Tucker v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3181

NELLIE S. TUCKER,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Nellie S. Tucker, of Talihina, Oklahoma, pro se.

David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3181

NELLIE S. TUCKER,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Petition for review of the Merit Systems Protection Board in DA0752070394-I-1.

__________________________

DECIDED: July 14, 2008
__________________________

Before LOURIE, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

Nellie S. Tucker petitions for review of a decision of the Merit Systems Protection

Board (“Board”) dismissing Ms. Tucker’s appeal for lack of jurisdiction. Tucker v. Dep’t

of Veterans Affairs, No. DA0752070394-I-1 (M.S.P.B. Sept. 14, 2007) (“Board

Decision”). Because the Board properly held that it lacked jurisdiction over Ms. Tucker’s

appeal, we affirm.

BACKGROUND

Ms. Tucker was employed by the Department of Veterans Affairs (“DVA”) as a

dietician. In June 2006, the DVA removed Ms. Tucker on a charge of making false and

defamatory statements using a DVA computer. To settle her subsequent appeal to the
Board, Ms. Tucker and the DVA signed a Last Chance Agreement (“LCA”). In the LCA,

the DVA agreed to reinstate Ms. Tucker, provided the DVA could later remove her if she

failed to maintain “satisfactory conduct and/or performance” for twenty-four months.

The LCA defined “unsatisfactory” conduct and/or performance to be any conduct and/or

performance “deemed by the Agency to be an offense punishable by a removal or

suspension under the Agency’s table of penalties.” Ms. Tucker also agreed “to waive all

appeal rights” should she be removed for failing to comply with this agreement.

On April 17, 2007, the DVA determined that Ms. Tucker’s “unsatisfactory”

conduct constituted a violation of the LCA and, thus, removed her pursuant to that

agreement. Ms. Tucker filed an appeal with the Board, but the administrative judge

found that Ms. Tucker failed to prove that the Board had jurisdiction given her waiver of

appeal rights in the LCA. Board Decision, slip op. at 12. When the Board denied

review, the administrative judge’s decision became the final decision of the Board.

Tucker v. Dep’t of Veterans Affairs, No. DA0752070394-I-1 (M.S.P.B. Jan. 9, 2008).

DISCUSSION

We determine whether the Board has jurisdiction without deference to the Board,

but we accept the Board’s factual findings as long as they are supported by substantial

evidence. See 5 U.S.C. § 7703(c). Ms. Tucker waived her right to appeal the DVA’s

decision to remove her for violating the LCA. See Gibson v. Dep’t of Veterans Affairs,

160 F.3d 722, 725 (Fed. Cir. 1998) (“[A]n employee can waive the right to appeal in a

last-chance agreement.”). Accordingly, the Board lacks jurisdiction to review Ms.

Tucker’s removal unless she proves that: (1) she complied with the LCA; (2) the DVA

breached the LCA; or (3) she involuntarily entered into the LCA. See Buchanan v. Dep’t

2008-3181 2
of Energy, 247 F.3d 1333, 1338 (Fed. Cir. 2001). There is no indication that Ms. Tucker

involuntarily entered into the LCA, see Board Decision, slip op. at 11-12, but Ms. Tucker

alleges that she established jurisdiction on the other two grounds.

Ms. Tucker first asserts that the Board has jurisdiction because she complied

with the LCA. The DVA alleged three instances of “unsatisfactory” conduct: (1)

demonstrating inattention to duty and questionable patient care procedures on January

11, 2007; (2) being disrespectful towards a supervisor on January 25, 2007; and (3)

being absent without leave (“AWOL”) between March 19, 2007 and March 30, 2007.

The Board found that Ms. Tucker failed to prove that she maintained satisfactory

conduct as required by the LCA in any of these instances. We review the Board’s

factual findings for substantial evidence.

With respect to the first instance, the Board found that Ms. Tucker “was

inattentive to duty, and engaged in questionable care practices with respect to [a

particular] patient.” Id., slip op. at 6. The Board based this finding on a letter from the

patient and Mr. Brewer’s testimony regarding a subsequent conversation with the

patient. Id., slip op. at 4-6. Ms. Tucker argues that this finding is clearly erroneous

because her testimony provided a different account of the day’s events and because

neither the patient’s letter nor Mr. Brewer’s testimony should have been credited. Ms.

Tucker also asserts that the patient was schizophrenic and, thus, his account of events

is necessarily suspect. While she claims that the patient’s medical records corroborate

her testimony, the only relevant medical document in the record fails to support her

assertions. Because a reasonable mind could find this evidence to be sufficient to

support the Board’s finding, see Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed.

2008-3181 3
Cir. 2002), we conclude that substantial evidence supports the finding that Ms. Tucker

failed to comply with the LCA in this first instance.

With respect to the second instance, the Board found that Ms. Tucker spoke to

Mr. Brewer (her supervisor) in a confrontational and disrespectful manner during a staff

meeting on January 25, 2007. Board Decision, slip op. at 8-9. The Board based this

finding on the testimony of Mr. Brewer and three other agency employees who attended

the staff meeting and found Ms. Tucker’s tone and attitude to be disrespectful,

argumentative, and sarcastic. Id., slip op. at 6-8. Ms. Tucker argues that she was not

insubordinate, that Mr. Brewer never spoke to her about the meeting, and that,

immediately following the meeting, Mr. Brewer approved her request for time off. Four

individuals, however, testified that Ms. Tucker was confrontational and disrespectful to

Mr. Brewer. Thus, we conclude that substantial evidence supports the Board’s finding.

With respect to the third instance, the Board found that Ms. Tucker was AWOL

during the time period from March 19, 2007 to March 30, 2007. Id., slip op. at 11. After

acknowledging that Ms. Tucker was injured on March 7, 2007, the Board found that the

only medical documentation in the record indicated that Ms. Tucker was able to work

four hours per day during this time period. Id., slip op. at 9-11. Ms. Tucker asserts that

she provided adequate medical documentation, that the Board demanded excessive

medical proof, and that her Department of Labor workers compensation claim was

approved from the date of injury. The record, however, fails to support any of these

claims. The only document regarding Ms. Tucker’s medical condition between March

19 and March 30 indicates that Ms. Tucker was able to work four hours per day, leaving

her in AWOL status for those hours. There is no evidence that Ms. Tucker was

2008-3181 4
awarded workers compensation for any of these AWOL hours. Accordingly, we

conclude that substantial evidence supports the Board’s finding.

On appeal, Ms. Tucker further alleges that the Board has jurisdiction because the

DVA breached the LCA. Specifically, Ms. Tucker asserts that Mr. Brewer violated

paragraph 9 “by using [the agreement] as a reason for making a decision to remove

[her].” Paragraph 9, however, simply states that the LCA shall not be used to “resolv[e]

any other complaints which have been or may be filed” and that the DVA’s failure to

remove Ms. Tucker for a violation of the LCA shall not serve as a precedent for the

DVA’s decision to remove her for a subsequent violation. Mr. Brewer simply informed

management that “Ms. Tucker currently has a last change [sic] agreement that needs to

be considered in the decision making process.” This statement does not violate

paragraph 9 of the LCA. Ms. Tucker also appears to argue that the DVA violated the

LCA in a variety of other ways, but none of these alleged wrongs are relevant to any

LCA provision.

Finally, Ms. Tucker’s list of other grievances with the DVA are not relevant to

establishing that the Board has jurisdiction over her appeal in this situation. Because

Ms. Tucker waived her appeal rights in the LCA and failed to establish that the Board

had jurisdiction in spite of that waiver, we conclude that that the Board lacked

jurisdiction over Ms. Tucker’s appeal. Accordingly, we affirm the decision of the Board.

COSTS

Each party shall bear its own costs.

2008-3181 5