Wilson-Almowallad v. General Services Administration

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3012
JULIE WILSON-ALMOWALLAD,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
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04-3240
JULIE WILSON-ALMOWALLAD,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
__________________________
DECIDED: April 11, 2005
__________________________
Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Julie Wilson-Almowallad (“Wilson-Almowallad”) seeks review of the
final decision of the arbitrator upholding her removal from federal service by the General
Services Administration (“the agency”). In re American Federation of Government
Employees, Council 236 of GSA Locals, Union and General Services Administration,
Employer, No. 05-3012 (Aug. 17, 2004) (“Wilson-Almowallad I”). In a related case,
Wilson-Almowallad seeks review of another arbitrator’s decision finding that the agency
did not fail to provide Wilson-Almowallad with the information it relied upon in proposing
her removal from federal service. In re American Federation of Government
Employees, Council 236 of GSA Locals, Union and General Services Administration,
Employer, No. 04-3240 (Mar. 2, 2004) (“Wilson-Almowallad II”). With respect to the first
case, we agree with the agency that the arbitrator properly upheld Wilson-Almowallad’s
dismissal and therefore, affirm. With respect to the second case, we conclude that we
lack jurisdiction over this matter and therefore dismiss. Notwithstanding this dismissal,
we address Wilson-Almowallad’s concerns in the second case to the extent they relate
to her removal from federal service.
BACKGROUND
I
In April 2002, Wilson-Almowallad was a building manager assigned to the
Minnesota and Wisconsin Service Center of the General Service Administration (“the
Center”). The Center decided to contract out for a full-time technician and
administrative assistant, and assigned Wilson-Almowallad the responsibility of
processing and soliciting this contract. On April 9, 2002, the business used to fill these
two positions, Ajasa Corporation, received an unsolicited resume from Wilson-
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Almowallad’s spouse, and, on the following day, the solicitation for the contract was
issued with the same language as in the resume of Wilson-Almowallad’s spouse. On
April 11, 2002, Wilson-Almowallad’s supervisor signed the contract with Ajasa
Corporation, which in turn hired Wilson-Almowallad’s spouse.
On May 8, 2002, the agency’s Office of Inspector General (“OIG”) began
investigating the agency’s concerns regarding a potential conflict of interest. The OIG
report, issued on March 17, 2003, found, inter alia, that Wilson-Almowallad violated the
Code of Federal Regulations’ ethical standards by using public office for private gain
and by deliberately providing misleading information during the OIG investigation,
including denying any involvement in the contract. In addition, while the OIG
investigation was pending, on June 13, 2002, Wilson-Almowallad’s supervisors
discovered that Wilson-Almowallad improperly charged expenses for a project to the
wrong account, which, when confronted, Wilson-Almowallad admitted doing
purposefully.
On September 15, 2003, the Center’s director issued a letter of proposed
removal to Wilson-Almowallad based on three charges: knowing and willful misuse of
public office for private gain; providing misleading information to an OIG investigator;
and knowing and willful misappropriation of Government funds. The seven-page letter
included one paragraph that stated:
A close and extensive review of the information contained within the OIG’s
March 17, 2003 report, along with further inquiry on my part, leads me to
believe that, in fact, you knowingly and willfully misused your public office
for private gain, and that you provided misleading information to an OIG
investigator. Since the close of the OIG report, it has also come to my
attention that you knowingly and willfully misappropriated government
funds.
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Wilson-Almowallad II at 7 (emphases added) (internal quotations omitted).
On September 19, 2003, the American Federation of Government Employees,
Council 236 (“the union”) advised the agency that it would represent Wilson-Almowallad
in the removal decision. On October 2, 2003, the agency informed the union that no
affidavits relating to the agency’s investigation existed, and provided the union copies of
(1) an e-mail from Wilson-Almowallad’s supervisor to the Center’s director dated June
13, 2003; (2) a report prepared by the agency’s Regional Inspector General’s Office; (3)
an e-mail string between Wilson-Almowallad, her supervisor, and another employee;
and (4) a redacted copy of the Center’s director’s letter to the Inspector General dated
April 29, 2002. Thereafter, the Center’s director also provided the union an unredacted
version of the April 29, 2002 letter.
On November 14, 2003, the agency issued a decision sustaining all three
charges and removing Wilson-Almowallad from federal service the same day.
II
The union filed two separate grievances in connection with this matter. One of
those grievances challenged the removal decision, and on December 1, 2003, the union
invoked arbitration pursuant to the collective bargaining agreement. On August 17,
2004, the arbitrator denied the grievance, finding that “[t]he Grievant was not denied
certain information, was not denied due process, and there was no harmful error
committed by the Agency” and “[t]he decision by the Agency to remove the Grievant
from her position as Assistant Building Manager on November 14, 2003, did not violate
government-wide regulations, GSA regulations, or the National Agreement.” Wilson-
Almowallad I at 23.
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With respect to the second case, the union filed a grievance on October 6, 2003
alleging that the agency withheld information cited in the agency’s proposal to remove
Wilson-Almowallad. Following the agency’s denial of that grievance, the union invoked
arbitration and the arbitrator denied the grievance on March 2, 2004. In his decision,
the arbitrator found that the National Agreement broadens federal regulations, which
provide that employees are entitled to “the material which is relied on to support the
reasons for action given in the notice,” 5 C.F.R. § 752.404(b)(1), by providing that
employees are additionally entitled to exculpatory materials. However, the arbitrator
disagreed with the union that the reference to a “further inquiry” and the language “it has
also come to my attention” established that there was material that was not disclosed to
the union. Wilson-Almowallad II at 7-8. The arbitrator found that these phrases did not
show the presence of any other documents and that the agency disclosed to the union
all the information upon which it relied in proposing to remove Wilson-Almowallad from
federal service. Wilson-Almowallad II at 8.
We have jurisdiction to review arbitration decisions regarding federal removal
decisions under 5 U.S.C. § 7121(f).
DISCUSSION
I
This court reviews decisions by an arbitrator under the same standard of review
as decisions by the Merit Systems Protection Board. It is a deferential standard,
requiring the Federal Circuit to affirm the decision of the arbitrator unless it is
“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
05-3012 and 04-3240 5
law; (2) obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000).
II
Wilson-Almowallad seeks review of the arbitrator’s decision upholding her
removal from federal service by the agency, asserting that the arbitrator erred by
applying the incorrect law, relying upon incorrect facts, and failing to consider whether
the “harmful error” statute was violated. Although we dismiss Wilson-Almowallad II for
lack of jurisdiction, see infra, we address the issues raised in that case in connection
with the removal arbitration to the extent they are related and she has raised them in the
appeal of Wilson-Almowallad I.
With regard to her argument that the arbitrator applied the wrong law, Wilson-
Almowallad submits that 5 U.S.C. § 7513(e) should have been applied and it was not.
Section 7513(e) requires that the agency maintain a record of the materials involved in
an action removing an employee from federal service and furnish the materials to the
arbitrator and employee. The statute identifies materials as “[c]opies of the notice of
proposed action, the answer of the employee when written, a summary thereof when
made orally, the notice of decision and reasons therefore, and any order effecting an
action.” 5 U.S.C. § 7513(e) (2000). In her reply brief, Wilson-Almowallad alternatively
argues that the agency did not provide the materials until the hearing. The agency
responds that Wilson-Almowallad is barred from now alleging that the agency never
furnished these materials to her, because she did not make this assertion during the
arbitration proceeding. The agency further argues that the record shows that Wilson-
Almowallad did receive all the materials involved in the action, namely the notice of
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proposed action, the answer of Wilson-Almowallad, the notice of decision and reasons
therefore and the order effecting Wilson-Almowallad’s removal, which were all included
in the joint appendix submitted by the agency and Wilson-Almowallad together for the
arbitration hearing. We note that the arbitrator found that this issue had been decided in
the related arbitration hearing, Wilson-Almowallad II. Wilson-Almowallad I at 21 (noting
that the earlier arbitration “renders moot this first part of the Issue [whether Wilson-
Almowallad was denied the materials]”). Relying on Wilson-Almowallad II as well as
testimony by the Center’s director, the arbitrator found that “the Union has not been
persuasive in demonstrating that any other information was considered in the Grievant’s
removal action beyond that already provided.” Wilson-Almowallad I at 21. He also
noted, “As such, the Grievant was not denied due process and there was no harmful
error by the Agency.” Wilson-Almowallad I at 21. We consider Wilson-Almowallad II
and hold that the arbitrator’s finding that the agency provided all the materials to Wilson-
Almowallad was supported by substantial evidence.
Wilson-Almowallad additionally alleges that “[b]ecause the ‘Harmful Error’ statute
was violated reinstatement was not considered.” In her reply brief, Wilson-Almowallad
elaborates that the arbitrator did not examine the harmful error rule, but instead relied
on Wilson-Almowallad II. In his decision, the arbitrator noted that Wilson-Almowallad II
rendered the issue moot where it had already found that the materials were provided to
Wilson-Almowallad, and therefore, there was no error committed by the agency.
Wilson-Almowallad I at 23 (“The Grievant was not denied certain information, was not
denied due process, and there was no harmful error committed by the Agency.”). We
also consider Wilson-Almowallad’s argument that 5 U.S.C. § 7701(c)(2)(A) should have
05-3012 and 04-3240 7
been applied in Wilson-Almowallad II. Section 7701(c)(2)(A) provides that an agency’s
adverse personnel decision should not be sustained if the employee “shows harmful
error in the application of the agency’s procedures in arriving at such a decision.”
However, as we have held that the decision finding that Wilson-Almowallad received the
materials was supported by substantial evidence, we find that there was no harmful
error committed by the agency.
Finally, Wilson-Almowallad argues that the arbitrator erred by relying upon
incorrect facts in his decision. Specifically, Wilson-Almowallad asserts that the OIG
report and testimony were unsubstantiated, that Wilson-Almowallad’s supervisor knew
that the account was improperly coded and choose not to correct the matter but then
found that Wilson-Almowallad was at fault, and that Wilson-Almowallad did not have the
position or duty within the team to be held responsible. In her reply brief, Wilson-
Almowallad further argues that she was not extended the right to call on witnesses, but
does not offer any further explanation on this otherwise unsubstantiated assertion. The
agency responds that the OIG report and testimony corresponded to the statements of
every other witness except for Wilson-Almowallad, that Wilson-Almowallad admitted to
miscoding the account purposefully, and that Wilson-Almowallad knowingly and willfully
used her office to secure a job for her husband and then reported otherwise to an OIG
investigator. The agency argues that it is inconsequential when the supervisor
discovered the miscoding or whether Wilson-Almowallad had the actual authority to sign
the contract. We agree with the agency that the arbitrator did not rely on incorrect facts
in its decision.
05-3012 and 04-3240 8
III
In Wilson-Almowallad II, Wilson-Almowallad seeks review of the arbitrator’s
decision finding that the agency did not fail to provide her with the information it relied
on in proposing her removal from federal service. We note that our jurisdiction only
extends to reviews of arbitration awards if the matter could have been appealed to the
Merit Systems Protection Board. 5 U.S.C. § 7121(f) (2000). We therefore dismiss
Wilson-Almowallad II for lack of jurisdiction.
CONCLUSION
The arbitrator’s decision in Wilson-Almowallad I is affirmed. Wilson-Almowallad II
is dismissed for lack of jurisdiction.
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