Scott v. Department of Agriculture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
VALLIRE I. SCOTT,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2012-3050
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0752110134-I-1.
__________________________
Decided: June 11, 2012
__________________________
VALLIRE I. SCOTT, of New Orleans, Louisiana, pro se.
JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and CLAUDIA
BURKE, Assistant Director.
__________________________
SCOTT v. AGRICULTURE 2
Before LINN, PLAGER, and DYK Circuit Judges.
PER CURIAM.
Vallire I. Scott petitions for review of a final decision
of the Merit Systems Protection Board (“Board”) dismiss-
ing for lack of jurisdiction her appeal of a removal action
taken pursuant to a last chance agreement (“LCA”). 1
Because the Board’s decision is in accordance with the
law and is supported by substantial evidence, we affirm.
BACKGROUND
Ms. Scott was employed by the United States De-
partment of Agriculture (“the agency”). In June of 2010,
the agency proposed Ms. Scott’s removal on charges of
discourteous conduct and failure to follow proper leave-
approving procedures. In July of 2010, the parties en-
tered into an LCA in which the agency agreed to hold Ms.
Scott’s removal in abeyance if she met certain conditions.
One of the conditions required Ms. Scott to call her super-
visor no later than 8:55 a.m. to request unplanned or
emergency leave. Ms. Scott further agreed to waive all
right to appeal or challenge her termination if she failed
to meet any of the conditions set forth in the LCA.
On October 6, 2010, Ms. Scott telephoned her supervi-
sor at 9:07 a.m. to let him know that she would be late for
her tour of duty, which was scheduled to begin at
7:55 a.m. In November 2010, the agency issued a decision
removing Ms. Scott for having violated the LCA on Octo-
1 Scott v. Dept. of Agric., No. DA-0752-11-0134-I-I
(March 14, 2011) (“Initial Decision”); Orcino v. Office of
Pers. Mgmt., No. SF-0831-11-0111-I-I (November 23,
2011) (“Final Order”).
3 SCOTT v. AGRICULTURE
ber 6, 2010. In December 2010, Ms. Scott filed an appeal
with the Board challenging the agency’s removal decision.
The Board issued an initial decision on March 14,
2011, dismissing Ms. Scott’s appeal for lack of jurisdic-
tion. The Board determined that Ms. Scott had failed to
make a non-frivolous allegation that she had complied
with the LCA, that the agency had breached the LCA, or
that the LCA was a result of fraud or mutual mistake.
Initial Decision at 5. Accordingly, the Board held that
Ms. Scott had failed to meet her burden of proving juris-
diction and dismissed the appeal. Id. at 7. On November
23, 2011, the Board issued an order denying Ms. Scott’s
petition for review, concluding that there was no new,
previously unavailable, evidence and that the Initial
Decision made no error in law or regulation that affects
the outcome. Final Order at 3-4. This appeal followed.
DISCUSSION
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c).
Ms. Scott does not dispute that by signing the LCA,
she waived her right to appeal her termination. To over-
come that waiver and establish that the Board has juris-
diction to review her termination, she must prove
compliance with the agreement, that the agency breached
the agreement, or that she did not knowingly and volun-
tarily enter into the agreement. Link v. Dep’t of Treasury,
51 F.3d 1577, 1582 (Fed. Cir. 1995).
SCOTT v. AGRICULTURE 4
Ms. Scott’s main argument on appeal is that the
agency materially breached the LCA by holding her to an
allegedly illegal leave and attendance policy. To support
her argument, Ms. Scott relies on a September 15, 2011,
settlement agreement between the agency and her labor
union that: (1) rescinded the agency’s 2009 leave and
attendance policy requiring flex-time employees working
eight-hour days to request unplanned or emergency leave
by 8:55 a.m.; (2) restored the agency’s 2007 policy permit-
ting such employees to make such requests by 10:00 a.m.;
and (3) allowed employees to request reinstatement of
leave used under the rescinded policy. According to Ms.
Scott, the settlement agreement establishes that she had
until 10:00 a.m. to notify her supervisor of her late arrival
on October 6, 2010.
Ms. Scott is incorrect. Once having entered into the
LCA, Ms. Scott and the agency were bound by its terms.
Buchanan v. Dep’t of Energy, 247 F.3d 1333, 1340 (Fed.
Cir. 2001) (Plager, J. concurring). Furthermore, there is
no indication in the record that the agency’s 2011 settle-
ment agreement with the union retroactively modified
preexisting last-chance agreements; Ms. Scott is con-
strained by the terms of the LCA to which she agreed.
Thus, Ms. Scott cannot rely on the settlement agreement
to circumvent the conditions of her LCA.
To the extent Ms. Scott contends that the agency
somehow breached the LCA by holding her to a more
stringent leave and attendance policy than permitted by
the settlement agreement, her argument lacks merit. We
have held that an agency can impose additional condi-
tions upon an employee in connection with an LCA and
can discipline the employee for failing to comply with
those conditions even if other employees would not typi-
cally be disciplined under the same circumstances. Bu-
5 SCOTT v. AGRICULTURE
chanan at 1339. We have considered Ms. Scott’s other
arguments and conclude that they are similarly without
merit. 2
CONCLUSION
For the foregoing reasons, this court affirms the
Board’s decision that it lacked jurisdiction to review Ms.
Scott’s termination.
AFFIRMED
2 Ms. Scott did not raise nor did the Board address
the question of whether a 12-minute delay in notifying
her supervisor of her tardiness was alone a material
breach of the LCA, and we therefore do not reach this
issue.