The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAUNYA JEFFERSON, DOCKET NUMBER
Appellant, CB-7121-15-0010-V-1
v.
DEPARTMENT OF LABOR, DATE: May 22, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Eleanor J. Lauderdale, Esquire, Washington, D.C., for the appellant.
Candyce Phoenix, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant requests review of an arbitrator’s decision regarding her
removal. For the reasons set forth below, we DENY the request for review for
failure to meet the requirements of 5 C.F.R. § 1201.155(d).
¶2 The agency removed the appellant from her position as a Management Staff
Assistant with the agency’s Office of Unemployment Insurance for unacceptable
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
performance while on a performance improvement plan, and she challenged that
action through arbitration pursuant to the negotiated grievance procedure set forth
in her collective bargaining agreement. Request for Review (RFR) File, Tabs
1-2, 9 at 21. The appellant subsequently filed this request for Board review of the
arbitrator’s decision. RFR File, Tabs 1-2.
¶3 The Clerk of the Board issued a February 20, 2015 acknowledgment letter
in which he informed the appellant, in pertinent part, that the Board’s regulations
require that a request for review of an arbitration decision must contain: (1) a
statement of the grounds on which review is requested; (2) references to evidence
of record or rulings related to the issues before the Board; (3) arguments in
support of the stated grounds that refer specifically to relevant documents and
that include relevant citations of authority; and (4) legible copies of the final
grievance or arbitration decision, the agency decision to take the action, and other
relevant documents, which may include a transcript or tape recording of the
hearing. RFR, Tab 6; see 5 C.F.R. § 1201.155(d). The Clerk further explained
that, to the extent that the appellant had not yet complied with those
requirements, she may file a supplement to her request for review by March 2,
2015, and that the record would close upon the expiration of the period allotted
for the agency to file its response to the appellant’s request for review, April 6,
2015. RFR, Tab 6 at 1; see 5 C.F.R. § 1201.155(f). The appellant resubmitted a
corrected copy of her request for review, RFR, Tab 8, and the agency responded
in opposition to the appellant’s request, RFR, Tab 9.
¶4 After the record closed, the appellant requested leave to submit a copy of
the transcript. RFR, Tab 10. The agency responded in opposition, explaining
that, because the appellant failed to show that the transcript was not readily
available before the close of the record, she could not meet her burden in order to
file it after the record had closed. RFR, Tab 11 at 4-5; see 5 C.F.R. § 1201.155(f)
(“Once the record closes, no additional evidence or argument will be accepted
unless the party submitting it shows that the evidence was not readily available
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before the record closed.”). The agency also asserted that the appellant’s request
for review was incomplete because she had failed to file a copy of the agency’s
decision removing her as required by 5 C.F.R. § 1201.155(d)(4). RFR, Tab 11 at
4-5. 2
¶5 Although the appellant, who is represented by counsel, provided a copy of
the arbitration decision and has explained the grounds on which she bases her
request, with apparent citations to the transcript of the arbitration proceedings and
to relevant authorities, RFR, Tab 4, she neglected to file the required copy of the
agency’s decision, or to even address her failure to do so in her subsequent
pleadings, see RFR, Tabs 10, 12. Because the Clerk of the Board correctly
articulated these requirements in its February 20, 2015 acknowledgment letter,
the appellant was on notice regarding the requirement for her to submit, among
other items, the agency’s decision. RFR File, Tab 5. Her failure to fully meet the
mandatory requirements of 5 C.F.R. § 1201.155(d) precludes the Board from
granting her request for review.
¶6 Moreover, even if she had complied with Board regulation and filed a copy
of the agency’s decision, the appellant’s failure to submit the transcript, 3 or
anything at all in support of the allegations set forth in her request for review,
2
The appellant subsequently submitted a request for an extension of time in which to
file a reply to the agency’s response in opposition to her request for review. RFR, Tab
12. The Clerk of the Board denied the appellant’s request because Board regulations do
not provide for the filing of a reply to a response to a request for review of an
arbitrator’s decision. RFR, Tab 13; see 5 C.F.R. § 1201.155.
3
The appellant’s request to supplement the record with a copy of the transcript
indicates that she had a copy of the transcript in her possession but that she chose not to
submit it when the record was still open because she did not have an electronic version
of it. RFR, Tab 10 at 4. However, the appellant could have timely submitted the hard
copy. Although the appellant’s representative registered as an e-filer, the appellant d id
not do so, and, in any event, the Board’s electronic filing regu lations do not require the
e-filing of any pleading, even for those who register as e-filers. See 5 C.F.R.
§ 1201.14(f). Because the appellant has failed to show that the transcript was
unavailab le, despite her due diligence, before the close of the record, we deny her
request to supplement the record with it. 5 C.F.R. § 1201.155(f).
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leaves her unable to overcome the deference afforded the arbitrator’s factual
determinations. See, e.g., Weaver v. Social Security Administration, 94 M.S.P.R.
447, ¶ 13 (2003) (an arbitrator’s factual determinations are entitled to deference
unless he erred in his legal analysis, e.g., by misallocating burdens of proof or
employing the wrong analytical framework); Holly v. Department of Health &
Human Services, 92 M.S.P.R. 601, ¶ 10 (2002) (an appellant seeking review of an
arbitration decision has the burden of providing the Board with materials
necessary to support matters raised on review, including a transcript or tape
recording of the arbitration hearing); Higgs v. Social Security Administration,
71 M.S.P.R. 48, 51-52 (1996) (employee’s unsupported assertions that arbitrator
erred in her fact findings were insufficient to show that the arbitrator’s findings
conflicted with Board substantive law and thus did not provide a basis for setting
aside or modifying the arbitrator’s award where the record did not contain the
hearing transcript or exhibits).
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:
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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
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
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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.