Elizabeth G. Tekleabib v. Department of State ( 2015 )


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  •                           UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    ELIZABETH G. TEKLEABIB,                            DOCKET NUMBER
    Appellant,                           CB-7121-15-0029-V-1
    v.
    DEPARTMENT OF STATE,                               DATE: June 30, 2015
    Agency.
    THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
    James Lensen-Callas, San Francisco, California, for the appellant.
    Julie Falis, Washington, D.C., for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a request for review of an arbitrator’s decision that
    denied the grievance that she filed under the agency’s negotiated grievance
    procedure concerning her removal. For the reasons set forth below, we DISMISS
    the request for review for lack of jurisdiction.
    ∗
    A nonprecedential order is one that the Board has determined does not add
    sign ificantly 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 Parties may cite nonprecedential orders,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         Following her unsuccessful completion of a performance improvement plan
    (PIP), the agency removed the appellant, a passport specialist, in a chapter 43
    action for unacceptable performance. Request for Review (RFR) File, Tab 1 at
    11-24.     The appellant elected to challenge her removal under the negotiated
    grievance procedure set forth in her collective bargaining agreement and the
    arbitrator denied her grievance.   RFR File, Tab 5 at 11-61.       After carefully
    reviewing the evidence, the arbitrator found that 17 of the 28 Significant
    Knowledge Errors (SKEs) the agency cited were not errors at all.        
    Id. at 61.
         However, because substantial evidence indicated that the appellant still
    committed 11 SKEs, almost twice the benchmark number of 6 SKEs allowed
    during the term of her PIP, he ultimately determined that the appellant’s removal
    was proper under the terms of the law and her collective bargaining agreement.
    
    Id. ¶3 In
    her timely request for review of the arbitrator’s decision, the appellant
    argues that the agency created a hostile work environment by embarrassing,
    intimidating, and insulting her. RFR File, Tab 1 at 6. She also argues that the
    agency committed harmful procedural errors, in that the overcharging of SKE
    errors by the agency affected her performance under the PIP, leaving her
    confused and misguided and ultimately leading to her removal. 
    Id. The Clerk
    of
    the Board issued an acknowledgement letter setting forth the regulatory
    requirements for a request for review of an arbitrator’s decision. RFR File, Tab
    2. The appellant replied, primarily addressing the substance of her chapter 43
    removal.    RFR File, Tab 4.    The agency has responded in opposition to the
    appellant’s request for review, arguing that her failure to raise a discrimination
    claim before the arbitrator precludes Board review of that decision. RFR File,
    Tab 5.
    ¶4         The Board has jurisdiction over a request for review of a final grievance or
    arbitrator’s 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
    3
    (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.   5 C.F.R. § 1201.155(a)(1), (c); see Jones v. Department of Energy,
    120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014).
    ¶5        Article 20, Section 4 of the appellant’s collective bargaining agreement
    allows her to raise a claim of discrimination under the negotiated grievance
    procedure. RFR File, Tab 5 at 65. The record does not reflect that she did so. In
    its submission, the agency provides a portion of a pleading that the appellant filed
    before    the   Equal   Employment   Opportunity    Commission     in   which   she
    affirmatively states that she did not raise a discrimination claim before the
    arbitrator in the instant matter. 
    Id. at 70-75.
    The appellant claimed therein that
    she did not have the option of raising a discrimination issue in the negotiated
    grievance procedure because of her prior-filed formal equal employment
    opportunity complaint, and that, if she had raised the issue, the grievance would
    have been dismissed. 
    Id. at 73-74.
    She also argues that the grievance and the
    EEO complaint are separate matters, and asserts that “an employee who submits a
    discrimination claim to arbitration under a collective bargaining agreement is not
    precluded from suing his or her employer under Title VII.” 
    Id. at 74-75
    (citing
    Alexander v. Gardner-Denver Co., 
    415 U.S. 36
    , 48-49 (1974)).
    ¶6        However, whether the appellant may assert her discrimination claims in
    multiple venues under different authorities is not the question before us.
    Because, as noted above, the appellant’s collective bargaining agreement
    indicates that she may raise a discrimination claim in the negotiated grievance
    procedure, RFR File, Tab 5 at 65, the jurisdictional question in this matter is
    whether the appellant raised a discrimination claim in the arbitration proceeding
    for which she seeks review; only if she did so may she request Board review of
    4
    the arbitrator’s decision, 5 C.F.R. § 1201.155(a)(1), (c).      The record clearly
    reflects that the appellant did not raise a discrimination claim in the arbitration
    proceeding for which she seeks Board review. We find, therefore, that the Board
    does not have jurisdiction over the appellant’s request for review.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States 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 United States 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 United
    States   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.
    5
    If you are interested in securing pro bono representation for your appeal to
    the 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.
    

Document Info

Filed Date: 6/30/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021