Smith v. Department of Veterans Affairs

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3264
SAMUEL SMITH,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
________________________
DECIDED: February 23, 2006
________________________
Before MICHEL, Chief Judge, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
Samuel Smith (“Smith”) petitions this court to review the final decision of the
Merit Systems Protection Board (“Board”) dismissing his appeal for lack of jurisdiction.
Smith v. Dep’t of Veterans Affairs, No. PH-0752-04-0119-I-1 (May 11, 2005) (Final
Order). Because Smith has not shown the Board erred, we affirm.
I
On January 31, 2003, Smith was removed from his position as a part-time food
service employee for the Department of Veterans Affairs (“agency”) based on the
sustained charge of using insulting, abusive, and obscene language. Smith timely
appealed the agency’s decision to the Board. The appeal was resolved by a last
chance settlement agreement (“LCSA”). The terms of the LCSA provided, in pertinent
part, that Smith must maintain conduct acceptable to his supervisors, and it stated that
Smith’s obligation “extends to all aspects of conduct affecting the workplace, including
but not limited to abusive/threatening language, aggressive behavior, punctuality,
attendance, and leave usage.” According to the LCSA, if Smith failed to comply with the
obligations under the agreement, the removal that was imposed on January 31, 2003
would immediately revive, with no further right to appeal concerning the removal or the
decision resulting in the revival of that removal. Upon execution of the LCSA, Smith
returned to work.
On June 15, 2003, Smith was scheduled to report to duty for his 6:30 a.m. to
10:30 a.m. work shift. Smith failed to report to duty and did not inform his supervisor of
his absence. The agency provided notice to Smith of a proposed reprimand for his four
hours of absence without leave and failure to follow leave procedures. Pursuant to the
LCSA, on July 7, 2003, the agency revived the prior removal action, and Smith was
removed from his position. Smith appealed his removal to the Board.
In an initial decision, the Administrative Judge (“AJ”) dismissed the appeal for
lack of jurisdiction because, under the LCSA, Smith waived his rights to appeal his
removal. Smith v. Dep’t of Veterans Affairs, No. PH-0752-04-0119-I-1 (July 21, 2004)
(Initial Decision). Finding that it was Smith’s responsibility to check the posted
schedule, and that he was aware of the requirements of the LCSA, the AJ determined
that Smith’s unexcused absence violated the LCSA. Smith, slip op. at 9. In addition,
the AJ found that Smith had knowingly and voluntarily entered into the LCSA, and that
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the agency did not breach the LCSA. Id. at 6-9. Smith petitioned the Board for review
and was denied. The initial decision became final on May 11, 2005. Smith timely
appealed and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).
II
A
Our scope of review in an appeal from a Board decision is limited. This court
must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Walls v. Merit Sys. Prot. Bd., 29
F.3d 1578, 1581 (Fed. Cir. 1994). We must accept the Board’s factual determinations if
they are supported by "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981).
B
Smith argues that the Board erred in dismissing his petition for lack of
jurisdiction. We disagree.
It is well established that government employees may waive their right of appeal
in exchange for a last chance opportunity to retain their employment. See, e. g.,
Stewart v. U.S. Postal Serv., 926 F.2d 1146, 1148-49 (Fed. Cir. 1991); McCall v. U.S.
Postal Serv., 839 F.2d 664, 666-68 (Fed. Cir. 1988). To overcome a waiver of appeal
rights in an LCSA, the appellant must show that he complied with the agreement, that
the agency breached the agreement in a material way, or that he did not knowingly and
05-3264 3
voluntarily enter into the agreement. Link v. Dep’t of Treasury, 51 F.3d 1577, 1582-83
(Fed. Cir. 1995).
Smith asserts that he did not waive his appeal rights in the LCSA because he
complied with the LCSA as “best as possible under the circumstances.” To support his
contention, Smith states that he was unaware of the posted work schedule and that his
absence was an honest mistake. The LCSA expressly provides that even one instance
of discipline will be cause for his immediate removal. Further, the Board found that it
was Smith’s responsibility to check the work schedule and that he was adequately
reminded of his obligations under the LCSA. Smith, slip op. at 4-6. Thus, the Board
correctly determined that Smith failed to show he complied with the LCSA.
Smith further contends that the agency breached the LCSA because his removal
was discriminatory based on race. We lack the jurisdiction to decide Smith’s racial
discrimination and the claim before us is therefore waived. Smith makes no factual
allegations to support his contention. The Board correctly determined that Smith failed
to show that his removal was racially motivated or that he was treated differently than
similarly situated employees not members of his protected class. Smith, slip op. at 6.
Finally, Smith alleges that witness statements used to support his initial removal
lacked credibility. Smith improperly attempts to raise an argument regarding evidence
supporting his initial removal. To the extent that Smith’s claim rests upon a challenge to
the presiding judge's credibility determination, such a determination is virtually
unreviewable by this court. Hambsch v. Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986). Thus, we decline to address Smith’s credibility challenge.
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Smith fails to show that the Board made an error of law when it determined that
the parties had entered into a valid LCSA. The Board’s determination that Smith has
not shown that he complied with the LCSA or that the agency breached the LCSA is
supported by substantial evidence. Thus, the Board lacked jurisdiction to review his
petition.
III
We affirm the judgment of the Board. Each side shall bear its own costs.
05-3264 5