Opinion

Tomeka D. Lasure v. Department of Veterans Affairs

Court
Merit Systems Protection Board
Filed
Dec 31, 2015
Status
Unpublished
Cited by
0 cases
Authority
More cited than 42.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TOMEKA D. LASURE, DOCKET NUMBER

Appellant, CB-7121-15-0034-V-1

v.

DEPARTMENT OF VETERANS DATE: December 31, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donald L. Fowler, Tacoma, Washington, for the appellant.

Mary C. Lee, Walla Walla, Washington, 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 requested review of an

arbitration decision. For the reasons that follow, 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A nonprecedential order is one that the Board has determined does not add

significantly 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 Parties may cite nonprecedential orders,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

¶2 The appellant filed a request for review of a July 10, 2015 arbitration

decision, which denied her grievances regarding the agency’s admonishing her for

being absent without leave (AWOL) and failing to follow instructions; issuing her

a letter of reprimand for other instances of AWOL and failure to follow

instructions; and removing her from Federal service for AWOL, failure to follow

instructions, and conduct unbecoming. Request for Review (RFR) File, Tab 1,

Tab 2 at 333-57. The agency did not respond to the appellant’s request

for review.

¶3 The Board has jurisdiction over a request for review of an arbitration

decision 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

under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the underlying

action, 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. 2 Jones v. Department of Energy, 120 M.S.P.R.

480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R.

§ 1201.155(a)(1), (c).

¶4 The appellant alleged before the arbitrator that the agency discriminated

against her because of her participation in union activity, which is a prohibited

personnel practice under 5 U.S.C. § 2302(b)(9). RFR File, Tab 2 at 344, 347,

355-57. She reiterates this claim before the Board. RFR File, Tab 1 at 8, 11, 15,

40, 44-46, 48, Tab 4 at 5, 11-13. However, she has not raised a claim of

prohibited discrimination under 5 U.S.C. § 2302(b)(1), either before the arbitrator

or the Board. 3 Accordingly, we must dismiss the appellant’s request for review

of the arbitrator’s decision for lack of jurisdiction.

2

The appellant was aware of these requirements. RFR File, Tab 1 at 47-48.

3

The full Master Agreement is not in the record; however, we need not determine

whether the appellant was precluded from raising a claim of discrimination under

3

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 U.S. 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 U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. 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 U.S. 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

5 U.S.C. § 2302(b)(1) through the negotiated grievance procedure because, regardless,

she did not do so in her request for review.

4

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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