Kimothy Hill v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMOTHY HILL, DOCKET NUMBER
Appellant, CH-0752-15-0140-I-1
v.
DEPARTMENT OF VETERANS DATE: May 8, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Kimothy Hill, Calumet City, Illinois, pro se.
Janet M. Kyte, Esquire, Hines, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction due to his waiver of Board
appeal rights in a last chance agreement (LCA). Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 On November 21, 2013, the agency proposed to remove the appellant from
his position as a Licensed Practical Nurse in the Nursing Service of the Jesse
Brown VA Medical Center based on the following charges: conduct unbecoming
a federal employee, violation of the agency’s tobacco free facility policy,
unexcused absences, failure to properly request leave, and inappropriate behavior.
Initial Appeal File (IAF), Tab 8 at 52-57. On January 14, 2014, the deciding
official upheld the charges in the proposal notice; however, he agreed to hold the
appellant’s removal in abeyance for a period of 24 months pursuant to an LCA.
Id. at 49-50. The appellant signed the LCA on January 21, 2014, agreeing to
“maintain satisfactory punctuality, attendance, and conduct” during the 24-month
period and waiving his Board appeal rights. Id. at 45-47. Effective
November 17, 2014, the agency removed the appellant for violating the LCA by
engaging in disrespectful and inappropriate conduct on three separate occasions.
Id. at 21-22.
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¶3 The appellant filed an appeal of his removal with the Board on
December 15, 2014, in which he alleged that he was “wrongfully terminated due
to the fact that the issues that were brought up in the evidence folder were false.”
IAF, Tab 1 at 3. The administrative judge issued an order to show cause notifying
the appellant that to establish the Board’s jurisdiction he needed to make a
nonfrivolous allegation that he did not knowingly and voluntarily enter into the
LCA, he did not violate the LCA, the agency breached the LCA, including by
failing to comply with it or acting in bad faith, or the LCA resulted from fraud or
mutual mistake. IAF, Tab 9 at 2. After the appellant failed to respond to the
order, the administrative judge dismissed the appeal for lack of jurisdiction. IAF,
Tab 10, Initial Decision (ID).
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board lacks jurisdiction over an action taken pursuant to an LCA in
which the appellant waives his Board appeal rights. Smith v. Department of the
Interior, 113 M.S.P.R. 592, ¶ 6 (2010). However, as the administrative judge
found, an appellant can establish that the waiver of appeal rights in an LCA is
unenforceable by making nonfrivolous allegations that he complied with the
LCA, the agency breached the LCA or acted in bad faith, he did not voluntarily
enter into the LCA, or the LCA resulted from fraud or mutual mistake. Willis v.
Department of Defense, 105 M.S.P.R. 466, ¶ 17 (2007). Despite being afforded
the opportunity to do so, the appellant did not make such allegations, and the
administrative judge properly dismissed the appeal for lack of jurisdiction. See
ID at 4-6.
¶5 On review, the appellant asserts that he was terminated without any
investigation and that he has new documents that will prove Board jurisdiction
over his appeal. Petition for Review (PFR) File, Tab 1 at 3-4. The Board
generally will not consider evidence submitted for the first time on review absent
a showing that it was unavailable before the record was closed below despite the
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party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980). Although the appellant contends that these new documents were
unavailable before the close of record below, he has not explained why they were
unavailable or why he failed to respond to the administrative judge’s order on
jurisdiction. See PFR File, Tab 1 at 3-4. Absent any such explanation, we need
not consider such evidence now. See Vazquez v. U.S. Postal Service,
114 M.S.P.R. 264, ¶ 8 (2010). In any event, we are unable to consider such
evidence because the appellant has not submitted it with his petition.
¶6 To the extent that the appellant is asserting that he did not violate the LCA,
he has not offered any new evidence or argument on review. See PFR File, Tab 1
at 4. Furthermore, there is no evidence, nor does the appellant allege, that the
LCA was unlawful, involuntary, or the result of fraud or mutual mistake. Thus,
we agree with the administrative judge that the appellant failed to raise
nonfrivolous allegations that his waiver of his Board appeal rights is
unenforceable. Accordingly, the administrative judge properly dismissed the
appeal for lack of jurisdiction.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
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and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.