UNITED STATES OF AMERICA

 MERIT SYSTEMS PROTECTION BOARD

 ATLANTA REGIONAL OFFICE

 

CAMERON W. SEAY,                 )
                                                        )
                   Appellant,                    )
                                                        )
                v.                                     )                 DOCKET NUMBER
                                                        )                 AT-0752-97-0386-I-1
DEPARTMENT OF                      )
TRANSPORTATION,                  )
                                                        )
                Agency.                          )

 

APPELLANT'S ARGUMENT AND EVIDENCE 

AS TO BOARD JURISDICTION

 

    Pursuant to the February 24, 1997 Acknowledgment Order in this case, Appellant submits the following argument and evidence establishing why the Board has jurisdiction over his appeal. A copy of Appellant's Affidavit explaining the factual circumstances giving rise to his appeal is attached. 

    Appellant acknowledges that on December 13, 1996, Appellant signed the Last Chance Agreement which is appended to his Appeal as Exhibit E. As properly noted in the Acknowledgment Order, a Last Chance Agreement divests the Board of jurisdiction unless Appellant makes a nonfrivolous allegation that he did not violate the Agreement, that the Agency acted in bad faith or that he did not voluntarily and freely enter into the Agreement. McCall v. U.S. Postal Service, 839 F.2d 664, 667-668 (Fed. Cir. 1988). For the reasons set forth infra, and as supported by the attached Affidavit of Appellant, the facts giving rise to this appeal establish that Appellant has unquestionably made and supported a nonfrivolous allegation as to each of the three criteria cited in the Judge's Acknowledgment Order. Thus, the facts in the case raise genuine issues as to whether the Agency acted in bad faith, whether the Agency violated the Agreement and whether Appellant voluntarily entered into the Agreement. Since a nonfrivolous allegation as to any one of the three criteria in itself would be sufficient to require that this matter proceed to a hearing, under controlling Board law Appellant has presented more than sufficient evidence to warrant a hearing both on the issue of jurisdiction and on the substantive elements of his removal. 

    Furthermore, under the express provision of the Agreement, Appellant would be entitled to proceed on this appeal for three additional reasons. First, under paragraph 8 of the Last Chance Agreement, the Deciding Official retains the sole discretion to determine whether Appellant has violated any provision of this Agreement. Since the validity of the Agreement rests solely within the discretion of one party, it lacks sufficient consideration to render it binding. Tetrault v. U.S.P.S., 71 MSPR 736 (1996).

     Second, paragraph 9 of the Agreement grants Appellant the authority to file a petition to enforce the Agreement. Therefore, since Mr. Seay contends that he in no way breached the Agreement, he is entitled to petition the Board for its enforcement under its express provisions. 

    Third, the Agreement is invalid and void as a matter of law since it requires Appellant to waive the right to file equal employment opportunity claims and other legal challenges. While controlling MSPB precedent holds that this does not in itself render the Agreement invalid, under the particular facts presented in this case it is invalid. This is because the issue of exercise of protected rights was inextricably intertwined with the conduct generating the initial proposed removal and the evidence supports the conclusion that the Agency acted to remove Appellant as a vehicle for securing the withdrawal of his discrimination complaints. Since the Agreement was presented in a coercive manner and in bad faith, the Agreement as a whole must be deemed invalid and unenforceable.

 

I.   THE FACTS IN THIS CASE ESTABLISH THAT APPELLANT HAS MADE A NONFRIVOLOUS ALLEGATION THAT THE AGENCY HAS ACTED IN BAD FAITH

    When the facts giving rise to Appellant's removal are considered as a whole, they provide compelling support to Appellant's contention that the Agency has acted in bad faith. This is because they lead directly to the conclusion that the Agency initially proposed Appellant's removal and offered him a Last Chance Agreement as part of a calculated scheme to silence Appellant's vocal opposition to perceived racial discrimination in his workplace, and to secure the withdrawal of his formal discrimination complaints. Moreover, if this plan succeeded, Appellant would be removed from his position without any statutory appeal rights.

     Thus, it is undisputed that Appellant had held the position of Computer Specialist, GS- 334-11, since 1992. Since this was a competitive position in the civil service, Appellant could be removed only for such cause as would promote the efficiency of the service and then only after being given notice and an opportunity to respond. As the attached Affidavit of Appellant establishes, before the first hint of unacceptable workplace conduct on Appellant's behalf had arisen, Appellant had filed two formal EEO complaints alleging that he was being subjected to discriminatory treatment on the basis of his race. These EEO complaints were being processed under 29 C.F.R. §1614 when the incident giving rise to the Agency's initial proposed removal of Appellant occurred. 

    The Agency's October 10, 1996 Notice of Proposed Removal accused Appellant of alleged "disrespectful, disruptive behavior in the workplace" and alleged use of "obscene and profane language, intimidating behavior and threatening [Appellant's] supervisors." This conduct, however, was made in the context of opposing perceived illegal discrimination and retaliation. Thus, to the extent that Appellant's conduct constituted opposition to practices made illegal under Title VII, it was protected under Title VII's opposition clause, 42 U.S.C. §2000e-5, and could be used as the basis of a removal only in cases of gross insubordination and flagrant misconduct. See, e.g., Kennedy v. Department of Army, 22 MSPR 190 (1984); DHUD, San Francisco Area Office and NFFE Local 1450, 4 FLRA 460 (1980). Furthermore, Specification 2 in the proposed removal directly stifled Appellant's right to oppose illegal discrimination in the workplace: "Over the past several months you have repeatedly sent letters and electronic messages to various FRA employees in which you made numerous derogatory and inflammatory statements about FRA and its management officials." 

    The Agency's proposed removal, therefore, clearly infringed upon Appellant's right to oppose practices made illegal under Title VII and may have constituted direct retaliation for exercise of those rights. See SSA v. Burris, 639 MSPR 51 (1988) (Regarding heated statements made in the processing of grievances: "We note that only in the most extraordinary case will statements made in grievances, or in the processing of grievances, be found to constitute a proper basis for disciplining an employee.") Only after a full record is developed on these charges could a determination be made as to whether or not Appellant's conduct was actually so egregious as to be removed from the broad sphere of protected opposition and legitimately serve as the basis for a removal action. The extreme and extraordinary step of proposing removal for such oppositional activities does demonstrate, however, that the Agency was so concerned about Appellant's oppositional activity that it was willing to use discipline to silence him.

     More insightfully, if Appellant's EEO complaints had merit, then the Agency certainly would have a motive to coerce him into securing their withdrawal. 

    On November 25, 1996, the Agency sustained the removal and simultaneously accorded Appellant a Last Chance Agreement. When read as a whole, this Last Chance Agreement was extremely coercive. Furthermore, two provisions are on their face so onerous as to in themselves raise nonfrivolous allegations that the Agency acted in bad faith. These were:

 (4) that Appellant drop all pending grievances, appeals and complaints against the Agency; and

 (5) the reassignment of Appellant to a position in Vancouver, Washington.

     The Last Chance Agreement required that Appellant waive, not only the right to appeal his removal, but also his right to file grievances, equal employment opportunity complaints and all other legal claims not only on his removal, but on anything else that may have transpired prior to the execution date. The Agreement further required Appellant to withdraw all pending EEO complaints and to accord the Agency a general release from "any and all claims he had, may have, has asserted or could assert against the FRA prior to the date of execution of this Agreement."

     Appellant submits that this release is so broad and repugnant to statutorily protected rights as to be void on its face. E.E.O.C. v. Cosmair, Inc., 821 F.2d 1085 (Fed. Cir. 1987); Callicotte v. Carlucci, 698 F. Supp. 944 (D.C.D.C. 1988). The final paragraph of the Agreement stated that Appellant entered into it voluntarily and knowingly and was accorded ample opportunity to discuss the Agreement with anyone. This is contradicted by the very terms of the removal notice which indicate that the Agreement was presented in a nonnegotiable form, as a "take it or leave it package." Furthermore, the Agreement was the result of grossly disproportionate bargaining power on behalf of the parties.

     Nonetheless, because Appellant sought the intervention of the EEO staff of the Department of Transportation who informally advised him that they believed the Agreement was invalid on its face, the Agency withdrew the original and offered Appellant a second Last Chance Agreement on December 12, 1996. When Appellant requested to negotiate the terms of that Agreement, the Agency refused, advising him that it was nonnegotiable. The Agency gave him less than twenty-four (24) hours to decide whether or not to accept that Agreement. The second Last Chance Agreement contained the same onerous and overbroad waivers of Appellant's rights to file EEO complaints, grievances and other legal claims relating from the treatment he received. It further vested the Deciding Official, the very individual who had sustained Appellant's removal a few weeks earlier, with the sole and unhampered discretion to determine whether or not Appellant had violated the Agreement. As such, it unilaterally reserved to one party of the Agreement the ability to, in effect, cancel the Agreement, rendering it void as a matter of contract law. Tetrault.

     Under these circumstances and because Appellant's very livelihood depended on accepting the Agreement, he had no real choice and was coerced into executing it.

     Subsequent to execution of the Agreement, Appellant diligently and in good faith attempted to perform the duties of his position. From the outset, however, he encountered repeated impediments precluding him from demonstrating his "reliability and value as an FRA employee" which was the very purpose of the Agreement. By letter dated January 28, 1997, Appellant wrote his then immediate supervisor a letter (Exhibit F to Appellant's Appeal) to civilly express his concerns that he was not being accorded an opportunity to perform as specified under the Agreement. A reading of the January 28, 1997 letter hardly demonstrates disrespectful, disruptive, intimidating or threatening behavior sufficient to unilaterally terminate the Last Chance Agreement only two months after it took effect. Indeed, all that letter requested was that the Agency provide Appellant with working conditions consistent with the intent of the Last Chance Agreement. Without making any effort whatsoever to address Appellant's concerns or to discuss the issues he had raised in the letter, the Agency responded by summarily removing Appellant on February 13, 1997. This removal notice did not advise Appellant of his right to file an appeal of his removal or to seek enforcement of the Last Chance Agreement from the MSPB.

     In effect, the removal notice advised Appellant that since the Agency had concluded that he violated the Last Chance Agreement, he was summarily terminated. The impact is that Appellant has been removed from his position a mere two months after the initial proposed effective date and his pending EEO complaints have been withdrawn, all without the legal redress Appellant would otherwise enjoy under the Constitution and Titles 5 and 42 of the U.S. Code.

     Appellant submits that when viewed as a whole, the Agency's conduct clearly establishes a nonfrivolous allegation that the Last Chance Agreement was entered into in bad faith. 

II.  APPELLANT DID NOT VIOLATE THE AGREEMENT

     As set forth more completely in his Affidavit, Appellant asserts that he did not violate the Last Chance Agreement in any respect. Appellant does not consider and did not intend that his January 28, 1997 letter constituted disrespectful conduct, nor did he intend disrespect by any electronic mail messages he may have sent. Indeed, since Appellant was locked out of the Agency's e-mail system from shortly after the Agreement was effective, he could not have sent such messages. Appellant did not refuse to continue his work and indeed the January 28 letter itself demonstrates his intent and desire to continue to perform his work since its self-evident purpose was to apprise supervision of the impediments he faced in securing that objective. Finally, since Appellant's letter of January 28 opposed practices made illegal under Title VII, it constituted protected activity which could not legitimately be the basis of an adverse action. Accordingly, Appellant has made a nonfrivolous allegation that he did not violate the Agreement.

 

II.  APPELLANT HAS MADE A NONFRIVOLOUS ALLEGATION THAT HE DID NOT FREELY ENTER INTO THE AGREEMENT

     The Agency proposed to remove Appellant from his livelihood for activity which was at least arguably within the scope of his protected rights. The Agency also was fully aware that Appellant was pursuing a Ph.D. doctoral program in information technology and that reassignment of him to Vancouver, Washington would interrupt his education and jeopardize completion of that program. The Agency gave Appellant less than twenty-four (24) hours to decide whether or not to accept the Agreement and then refused to negotiate any of its provisions with him. Appellant's options were to forego income and disrupt his studies, or to execute the Agreement as presented by the Agency. Under these circumstances, Appellant has unquestionably presented a nonfrivolous allegation that he was coerced into signing the Agreement which could not have been free from duress or coercion. 

 

III.  THE AGREEMENT IS VOID AS ILLUSORY AND LACKING IN CONSIDERATION 

    Paragraph 8 of the Last Chance Agreement provides:

 In the event that, in the judgment of the Deciding Official, Mr. Seay violates any provision of this Agreement, the Deciding Official will establish an effective date and implement the Removal as of that date. 

    The second paragraph of the Agreement defines "removal:"

 WHEREAS, by letter dated November 25, 1996, Mr. Phillip Olekszyk acting as the Deciding Official (together with any successor Deciding Official hereafter "Deciding Official"), decided to remove Mr. Seay from the position of Computer Specialist, GS- 334-11, Atlanta, Georgia ("Removal")

    Thus, by its clear language, the Last Chance Agreement states that if in his judgment, the Deciding Official concludes that Appellant had violated any of its provisions, his initial removal will be instituted as of the date of that decision. Since this provision unilaterally reserves to one of the parties to the Agreement the discretion to determine whether the Agreement has been violated and because that determination has the effect of terminating the Agreement, one party to the Agreement can at any time fully escape its obligations under it by merely declaring that the other party is in breach. This renders any obligations the Agreement imposes on the Agency totally illusory since it can escape them at will and the opposing party is powerless to enforce the Agreement. Therefore, the Agreement is void as lacking in consideration. Tetrault. An invalid agreement cannot possibly waive a statutory right, either to file a discrimination case or to appeal a removal from a competitive service position. 

 

IV.  APPELLANT HAS THE RIGHT TO PETITION THE BOARD FOR ENFORCEMENT OF THE AGREEMENT 

    Under paragraph 9 of the Agreement, Appellant retains the right to petition the Board to enforce the Agreement:

 It is understood that this does not preclude Mr. Seay from filing a petition with the Board to enforce this Agreement.

 Since Appellant contends that the Agency has violated the Agreement, the Board has jurisdiction over this appeal pursuant to this paragraph.

 

V.  THE AGREEMENT IS VOID BECAUSE ITS PURPOSE AND EFFECT IS TO UNDERMINE STATUTORY APPEAL RIGHTS

 

    In McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988), the Federal Circuit rejected the argument that last chance agreements were inherently coercive on their face. Instead, it affirmed a rule that the reviewing authority should examine such agreements under the totality of their circumstances to determine whether the Agency acted in bad faith. To be valid, the waiver of a right to appeal must be the result of an informed, intentional abandonment of a known right, free of coercion or duress. Id. at 668 citing Ferby v. United States Postal Service, 26 MSPR 451, 455 (1985). The terms of the waiver must appear comprehensive, freely made and fair. Id. at 456. "If an Agency acts in bad faith or takes other arbitrary and capricious action, as a breaching party would not be able to enforce the agreement." McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988); Ferby v. United States Postal Service, 26 MSPR 451, 456 (1985). Moreover, the Board required that the terms of the waiver appear comprehensive, freely made and fair. Ferby at 456.

     Waivers of rights to file complaints are void as against public policy. E.E.O.C. v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987); Callicotte v. Carlucci, 698 F. Supp. 944 (D.C. D.C. 1988). Unlike the federal courts cited above, the Board has rejected a per se rule of invalidity of last chance agreements which purport to waive the statutory right to file equal employment opportunity complaints. Rather, the Board will always carefully scrutinize the surrounding circumstances and particular facts to ascertain whether the agreement was free from coercion before upholding such a waiver. In this case, the evidence strongly suggests that the Agency has attempted to transform a legitimate vehicle intended to accord an employee with a history of misconduct a final opportunity to reform into a vehicle to eradicate appeal rights and squelch the right to complain of discrimination.

     Therefore, when the standard for adjudicating the validity of a statutory waiver is applied to Appellant's case, Appellant has presented compelling evidence that this Agreement constitutes an impermissible effort to deprive him of both his employment and statutory appeal rights without any legitimate justification. This Agreement is void under the controlling standard. It is readily apparent that under these circumstances, Appellant has clearly exceeded the threshold of making a nonfrivolous allegation and is entitled to have these arguments, as well as the validity of the Last Chance Agreement itself, addressed at a full hearing. 

 

    Respectfully submitted this _11th_______ day of ___March_______________, 1997.

     

                                                                 Adam J. Conti
                                                                 Georgia Bar No. 182475

Supporting Affidavit of Cameron Seay

 

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