Opinion

Jeniqua Knuckles v. Department of the Army

Court: Merit Systems Protection Board
Filed: Mar 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JENIQUA IRENE KNUCKLES, DOCKET NUMBER

Appellant, CB-7121-18-0008-V-1

DEPARTMENT OF THE ARMY, DATE: March 15, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeniqua Irene Knuckles , Summerville, South Carolina, pro se.

Christopher M. Kenny , Fort Eisenhower, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review

of an arbitrator’s decision, which found that the grievance of her removal action

was not appealed to arbitration in a timely manner and, therefore, was not

arbitrable. For the reasons set forth below, we GRANT the appellant’s request

for review and SUSTAIN the arbitrator’s decision.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

The agency removed the appellant, an Office Support Assistant at its

Dwight David Eisenhower Army Medical Center in Fort Gordon, Georgia,

effective March 7, 2014. Request for Review (RFR) File, Tab 1 at 54-55.

On March 25, 2014, the appellant, through her union representative, filed a step

three grievance challenging her removal and raising discrimination claims in

accordance with negotiated grievance procedure. Knuckles v. Department of the

Army, MSPB Docket No. CB-7121-14-0025-V-1, Final Order at 2 (May 27,

2015). In a step three grievance decision dated May 20, 2014, the agency

affirmed the removal action, finding the action justified by the evidence and

reasonable under the circumstances. Id.

On September 5, 2014, the appellant filed a Board appeal in which she

requested the Board’s review of the step three grievance decision. Id. In a final

order dated May 27, 2015, the Board dismissed the appeal for lack of jurisdiction.

Id. at 1. The Board found that there was no final decision to review because the

step three grievance decision was not a final decision within the meaning of

5 U.S.C. § 7121(d). Id. at 3-7. Subsequently, on a date after September 30,

2016, the union appealed the step three grievance decision to arbitration. RFR

File, Tab 1 at 33. In a decision dated December 5, 2017, the arbitrator found that

the grievance was not arbitrable because it was not appealed to arbitration in a

timely manner. Id. at 43.

On January 9, 2018, the appellant filed the present appeal in which she

requested review of the December 5, 2017 arbitrator’s decision. RFR File, Tab 1

at 2. She raised claims of discrimination and harmful procedural error. Id. at 5.

The agency filed a response to the appellant’s request. RFR File, Tab 9. It

argued, among other things, that the arbitrator’s conclusion that the arbitration

request was untimely filed could not be found to be unreasonable, arbitrary, or an

abuse of discretion. Id. at 8.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over a request for review of a final grievance or

arbitration decision under 5 U.S.C. § 7121(d) 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 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 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).

We find that the appellant satisfies the jurisdictional criteria. Specifically,

her grievance challenges a removal under 5 U.S.C. § 7512, a subject matter over

which the Board has jurisdiction; she raised a claim of discrimination in the

negotiated grievance procedure; and the arbitrator issued a final decision in the

matter. 2 5 U.S.C. §§ 7512(1), 7513(d), 7702(a)(1); RFR File, Tab 1 at 23-55.

Consequently, we find that we have jurisdiction to review the arbitrator’s

decision. See Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014).

The Board’s standard of review of an arbitrator’s award is narrow; such

awards are entitled to a greater degree of deference than initial decisions issued

by the Board’s administrative judges. Sadiq v. Department of Veterans Affairs,

119 M.S.P.R. 450, ¶ 7 (2013); Fanelli v. Department of Agriculture,

109 M.S.P.R. 115, ¶ 6 (2008). The Board will modify or set aside an arbitration

decision only when the arbitrator has erred as a matter of law in interpreting civil

The agency argues in its response to the appellant’s request for review that the

appellant should be collaterally estopped from relitigating an issue previously addressed

by the Board—that the union declined to arbitrate the appellant’s grievance. RFR File,

Tab 9 at 7-8. Even if we were persuaded by this argument, the Board need not apply

the doctrine in all cases, and, given our disposition, we would not do so here.

See, e.g., Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988).

service law, rule, or regulation, and, absent such legal error, the Board cannot

substitute its conclusions for those of the arbitrator, even if it would disagree with

the arbitrator’s decision. Sadiq, 119 M.S.P.R. 450, ¶ 7. Moreover, an arbitrator

is uniquely qualified to interpret a collective bargaining agreement (CBA), which

is the source of the arbitrator’s authority. Id. Thus, an arbitrator’s decision that

“draws its essence” from the CBA is entitled to deference and should only be

vacated when it manifests an infidelity to this obligation. Id. In making this

determination, any doubts concerning the merits of the arbitrator’s decision must

be resolved in favor of the decision. Id.

Here, the arbitrator found, pursuant to Section 12a of Article 34 of the

relevant CBA, that a request to refer a grievance to arbitration must be in writing

and received “not later than 20 workdays following receipt of the final decision.”

RFR File, Tab 1 at 36, 39. The arbitrator found that the union did not refer the

appellant’s grievance to arbitration in writing until years after receipt of the step

three grievance decision. Id. at 39. He concluded, therefore, that the grievance

was not timely referred to arbitration and was not arbitrable for that reason.

Id. at 39-42.

Based on the record before us, we find that the appellant has provided no

basis for disregarding the deference due to the arbitrator’s interpretation of the

relevant CBA provisions in this case. See Fanelli, 109 M.S.P.R. 115, ¶¶ 10-12.

Accordingly, the arbitrator’s decision in this matter is sustained.

NOTICE OF APPEAL RIGHTS 3

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

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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:

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. 420 (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 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

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

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,

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