Whittaker v. DVA , 695 F. App'x 557 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JANICE E. WHITTAKER,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-1656
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-15-0157-I-1.
______________________
Decided: June 12, 2017
______________________
JANICE E. WHITTAKER, Edmond, OK, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA PREHEIM.
______________________
Before WALLACH, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
2 WHITTAKER v. DEP’T. OF VETERANS AFFAIRS
Petitioner Janice E. Whittaker appeals a final order of
the Merit Systems Protection Board (“MSPB”) dismissing
her appeal for lack of jurisdiction. See Whittaker v. Dep’t
of Veterans Affairs¸ No. DA-0752-15-0157-I-1, 2017 WL
56220, at ¶ 1 (M.S.P.B. Jan. 3, 2017). We affirm.
BACKGROUND
Ms. Whittaker worked as a Clinical Dietetic Techni-
cian at the U.S. Department of Veterans Affairs (“VA”)
hospital in Oklahoma City, Oklahoma. Resp’t’s App. 30.
In 2014, Ms. Whittaker received a notice of proposed
removal for providing inaccurate information. Id. at
30−32. The Notice stated that Ms. Whittaker represented
to the VA that she was employed part-time as an instruc-
tor at a university, allowing her to maintain a flexible
work schedule at the VA, when she actually had not been
employed at the university for over a decade. Id. at 30–
31.
After a deciding official at the VA sustained the re-
moval, id. at 47−50, Ms. Whittaker and the VA entered
into a last chance settlement agreement (“LCA”) to allow
Ms. Whittaker to continue her employment at the VA, id.
at 51−54. The LCA placed a number of restrictions on
Ms. Whittaker’s employment given Ms. Whittaker’s prior
actions. In relevant part, the LCA provided that if Ms.
Whittaker “fails to comply with any term of th[e LCA], on
even one occasion during the three (3) calendar years
from the date of th[e LCA], the original removal will be
reinstated.” Id. at 51. Further, the LCA provided that
any offense punishable under the VA’s Table of Penalties
would be grounds for reinstatement of the removal and
that, “[i]n the event that the [VA] reinstates the removal,
. . . Ms. Whittaker waives her right to appeal the removal
if she is removed due to a breach of th[e LCA].” Id. at 52.
Approximately one month after Ms. Whittaker’s rein-
statement, her supervisor noted several issues with her
job performance, including evaluation of a patient without
WHITTAKER v. DEP’T OF VETERANS AFFAIRS 3
authorization, errors in record-keeping, and improper
assessment of patient information on nutritional risk. Id.
at 55−60. Ms. Whittaker met with her supervisor and
was unable to explain these irregularities. Id. The VA
then determined that Ms. Whittaker’s performance
demonstrated “Careless or Negligent Workmanship
Resulting in Waste or Delay,” i.e., offense category 16 on
the VA’s Table of Penalties, and notified Ms. Whittaker of
her reinstated removal in accordance with the LCA. Id.
at 61.
Ms. Whittaker appealed her removal to the MSPB.
After receiving submissions from the parties and conduct-
ing a hearing on the MSPB’s jurisdiction, an administra-
tive judge (“AJ”) issued an initial decision dismissing Ms.
Whittaker’s appeal for lack of jurisdiction. See Whittaker
v. Dep’t of Veterans Affairs, No. DA-0752-15-0157-I-1
(M.S.P.B. July 20, 2016) (Resp’t’s App. 14−29).
The full MSPB subsequently denied Ms. Whittaker’s
petition for review and affirmed the AJ’s Initial Decision.
Whittaker, 2017 WL 56220, at ¶ 1. Ms. Whittaker ap-
pealed to this court. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
We review determinations of the MSPB’s jurisdiction
de novo as questions of law and underlying factual find-
ings for substantial evidence. Parrott v. Merit Sys. Prot.
Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). Ms. Whittaker
has the burden of establishing jurisdiction before the
MSPB by a preponderance of the evidence. Clark v. U.S.
Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993); 5
C.F.R. § 1201.56(b)(2)(i)(A) (2015).
4 WHITTAKER v. DEP’T. OF VETERANS AFFAIRS
II. The MSPB Properly Held That It Lacked Jurisdiction
“The [MSPB]’s review of an employee’s removal pur-
suant to a last-chance settlement agreement is limited.”
Buchanan v. Dep’t of Energy, 247 F.3d 1333, 1337 (Fed.
Cir. 2001). “It is 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). To overcome a waiver, an employee must show
that (1) she complied with the agreement; (2) the agency
materially breached the agreement; or (3) she did not
enter into the agreement knowingly and voluntarily. See
Link v. Dep’t of Treasury, 51 F.3d 1577, 1582 (Fed. Cir.
1995); see also Buchanan, 247 F.3d at 1338.
Ms. Whittaker appears to challenge the MSPB’s find-
ing that she waived her appeal rights on three grounds.
First, she disputes the finding that she committed an
offense listed in the VA’s Table of Penalties sufficient to
reinstate her removal under the LCA. She contends that
her “position description allowed for 10% error rate,” and
her alleged error of neglecting “only two patients” did not
exceed the permissible rate. Pet’r’s Br. 3. She further
states that “there was no Doctor’s sign off on any records
to show where any patient was neglected.” Id. Substan-
tial evidence supports the MSPB’s conclusion that Ms.
Whittaker mishandled patient records and, thus, commit-
ted an offense sufficient for her removal under the LCA.
“[H]aving entered into the LCA, Ms. [Whittaker] and the
[VA] were bound by its terms.” Scott v. Dep’t of Agric.,
484 F. App’x 522, 524 (Fed. Cir. 2012) (citation omitted).
“An agency can impose additional conditions upon an
employee in connection with a [last chance settlement
agreement] and can discipline the employee for failing to
comply with those conditions . . . .” Id. (citation omitted).
Here, there is substantial evidence that Ms. Whittaker
admitted to recording inaccurate or unverified infor-
mation regarding patient consults, see Resp’t’s App. 56,
and to writing incorrect information on risk categories for
WHITTAKER v. DEP’T OF VETERANS AFFAIRS 5
several patients, see id. at 58 (“This was a big error on my
part.”). Ms. Whittaker does not contest that such evi-
dence is sufficient to support the finding of misconduct
under offense category 16, Careless or Negligent Work-
manship Resulting in Waste or Delay, within the VA’s
Table of Penalties. See generally Pet’r’s Br. As for her
contention that no doctor verified that patients were
neglected, this cannot suffice to show compliance with the
LCA because “[t]he LCA contains no [such] requirement.”
Rosell v. Merit Sys. Prot. Bd., 191 F. App’x 954, 956 (Fed.
Cir. 2006).
Second, Ms. Whittaker alleges that the VA removed
her “because [she] filed an [Equal Employment Oppor-
tunity Commission (‘EEOC’)] case” against her VA super-
visor. Pet’r’s Br. 3. “Because it is an implied term of
every agreement that each party will act in good
faith . . . , a party may breach an agreement by acting in
bad faith,” which includes retaliation by a supervisor.
Posey v. Dep’t of Def., 180 F. App’x 931, 935 (Fed. Cir.
2006) (citation omitted). Ms. Whittaker did not raise this
argument before the MSPB, and we generally “do[] not
consider an issue not passed upon below.” Singleton v.
Wulff, 428 U.S. 106, 120 (1976). In any case, while we
interpret the pleadings of a pro se plaintiff liberally, see,
e.g., Durr v. Nicholson, 400 F.3d 1375, 1380 (Fed. Cir.
2005), Ms. Whittaker has not presented any evidence
beyond bare assertions to suggest her removal was moti-
vated by her EEOC complaint, see generally Pet’r’s Br. As
such, her removal was not appealable on this basis. See
Seda v. Merit. Sys. Prot. Bd., 638 F. App’x 1006, 1009
(Fed. Cir. 2016) (affirming the MSPB’s dismissal of a case
for lack of jurisdiction where petitioner “did not provide
the [MSPB] with evidence in support of his bare asser-
tions”).
Third, Ms. Whittaker appears to argue that she invol-
untarily entered into the LCA because she initially re-
fused to sign the LCA and was not represented by counsel
6 WHITTAKER v. DEP’T. OF VETERANS AFFAIRS
during its negotiation. Pet’r’s Br. 3. Whether she initially
refused to sign the LCA, the record indicates that Ms.
Whittaker later signed the document and, in so doing,
signified her “voluntary, knowing[,] and unconditional
acceptance” of its terms “without reservation.” Resp’t’s
App. 54 (capitalization omitted). She has presented no
further evidence to show her signature was involuntary or
coerced. See generally Pet’r’s Br. As for her alleged lack
of counsel, Ms. Whittaker did not raise this argument
before the MSPB, and we would normally find it waived.
See Singleton, 428 U.S. at 120. Even if we were to exam-
ine Ms. Whittaker’s contention, though, she has not made
non-frivolous allegations of fact sufficient to establish that
her lack of counsel prevented her from freely entering into
the LCA. See Worrell v. Dep’t of Navy, 168 F. App’x 425,
428 (Fed. Cir. 2006). The AJ found that Ms. Whittaker
“testified that she was represented by counsel,” Resp’t’s
App. 17, and the LCA states that she “affirms that she
has read th[e] entire [LCA], that she has consulted with
an attorney, or has freely decided not to consult with an
attorney,” id. at 52. Therefore, Ms. Whittaker has not
shown that she did not knowingly and voluntarily enter
into the LCA. In sum, as the MSPB found, Ms. Whittaker
waived her appeal rights in the LCA.
CONCLUSION
We have considered Ms. Whittaker’s remaining ar-
guments and find them unpersuasive. Accordingly, the
Final Order of the Merit Systems Protection Board is
AFFIRMED
COSTS
No costs.