Jones v. Merit Systems Protection Board ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARIA LAVINIA JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3072
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-7121-13-0111-V-1.
---------------------
MARIA LAVINIA JONES,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3081
______________________
2 JONES v. MSPB
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0168-I-1.
______________________
Decided: October 8, 2014
______________________
MARIA LAVINIA JONES, of Cheltenham, Maryland, pro
se.
MICHAEL A. CARNEY, General Attorney, and CALVIN
M. MORROW, Attorney, Office of the General Counsel,
Merit Systems Protection Board, of Washington, DC, for
respondent. With them on the briefs was BRYAN G.
POLISUK, General Counsel.
______________________
Before LOURIE, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
These consolidated appeals stem from an agency deci-
sion to remove Maria Lavina Jones (“Jones”) from federal
employment. Jones appeals from a final decision and a
final order of the Merit Systems Protection Board (the
“Board”) in companion cases that dismissed for lack of
jurisdiction (1) a request for review of an arbitrator’s
decision denying a grievance challenge to her removal as
barred by Board regulations and (2) a merits appeal of the
initial removal decision itself as barred by her prior
election of the grievance process. Jones v. Dep’t of Energy,
No. CB-7121-13-0111-V-1, 120 M.S.P.R. 480 (2013)
(“Jones I”); No. DC-0752-13-0168-I-1 (M.S.P.B. Jan. 27,
2014) (“Jones II”). Because the Board did not err in
denying the petitions, we affirm.
BACKGROUND
Jones was employed as a Program Analyst in the Of-
fice of Budget and Financial Management within the
JONES v. MSPB 3
Office of Fossil Energy at the U.S. Department of Energy
(the “agency”). Beginning in January 2011, the agency
placed Jones on a Performance Improvement Plan (“PIP”)
for a period of 120 days. Appeal No. 2014-3072 Resp’t’s
App. 14. Upon the conclusion of the PIP, the agency
proposed to remove Jones from her position for unac-
ceptable performance effective February 17, 2012. Id. at
14, 26–34. The agency’s final decision stated that key
factors it considered were the inability to perform essen-
tial duties of the position, the inability to improve despite
assistance provided, and the impact of unsatisfactory
performance on the office. Id. at 31. The agency’s remov-
al decision notified Jones of her right to appeal to the
Board and the time limit for doing so or, in the alterna-
tive, of her right to request that the National Treasury
Employees Union seek arbitration pursuant to an appli-
cable collective bargaining agreement. Id. at 31–33.
Jones elected to seek review of the agency’s removal
decision through the negotiated grievance procedures of
the collective bargaining agreement, and the Union timely
invoked arbitration on the issue stipulated by the parties:
whether the agency provided Jones with a reasonable
opportunity to improve her performance before removing
her from federal service and, if not, what the remedy
should be. Id. at 15.
After conducting a hearing on August 12, 2012, the
arbitrator issued a decision on November 3, 2012, which
denied Jones’s grievance and found that the agency had
met its burden of establishing by substantial evi-
dence that Jones was given a reasonable opportunity to
improve her performance under 5 U.S.C. § 4303, as inter-
preted by 5 C.F.R. § 432.104 and applicable provisions of
the collective bargaining agreement, and that the agency’s
decision to remove her for unacceptable performance was
reasonable. Id. at 13–25. The arbitrator specifically
found that there had been “no verbal abuse, no insults nor
harassment which interfered with [Jones’s] ability to
4 JONES v. MSPB
work” in response to her allegations of “bias, hostility or
the presence of a predetermined outcome.” Id. at 23.
On December 2, 2012, Jones filed an appeal of her
removal with the Board. Id. at 35–45. In that appeal,
Jones alleged that the agency’s action was in retaliation
for an Equal Employment Opportunity (“EEO”) complaint
that she had filed. Id. at 38–40. On February 14, 2013,
the administrative judge (the “AJ”) issued an order noting
that Jones had filed a grievance concerning her removal
prior to filing her appeal and that 5 U.S.C. § 7121(e)(1)
required an employee challenging an adverse action to
choose between either one of an applicable negotiated
grievance procedure or an appeal to the Board. Id. at 46.
That order also noted that the record contained evidence
that Jones had resigned her position on February 16,
2012, which was one day prior to the effective date of her
removal. Id. at 47. The AJ ordered Jones to clarify the
nature of her appeal and to address whether she was
appealing a removal for unacceptable performance or was
claiming an involuntary resignation by coercion or mis-
representation. Id.
In a second order issued March 18, 2013, the AJ noted
that in her response to the February order, Jones stated
that she intended that the Board review her appeal
“based on discrimination and legal errors that were made
by the Arbitrator.” Id. at 49. The AJ determined that
such a request was not within his jurisdiction and trans-
ferred the case to the Board for further consideration. Id.
at 50. However, the AJ retained jurisdiction over what he
construed as Jones’s involuntary retirement claim on the
ground that it had not been raised before the arbitrator.
Id. Upon receipt of the transferred case, the Clerk of the
Board issued a Notice to the Parties that a new docket
number CB-7121-13-0111-V-1 had been assigned to the
request for review of the arbitration decision, while the
previous appeal stemming from Jones’s December 2012
JONES v. MSPB 5
filing remained docketed under number DC-0752-13-
0168-I-1. Id. at 52.
The AJ subsequently issued an initial decision relat-
ing to the retained case in which he found that Jones had
failed to satisfy the standard for establishing jurisdiction
over what he had construed as a claim for involuntary
retirement. Appeal No. 2014-3081 Resp’t’s App. 6–14.
(March 21, 2013). On petition for review from that deci-
sion, the Board found that the AJ had erred in construing
Jones’s appeal as raising a separate claim for involuntary
requirement. Id. at 1–5 (Jan. 27, 2014); Jones II at 3.
The Board therefore concluded that Jones’s appeal had
raised only a challenge to her removal, which was pre-
cluded under 5 U.S.C. § 7121(e)(1) because she had earlier
elected to pursue such challenge through the negotiated
grievance procedures. Jones II at 3–4. The Board conse-
quently denied the petition for review and affirmed the
AJ’s initial decision as modified by the Board’s own final
order and dismissed that appeal for lack of jurisdiction.
Id. at 2.
The Board issued a decision on December 31, 2013 in
the appeal from the arbitration decision in which it like-
wise dismissed for lack of jurisdiction in view of its
amended regulation, 5 C.F.R. § 1201.155(c), which went
into effect on November 13, 2012, and provides that, in
cases in which the negotiated grievance procedure per-
mits allegations of discrimination, the Board will review
only those claims of discrimination that were raised in the
negotiated procedure. Jones I, 120 M.S.P.R. 480, ¶¶ 3, 9–
11. The Board found that the collective bargaining
agreement governing Jones’s arbitration allowed for
claims of discrimination to be raised in the course of that
grievance proceeding, but that Jones had not raised a
claim of discrimination under 5 U.S.C. § 2302(b)(1). Id.
Applying its new jurisdictional standard, the Board thus
dismissed Jones’s request for review of the arbitrator’s
decision for lack of jurisdiction. Id.
6 JONES v. MSPB
Jones appealed to this court from both rulings under
28 U.S.C. § 1295(a)(9), which only provides us with juris-
diction over appeals from a final order or a final decision
of the Board pursuant to 5 U.S.C. § 7703(b)(1) and (d).
DISCUSSION
Before addressing the merits of the Board’s decisions
to dismiss for lack of jurisdiction, we must first address
whether we have jurisdiction to review the Board’s rul-
ings under the Civil Service Reform Act of 1978, 5 U.S.C.
§ 1101 et seq. The district court, not this court, is vested
with jurisdiction over any mixed case appeal that the
Board resolves either on the merits or on procedural
grounds. Kloeckner v. Solis, 568 U.S. __, 133 S. Ct. 596,
607 (2012). A mixed case is one that involves allegations
of unlawful discrimination as well as other grounds for
appealing an adverse action. Conforto v. Merit Sys. Prot.
Bd., 713 F.3d 1111, 1115–16 (Fed. Cir. 2013). In Confor-
to, we held that the ruling in Kloeckner concerning district
court jurisdiction did not extend to the Board’s dismissal
for lack of jurisdiction, and therefore that an appeal from
the Board’s dismissal for lack of jurisdiction properly
belongs in this court. Id. at 1117. We thus possess juris-
diction to decide the instant companion appeals.
However, the scope of our review in an appeal from a
Board decision is limited. We can only set aside the
Board’s decision if it was “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). Whether the Board has jurisdiction to adjudicate a
particular appeal is a question of law, which we review
without deference. Kelly v. Merit Sys. Prot. Bd., 241 F.3d
1368, 1369 (Fed. Cir. 2001). We are, however, bound by
the Board’s factual findings on which a jurisdictional
JONES v. MSPB 7
determination is based unless those findings are not
supported by substantial evidence. See Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
Jones argues that the Board erred in dismissing her
appeals for lack of jurisdiction because her discrimination
claim was before the arbitrator. The government re-
sponds that the Board correctly dismissed Jones’s petition
for review of the grievance proceeding because there is no
evidence in the record that a discrimination claim was
raised before the arbitrator and that the Board correctly
dismissed the merits appeal of the agency’s initial remov-
al decision as statutorily barred due to Jones’s election of
the grievance process in the first instance.
We agree with the government that the Board lacked
jurisdiction over Jones’s appeals. The Board’s jurisdiction
is not plenary, but is limited to those matters over which
it has been given jurisdiction by law, rule, or regulation.
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed.
Cir. 2008).
The record reflects that Jones’s representative during
the arbitration hearing acknowledged that “we’re not here
on the EEO issue” and that, in a submission to the AJ on
February 28, 2013, Jones herself acknowledged, “My case
that was heard before the arbitrator did not address
retaliation.” Appeal No. 2014-3072 Resp’t’s App. 101–02.
Moreover, the parties had stipulated that the issue to be
addressed was the adequacy of Jones’s PIP. Id. at 15.
Jones does not challenge the validity of the Board’s
new regulation codified at 5 C.F.R. § 1201.155(c), which
the Board expressly acknowledged was designed “to
restore the rule that existed prior to the Federal Circuit’s
decision in” Jones v. Department of the Navy, 898 F.2d
133 (Fed. Cir. 1990). Jones I, 120 M.S.P.R. 480, ¶¶ 6, 7,
n.4; 77 Fed. Reg. 33663, 33669 (June 7, 2012). In that
1990 Jones case, we abrogated the Board’s then-existing
interpretation of the statutory and regulatory scheme as
8 JONES v. MSPB
requiring a petitioner to raise the issue of discrimination
to the arbitrator under a negotiated grievance procedure
in the first instance or else be deprived of review of that
issue by the Board for lack of jurisdiction. Jones, 898 F.2d
at 134–36. We held that nothing in the then-relevant
statutory and regulatory framework supported the
Board’s interpretation. Id. at 136. As amended, the
Board’s regulation now provides:
Scope of Board Review. If the negotiated griev-
ance procedure permits allegations of discrimina-
tion, the Board will review only those claims of
discrimination that were raised in the negotiated
procedure. If the negotiated procedure does not
permit allegations of discrimination to be raised,
the appellant may raise such claims before the
Board.
5 C.F.R. § 1201.55(c) (2013).
The record reflects that Jones’s governing collective
bargaining agreement allowed for claims of discrimina-
tion to be raised in the course of a grievance proceeding.
Jones I at 485. In view of the foregoing, we affirm the
Board’s finding that Jones did not raise her EEO retalia-
tion claim in the proceeding before the arbitrator as
supported by substantial evidence and conclude that the
Board did not err in dismissing the request for review
under 5 U.S.C. § 7121(d) for lack of jurisdiction in accord-
ance with its new regulation.
We turn then to the Board’s decision to dismiss
Jones’s remaining appeal for lack of jurisdiction on the
grounds that the AJ should not have construed the appeal
of the grievance decision as raising a separate involuntary
retirement claim and that such appeal was precluded by
Jones’s prior election of the grievance process. Jones II at
3–4.
JONES v. MSPB 9
In view of the fact that Jones decided to retire one day
prior to the effective date of her removal action, the Board
determined that the AJ erred in construing Jones’s initial
appeal as raising a separate involuntary retirement claim
because, “[u]nder similar circumstances, the Board has
analyzed joint removal and retirement claims as removal
actions, without regard to the voluntariness of the retire-
ment decision.” Jones II at 3. The Board thus adjudicat-
ed the appeal at issue as directed to the merits of the
initial removal action pursuant to 5 U.S.C. § 4303, which
is an underlying premise that we have been given no
basis to disturb. Id. (citing Paula v. Soc. Sec. Admin., 119
M.S.P.R. 138, ¶ 13 (2013); Scalese v. Dep’t of the Air Force,
68 M.S.P.R. 247, 248–49 (1995)) (internal quotation
marks omitted). Indeed, Jones herself argues that we
“should allow the involuntary retirement claim[] because
it was before the arbitrator.” Appeal No. 2014-3081
Pet’r’s App. 5.
The governing statute permitting a federal employee
to challenge an adverse agency action provides, in perti-
nent part, that matters relating to removal actions based
on unacceptable performance covered under § 4303,
which also fall within the coverage of the negoti-
ated grievance procedure may, in the discretion of
the aggrieved employee, be raised either under
the appellate procedures of section 7701 . . . or
under the negotiated grievance procedure, but not
both . . . . An employee shall be deemed to have
exercised his option . . . at such time as the em-
ployee timely files a notice of appeal . . . or timely
files a grievance . . . whichever event occurs first.
5 U.S.C. § 7121(e)(1) (emphasis added).
Accordingly, we have long held that aggrieved federal
employees have the choice of two paths to challenge an
agency’s adverse action under § 7121(e)(1), but that
“[o]nce a timely filing is made to pursue a path, the other
10 JONES v. MSPB
is forever waived.” Rodriguez v. Merit Sys. Prot. Bd., 804
F.2d 673, 675 (Fed. Cir. 1986); Whitaker v. Merit Sys.
Prot. Bd., 784 F.2d 1109 (Fed. Cir. 1986). “In order to
comply with the statute, the agency must properly inform
an employee of her choices.” Atanus v. Merit Sys. Prot.
Bd., 434 F.3d 1324, 1327 (Fed. Cir. 2006) (citing Johnson
v. U.S. Dep’t of Labor, 26 M.S.P.R. 447, 450 (1985)).
The record here reflects that the agency’s removal no-
tice informed Jones of her choices and that she elected to
pursue a grievance process challenging the merits of her
removal under the applicable collective bargaining
agreement rather than to pursue a direct appeal before
the Board. Appeal No. 2014-3072 Resp’t’s App. 31–33.
The Board thus properly dismissed Jones’s remaining
appeal as construed for lack of jurisdiction because such
appeal was barred by her prior election of that grievance
process under § 7121(e)(1).
CONCLUSION
For the foregoing reasons, we conclude that the
Board’s factual findings underlying its jurisdictional
determination relating to review of Jones’s grievance
proceeding are supported by substantial evidence and
accordingly sustain the Board’s decision to dismiss that
petition. Because of Jones’s prior election to pursue a
grievance process under the applicable collective bargain-
ing agreement, we further conclude that the Board
properly dismissed Jones’s remaining appeal challenging
the merits of her removal action for lack of jurisdiction
pursuant to 5 U.S.C. § 7121(e)(1). We have considered
Jones’s remaining arguments and conclude that they are
either without merit or unpersuasive. The decisions of
the Board are therefore affirmed.
AFFIRMED
COSTS
No costs.