Tomeka D. Lasure v. Department of Veterans Affairs ( 2015 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.