Rodriguez v. Department of State , 450 F. App'x 965 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANA MARIA RODRIGUEZ,
Petitioner,
v.
DEPARTMENT OF STATE,
Respondent.
__________________________
2011-3115
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DC0752100305-I-1.
___________________________
Decided: December 7, 2011
___________________________
ANA MARIA RODRIGUEZ, of Springfield, Virginia, pro
se.
MICHAEL S. MACKO, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
Jeanne E. Davidson, Director, and HAROLD D. LESTER, JR.,
Assistant Director.
RODRIGUEZ v. STATE 2
__________________________
Before NEWMAN, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
DECISION
Petitioner Ana Maria Rodriguez seeks review of a de-
cision of the Merit Systems Protection Board dismissing
her case for lack of jurisdiction. We affirm.
BACKGROUND
Ms. Rodriguez was a secretary with the Department
of State’s Bureau of European and Eurasian Affairs. In
July 2008, the Department imposed restrictions on Ms.
Rodriguez’s use of leave, following a period of what the
Department considered excessive absenteeism. Nine
months later, the Department proposed to remove Ms.
Rodriguez from her position based on various charges,
including frequently being absent without leave, repeat-
edly being tardy, making unauthorized phone calls, and
leaving hostile voicemail messages.
On July 16, 2009, the Department and Ms. Rodriguez
entered into a Last-Chance Agreement (“LCA”), under
which Ms. Rodriguez’s removal would be held in abeyance
if she abided by the agreement for one year. The LCA
imposed restrictions on the amount of and procedure for
requesting leave. It also included a provision waiving Ms.
Rodriguez’s right to appeal to the Board from any removal
action occurring within the one-year period. That provi-
sion stated: “Ms. Rodriguez voluntarily agrees to waive
any and all rights, including grievance rights and rights
of appeal to [the] Merit Systems Protection Board,
whether or not now known, to contest any adverse action
3 RODRIGUEZ v. STATE
including her removal by the Department during the one-
year period of the Agreement.” The LCA further recited
that Ms. Rodriguez had had the opportunity to seek
counsel, understood the terms of the agreement, and had
entered into it voluntarily. Ms. Rodriguez signed the
LCA, as did her union representative. Several months
later, however, the Department concluded that Ms. Rod-
riguez had violated the LCA and took action to remove
her.
Ms. Rodriguez appealed her removal to the Board,
and the Department moved to dismiss the appeal for lack
of jurisdiction. The administrative judge who was as-
signed to the case ordered Ms. Rodriguez to submit evi-
dence and argument as to the effect of the provision in the
LCA waiving her right to appeal her removal to the
Board. Ms. Rodriguez responded by arguing that her
agreement to the LCA was involuntary, that the LCA was
imposed on her in bad faith, and that she agreed to it
under duress. The administrative judge, however, held
that Ms. Rodriguez had failed to make a non-frivolous
allegation that the LCA was not enforceable and ruled
that she had breached the LCA due to excessive absentee-
ism without leave.
DISCUSSION
Whether the Board has jurisdiction over an appeal is
a question of law that this court reviews de novo with
underlying findings of fact reviewed for substantial evi-
dence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328,
1334 (Fed. Cir. 2008); Hayes v. U.S. Postal Serv., 390 F.3d
1373, 1376 (Fed. Cir. 2004). Ms. Rodriguez has the bur-
den of establishing jurisdiction before the Board by a
preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2);
Clark v. U.S. Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir.
RODRIGUEZ v. STATE 4
1993). It is settled that an employee can waive the right
to appeal a last-chance agreement, Gibson v. Dep't of
Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998);
McCall v. U.S. Postal Serv., 839 F.2d 664, 668 (Fed. Cir.
1988), and that the Board lacks jurisdiction to review the
merits of removal actions in which, as here, an individual
has waived appeal rights in a last-chance agreement,
McCall, 839 F.2d at 668-69.
In order to establish that her waiver of the right to
appeal the merits of her removal action was unenforce-
able, Ms. Rodriguez was required to show that (1) she
complied with the LCA; (2) the agency materially
breached the LCA; (3) she entered into the LCA involun-
tarily or under duress; or (4) the LCA was the product of
fraud or mutual mistake. Gibson, 160 F.3d at 725; Link
v. Dep't of the Treasury, 51 F.3d 1577, 1581 (Fed. Cir.
1995).
Ms. Rodriguez has failed to establish any of those
conditions. The record makes clear that Ms. Rodriguez
breached the LCA by accruing more than eight hours of
absence without leave. Moreover, there is no evidence
that the Department acted in bad faith with respect to the
LCA. Ms. Rodriguez complains that her medical condi-
tion made it difficult for her to comply with the strict
terms of the LCA, but the question whether the LCA was
unduly demanding in light of her circumstances was not
properly before the administrative judge, as the strictness
of an LCA is not a ground for holding that the waiver of
Board appeal rights is invalid. Ms. Rodriguez also asserts
that the LCA was used as a cloak for her supervisors’
abuse of authority, but she has pointed to no specific
evidence that the Department failed to comply with the
terms of the LCA or acted in bad faith in enforcing its
provisions.
5 RODRIGUEZ v. STATE
Ms. Rodriguez has also failed to point to any evidence
to support her contentions that she entered into the LCA
involuntarily and under duress. In the LCA, Ms. Rodri-
guez expressly stated that she was entering into the
agreement voluntarily and with full knowledge of its
terms. In addition, she had the opportunity to and did
consult with her union representative, who also signed
the LCA. She argues that she felt she had no real choice
but to enter into the LCA at the time she agreed to its
terms. However, the fact that she faced an unpleasant
choice at the time she entered into the LCA—the prospect
of immediate removal or a year working under the strict
terms of the LCA—does not mean that her decision to
accept the LCA was involuntary. See Staats v. U.S.
Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996) (holding
that an employee's choice may be voluntary even when
“limited to two unattractive options”).
On a procedural question, Ms. Rodriguez complains
that her union representative was improperly denied an
extension of time within which to respond to the adminis-
trative judge’s order directing that she show why the
Board had jurisdiction over her appeal. Decisions as to
procedural matters in cases pending before the Board are
committed to the discretion of the administrative judge.
See Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169,
173 (Fed. Cir. 1986). A Board decision on such an issue
will not be overturned in the absence of a showing of an
abuse of discretion resulting in substantial prejudice to
the appellant. See Curtin v. Office of Pers. Mgmt., 846
F.2d 1373, 1378-79 (Fed. Cir. 1988); see generally Corne-
lius v. Nutt, 472 U.S. 648, 657-59 (1985). Ms. Rodriguez
has not shown that the administrative judge in this case
abused her discretion by denying the union representa-
tive’s request for an extension of time or that the adminis-
trative judge’s order prejudiced her. Ms. Rodriguez filed
RODRIGUEZ v. STATE 6
her own response to the administrative judge’s jurisdic-
tional order, which the administrative judge considered,
and that response set forth the reasons Ms. Rodriguez
believed the LCA was invalid. She did not at the time,
and has not now, suggested what additional evidence or
argument her union representative would have provided
if the administrative judge had granted the union repre-
sentative’s request for an extension of time to respond to
the jurisdictional order. We therefore reject Ms. Rodri-
guez’s argument regarding the denial of an extension of
time for her union representative to respond to the juris-
dictional order.
Because we uphold the administrative judge’s deci-
sion that the waiver of appeal in the LCA was enforce-
able, we agree with the Board that it lacked jurisdiction
to hear Ms. Rodriguez’s appeal from the merits of her
removal. Ms. Rodriguez makes a number of other argu-
ments relating to issues not relevant to the jurisdictional
question. Because we uphold the Board’s decision that it
did not have jurisdiction to review the merits of her
removal action, those arguments are not before us.
No costs.
AFFIRMED