Gomez v. DVA , 549 F. App'x 990 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GERALD D. GOMEZ,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3089
______________________
Petition for review of the Merit Systems Protection
Board in No. NY0752100238-M-1.
______________________
Decided: December 11, 2013
______________________
GERALD D. GOMEZ, of Jamaica, New York, Pro Se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and STEVEN
J. GILLINGHAM, Assistant Director.
______________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
2 GOMEZ v. DVA
PER CURIAM.
DECISION
Petitioner Gerald D. Gomez seeks review of a decision
of the Merit Systems Protection Board dismissing his case
for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Gomez was employed as a Program Support As-
sistant at the Manhattan campus of the Department of
Veterans Affairs (“DVA”) New York Harbor Healthcare
System. On August 22, 2008, Mr. Gomez and the DVA
entered into a last-chance agreement (“LCA”) after the
agency proposed removing Mr. Gomez from his position
based on six charges of misconduct relating to his failure
to report to work on 17 days and his failure to follow
proper leave procedures.
Under the LCA, the DVA agreed to hold Mr. Gomez’s
removal in abeyance. In return, Mr. Gomez agreed to
follow the DVA’s rules and procedures and he agreed to
waive his right to appeal any termination of his employ-
ment stemming from a violation of the agreement. The
waiver provision stated in relevant part that “Mr. Gomez
voluntarily waives his right to assert, grieve, or otherwise
seek review of any termination of his employment under
Paragraphs 5 and 6 of this Agreement.” Paragraph 5 of
the LCA provided in relevant part that:
Mr. Gomez agrees to follow the VA New York
Harbor Healthcare System and VA rules and poli-
cies on leave procedures. He agrees to keep ab-
sences to a minimum and comply with leave
procedures without fail. Any AWOL charges and
failure to follow leave procedures will be consid-
ered a violation of this Agreement.
Paragraph 6 of the LCA provided in relevant part that:
GOMEZ v. DVA 3
Mr. Gomez agrees to follow the VA New York
Harbor Healthcare System and VA rules and poli-
cies. He agrees that any future incident of mis-
conduct occurring within the period of this
Agreement (12 months), which would support dis-
ciplinary or adverse action, shall establish a viola-
tion of this Agreement. . . . All violations of this
Agreement shall result in Mr. Gomez’s removal
based on the charges in the proposed removal no-
tice dated January 14, 2008, being effected after a
written advance notice of at least five (5) work-
days.
Subsequent to executing the LCA, Mr. Gomez was
absent without leave (“AWOL”) from May 21, 2009, until
his removal in February 2010. Based on that absence and
his failure to follow proper leave procedures, the DVA
notified Mr. Gomez by a letter dated February 9, 2010,
that he was being removed effective February 23, 2010,
for violating the terms of the LCA.
Mr. Gomez appealed his termination to the Board on
July 1, 2010. On November 4, 2010, the administrative
judge issued an initial decision based on the written
record alone. A hearing was not conducted because Mr.
Gomez failed to appear at the scheduled October 12, 2010,
hearing and did not respond to the administrative judge’s
subsequent order to show good cause for his failure to
appear. The administrative judge dismissed Mr. Gomez’s
appeal for lack of jurisdiction due to the appeal-rights
waiver in the LCA. The administrative judge found that
Mr. Gomez failed to show that his acceptance of the LCA
was involuntary or that he had not violated the LCA.
Mr. Gomez filed a petition for review with the Board.
The Board initially determined that the petition for
review was not timely. After Mr. Gomez filed an appeal
with this court, however, the Board requested, and was
granted, a remand so that the Board could further consid-
4 GOMEZ v. DVA
er the issue of jurisdiction and the interpretation of its
timeliness regulations. On February 15, 2013, the Board
issued a final order denying Mr. Gomez’s petition for
review and affirming the initial decision of the adminis-
trative judge. The Board declined to address the timeli-
ness of Mr. Gomez’s petition for review.
DISCUSSION
Whether the Board has jurisdiction over an appeal is
a question of law that we review de novo, with underlying
findings of fact reviewed for substantial evidence. Parrott
v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir.
2008). Mr. Gomez has the burden of establishing jurisdic-
tion before the Board by a preponderance of the evidence.
5 C.F.R. § 1201.56(a)(2); Clark v. U.S. Postal Serv., 989
F.2d 1164, 1167 (Fed. Cir. 1993). It is well settled that an
employee can waive the right to appeal in a last-chance
agreement, Gibson v. Dep’t of Veterans Affairs, 160 F.3d
722, 725 (Fed. Cir. 1998); McCall v. U.S. Postal Serv., 839
F.2d 664, 668 (Fed. Cir. 1988), and that the Board lacks
jurisdiction to review the merits of removal actions in
which, as here, an individual has waived appeal rights in
a last-chance agreement, McCall, 839 F.2d at 668-69.
In order to establish that the appeal-rights waiver in
the LCA was unenforceable, Mr. Gomez was required to
show that (1) he complied with the LCA; (2) the DVA
materially breached the LCA; (3) he entered into the LCA
involuntarily or under duress; or (4) the LCA was the
product of fraud or mutual mistake. Gibson, 160 F.3d at
725; Link v. Dep’t of the Treasury, 51 F.3d 1577, 1581
(Fed. Cir. 1995).
Mr. Gomez has failed to satisfy any of those condi-
tions. He contends that he did not violate the LCA, but
the record shows that he was absent from May 21, 2009,
until his removal in February 2010—a period of more
than eight months. The administrative judge found that
Mr. Gomez’s supervisor twice notified him of his failure to
GOMEZ v. DVA 5
follow leave procedures and directed him to forward a
request for approved leave if he intended to continue his
employment. Mr. Gomez did not respond to those notifi-
cations.
On appeal, Mr. Gomez contends that his absence was
due to his inpatient rehabilitation within the DVA
healthcare system for severe depression, work-related
stress, and alcohol abuse. He states that his union repre-
sentative told him to concentrate on his medical treat-
ment and that the union representative informed Mr.
Gomez’s supervisor of his absence. However, Mr. Gomez
points to no record evidence indicating that he followed
proper leave procedures or that informing the agency of
his absences through a union representative was a proper
procedure. Indeed the second notice from Mr. Gomez’s
supervisor stated that Mr. Gomez’s admission to inpatient
treatment at a DVA facility could not be verified and that
Mr. Gomez had not requested leave through a leave-
approving official. Therefore, the administrative judge’s
determination that Mr. Gomez failed to prove that he did
not violate the LCA is supported by substantial evidence.
Mr. Gomez has also failed to point to any evidence to
support his contention that his acceptance of the LCA was
involuntary. Mr. Gomez argues that the LCA was issued
as an ultimatum and that he was coerced into signing the
LCA based on the threat of termination if he failed to
sign. However, a decision to sign a last-chance agreement
is not coerced just because an employee faces the un-
pleasant alternatives of signing the agreement or being
removed. See Staats v. U.S. Postal Serv., 99 F.3d 1120,
1124 (Fed. Cir. 1996) (holding that an employee’s choice
may be voluntary even when “limited to two unattractive
options”). The LCA itself states that the agreement was
“entered into freely and voluntarily . . . without coercion
or duress.” Moreover, Mr. Gomez’s union representative
also signed the LCA.
6 GOMEZ v. DVA
Mr. Gomez also fails to point to any evidence support-
ing his claim that the DVA lacked reasonable grounds for
proposing his removal in 2008, and that the LCA was
invalid for that reason. Record evidence shows that Mr.
Gomez was frequently absent without leave, including for
17 days between October 29 and December 12, 2007. The
administrative judge determined that the DVA’s denial of
leave without pay status for Mr. Gomez’s absences in
November and December 2007 was not unreasonable.
The administrative judge’s conclusion that Mr. Gomez did
not prove that his acceptance of the LCA was involuntary
is therefore supported by substantial evidence.
Finally, Mr. Gomez contends that his agreement to an
appeal-rights waiver was effective only for the 12-month
period encompassed by the LCA. Because the DVA did
not terminate him until February 2010—more than 12
months after the LCA was executed—Mr. Gomez argues
that the appeal-rights waiver did not bar his appeal to the
Board. That argument, however, ignores the fact that Mr.
Gomez breached the LCA by failing to report to work and
failing to follow proper leave procedures beginning in May
2009, well within the LCA’s 12-month period. The LCA
was intended to allow Mr. Gomez to continue his em-
ployment with the DVA, but under a heightened level of
scrutiny that would persist for 12 months. Nothing in the
LCA indicates that it was intended to force the DVA to
formally terminate Mr. Gomez within that 12-month
period in the event that he breached the agreement. The
DVA therefore did not lose its right to terminate Mr.
Gomez without the threat of an appeal simply because it
waited until after the end of the 12-month period to
formally terminate him.
We therefore agree with the Board that it lacked ju-
risdiction to hear Mr. Gomez’s appeal.
No costs.
AFFIRMED