reasoning that the appellant’s arbitration closing brief did not show that she had raised a claim of discrimination under 5 U.S.C. § 2302 (b)(1) in part because the brief contained substantive and lengthy arguments on certain issues but did not elaborate on the appellant’s generic reference to discrimination
How later courts described this case
- reasoning that the appellant’s arbitration closing brief did not show that she had raised a claim of discrimination under 5 U.S.C. § 2302 (b)(1) in part because the brief contained substantive and lengthy arguments on certain issues but did not elaborate on the appellant’s generic reference to discrimination
- finding that an appellant did not prove that she raised a race discrimination claim before an arbitrator based on evidence that she generally questioned whether the agency’s action was discriminatory and later received an arbitration decision that 9 did not address discrimination in any substantive way
- finding unavailing the appellant’s assertion that she had raised a claim of disability discrimination in her grievance with the agency because the jurisdictionally dispositive issue was whether she had raised discrimination with the arbitrator
- finding that the generic posing of the question, “was the removal discriminatory,” without more, was insufficient to prove that the appellant raised a claim of discrimination under 5 U.S.C. § 2302 (b)(1) with the arbitrator
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 10
Docket No. CB-7121-17-0001-V-1
Traci Scanlin,
Appellant,
v.
Social Security Administration,
Agency.
May 10, 2022
Patricia J. McGowan, Esquire and Sophie Gage, Esquire, Baltimore,
Maryland, for the appellant.
David B. Myers, New York, New York, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a request for review of an arbitration decision
concerning her removal, which the arbitrator mitigated to a suspension. For the
reasons set forth below, we DISMISS the request for review for lack of
jurisdiction.
BACKGROUND
¶2 Effective July 21, 2015, the agency removed the appellant from her position
as a Claims Representative based on charges of falsely attesting claims and gross
negligence in the performance of duties. Request for Review (RFR) File, Tab 1
2
at 101-10. On behalf of the appellant, her union filed a grievance, which the
agency denied, and later invoked arbitration. Id. at 33, 111-15. On September 1,
2016, the arbitrator issued a decision, finding that the agency proved its charges,
but reducing the penalty to a time-served suspension. Id. at 14-47.
¶3 On October 1, 2016, the appellant filed the instant request for review of the
arbitrator’s decision. Id. at 1-13. Among other things, the appellant asserted that
the Board has jurisdiction over the arbitration decision because she raised
allegations of disability discrimination in her grievance. Id. at 9-10. The agency
filed a response asserting, inter alia, that the Board lacks jurisdiction over the
matter because the appellant failed to raise allegations of discrimination before
the arbitrator. RFR File, Tab 4 at 6-9.
ANALYSIS
¶4 As explained in our acknowledgment order, it is the appellant’s burden of
proving that the Board has jurisdiction over this matter by preponderant evidence.
RFR File, Tab 2 at 2; see 5 C.F.R. § 1201.56(b)(2)(i)(A). As further explained,
the Board has jurisdiction over a request for review of an arbitration decision
when the following conditions are met:
(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.
3
RFR File, Tab 2 at 2; Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8
(2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014); see 5 C.F.R.
§ 1201.155(a)(1),(c). 1
¶5 Here, conditions (1) 2 and (3) are satisfied. RFR File, Tab 1 at 14-47,
101-10, Tab 4 at 7 n.3. But, we find that the appellant failed to meet her burden
concerning condition (2). The relevant negotiated grievance procedure permits
allegations of discrimination. RFR File, Tab 4 at 435-39. The appellant alleges
that she raised allegations of discrimination in her grievance with the agency.
RFR File, Tab 1 at 9-10. In that grievance, the appellant asserted that her
“Weingarten interview was held under harsh conditions that affected her mental
health” and that the meeting generally violated agency policy prohibiting
disability discrimination. Id. at 111-15. However, to satisfy condition (2), it was
incumbent upon the appellant to prove that she raised discrimination under
5 U.S.C. § 2302(b)(1) with the arbitrator. Jones, 120 M.S.P.R. 480, ¶ 8.
¶6 With her request for review, the appellant included her brief to the
arbitrator. RFR File, Tab 1 at 49-82. In it, the appellant alluded to
discrimination only by asserting that the issue to be decided was “[w]hether the
[a]gency’s [a]ctions [v]iolated [f]undamental [d]ue [p]rocess, the [collective
bargaining agreement] and [w]ere [d]iscriminatory.” Id. at 58. The brief
1
Because there is no dispute that the collective bargaining agreement in this case
permitted the appellant to raise her claims before an arbitrator, we need not address the
jurisdictional standard for those cases in which an employee does not have that right.
See Parks v. Smithsonian Institution, 39 M.S.P.R. 346, 349 (1988) (noting that “[t]he
final decision rendered pursuant to a negotiated grievance procedure, which is then
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”); 5 C.F.R.
§ 1201.155(c) (indicating that the Board will review only those claims of discrimination
that were raised “in the negotiated grievance procedure”).
2
The appellant’s removal, which was the subject matter of the grievance, is an action
appealable to the Board under chapter 75 of title 5 of the United States Code. 5 U.S.C.
§§ 7512(1), 7513(d).
4
contained other substantive and lengthy arguments, including ones concerning
due process, harmful error, and the reasonableness of the penalty. Id. at 59-81.
However, it did not elaborate on the generic reference to discrimination. With
her request for review, the appellant also included the arbitration decision, which
recognizes the aforementioned assertion concerning the issues, but similarly fails
to address discrimination in any substantive way. Id. at 14-47. The appellant has
not identified and we were unable to locate any further details about possible
discrimination claims presented to the arbitrator, even after considering the
hearing transcript provided by the agency. RFR File, Tab 4 at 16-432. Therefore,
we find that the appellant has failed to meet her burden. The generic posing of
the question, “was the removal discriminatory,” without more, is insufficient for
purposes of proving that she raised a claim of discrimination under 5 U.S.C.
§ 2302(b)(1) with the arbitrator in connection with the underlying action. Cf.
Bennett v. National Gallery of Art, 79 M.S.P.R. 285, 294-95 (1998) (finding that
a general allegation of national origin discrimination prohibited by
section 2302(b)(1) was sufficient for purposes of Board jurisdiction over an
arbitration decision, irrespective of whether the allegation was nonfrivolous). 3
We find that, because the appellant could have raised a discrimination claim
before the arbitrator, but has not proven that she did so, the Board lacks
jurisdiction over her request for review.
3
The Bennett decision relies on an old jurisdictional standard that no longer applies.
See Bennett, 79 M.S.P.R. at 295. Specifically, the standard applicable at that time
merely required that the appellant allege discrimination prohibited by
section 2302(b)(1). Id. The current standard requires that the appellant “raise[] a claim
of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with the
underlying action.” Jones, 120 M.S.P.R. 480, ¶ 8 (emphasis added).
5
ORDER
¶7 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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
7
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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.