Timothy Jones v. Department of Labor ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY JONES, DOCKET NUMBER
Appellant, CB-7121-15-0011-R-1
v.
DEPARTMENT OF LABOR, DATE: February 16, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy Jones, Florissant, Missouri, pro se.
Dana M. Shannon, Esquire, Kansas City, Missouri, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a request for review under 5 U.S.C. § 7121(d) of an
arbitrator’s decision that denied the grievance concerning his removal. For the
reasons discussed below, we AFFIRM the arbitrator’s decision. We further FIND
that the appellant failed to prove his claim of race discrimination.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 Effective September 11, 2013, the appellant was removed from his Equal
Opportunity Specialist position for failure to provide accurate information and
lack of candor. MSPB Docket No. CB-7121-15-0011-V-1, Request for Review
(RFR) File, Tab 1 at 34-44. The failure to provide accurate information charge
was supported by two specifications and the lack of candor charge was supported
by three specifications. 2 Id. at 39-42.
¶3 The appellant challenged the action through arbitration pursuant to the
negotiated grievance procedure. Id. at 45. Following a hearing, on August 25,
2014, the arbitrator issued a decision denying the grievance. Id. at 46-58. The
arbitrator sustained both specifications of the failure to provide accurate
information charge and two of three specifications of the lack of candor charge.
Id. at 55-58. Specification 1 of the failure to provide accurate information charge
alleged that the appellant failed to provide accurate information in response to
question 12 of Optional Form 306 (OF-306), Declaration for Federal
Employment, by failing to disclose his resignation after being removed from his
prior position at the Department of Agriculture in 2008. Id. at 8-11. Specification
2 alleged that the appellant failed to provide accurate information in his
employment application regarding his employment history as a Criminal
Investigator with the Department of Homeland Security (DHS). Id. at 11-13.
¶4 Specification 1 of the lack of candor charge alleged that, during his
recruitment interview, the appellant was not forthright about the fact that he only
performed his job duties as a Criminal Investigator for DHS for approximately
2 weeks and failed to disclose that he was on extended administrative leave
during the majority of the 21 months he indicated that he was employed there on
his résumé. Id. at 14. Specification 2 alleged that, during the same interview, the
2
Initially, the agency provided four specifications in support of its lack of candor
charge, however, the deciding official did not sustain specification 3. RFR File, Tab 1
at 15, 41.
3
appellant was not forthright about the fact that he went from a GS-12 Criminal
Investigator to a GS-6 Deportation Assistant, not because he was in a “holding
pattern” regarding his top secret clearance, as he stated, but because he had been
removed from his Criminal Investigator position for failure to obtain a top secret
clearance, and, as a result of a settlement agreement, the agency agreed to place
him in the Deportation Assistant position. Id. Specification 4 was not sustained
by the arbitrator. Id. at 58. Having determined that the agency proved both of its
charges, the arbitrator also found that removal was a reasonable penalty that
promoted the efficiency of the service. Id.¶5 On September 26, 2014, the appellant electronically filed an “appeal” with
the Board’s Central Regional Office challenging the arbitrator’s decision. See
MSPB Docket No. CH-0752-15-0003-I-1, Initial Appeal File (IAF), Tab 1. 3 IAF,
Tab 1. Recognizing that the “appeal” was properly a request for review of the
arbitrator’s decision, which should have been filed with the Clerk of the Board,
see Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005), aff’d,
213 F. App’x 993 (Fed. Cir. 2007), the administrative judge issued a decision on
December 15, 2014, transferring the request for review to the Clerk of the Board.
IAF, Tab 9, Initial Decision.
¶6 Upon transfer to the Board, the Clerk’s office docketed the request for
review as MSPB Docket No. CB-7121-15-0011-V-1, and issued a January 12,
2015 letter acknowledging receipt of the appellant’s request for review, setting
forth the requirements for a request for review of an arbitration decision under
5 C.F.R. § 1201.155(d), allowing the appellant an opportunity to supplement his
request, and allowing the agency an opportunity to file a response to the
appellant’s request for review. RFR File, Tab 3. The Board also docketed the
3
Although the Board did not receive the appellant’s request for review until sometime
on or after December 15, 2014, his initial filing with the Central Regional Office on
September 26, 2014, was within the 35-day time period for requesting review of the
August 25, 2014 arbitration decision. IAF, Tab 1. Thus, we find his request for review
was timely filed. See Keller v. Department of the Army, 113 M.S.P.R. 557, ¶ 4 (2010).
4
appellant’s December 23, 2014 “petition for review,” which he electronically
filed in MSPB Docket No. CH-0752-15-0003-I-1 as a supplement to the request
for review. 4 RFR File, Tabs 2-3. On February 24, 2015, the agency filed a
response to the request for review. RFR File, Tab 5. The appellant did not file
any additional pleadings after his December 23, 2014 submission. On April 16,
2015, the Board issued a final order affirming the arbitrator’s decision and
finding that the appellant failed to prove his claim of race discrimination. RFR
File, Tab 6.
¶7 On June 22, 2015, the Board vacated its April 16, 2015 final order after it
discovered that the appellant likely did not receive the January 12, 2015
acknowledgment letter, the agency’s February 24, 2015 response, and the Board’s
April 16, 2015 final order, which were improperly served on him via U.S. mail
due to an administrative error in which the appellant was entered into the Board’s
system as having elected service via U.S. mail rather than e-Appeal online, which
he actually chose. MSPB Docket No. CB-7121-15-0011-R-1, Tab 1 at 2. Thus,
the Board reopened the case to provide the appellant with notice of the
requirements of a request for review of an arbitration decision and an opportunity
to supplement his request for review. Id.¶8 The Board’s June 22, 2015 reopening order was properly served on the
appellant electronically via e-Appeal and included copies of the January 12, 2015
acknowledgment letter, the agency’s February 24, 2015 response, and the Board’s
April 16, 2015 vacated order. Id. at 3, 5. The order stated that the appellant
could file a supplement to his request for review by July 13, 2015, the agency
could file a response to any supplemental submission by July 27, 2015, and the
record would close upon the expiration of the agency’s period for filing a
4
On October 28, 2014, the appellant electronically filed an opposition to the agency’s
motion to dismiss in MSPB Docket No. CH-0752-15-0003-I-1, which we also have
considered as a supplement to his request for review. IAF, Tab 7.
5
response. Id. at 3. To date, the appellant has not filed a supplement to his
request for review.
ANALYSIS
The Board has jurisdiction over the appellant’s request for review of the
arbitrator’s decision.
¶9 The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
§ 7121(d) where the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has
been issued. Keller v. Department of the Army, 113 M.S.P.R. 557, ¶ 5 (2010).
Under Board regulations, an appellant can establish Board jurisdiction over a
request for review of an arbitration decision only if the appellant either raised a
claim of discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action or 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. See 5 C.F.R. § 1201.155(c); see also Brookens v.
Department of Labor, 120 M.S.P.R. 678, ¶ 6 (2014).
¶10 Here, each of these conditions is met. The appellant’s grievance concerns
his removal under 5 U.S.C. § 7512, a subject matter over which the Board has
jurisdiction, and the arbitrator issued a final decision. RFR File, Tab 1 at 8,
44-58. Further, the appellant alleges for the first time in his request for review
that his removal was a result of racial discrimination and the record reflects that
his governing collective bargaining agreement did not allow for claims of
discrimination to be raised in the course of a grievance proceeding. Id. at 5; RFR
File, Tab 5 at 10, 38.
6
The appellant has not shown that the arbitrator erred in interpreting civil service
law, rule, or regulation.
¶11 The standard of the Board’s review of an arbitration decision is narrow;
such decisions are entitled to a greater degree of deference than initial decisions
of the Board’s administrative judges. Keller, 113 M.S.P.R. 557, ¶ 6. Even if the
Board disagrees with the arbitrator’s decision, absent legal error, the Board
cannot substitute its conclusions for those of the arbitrator. Id. The Board will
modify or set aside an arbitrator’s decision only where the arbitrator has erred as
a matter of law in interpreting a civil service law, rule, or regulation. Id.¶12 The appellant presents various challenges to the arbitrator’s decision. RFR
File, Tab 1 at 5, 59-62, Tab 2 at 3-4; IAF, Tab 7 at 4-6. First, the appellant
contends that the arbitrator erred in sustaining the charge of failure to provide
accurate information because he failed to consider the appellant’s testimony that
he inadvertently submitted the wrong OF-306 form. RFR File, Tab 1 at 59, 61,
Tab 2 at 4. Contrary to the appellant’s assertion, however, the arbitration
decision reflects that the arbitrator did consider the appellant’s explanation that
he mistakenly submitted the wrong OF-306 but found such an explanation was not
credible. RFR File, Tab 1 at 56.
¶13 The appellant also generally sets forth the background facts regarding his
employment history and explains why he believes that he did not provide
inaccurate information. Id. at 5, 60. Concerning the failure to provide accurate
information charge, the appellant asserts the following: he disclosed the reasons
surrounding his separation from his prior Federal positions during two interviews
with a background investigator and during a prior interview he had with the
Office of Personnel Management, and he was attempting to abide by the terms of
his settlement agreement with DHS. Id. at 5, 60-61. Additionally, regarding the
lack of candor charge, the appellant reiterates his arguments that during his
interview he was not asked specific questions about his length of employment
with DHS and that he did not state that he was in a holding pattern to receive a
7
top security clearance because he was not; rather, he stated that he was awaiting
placement in another position that did not require a top secret clearance. Id. at
61-62. The appellant’s statements do not establish, however, a basis for the
Board to disturb the arbitrator’s decision. See, e.g., Dobruck v. Department of
Veterans Affairs, 102 M.S.P.R. 578, ¶ 14 (2006), aff’d, 212 F. App’x 997 (Fed.
Cir. 2007).
¶14 The appellant also generally alleges that the arbitrator improperly gave
more weight to the agency’s opinions and speculations and “ruled only on
opinion.” RFR File, Tab 2 at 4. We construe such claims as challenges by the
appellant to the arbitrator’s credibility determinations, factual findings, and legal
conclusions. However, the appellant’s mere disagreement with the arbitrator does
not show legal error. See Cirella v. Department of the Treasury, 108 M.S.P.R.
474, ¶¶ 15-16, aff’d, 296 F. App’x 63 (Fed. Cir. 2008). The appellant has not
shown that, in reviewing and analyzing the evidence, the arbitrator erred as a
matter of law in interpreting a civil service law, rule, or regulation.
¶15 Finally, the appellant contends that the deciding official improperly
considered ex parte information in violation of his due process rights. IAF, Tab 7
at 5. Specifically, he asserts that the deciding official improperly considered a
memorandum showing the actual date and facsimile number from which he
submitted the OF-306 in question, of which he was not aware until it was
presented at the arbitration hearing. Id. While the appellant alleges that the
proposing official had a copy of the memorandum in her possession, he has
provided no evidence that the deciding official was aware of or considered it. See
Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011) (explaining
that a deciding official violates an employee’s right to due process when he relies
upon new and material ex parte information as a basis for his decision on the
merits of a proposed charge or the penalty to be imposed). Moreover, such
information appears to be cumulative to the extent the appellant was already on
notice of the OF-306 in question through the agency’s proposal notice, which
8
identified the particular OF-306 dated March 7, 2012. RFR File, Tab 1 at 9; see
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed.
Cir. 1999) (identifying the following factors to be used to determine if ex parte
information is new and material: (1) whether the ex parte communication
introduces cumulative, as opposed to new, information; (2) whether the employee
knew of the information and had an opportunity to respond; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner). Thus, we find no due process violation.
The appellant has not shown that his removal was due to discrimination based on
his race.
¶16 The appellant alleges generally that he was discriminated against on the
basis of his race because he was the only black male working in the office and he
was treated less favorably than his similarly situated white coworkers. RFR File,
Tab 1 at 5; IAF, Tab 7 at 4. If proven, such allegations could constitute evidence
that discrimination was a motivating factor in the agency’s decision to remove the
appellant in violation of 42 U.S.C. § 2000e–16. See Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶¶ 42, 51 (2015). However, the appellant has not
submitted any evidence in support of his claim and has not identified any
similarly situated white coworkers who were allegedly treated more favorably by
the agency.
¶17 The Board’s June 22, 2015 order allowed the appellant an opportunity to
supplement his request for review after receiving a copy of the Board’s April 16,
2015 vacated order, which found that he failed to meet his burden of proving that
he was treated less favorably than his similarly situated white coworkers because
he failed to even identify any similarly situated white coworkers. Despite the
Board’s orders, the appellant has not filed any additional evidence. Thus, we find
that the appellant has failed to prove that his removal was due to discrimination
based on his race. See, e.g., Brent, 100 M.S.P.R. 586, ¶¶ 12-14.
¶18 Accordingly, we AFFIRM the arbitrator’s decision.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
10
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.