly provides that, in the event that the appellant violated the
      LCA and the agency removed him for doing so, he agreed to waive any right to
      appeal his removal to any administrative forum, including the Merit Systems
      Protection Board. IAF, Tab 4, Subtab 4F at 3. As previously noted, the appellant
      signed the statement on the last page of the LCA, thereby acknowledging that he
      read and understood the terms of the agreement, that he was able to understand
      the agreement in its entirety, and that he entered into the agreement freely. Id.
      at 6. Thus, we find that the appellant knew or should have known that he waived
      Board appeal rights at the time he entered into the agreement. Therefore, the
      appellant’s claim that the LCA is invalid because he entered into it without
      understanding the consequences of signing the agreement is not supported by the
      record evidence.
                                                                                       7

¶14        Further, to the extent that the appellant argues that the waiver of his Board
      appeal rights should not be enforced because his union representative failed to
      properly advise him of the terms of the agreement, his assertion is without merit.
      It is well settled that the appellant is responsible for the errors of his chosen
      representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
¶15        Lastly, we find unavailing the appellant’s argument that the LCA should be
      set aside on the basis of mutual mistake. A mutual mistake is a shared, mistaken
      belief of the parties regarding a material assumption of fact underlying their
      agreement. Brown v. Department of the Army, 108 M.S.P.R. 90, ¶ 5 n.1 (2008).
      Neither the fact that the parties to the agreement were never in the same room
      together nor the approximately 2-week interval between the day that the appellant
      signed the agreement and the day that his union representative signed the
      agreement support the appellant’s contention that the agreement was the result of
      a mutual mistake.
¶16        In sum, the appellant has not shown that the LCA he entered into is invalid
      or otherwise should not be enforced.     Consequently, the administrative judge
      correctly found that the appellant failed to show that the Board has jurisdiction
      over the appellant’s removal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           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.
                                                                                  8

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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
