The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENIQUA IRENE KNUCKLES, DOCKET NUMBER
Appellant, CB-7121-14-0025-V-1
v.
DEPARTMENT OF THE ARMY, DATE: May 27, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Jeniqua Irene Knuckles, Grovetown, Georgia, pro se.
Christopher M. Kenny, Fort Gordon, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review
of a May 20, 2014 step three grievance decision affirming her removal. For the
reasons set forth below, we DISMISS the appellant’s request for review for lack
of jurisdiction.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On March 25, 2014, the appellant, through her union representative, filed,
in accordance with negotiated grievance procedure, a step three grievance
challenging her removal from federal service. Request for Review (RFR) File,
Tab 3 at 22, 24-25. The appellant claimed, among other things, that the agency
discriminated against her on the bases of gender and race when it removed her.
Id. at 25. In a decision dated May 20, 2014, the agency affirmed the removal
action, finding the action justified by the evidence and reasonable under the
circumstances. 2 Id. at 32-33.
¶3 On August 1, 2014, in an action separate from the present appeal, the
appellant filed an appeal of the removal action, which the administrative judge
dismissed as untimely filed. 3 Knuckles v. Department of the Army, MSPB Docket
No. AT-0752-14-0881-I-1, Initial Decision (Sept. 4, 2014). Thereafter, on
September 5, 2014, the appellant filed the present appeal in which it appeared that
she was requesting the Board’s review of the step three grievance decision. RFR
File, Tab 1. The Office of the Clerk of the Board (the Clerk) consequently issued
a notice, explaining that the submission had been docketed as a request for review
of a final grievance or arbitration decision. RFR File, Tab 2. The Clerk informed
the appellant that such a request for review must include: a statement of the
grounds on which review is requested; references to evidence of record or rulings
related to the issues before the Board; arguments in support of the stated grounds
that refer specifically to relevant documents and that include relevant citations of
authority; and legible copies of the final grievance or arbitration decision, the
agency decision to take the action, and other relevant documents. Id.
2
It appears that the appellant informally requested reconsideration of the May 20, 2014
grievance decision, which the agency denied in an email dated June 23, 2014. RFR
File, Tab 1 at 4, 9, Tab 6 at 5, 10.
3
The appellant has filed a petition for review of that initial decision. We do not
address the merits of that matter herein.
3
¶4 The appellant has filed a timely response to the Clerk’s notice in which she
argues, among other things, that the Board has jurisdiction to review the
grievance decision under 5 U.S.C. § 7121(d) and that the agency committed
harmful procedural error and violated her due process rights when it removed her.
RFR File, Tab 3 at 5-11. She also continues to assert that the removal action was
discriminatory. Id. at 12. The agency has filed a response in opposition to the
appellant’s request for review. RFR File, Tab 6. In its response, the agency
argues that the Board lacks jurisdiction over the matter because the agency did
not issue a final decision on her grievance under 5 U.S.C. § 7121(d). Id. at 5-6.
The agency also argues that her request for review is untimely filed and without
merit. Id. at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board has jurisdiction over a request for review of a final grievance or
arbitration decision under 5 U.S.C. § 7121(d) when: (1) the subject matter of the
grievance is one over which the Board has jurisdiction; (2) the appellant either
(i) raised a claim of discrimination in connection with the underlying action
under 5 U.S.C. § 2302(b)(1) in the negotiated grievance procedure, or (ii) 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; and (3) a final decision has been
issued. 5 C.F.R. § 1201.155(a)(1), (c); see Jones v. Department of
Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014).
¶6 Applying this jurisdictional standard, the appellant cannot establish Board
jurisdiction over her request for review because she fails to satisfy the third
jurisdictional criterion. Specifically, under the applicable Labor-Management
Agreement, the May 20, 2014 step three grievance decision was not a final
4
decision appealable to the Board under 5 U.S.C. § 7121(d). 4 Article 34 of the
Labor-Management Agreement provides that if the appellant or the union was not
satisfied with the agency’s decision on the appellant’s step three grievance, the
union could refer the matter to arbitration within 20 workdays of its receipt of the
decision. MSPB Docket No. AT-0752-14-0881-I-1, Initial Appeal File, Tab 6
at 15. It is undisputed, however, that the union declined to elect arbitration
pursuant to the negotiated grievance procedure. RFR File, Tab 1 at 18, Tab 6
at 5. Under these circumstances, the Board lacks jurisdiction over the appellant’s
request for review.
¶7 Under similar circumstances, the U.S. Court of Appeals for the Federal
Circuit, in Farmer v. Merit Systems Protection Board, 17 F.3d 1444 (Fed. Cir.
1994) (Table), affirmed a Board final decision that dismissed the appellant’s
appeal of his removal by reduction in force for lack of jurisdiction. The court
determined that the Board lacked jurisdiction over the appeal because the
appellant made a binding election under 5 U.S.C. § 7121(d) to grieve the adverse
action through a negotiated grievance procedure and that he, therefore,
“retain[ed] no statutory right to de novo review of the action” by the Board. Id.
at *2. The court also found that the Board lacked jurisdiction over the appeal as a
request for review of a final grievance decision because, due to the union’s
withdrawal of its request for arbitration in the matter, the appellant lacked an
arbitrator’s final decision on which to base a Board appeal. Id. In so finding, the
court rejected the appellant’s argument that his step three grievance decision
should constitute a final grievance decision for purposes of Board review. Id.
The court found that, because the collective bargaining agreement provided for
4
Pursuant to 5 C.F.R. § 1201.64, we take official notice of the Labor-Management
Agreement, which was entered into the record by the administrative judge in the
appellant’s appeal of her removal. MSPB Docket No. AT-0752-14-0881-I-1, Initial
Appeal File, Tab 6 at 9-18; see Thomson v. Department of Transportation, 92 M.S.P.R.
392, ¶ 6 (2002).
5
arbitration as a last resort, his step three grievance decision was not a final
decision on his grievance. Id. Specifically, the court found:
Thus, if Farmer were dissatisfied with Navy’s decision at step three
of the grievance proceeding, his only remaining option was to have
the Union initiate arbitration proceedings, a decision at the end of
which would constitute a final decision within the meaning of
section 1201.154(d). 5 Any other decision in the grievance
proceeding, if not satisfactory to Farmer, merely provided Farmer
with an opportunity to pursue a “final decision” on which he could
appeal to the Board. That Farmer ultimately surrendered his
opportunity through the Union’s actions, however, does not render
the decision at step three “final” such that he can then appeal to the
Board without first following through on a request for arbitration,
because the agreement specifically provides for the next procedural
step to be followed.
Id.
¶8 Although Farmer is nonprecedential and thus not binding on the Board, the
Board has held that it may rely on unpublished Federal Circuit decisions, where,
as here, it finds the court’s reasoning persuasive. 6 See Vores v. Department of the
Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
Here, the Federal Circuit applied the same reasoning that the Board has
consistently applied in comparable cases. See Parks v. Smithsonian
Institution, 39 M.S.P.R. 346, 349 (1988) (finding that a final decision, which is
appealable to the Board under 5 U.S.C. § 7121(d), is the arbitrator’s decision in
cases where the grievance procedure provides for arbitration as the last resort);
see also Clark v. Equal Employment Opportunity Commission, 31 M.S.P.R. 455,
5
The regulation governing requests for review of arb itrator’s decisions is now found at
5 C.F.R. § 1201.155.
6
In Rhoads v. Board of Education of Mad River Local School District, 103 F. App’x
888, 897-98 (6th Cir. 2004) (Table), the Sixth Circuit found the Federal Circuit’s
reasoning in Farmer persuasive and cited the decision in finding that the
plaintiff-appellant had not established a due process violation on account of the union’s
decision not to pursue arbitration.
6
457 (1986) (same); Garland v. Department of Labor, 13 M.S.P.R. 629, 631
(1982) (same).
¶9 The Federal Circuit’s reasoning in Farmer is also consistent with the
Board’s approach in removal appeals under 5 U.S.C. § 7121(e), in which the
Board has long held that, where an appellant undisputedly elected to first
challenge his removal through the negotiated grievance procedure, the Board will
not assert jurisdiction over the matter even in cases where the union decided not
to arbitrate the appellant’s grievance of his removal. See Martinez v. Department
of Justice, 85 M.S.P.R. 290, ¶ 10 (2000) 7; see also Higgs v. U.S. Postal
Service, 14 M.S.P.R. 154, 156-57 (1982) (election of arbitration remedy is
binding notwithstanding subsequent dissatisfaction with the choice; the Board is
not a guarantor of merits of review in the grievance and arbitration process),
overruled on other grounds by Hall v. U S. Postal Service, 26 M.S.P.R. 233
(1985).
¶10 Because the Labor-Management Agreement provided for arbitration and the
union did not refer the matter to arbitration, there is no final decision within the
meaning of 5 U.S.C. § 7121(d). See Gustave-Schmidt v. Department of
Labor, 87 M.S.P.R. 667, ¶ 4 (2001) (noting that an arbitration decision is a final
grievance decision); see also Parks, 39 M.S.P.R. at 349 (explaining that a final
decision, which is appealable to the Board under 5 U.S.C. § 7121(d), “is the
arbitrator’s decision in cases where the grievance procedure provides for
arbitration as the last resort”). Therefore, we dismiss the appellant’s request for
7
Although the Board’s decision in Martinez concerned the appellant’s request to reopen
his removal appeal under 5 U.S.C. § 7121(e), the Board also found, as in Farmer, that it
lacked jurisdiction over the appellant’s appeal under section 7121(d) because the
appellant there, like the appellant here, lacked a final grievance decision
notwithstanding the union’s decision not to elect arb itration. Martinez, 85 M.S.P.R.
290, ¶ 12.
7
review of the grievance decision for lack of jurisdiction. 8 Absent an otherwise
appealable action, the Board lacks jurisdiction to review the appellant’s claims of
harmful procedural error, due process, and discrimination. See Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982). 9
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
8
Given our disposition, we need not address the apparent untimeliness of the
appellant’s request for review.
9
We make no finding on whether the Equal Employment Opportunity Commission
would determine that it has jurisdiction over a comparable complaint, if the appellant
were to choose to file there. See Gayle-Smith v. Department of Education, EEOC
Appeal No. 02A40012, 2004 WL 2535242 (Nov. 1, 2004).
8
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.