Virgie L. Grant-Brooks v. Department of the Treasury ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VIRGIE L. GRANT-BROOKS, DOCKET NUMBERS
Appellant, CB-7121-16-0005-V-1
DC-0432-14-0855-I-1
v.
DEPARTMENT OF THE TREASURY,
Agency. DATE: June 23, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Virgie L. Grant-Brooks, Irving, Texas, pro se.
Christopher Sterbenz, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 In MSPB Docket Nos. DC-0432-14-0855-I-1 and CB-7121-16-0005-V-1,
the appellant seeks review of an arbitration decision concerning her removal. The
agency has filed a “Motion to Consolidate Appeals.” For the reasons discussed
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
below, we GRANT the agency’s motion, 2 JOIN the two matters, 3 AFFIRM the
initial decision, and DISMISS the appellant’s request for review for lack of
jurisdiction.
BACKGROUND
¶2 Following the appellant’s failure to demonstrate an acceptable level of
performance after receiving a Notice of Opportunity to Improve Performance
(NOIP), the agency removed her from her Bank Examiner (Licensing Analyst)
position effective October 19, 2013. Grant-Brooks v. Department of the
Treasury, MSPB Docket No. DC-0432-14-0855-I-1, Initial Appeal File (IAF),
Tab 5 at 82, 84-85. The appellant elected to challenge her removal under the
negotiated grievance procedure set forth in the collective bargaining agreement
(CBA) between the agency and the union that represented her. Id. at 29, 83. In a
decision issued on June 2, 2014, the arbitrator denied the grievance. Id. at 81.
¶3 On June 23, 2014, the appellant filed an “appeal” with the Board’s
Washington Regional Office challenging the arbitration decision. IAF, Tab 1
at 1-6, 34. Recognizing that the “appeal” was a request for review of the
arbitration decision, the administrative judge issued an initial decision dismissing
the matter and forwarding the request for review to the Clerk of the Board for
adjudication. IAF, Tab 8, Initial Decision (ID) at 1-2.
¶4 The appellant has filed a petition for review of the initial decision.
Grant-Brooks v. Department of the Treasury, MSPB Docket No. DC-0432-14-
0855-I-1, Petition for Review (PFR) File, Tab 1. In response, the agency has
filed a motion to consolidate the petition for review with the request for review,
2
We interpret the agency’s motion to consolidate as a motion for joinder. Request for
Review File, Tab 8. Joinder, not consolidation, is appropriate where, as here, one
person has filed two or more appeals. 5 C.F.R. § 1201.36(a).
3
We join the two appeals because doing so will expedite case processing and will not
adversely affect the parties’ interests. 5 C.F.R. § 1201.36(b).
3
which the Clerk of the Board separately docketed. PFR File, Tab 3; Request for
Review (RFR) File, Tab 2.
¶5 In a letter acknowledging the request for review, the Clerk of the Board
informed the appellant of the Board’s regulations regarding a request for review
of an arbitration decision and her ability to file a supplement to her request for
review. RFR File, Tab 2 at 1. She has filed a supplement, RFR File, Tab 5, to
which the agency has responded, RFR File, Tab 7. The Board has issued a Show
Cause Order apprising the appellant of her jurisdictional burden and ordering her
to file evidence and argument on whether she raised a claim of discrimination
under 5 U.S.C. § 2302(b)(1) with the arbitrator. RFR File, Tab 9. Both parties
have responded. RFR File, Tabs 10-11.
ANALYSIS
The Board lacks jurisdiction over the appellant’s request for review of the
arbitration decision.
¶6 The Board has jurisdiction over a request for review of an arbitration
decision under 5 U.S.C. § 7121(d) 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 in connection with the underlying action under 5 U.S.C.
§ 2302(b)(1) in the negotiated grievance procedure, 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. 4 Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 3, 8 (2013), aff’d,
589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c).
4
In non-Postal Service cases, requests for review of arbitration decisions are properly
reviewed by the full Board and not by the Board’s administrative judges. 5 U.S.C.
§ 7121(d); Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005), aff’d,
213 F. App’x 993 (Fed. Cir. 2007). Thus, the administrative judge correctly declined to
accept jurisdiction over this matter once she realized that the appellant was seeking
4
¶7 Applying this jurisdictional standard, we conclude that the appellant cannot
establish Board jurisdiction over her request for review of the arbitration decision
because she could have, but did not, raise a discrimination claim with the
arbitrator in the grievance proceeding. See Jones, 120 M.S.P.R. 480, ¶¶ 9-10;
5 C.F.R. § 1201.155(c). The record reflects that the applicable CBA allows for
claims of discrimination to be raised in the course of a grievance proceeding.
RFR File, Tab 7 at 129. 5 The record further reflects that the appellant did not
raise a claim of discrimination under 5 U.S.C. § 2302(b)(1) in the course of her
grievance proceeding. The arbitrator stated in his decision that the parties agreed
that the only two issues before him were: (1) whether the agency sufficiently
communicated to the appellant the minimum level of performance required to
avoid removal under 5 U.S.C. chapter 43; and (2) whether the agency provided
the appellant with a reasonable opportunity to improve her performance during
the NOIP. IAF, Tab 5 at 72, 77.
¶8 The appellant admits in her response to the Show Cause Order that she did
not raise a claim of discrimination during the grievance proceeding, but alleges
that she could not have done so. RFR File, Tab 10 at 3. Specifically, she argues
that the agency’s restructure mandated by the Dodd-Frank Wall Street Reform
and Consumer Protection Act (Dodd-Frank Act) “provoked” her termination and
did not conclude until after the grievance was filed. Id. We find that this
argument does not alter the dispositive facts that the CBA permits allegations of
discrimination and the appellant did not raise any during the grievance
proceeding. 5 C.F.R. § 1201.155(c). Further, the appellant’s transfer from the
review of an arbitration decision rather than filing a direct appeal of her removal. ID at
2; see Brent, 100 M.S.P.R. 586, ¶ 6.
5
The agency states that, between the appellant’s removal and the arbitration hearing,
the agency and the union that represented her entered into a new CBA that did not
materially change the ability of represented employees to grieve discrimination
complaints. RFR File, Tab 7 at 10 n.3. The appellant does not dispute this statement or
raise the different versions of the CBA as an issue.
5
Office of Thrift Supervision to the Office of the Comptroller of the Currency,
consistent with the requirements of the Dodd-Frank Act, was completed prior to
her removal. Dodd-Frank Act, Pub. L. No. 111-203, § 322(a)(1)(A), 124 Stat.
1376, 1529 (2010) (codified at 12 U.S.C. § 5432(a)(1)(A)); PFR File, Tab 10,
Arbitration Hearing Transcript at 209-10; IAF, Tab 5 at 82, 84.
The appellant’s other claims do not provide a basis for jurisdiction.
¶9 The appellant alleges that the agency subjected her to several prohibited
personnel practices under 5 U.S.C. § 2302(b) by providing “falsified and
misrepresented information” during the grievance proceeding, discriminating and
retaliating against her for disclosing violations of equal employment opportunity
(EEO) laws and the Dodd-Frank Act, and denying her training opportunities
based on her race and sex. RFR File, Tab 1 at 3, Tab 5 at 1-3, Tab 10 at 3;
PFR File, Tab 1 at 3; IAF, Tab 7 at 1. However, the Board lacks independent
jurisdiction over prohibited personnel practices. See Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980) (finding that a prohibited personnel practice under
5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,
681 F.2d 867 (D.C. Cir. 1982). Further, the appellant’s reliance on Burlington
Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70 (2006), in which
the U.S. Supreme Court addressed the scope of an employee’s protection from
EEO retaliation, is misplaced because it does not address the dispositive
jurisdictional issue. RFR File, Tab 10 at 3. Similarly, the cases cited by the
appellant concerning the merits of her performance-based removal do not address
the dispositive jurisdictional issue. RFR File, Tab 5 at 2-3.
¶10 To the extent the appellant is disputing her lowered performance appraisal
rating, we find that the Board lacks jurisdiction over that claim. IAF, Tab 7 at 3;
see Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010) (observing
that the Board generally lacks jurisdiction over appeals of performance appraisal
ratings).
6
¶11 Finally, to the extent the appellant is attempting to file an individual right
of action (IRA) appeal under 5 U.S.C. § 1221(a), she must first exhaust her
administrative remedies with the Office of Special Counsel (OSC) before filing
such an appeal with the Board. 5 U.S.C. § 1214(a)(3); Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶ 5 (2012); 5 C.F.R. § 1209.2(b)(1). Although the
administrative judge apprised the appellant of this requirement, she has not
claimed OSC exhaustion on review. ID at 2 n.1.
¶12 We conclude that the Board lacks jurisdiction to review the arbitration
decision concerning the appellant’s removal, and, thus, deny her request for
review. 6
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:
U.S. 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).
6
Given the appellant’s pro se status, we have interpreted her arguments liberally.
RFR File, Tab 5 at 3; see, e.g., Melnick v. Department of Housing & Urban
Development, 42 M.S.P.R. 93, 97-98 (1989) (observing that parties without legal
representation are not required to plead issues with precision), aff’d, 899 F.2d 1228
(Fed. Cir. 1990) (Table).
7
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 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.