Buchanan v. Department of Energy

• Decision Date: 09 April 2001
• Docket Number: No. 01-3018,01-3018
• Citation: 247 F.3d 1333
• Parties: (Fed. Cir. 2001) JULIE A. BUCHANAN, PETITIONER, v. DEPARTMENT OF ENERGY, RESPONDENT
• Court: U.S. Court of Appeals — Federal Circuit

Page 1333

247 F.3d 1333 (Fed. Cir. 2001)

JULIE A. BUCHANAN, PETITIONER, v. DEPARTMENT OF ENERGY, RESPONDENT.

No. 01-3018

United States Court of Appeals for the Federal Circuit

April 9, 2001

Appealed from: Merit Systems Protection Board

Julie A. Buchanan, of Portland, Oregon, pro se.

Lawrence N. Minch, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, Dc. With him on the brief were David M. Cohen, Director; James M. Kinsella, Deputy Director; and Franklin E. White, Jr., Attorney.

Before Lourie, Circuit Judge, Plager, Senior Circuit Judge, and Dyk, Circuit Judge.

Circuit Judge Dyk

Concurring opinion filed by Senior Circuit Judge PLAGER.

Julie A. Buchanan ("petitioner") seeks review of the final decision of the Merit Systems Protection Board ("Board" or "MSPB") dismissing for lack of jurisdiction petitioner's appeal of her removal from her government position for violating a last-chance settlement agreement. Buchanan v. Dep't of Energy, No. SE-0752-99-0368-I-1, SE-0752-98-0217-C-2 (M.S.P.B. Aug. 16, 2000). Because petitioner has not demonstrated that the Board erred in dismissing her appeal, we affirm.

BACKGROUND

Petitioner had a long history of absences from her positions at the Bonneville Power Administration ("agency" or "BPA"), an agency within the Department of Energy. Initially, the agency proposed to remove her for unavailability for full-time employment, relying on her repeated absences from work, allegedly for various health reasons, in the period from June 1995 to January 1998. During the period of these repeated absences, petitioner's supervisor, Barry Hirsch, wrote a memorandum to petitioner on February 27, 1997, expressing his concerns about her availability for work, and stating that she had been unavailable for work approximately thirty-five percent of the time in the preceding eight months. After the February 27, 1997, memorandum, petitioner was absent from work approximately seventy-two percent of the time between March 1, 1997, and April 24, 1997.

After meeting with petitioner and an American Federation of Government Employees (AFGE) representative, Mr. Hirsch wrote another memorandum on April 24, 1997, providing for a six-month trial period during which petitioner would be given less demanding work assignments and permitted to work from home when necessary. At the end of the trial period, the agency evaluated her time and attendance records and found that, based on petitioner's own timesheets, petitioner was absent from work approximately thirty-five percent of the time during the trial period. Based on official timesheets, petitioner's actual attendance at the office was close to zero.

During the period between the end of the trial period, October 24, 1997, and January 8, 1998, petitioner apparently came into the office on only a few, if any, occasions. On January 27, 1998, the agency evaluated the nature and seriousness of her absences, and proposed removing petitioner from her position as a Public Affairs (Public Involvement) Specialist on the grounds of her unavailability for full-time employment on a regular basis and because of the "great degree of interaction demanded of a public involvement job" such as the one she had.

In a letter dated May 5, 1998, the agency approved the proposed removal, noting that review of the attendance records since the proposed removal letter did not support petitioner's claim that she was currently working full-time in her position. The agency determined that her "presence in the office to the maximum degree possible was essential" and that the work of her position must be done in the office. The agency discussed the importance of her attending both scheduled and unscheduled meetings, and noted that even though she was not always on leave, she "continued to be unavailable for work at the office."

Petitioner appealed her removal to the Board. During the pendency of the appeal, the parties reached a settlement, the terms of which are set forth in the last-chance settlement agreement of January 27, 1999, which is involved here. The last-chance agreement was approved by an administrative judge of the Board on February 10, 1999. Under the last-chance agreement, petitioner accepted a Public Utilities Specialist position as a GS-11, but retained her pay as a GS-12, Step 5. The agreement set forth a number of restrictions on her employment due to concerns about her repeated absences from the workplace. Paragraph 6 of the agreement provided that:

[F]ailure by the appellant to follow the work attendance and leave procedures described below will be grounds for removal. Failure is defined as any instance of noncompliance with the provisions of any one of paragraphs 6a-6f. Failure does not require cumulative non-compliance with more than one of these paragraphs. BPA agrees to notify appellant when it determines she has failed any provision of the work attendance and leave procedures below. These notice provisions are for the purpose of giving the appellant an opportunity to submit evidence to BPA management that she did not, in fact, fail any of the work attendance and leave procedures.

(emphasis added). Subparagraph 6a further stated: "Any non-emergency absence that is not pre-scheduled or pre-approved will result in AWOL. No AWOL will be approved during the term of this agreement." Subparagraph 6e further provided that:

Appellant shall work the same full 8-hour tour of duty each day beginning between 7:45 a.m. - 8:15 a.m., with a 45 minute lunch, leaving between 4:30 p.m. - 5:00 p.m. Any variations in this schedule shall conform to BPA core hour requirements and shall be approved in advance by appellant's supervisor. Any failure to be on duty during scheduled duty hours, except as authorized by appellant's supervisor or as specified under subparagraphs 6a and 6b, will result in the appellant being AWOL.

(emphasis added).

Paragraph 9 provided, in part, that: "Appellant . . . waives her right to appeal her termination should she violate the agreement. Appellant reserves the right to appeal to the MSPB the issue whether she actually failed any of the terms of this agreement." Paragraph 16 provided that: "Except for the specific requirements of this agreement, appellant will be treated like any other BPA employee." The agreement was to be effective for a period of one year following Ms. Buchanan's return to work. Petitioner returned to work on February 16, 1999.

On May 25, 1999, petitioner's new supervisor, Joseph Flores, wrote a memorandum to petitioner concerning her recurring work attendance problems. Mr. Flores specifically outlined the events of May 18, 1999, when petitioner called in late, but then still arrived over an hour after her approved arrival time without permission. The letter stated that although this conduct could have been considered a breach of the agreement, Mr. Flores allowed petitioner to take leave in this one instance. Mr. Flores however warned that any such future conduct would result in her being considered AWOL. The letter also outlined petitioner's recent habit of arriving at work after the agreed-upon starting time. The starting time was subsequently changed to a later time, but petitioner still on at least three occasions after the new arrival time failed to arrive at work within the 30 minute grace period without approval. Mr. Flores informed petitioner that he also could have determined her to be AWOL for these instances, which would be grounds of removal, but instead allowed her to work late instead. Mr. Flores then notified petitioner that unless she was on pre-approved annual leave, pre-approved sick leave, or on emergency leave, any future deviation from her work schedule would be treated as AWOL. He further notified her that if he determined her to be AWOL, he would recommend that she be removed from her position. On May 25, 1999, petitioner acknowledged that she had read and understood this warning letter.

This brings us to the day in question. On August 9, 1999, petitioner was admittedly away from her work station and not engaged in performing her assigned tasks for a considerable portion of the day without any prior approval of her supervisor. After obtaining additional information about petitioner's absence from her work station and her failure to be engaged in performing work for a significant portion of the workday on August 9, 1999, Mr. Flores met with petitioner on August 18, 1999, to inquire about her work hours and tasks on August 9. As requested, petitioner provided a written account on August 18, 1999. In this written account, petitioner listed her alleged activities for the entire day. For the time slot from 10:00 to 11:30 a.m. she stated that she met with a union representative, Ann Juarez, regarding "orientation for stewardship responsibilities," and that from 1:30 to 2:35 p.m. she talked with Ms. Juarez regarding "AEP status, rate case petition, and upcoming training/orientation."

In response to her written account, the agency interviewed several persons in order to verify that petitioner's statements were accurate, and in order to determine whether petitioner was on duty on August 9, 1999. Ms. Juarez stated that she did not meet with petitioner during the hours that petitioner had claimed. First, Ms. Juarez denied meeting with petitioner at all during the morning. Second, Ms. Juarez did not recall a meeting with petitioner in the afternoon, and recalled that she attended a 2:00 p.m. meeting which petitioner did not attend; therefore she could not have met with petitioner from 1:30 to 2:35 p.m. as petitioner alleged, although they did apparently meet at some time that afternoon. Other co-workers and supervisors stated that petitioner left a note on her cubicle stating that she was in training until 1:00 p.m. and was not seen at her work station or elsewhere performing her assigned tasks, for most, if not all of the day. Another employee stated that,...