“Last Chance” Agreement Used in Firing GS-15 Security Specialist

A last chance agreement is an effective tool for enforcing agency requirements but each party has to adhere to the requirements. The employee gets a last chance and waives appeal rights. Here is one example of a senior employee who lost such an appeal.

 A “last chance” agreement can be a very useful tool in the human resources arsenal if in fact an agency is willing to give an employee one last shot at holding onto his/her job. The agency goes through the removal process, issues a removal decision, but agrees to hold it in abeyance provided the employee holds up his/her end of the bargain. In return the employee waives his/her appeal rights. But it is critical that the employee and the agency adhere strictly to the terms of the agreement.

The Federal Circuit Court of Appeals recently had occasion to review the removal of an employee who had signed such an agreement but had failed to live up to its terms. (Rosell v. Merit Systems Protection Board, C.A.F.C. No. 06-3139 (non-precedent), 8/14/06) The court upheld the firing. The facts below are taken from the court’s decision.

The Department of Defense proposed to remove Ms. Rosell from her GS-15 Security Specialist position after she tested positive on a random drug test. The agency issued a removal decision, but entered into a “last chance agreement” under which Rosell agreed to submit to a specific number of random drug tests (28) during the next 19 months, and that each of those tests had to come back negative. 

The parties agreed to an extension of the agreement in order to let Rosell take advantage of an early out incentive, which set her retirement eligibility date as April 30–the same day that the last chance agreement now expired.

Four days after the amendment to the agreement was signed, and eleven days before its new expiration date, Rosell was ordered for a random drug test. The results came back positive and the agency re-instituted Rosell’s removal as of April 30.

Rosell appealed to the Board. However, the last chance agreement contained Rosell’s unconditional waiver of her right to appeal to the Board, and it also provided that if she failed to live up to any of its terms, the prior removal action would be implemented by the agency. The Board found that it therefore did not have jurisdiction over her appeal since she had waived her appeal rights.

In its decision, the court explains that Rosell can overcome her waiver of her appeal rights only if she can show one of four things, i.e., that she complied with the agreement; or the Agency materially breached the agreement; or she signed the agreement involuntarily or under duress; or the agreement was the result of fraud or mutual mistake.

Rosell unsuccessfully tried several arguments to attack the validity of the last chance agreement and therefore to persuade the court to overturn her firing.

In each case the court turned to the specific wording of the agreement and enforced its provisions. Predictably she also argued that because the separation was made effective on the same date that she would have been able to retire, the removal was invalid because it occurred after her retirement. The court found, however, that her firing took effect on the date of the agency’s notice, which occurred before her retirement had taken place. The court affirmed the Board’s ruling that it had no jurisdiction to hear Rosell’s appeal.

This case illustrates the willingness of the Board and the court to uphold a last chance agreement. The lesson is to be careful what you sign, and, once signed, live with the consequences of your actions.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.