Kim Loan Huynh v. Social Security Administration ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KIM LOAN HUYNH,                                 DOCKET NUMBER
    Appellant,                         CB-7121-14-0023-V-1
    v.
    SOCIAL SECURITY                                 DATE: January 22, 2015
    ADMINISTRATION,
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Thomas J. Gagliardo, Baltimore, Maryland, for the appellant.
    Jessica Craig, Baltimore, Maryland, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice Chairman
    Mark A. Robbins, Member
    ORDER
    ¶1         The appellant has requested review of an arbitrator’s decision, which denied
    her grievance filed pursuant to removal for unacceptable performance. For the
    reasons set forth below, we GRANT the request for review under 5 U.S.C.
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    § 7121(d) and FORWARD the matter to the Northeastern Regional Office for
    further adjudication of the retaliation issue.
    ¶2         The agency removed the appellant, an information technology specialist,
    GS-12, with the Office of Applications and Supplemental Security Income
    Systems, Social Security Administration, for unacceptable performance pursuant
    to 5 U.S.C. § 4303 and Article 21, Section 8 of the national collective bargaining
    agreement (CBA) between the American Federation of Government Employees
    (AFGE) and the agency (hereinafter “the Master Agreement”).             Arbitration
    Review File (ARF), Tab 1, Appendix (App.) A at 2-3. The appellant grieved her
    removal. The grievance advanced to arbitration and a hearing was held. 
    Id. at 3.
         The arbitrator accepted all issues that the agency and the appellant had placed in
    consideration, including an issue to which the agency had objected: Whether the
    agency had retaliated against the appellant because she filed a Workplace Issues
    Report, and later an equal employment opportunity (EEO) complaint, alleging
    that her immediate supervisor discriminated against her based on age, color,
    national origin, race, and sex. 
    Id. at 3-6.
    ¶3         The arbitrator concluded from the testimony and record that the appellant
    “was clearly unable to successfully perform key components of her position,” and
    the agency was justified in removing her, after having offered her assistance and
    an opportunity to improve pursuant to the Master Agreement. 
    Id. at 27.
    The
    arbitrator found no credible evidence that the agency failed to assist the appellant
    in learning to perform her duties; rather, it appeared that she received more
    assistance than she reasonably could have expected. 
    Id. The appellant
    argued
    that, pursuant to the Master Agreement, the agency should have demoted her to a
    lower-graded position rather than removing her. See 
    id. at 23-25.
    The arbitrator
    did not agree, finding that the agreement gave the agency discretion to remove
    her rather than to reassign or demote her, though he also opined that it was
    “unfortunate” that the agency chose removal, given that a lower-graded position
    had already been approved for her.        
    Id. at 31.
      However, he also found “no
    3
    compelling    evidence”     linking   the   appellant’s    EEO     activity   to   her
    removal. 
    Id. at 27.
    ¶4         The appellant filed a timely request for review of the arbitrator’s decision.
    The Board has jurisdiction to review the decision under 5 U.S.C. § 7121(d). The
    subject matter of the grievance is one over which the Board has jurisdiction, the
    appellant alleged discrimination as stated in 5 U.S.C. § 2302(b)(1) in connection
    with the underlying action, 2 and a final decision has been issued. See De Bow v.
    Department of the Air Force, 97 M.S.P.R. 5, ¶ 4 (2004); ARF, Tab 1.                The
    Board’s standard of review for an arbitrator’s decision is limited; such decisions
    are entitled to a greater degree of deference than initial decisions issued by
    administrative judges.    Vena v. Department of Labor, 111 M.S.P.R. 165, ¶ 5
    (2009).   The Board will modify or set aside such a decision only when the
    arbitrator has erred as a matter of law in interpreting a civil service law, rule, or
    regulation. 
    Id. Even if
    the Board disagrees with the arbitrator’s decision, the
    Board cannot substitute its conclusions for those of the arbitrator absent legal
    error. 
    Id. The arbitrator’s
    factual determinations are entitled to deference unless
    the arbitrator erred in his legal analysis, for example, by misallocating the
    burdens of proof or employing the wrong analytical framework. Hollingsworth v.
    Department of Commerce, 115 M.S.P.R. 636, ¶ 7 (2011).
    ¶5         The appellant argues that the arbitrator misinterpreted the Master
    Agreement, finding that the agency had the discretion to remove her rather than to
    reassign or demote her. ARF, Tab 2 at 2, 4; see 
    id., App. A
    at 31. An arbitrator
    is uniquely qualified to interpret a CBA, which is the source of his authority.
    Fanelli v. Department of Agriculture, 109 M.S.P.R. 115, ¶ 6 (2008).                An
    arbitration award that “draws its essence” from the CBA is entitled to deference,
    and the Board will vacate it only when it manifests an infidelity to this
    2
    Allegations of reprisal for EEO activity constitute a cognizable claim under 5 U.S.C.
    § 2302(b)(1). See Chandler v. Social Security Administration, 80 M.S.P.R. 542, ¶ 4
    (1999).
    4
    obligation. 
    Id., ¶ 10.
    An arbitration award is deficient as to failing to draw its
    essence from the CBA if the award: (1) cannot in any rational way be derived
    from the agreement; (2) is so unfounded in reason and fact and so unconnected
    with the wording and purposes of the CBA as to manifest an infidelity to the
    obligation of the arbitrator; (3) does not represent a plausible interpretation of the
    agreement; or (4) evidences a manifest disregard of the agreement. 
    Id., ¶ 11.
    ¶6         Here, the arbitrator’s interpretation is rationally derived from the Master
    Agreement and is, in fact, the most plausible interpretation of that agreement.
    Article 21, Section 8(A) of the agreement states:
    Managers will initiate a performance-based action if, despite the
    additional assistance provided in accordance with the [Opportunity
    to Perform Successfully (OPS)] Plan, the employee’s performance
    has not improved to the Successful Contribution Level by the end of
    the OPS period. This will result in the employee’s reassignment to
    another position; e.g., the prior position, or reduction in grade, or
    termination.
    ARF, Tab 1, App. A at 15 (emphasis added). The plain language of the Master
    Agreement thus gives management the flexibility to handle problem performers
    based on individual circumstances.      The record shows that management here
    considered options other than removal especially during the period in which the
    appellant was on the OPS Plan. 
    Id. at 21,
    24-25. Although AFGE’s past National
    President John Gage 3 testified in support of the appellant’s position that the
    agreement “represent[s] a ‘progression’ for the purpose of minimizing damage to
    employees,” 
    id. at 24,
    the Board is not required to give deference to an
    interpretation of a CBA reached in prior arbitrations involving other employees,
    Horner v. Schuck, 
    843 F.2d 1368
    , 1377 (Fed. Cir. 1988).              The appellant’s
    argument that the arbitrator erroneously interpreted Article 21, Section 8(A) of
    the Master Agreement is thus unavailing.
    3
    Mr. Gage was president of AFGE Local 1923 for 22 years and National President for
    10 years. ARF, Tab 1, App. A at 24. Mr. Gage also testified that as the National
    President, he had served as a negotiator for the Master Agreement signed in 2012. 
    Id. 5 ¶7
           The appellant also argued that retaliatory animus lay at the root of the
    agency’s failure to assign her to the lower-graded position that had already been
    approved for her.    ARF, Tab 1 at 3.      She specifically takes issue with the
    following language from the decision:
    It is the further opinion of the undersigned Arbitrator that the
    Union’s claim that the Grievant’s termination was, in part, based
    upon retaliation for her having filed a Workplace Issues Report
    (Agency Ex. 17) is not decisive. Although this claim has a bit of
    circumstantial merit, there exists no compelling evidence of a
    causal linkage between the action and the subsequent
    termination of the Grievant. Again, by contrast, the record is
    fundamentally more supportive of a finding that the Grievant’s
    removal from employment was based upon evidence that she was
    unable to achieve the level of being able to “independently” perform
    her assigned tasks at the GS-12 level.
    
    Id. (emphasis in
    original); see 
    id., App. A
    at 27. The appellant here contends that
    the arbitrator misstated the burden of proof by requiring her to present
    “compelling evidence,” rather than preponderant evidence, of retaliatory animus.
    ARF, Tab 1 at 3. Additionally, she argues, the agency’s retaliatory animus tipped
    the balance towards taking the most severe action enumerated under the Master
    Agreement, and that decision requires the Board to take corrective action. 
    Id. ¶8 The
    arbitrator, however, did not state that the appellant’s burden of proof
    exceeded that of preponderant evidence. Indeed, he was merely describing the
    quality and weight of her evidence when he stated that she had identified no
    compelling evidence linking her EEO activity and subsequent removal.             The
    appellant also failed to reference specific documents in the record that supported
    her argument, and, instead, she relied upon broad, conclusory assertions.
    See 5 C.F.R. § 1201.155(d)(3); see, e.g., ARF, Tab 1 at 4.
    ¶9        The arbitrator’s analysis is nevertheless problematic. Without citing any
    legal authority, he set forth for consideration an analytical standard that differs
    from the standard the Board normally applies.          The fourth prong of the
    arbitrator’s standard is narrower than the fourth prong of the standard the Board
    6
    applies.   Compare, e.g., ARF, Tab 1, App. A at 22-23, with Dobruck v.
    Department of Veterans Affairs, 102 M.S.P.R. 578, ¶ 19 (2006), aff’d, 212 F.
    App’x 997 (Fed. Cir. 2007).         The arbitrator also acknowledged that the
    appellant’s claim had “a bit of circumstantial merit.” ARF, Tab 1, App. A at 27.
    Accordingly, as a precautionary measure, we vacate the arbitrator’s award as to
    the finding that no retaliation occurred, and, pursuant to our authority
    under 5 C.F.R. § 1201.155(e), we forward the matter to the Northeastern Regional
    Office for assignment to an administrative judge to make recommended findings
    on the retaliation claim under the appropriate legal standards.
    ¶10         An appellant is typically entitled to notice of the applicable burdens and
    elements of proof and an opportunity to submit evidence and argument under the
    proper standard.   See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶¶ 10,
    13-14 (2010). To the extent that the appellant may not have been afforded proper
    notice of her burdens and the elements of proof during arbitration, the
    administrative judge shall provide such notice and afford the parties the
    opportunity to submit evidence and argument under the proper standards before
    making recommended findings on the merits of those claims.         See Pace v.
    Department of the Treasury, 118 M.S.P.R. 542, ¶ 11 (2012).
    ORDER
    ¶11         For the reasons set forth above, we FORWARD this case to the
    Northeastern Regional Office for further adjudication. The administrative judge
    shall conduct such further proceedings as necessary and make recommended
    findings to the Board regarding the retaliation claim. After the administrative
    judge issues the recommendation, the case will be forwarded back to the Board.
    The parties may file exceptions to the administrative judge’s recommendation
    with the Clerk of the Board within 20 days of the date of the recommendation.
    The parties may respond to any submission by the other party within 15 days of
    7
    the date of such submission. The Board will subsequently issue a final decision
    on the merits of the appellant’s request for review.
    FOR THE BOARD:                            ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 1/22/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021