Drellie Gibson, III v. Department of Veterans Affairs , 160 F.3d 722 ( 1998 )

Opinion for the court filed by Circuit Judge MICHEL. Concurring opinion filed by Circuit Judge PLAGER.

MICHEL, Circuit Judge.

Drellie Gibson, III, petitions for review of a final decision by the Merit Systems Protection Board (the “Board”), No. AT-0752-96-0463-1-1, dismissing his appeal of his removal from his position as a supply clerk at a United States Department of Veterans Affairs (“DVA”) Medical Center. The initial decision of the Administrative Judge (“AJ”) became the final decision of the Board when the Board denied Gibson’s petition for review on October 29, 1997 for failure to meet the regulatory criteria for such review. In his decision, the AJ dismissed Gibson’s appeal for lack of jurisdiction because the appeal was precluded by the terms of the “last-chance” settlement agreement previously entered into by Gibson and the DVA. The appeal was argued on October 8, 1998. Gibson argues that the Board erroneously found that he breached the last-chance agreement by violating an agency policy regarding visiting patients, as the policy, he maintains, does not apply to employees. Because Gibson fails to persuade us that the Board committed legal error and we hold that its findings are supported by substantial evidence, we affirm.

BACKGROUND

Gibson was a Medical Supply Technician in the DVA Medical Center in Atlanta, Georgia. In 1995, Gibson’s superiors proposed his removal for illegally using drugs and stealing government property. Settlement discussions between Gibson and his superiors resulted in the signing of a last-chance settlement agreement in August, 1995. Under the express terms of the agreement, Gibson’s removal would be held in abeyance for twelve months provided Gibson did not violate any of the policies or regulations of the Medical Center, and would thereafter be rescinded. However, a violation would reactivate his removal. In addition, Gibson waived his right to appeal any such removal to the Board.¹

The DVA removed Gibson from his position after it found that Gibson breached the last-chance agreement on two occasions in February, 1996, when he entered the Medical Intensive Care Unit (the “MICU”) without permission. Gibson filed an appeal of his reactivated removal with the Board. The Board did not decide the merits of the removal, framing the “sole issue in this case” as “whether the appellant materially breached the last-chance agreement.” According to the Board, if Gibson did materially breach the agreement the Board had no jurisdiction to hear his appeal because he had expressly waived that right in the agreement. At issue was solely whether Gibson violated a DVA policy by not obtaining permission before entering the MICU to visit a patient. On both of the dates in question, February 11 and 13, 1996, Gibson accompanied a friend while she visited her husband, who was a patient in the MICU.

The DVA contended that the hospital had a policy prohibiting anyone, including hospital employees, from visiting patients in the MICU without prior permission. The only written policy, however, is found in a brochure given to visitors and posted on the entrance door to the MICU, directing visitors to call into the MICU from a telephone outside the entrance doors before entering the MICU. Thus, outside visitors to the hospital certainly must obtain permission before entering the MICU. The DVA argued, however, that this policy extended to hospital employees such as Gibson, when those employees are visiting patients in the MICU. On the other hand, if the employees are simply carrying out their duties, such as delivering supplies to the MICU, the DVA acknowledged that such permission need not be obtained before entering the unit.

Gibson did not dispute that a violation of the last-chance agreement would result in a waiver of his right to appeal his original 1995 removal for illegal use of drugs and theft of government property. Nor did he argue that he obtained express permission to enter the MICU on the days in question or that he was carrying out his work duties. Gibson instead contended that he did not violate any “policy” as that term is used in the agreement, because there is no established policy requiring hospital employees to obtain permission before visiting patients in the MICU during visiting hours. A clerk from the MICU testified on Gibson’s behalf, but did acknowledge that an employee may be told to wait before visiting a patient in the MICU. Gibson also asserted that no other employee has ever been disciplined under the alleged policy, implying that no such policy exists or that he was a victim of selective enforcement.

The AJ concluded that, under these circumstances, Gibson was required by policy to obtain permission prior to entering the MICU, even though he was a Medical Supply Technician at the hospital. The Board relied heavily on the testimony of David Bower, M.D., the Director of the MICU. Dr. Bower admitted that a Medical Supply Technician “does not have to obtain permission prior to entering the MICU in order to deliver supplies.” However, Dr. Bower testified that a hospital employee who is merely visiting- a patient must follow all established hospital visitation policies, including the requirement that permission be obtained before entering the MICU. A nurse from the MICU also so testified.

After the AJ determined that such a policy applicable to employees in fact existed, he analyzed the two incidents in question and found that Gibson had not sought or obtained permission to enter the MICU in either instance. On both days, Gibson was accompanying a Mend while she went to visit her husband.²

With respect to the February 11, 1996 incident, the AJ reasoned:

By his own admission, the appellant was on a break when he entered the MICU without permission on February 11, 1996. And, the stated purpose for his entry into the MICU on this date was to meet [his Mend’s husband]. Thus, there can be no doubt that the appellant was a visitor and subject to the agency’s policy regarding visitors, when he entered the MICU on February 11, 1996. Because he entered without permission, he violated that policy. And, as previously noted, the last-chance agreement provided for termination without appeal rights for any infraction of agency policy. Accordingly, I find that the appellant violated agency policy on February 11, 1996, when he entered the MICU without permission.

The same finding was reached with respect to the February 13, 1996 incident, because Gibson again admitted that he had not received permission prior to entering the MICU. The Board found both breaches of the agreement material, and dismissed the appeal of the reactivated 1995 removal for lack of jurisdiction because of the express waiver of appeal rights in the agreement.

DISCUSSION

We must affirm the decision of the Board unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or regulation; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994). It is settled that an employee can waive the right to appeal in a last-chance agreement. See Stewart v. United States Postal Serv., 926 F.2d 1146, 1148 (Fed.Cir.1991); McCall v. United States Postal Serv., 839 F.2d 664, 666-69 (Fed.Cir.1988). Gibson does not contend the agreement was obtained by fraud, duress or confusion.³ The issue here then is whether the waiver of Gibson’s right to appeal was triggered by a breach of the agreement. More specifically, the issue is whether Gibson violated a DVA policy as that term is used in the agreement. That, in turn, involves whether such a policy existed, for his conduct is admitted.

I.

The AJ’s decision was based largely on credibility determinations as to the four witnesses providing testimony. The Director of the MICU and a nurse from the MICU asserted that there was a policy against allowing even hospital employees to visit patients without prior permission. Gibson sought to overcome their testimony with his own testimony to the effect that no such policy existed or had ever been applied to employees. An MICU clerk testifying on behalf of Gibson stated that hospital employees generally do not have to obtain prior permission to enter the MICU, but acknowledged that they could be told that they have to wait before visiting someone in the MICU. The AJ gave the testimony of Dr. Bower and the nurse more weight than the testimony of Gibson and the clerk.

Credibility determinations such as these are “virtually unreviewable” on appeal to us. Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Nor has Gibson identified anything in the record that would show that the testimony relied on by the AJ was “inherently improbable or discredited by undisputed evidence or physical fact.” Hagmeyer v. Department of Treasury, 757 F.2d 1281, 1284 (Fed.Cir.1985) (quoting Dittmore-Freimuth Corp. v. United States, 182 Ct.Cl. 507, 390 F.2d 664, 685 (Ct.Cl.1968)). Thus, the AJ’s finding that a policy existed that prohibited hospital employees from visiting patients in the MICU without prior permission is supported by substantial evidence.

II.

Gibson had the burden of establishing jurisdiction before the Board by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (1998); Link v. Department of the Treasury, 51 F.3d 1577, 1581 (Fed.Cir.1995). On the merits of the breach of the agreement issue, the AJ found that the “appellant has thé burden of proving, by a preponderance of the evidence, that he did not breach the last-chance agreement.” Gibson v. Department of Veterans Affairs, slip op. at 5 (citing Walters v. Department of Agriculture, 63 M.S.P.R. 348, 353 (1994), aff'd, 61 F.3d 919 (Fed.Cir.1995) (Table)). This appears to be a correct statement of the burden on a petitioner as articulated by the Board. See Link, 51 F.3d at 1582 (“Link could overcome his waiver of appeal rights by proving that he complied with the last-chance agreement, that Customs breached the agreement, or that he did not knowingly and voluntarily enter into the agreement.” (dicta)); Rogers v. United States Postal Serv., 59 M.S.P.R. 647, 651 (1993) (“[T]he appellant was required to show that the appeal-rights waiver should not be enforced against him because he did not violate the agreement.”), aff'd, 59 F.3d 181 (Fed.Cir.1995) (Table); Walters v. Department of Agriculture, 63 M.S.P.R. 348, 353 (1994) (same), aff'd, 61 F.3d 919 (Fed.Cir.1995) (Table). In any event, Gibson does not argue that there was an improper allocation of the burden of proof in this case.

A threshold issue here is whether a “policy,” as that term is used in the settlement agreement, even existed. If the policy in question was written, either in a regulation or hospital documents that clearly applied the policy to hospital employees visiting patients, the existence of the policy would not be in doubt. The burden would then be on Gibson to prove compliance with that policy. But when the policy is unwritten, as it is here,⁴ the existence of such a policy is uncertain. If Gibson bore the burden of proving the non-existence of the policy or its non-applicability to employees as well as compliance with the policy, he would be placed in the difficult position of proving the non-existence of an unwritten policy. We believe that the agency more properly bears the burden of proving the existence of an unwritten policy such as the policy at issue here, insofar as it applies to employees. As the agency that allegedly promulgated the policy, the DVA is in a better position to establish its existence and applicability. Indeed, for the reasons discussed above, the DVA here has shown the existence of such a policy applicable to employees by providing testimony from hospital employees.

By meeting its burden of proving the existence of the unwritten policy, the DVA has shifted the burden to whether Gibson can prove compliance with the policy. Gibson has not met his burden.

III.

Gibson does not argue that he personally obtained permission to enter the MICU, or that he personally requested permission to enter the MICU on the days in question. Instead, Gibson argues that the agreement did not contemplate “minor, non-reeognized infractions” such as entering the MICU without prior permission. Gibson contends that to enforce such a policy would not provide notice to employees such as himself. But the DVA correctly points out that the settlement agreement applies to any violations of policy, ■without any exceptions for “minor non-recognized infractions.” Such broad language does not require that the policy in question be routinely enforced to be effective. Moreover, on the first day in which Gibson accompanied his friend to the MICU, the two were stopped by a nurse who told Gibson that he had to call before entering the MICU. Thus, Gibson certainly had notice of the policy when he visited the MICU the second time.

Gibson also implies that if he did breach the policy, it was not a material breach of the settlement agreement because the agreement was not meant to cover “minor, non-reeognized infractions.” We, however, see no reason to disturb the AJ’s finding that Gibson’s breach was material on both occasions he entered the MICU without prior permission. The hospital staff and the patients in the MICU have a strong interest in being prepared for visitors. For example, some patients in an intensive care unit such as the MICU will not be physically strong enough to see visitors, or a patient may be receiving medical treatment when the visitor arrives. In addition, confidential patient information is displayed on monitors throughout the MICU, and an unannounced visitor could view this information if the hospital staff is not forewarned that they need to turn off the monitors.⁵ Thus, we agree with the AJ’s finding that Gibson’s breach of the hospital policy was material.

Accordingly, there is substantial evidence to support the AJ’s finding that this policy was violated by Gibson on the days in question. Indeed, Gibson himself acknowledged that he was visiting a patient and did not obtain express permission to enter the MICU on the occasions in question. Therefore, the AJ correctly found that Gibson violated an agency policy and thereby materially breached the last-chance settlement agreement. Gibson thus did not have the right to appeal his reactivated 1995 removal.

CONCLUSION

Because Gibson’s unauthorized entries into the MICU violated DVA policy, resulting in a material breach of the last-chance agreement, he waived his appeal rights to the Board, which correctly held that it lacked jurisdiction to entertain his appeal. Accordingly, the Board’s decision to dismiss is

AFFIRMED.

1 . Paragraph 1(d) of the Settlement Agreement provides:

Any infraction of VA policies and regulations (including those related to absenteeism, tardiness, AWOL, performance, conduct, etc.) will be considered as a violation of this agreement and will result in immediate termination with no appeal rights.

2 . The AJ found that on both occasions Gibson failed to show that Gibson's friend had obtained permission to enter the MICU. Gibson does not argue that he obtained implied permission to enter the MICU by virtue of his friend obtaining permission to enter the MICU.

3 . Gibson does argue that his signature on the settlement agreement was not voluntary because he was denied union representation. The DVA submitted an affidavit stating that Gibson was informed of this right and requested no represen-lation. This issue was not addressed by the AJ in his decision, because in a preliminary order, he held that Gibson did not make a non-frivolous argument with his "bare allegation that he was 'forced' ” to sign the agreement. Accordingly, the AJ declined to provide a hearing on the issue. We see no error in this denial. See McCall, 839 F.2d at 668-69 (refusing to order hearing because no non-frivolous issues of fact were raised that required a hearing).

4 . The MICU has a written policy, posted at the entrance, that applies to visitors, but it does not mention hospital employees.

5 . Gibson’s second visit to the MICU with his friend provides an apt example. On that occasion, they both were able to read the monitor outside the patient's room, which revealed the patient's confidential medical condition. The patient did not want his condition made known and the hospital has a duty to keep this information private unless it receives permission from the patient.