Timothy Jones v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY JONES, DOCKET NUMBER

Appellant, CB-7121-15-0011-V-1

v.

DEPARTMENT OF LABOR, DATE: April 16, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Timothy Jones, Saint Louis, Missouri, pro se.

Dana M. Shannon, Kansas City, Missouri, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a request for review under 5 U.S.C. § 7121(d) of an

arbitrator’s decision that denied the grievance concerning his removal. For the

reasons discussed below, we AFFIRM the arbitrator’s decision. We further FIND

that the appellant failed to prove his claim of race discrimination.

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

BACKGROUND

¶2 Effective September 11, 2013, the appellant was removed from his Equal

Opportunity Specialist position for failure to provide accurate information and

lack of candor. MSPB Docket No. CB-7121-15-0011-V-1, Request for Review

(RFR) File, Tab 1 at 34-44. The failure to provide accurate information charge

was supported by two specifications and the lack of candor charge was supported

by three specifications. 2 See id. at 39-42.

¶3 The appellant challenged the action through arbitration pursuant to the

negotiated grievance procedure. See id. at 45. Following a hearing, on

August 25, 2014, the arbitrator issued a decision denying the grievance. Id. at

46-58. The arbitrator sustained both specifications of the failure to provide

accurate information charge and two of three specifications of the lack of candor

charge. See id. at 55-58. Specification 1 of the failure to provide accurate

information charge alleged that the appellant failed to provide accurate

information in response to question 12 of Optional Form 306 (OF-306),

Declaration for Federal Employment, by failing to disclose his resignation after

being removed from his prior position at the Department of Agriculture in 2008.

See id. at 8-11. Specification 2 alleged that the appellant failed to provide

accurate information in his employment application regarding his employment

history as a Criminal Investigator with the Department of Homeland Security

(DHS). See id. at 11-13.

¶4 Specification 1 of the lack of candor charge alleged that, during his

recruitment interview, the appellant was not forthright about the fact that he only

performed his job duties as a Criminal Investigator for the DHS for approximately

2 weeks and failed to disclose that he was on extended administrative leave

during the majority of the 21 months he indicated that he was employed there on

2

Initially, the agency provided four specifications in support of its lack of candor

charge, however, the deciding official did not sustain specification 3. RFR File, Tab 1

at 15, 41.

3

his résumé. See id. at 14. Specification 2 alleged that during the same interview,

the appellant was not forthright about the fact that he went from a GS-12

Criminal Investigator to a GS-6 Deportation Assistant, not because he was in a

“holding pattern” regarding his top secret clearance as he stated but because he

had been removed from his Criminal Investigator position for failure to obtain a

top secret clearance, and, as a result of a settlement agreement, the agency agreed

to place him in the Deportation Assistant position. Id. Having determined that

the agency proved both of its charges, the arbitrator also found that removal was a

reasonable penalty that promoted the efficiency of the service. Id. at 58.

¶5 On September 26, 2014, the appellant electronically filed an “appeal” with

the Board’s Central Regional Office challenging the arbitrator’s decision. 3 IAF,

Tab 1. Recognizing that the “appeal” was properly a request for review of the

arbitrator’s decision, which should have been filed with the Clerk of the Board,

see Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005), aff’d,

213 F. App’x 993 (Fed Cir. 2007), the administrative judge issued a decision on

December 15, 2014, transferring the request for review to the Clerk of the Board, 4

IAF, Tab 9, Initial Decision.

3

Although the Board did not receive the appellant’s request for review until sometime

on or after December 15, 2014, his initial filing with the Central Regional Office on

September 26, 2014, was within the 35-day time period for requesting review of the

August 25, 2014 arbitration decision. See MSPB Docket No. CH-0752-15-0003-I-1,

Initial Appeal File (IAF), Tab 1. Thus, we find his request for review was timely filed.

See Keller v. Department of the Army, 113 M.S.P.R. 557, ¶ 4 (2010).

4

The appellant also electronically filed an opposition to the agency’s motion to dismiss

on October 28, 2014, as well as a “Petition for Review” on December 23, 2014. IAF,

Tab 7; RFR File, Tab 2. We have considered both pleadings as supplements to the

appellant’s request for review. We also have considered the agency’s opposition to the

appellant’s request for review. RFR File, Tab 5.

4

ANALYSIS

The Board has jurisdiction over the appellant’s request for review of the

arbitrator’s decision.

¶6 The Board has jurisdiction to review an arbitration decision under 5 U.S.C.

§ 7121(d) where the subject matter of the grievance is one over which the Board

has jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C.

§ 2302(b)(1) in connection with the underlying action, and a final decision has

been issued. Keller, 113 M.S.P.R. 557, ¶ 5. Under Board regulations that

became effective November 13, 2012, an appellant can establish Board

jurisdiction over a request for review of an arbitration decision only if the

appellant either raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with

the arbitrator in connection with the underlying action or raises a claim of

discrimination in connection with the underlying action under 5 U.S.C.

§ 2302(b)(1) for the first time with the Board if such allegations could not be

raised in the negotiated grievance procedure. See 5 C.F.R. § 1201.155(c); see

also Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 6 (2014).

¶7 Here, each of these conditions is met. The appellant’s grievance concerns

his removal under 5 U.S.C. § 7512, a subject matter over which the Board has

jurisdiction, and the arbitrator issued a final decision. RFR File, Tab 1 at 8,

44-58. Further, the appellant alleges for the first time in his request for review

that his removal was a result of racial discrimination and the record reflects that

his governing collective bargaining agreement did not allow for claims of

discrimination to be raised in the course of a grievance proceeding. See id. at 5;

RFR File, Tab 5 at 10, 38.

The appellant has not shown that the arbitrator erred in interpreting civil service

law, rule, or regulation.

¶8 The standard of the Board’s review of an arbitration decision is narrow;

such decisions are entitled to a greater degree of deference than initial decisions

of the Board’s administrative judges. Keller, 113 M.S.P.R. 557, ¶ 6. Even if the

Board disagrees with the arbitrator’s decision, absent legal error, the Board

5

cannot substitute its conclusions for those of the arbitrator. Id. The Board will

modify or set aside an arbitrator’s decision only where the arbitrator has erred as

a matter of law in interpreting a civil service law, rule, or regulation. Id.

¶9 The appellant presents various challenges to the arbitrator’s decision. RFR

File, Tab 1 at 5, 59-62, Tab 2 at 3-4; IAF, Tab 7 at 4-6. First, the appellant

contends that the arbitrator erred in sustaining the charge of failure to provide

accurate information because he failed to consider the appellant’s testimony that

he inadvertently submitted the wrong OF-306 form. RFR File, Tab 1 at 59, 61,

Tab 2 at 4. Contrary to the appellant’s assertion, however, the arbitration

decision reflects that the arbitrator did consider the appellant’s explanation that

he mistakenly submitted the wrong OF-306 but found such an explanation was not

credible. RFR File, Tab 1 at 56.

¶10 The appellant also generally sets forth the background facts regarding his

employment history and explains why he believes that he did not provide

inaccurate information. See id. at 5, 60. Concerning the failure to provide

accurate information charge, the appellant asserts the following: he disclosed the

reasons surrounding his separation from his prior federal positions during two

interviews with a background investigator and during a prior interview he had

with the Office of Personnel Management, and he was attempting to abide by the

terms of his settlement agreement with the DHS. See id. at 5, 60-61.

Additionally, regarding the lack of candor charge, the appellant reiterates his

arguments that during his interview he was not asked specific questions about his

length of employment with the DHS and that he did not state that he was in a

holding pattern to receive a top security clearance because he was not; rather, he

stated that he was awaiting placement in another position that did not require a

top secret clearance. See id. at 61-62. The appellant’s statements do not

establish, however, a basis for the Board to disturb the arbitrator’s decision. See,

e.g., Dobruck v. Department of Veterans Affairs, 102 M.S.P.R. 578, ¶ 14 (2006),

aff’d, 212 F. App’x 997 (Fed. Cir. 2007).

6

¶11 The appellant also generally alleges that the arbitrator improperly gave

more weight to the agency’s opinions and speculations and “ruled only on

opinion.” RFR File, Tab 2 at 4. We construe such claims as challenges by the

appellant to the arbitrator’s credibility determinations, factual findings, and legal

conclusions. However, the appellant’s mere disagreement with the arbitrator does

not show legal error. See Cirella v. Department of the Treasury, 108 M.S.P.R.

474, ¶¶ 15-16, aff’d, 296 F. App’x 63 (Fed. Cir. 2008). The appellant has not

shown that, in reviewing and analyzing the evidence, the arbitrator erred as a

matter of law in interpreting a civil service law, rule, or regulation.

¶12 Lastly, the appellant contends that the deciding official improperly

considered ex parte information in violation of his due process rights. IAF, Tab 7

at 5. Specifically, he asserts that the deciding official improperly considered a

memo showing the actual date and facsimile number from which he submitted the

OF-306 in question, of which he was not aware until it was presented at the

arbitration hearing. Id. While the appellant alleges that the proposing official

had a copy of the memo in her possession, he has provided no evidence that the

deciding official was aware of or considered the memo. See Ward v. U.S. Postal

Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011) (a deciding official violates an

employee’s right to due process when he relies upon new and material ex parte

information as a basis for his decision on the merits of a proposed charge or the

penalty to be imposed). Moreover, such information appears to be cumulative to

the extent the appellant was already on notice of the OF-306 in question through

the agency’s proposal notice, which identified the particular OF-306 dated

March 7, 2012. RFR File, Tab 1 at 9; see Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999) (identifying the following

factors to be used to determine if ex parte information is new and material:

(1) whether the ex parte communication introduces cumulative, as opposed to

new, information; (2) whether the employee knew of the information and had an

opportunity to respond; and (3) whether the communication was of the type likely

7

to result in undue pressure on the deciding official to rule in a particular manner).

Thus, we find no due process violation.

The appellant has not shown that his removal was due to discrimination based on

his race.

¶13 An employee may establish a prima facie case of prohibited discrimination

by introducing preponderant evidence to show that he is a member of a protected

group, he was similarly situated to an individual who was not a member of the

protected group, and he was treated more harshly than the individual who was not

a member of his protected group. Hidalgo v. Department of Justice, 93 M.S.P.R.

645, ¶ 9 (2003). Here, the appellant alleges generally that he was discriminated

against on the basis of his race because he was the only black male working in the

office and was treated differently than his white male coworkers. RFR File,

Tab 1 at 5. However, the appellant has submitted no evidence in support of his

claim and has not identified any similarly-situated white coworkers who were

allegedly treated more favorably by the agency.

¶14 For comparison employees to be considered similarly situated to the

appellant, all relevant aspects of the appellant’s employment situation must be

“nearly identical” to those of the comparison employee. Hooper v. Department of

the Interior, 120 M.S.P.R. 658, ¶ 6 (2014); Hidalgo, 93 M.S.P.R. 645, ¶ 10.

Among other things, comparative employees must have engaged in conduct

similar to the appellant’s without differentiating or mitigating circumstances that

would distinguish their misconduct or the appropriate discipline for it. Id.

Moreover, the appellant and the comparison employee must have been supervised

by the same individual. Id. Although the appellant is a member of a protected

group, he has not sufficiently alleged that he was similarly situated to the

unidentified white coworkers or that he was treated more harshly than such

individuals. Thus, the appellant has failed to establish disparate treatment. See,

e.g., Agbaniyaka v. Department of the Treasury, 115 M.S.P.R. 130, ¶¶ 13-14

8

(2010), aff’d, 484 F. App’x 545 (Fed. Cir. 2012); Brent, 100 M.S.P.R. 586,

¶¶ 12-14.

¶15 Accordingly, we AFFIRM the arbitrator’s decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method

requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

9

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.