Orlando Fernandez v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ORLANDO FERNANDEZ, DOCKET NUMBER
Appellant, NY-0752-17-0013-I-1
v.
DEPARTMENT OF DEFENSE, DATE: June 12, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Orlando Fernandez, Rome, New York, pro se.
Eric Y. Hart, Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction because he first elected to
grieve the action through negotiated grievance procedures. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED by this Final Order to find that the Board lacks jurisdiction
over his discrimination and retaliation claims, as well as any potential claim
brought under the Uniformed Services Employment and Reemployment Rights
Act of 1994 (USERRA), we AFFIRM the initial decision.
BACKGROUND
¶2 Effective September 12, 2016, the appellant was removed from the GS-5
Accounting Technician position with the Defense Finance and Accounting
Service in Rome, New York, for failure to follow supervisory instructions. Initial
Appeal File (IAF), Tab 5 at 9-10, 17. On September 20, 2016, he filed a written
step one grievance under the agency’s negotiated grievance procedures. Id.
at 18-27. The agency denied the grievance on September 30, 2016. Id. at 28-29.
On October 4, 2016, he filed this Board appeal. IAF, Tab 1. The agency l ater
denied his step two and step three grievances on October 14 and November 16,
2016, respectively. IAF, Tab 5 at 30-31, Tab 10 at 2-3. His union declined to
pursue arbitration. IAF, Tab 10 at 3.
3
¶3 The agency moved for dismissal of the appeal for lack of jurisdiction
because it argued that the appellant had irrevocably elected to grieve the matter
before he filed his Board appeal. IAF, Tab 6 at 4 -7. The administrative judge
then gave the appellant notice as to the election of remedies in matters covere d by
both 5 U.S.C. § 7512 and the agency’s negotiated grievance procedures, and she
ordered him to respond. IAF, Tab 7. The appellant filed a timely response
alleging, among other things, that the agency discriminated against him based on
his age, national origin (Hispanic), prior equal employment opportunity (EEO)
activity, and status as a Vietnam veteran. IAF, Tab 8 at 2. The agency also filed
a response. IAF, Tab 9.
¶4 The administrative judge issued an initial decision finding that the appellant
had been given proper notice of his election rights and that he had filed a timely
grievance of his removal. IAF, Tab 12, Initial Decision (ID) at 2-3. The
administrative judge concluded that, by filing a timely grievance before he filed
his Board appeal, the appellant had elected to pursue the matter as a negotiated
grievance and not as a Board appeal, thus foreclosing his right to appeal the
removal to the Board later. ID at 3. On the same day the initial decision was
issued, the administrative judge issued a separate notice informing the appellant
that, to the extent he believed the removal action was attributed to his military
service or military status, he could file a separate USERRA appeal on that basis.
IAF, Tab 11.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1-2. The agency has filed an opposition to which the appellant has
replied. PFR File, Tabs 6-7.
ANALYSIS
¶6 As a general rule, matters covered under the Board’s adverse action
jurisdiction, 5 U.S.C. § 7512, that are also within the coverage of a negotiated
grievance procedure may, at the discretion of the aggrieved employee, be raised
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under either the appellate procedures set forth in 5 U.S.C. § 7701 or under the
negotiated grievance procedure, but not under both procedures. 5 U.S.C.
§ 7121(e)(1). An employee is deemed to have exercised his option to raise the
matter either under the negotiated grievance procedure or under the appellate
procedure when he timely files a grievance under the negotiated grievance
procedure or timely files an appeal, whichever event occurs first. Id.;
Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R. 389, ¶ 6
(2005). Generally, an employee’s election to file a grievance is effective and
deprives the Board of jurisdiction over the matter if the employee received
adequate notice of his election rights and timely filed his grievance. See 5 U.S.C.
§ 7121(e)(1); Kirkwood v. Department of Education, 99 M.S.P.R. 437, ¶¶ 10-14
(2005).
¶7 The agency’s September 12, 2016 removal decision letter included an
addendum, which outlined the procedures for Board appeals, negotiated
grievances, and EEO complaints. IAF, Tab 5 at 12-16. The addendum also
pointed out that the appellant’s selection of one forum would preclude him from
subsequently selecting another forum. Id. at 12. The agency’s negotiated
grievance procedures indicate that a grievance must be filed within 20 work days
from the employee’s receipt of the decision letter. Id. at 14, 42, 45. The
appellant filed a timely step one grievance on September 20, 2016. Id. at 18.
Because he received proper notice of his election rights and he filed a timely
grievance under the negotiated grievance procedure before he filed his Board
appeal, we conclude that the appellant made a valid election of remedies pursuant
to 5 U.S.C. § 7121(e)(1), which foreclosed the Board from jurisdiction over this
matter.
¶8 On review, the appellant again argues the merits of his appeal. PFR File,
Tab 1. To the limited extent that he argues jurisdictional issues, he asserts that,
after his step three grievance was denied, he had a right to binding arbitration.
Id. at 4; IAF, Tab 10 at 3. However, only the union can invoke arbitration under
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the collective bargaining agreement (CBA) here. IAF, Tab 5 at 14. We also find
that the appellant was fully informed that the decision to pursue binding
arbitration in the negotiated grievance process was not h is to make. The agency’s
notice outlining his appeal and grievance rights states in relevant part: “You may
pursue a grievance through the third step of the grievance procedure, but only the
Union may invoke binding arbitration pursuant to the [Master Co llective
Bargaining Agreement], Article 39 over your grievance at the conclusion of the
third step.” Id. (emphasis in original). The appellant asserts that the Union
President denied him his right to arbitration because the “Union President himself
from the very beginning of this ordeal was one of the strongest discriminatory
advocates of my removal from Federal service.” PFR File, Tab 1 at 4, 6. The
appellant, however, has not identified any authority that would support a finding
that he did not make a valid election of remedies under these circumstances. To
the contrary, the Board has held that the failure to reach arbitration, or subsequent
dissatisfaction with an appellant’s choice, is not a basis for invalidating an
appellant’s election to invoke negotiated grievance procedures. See Martinez v.
Department of Justice, 85 M.S.P.R. 290, ¶ 10 (2000). We similarly find that the
appellant’s allegations against his union do not negate his election of the
grievance process. Id.¶9 The appellant also reiterates his belief that the agency discriminated against
him based on his status as a veteran. E.g., PFR File, Tab 1 at 1, 5-6; IAF, Tab 1
at 4-5, Tab 8 at 2. The initial decision does not address this matter, but the
administrative judge issued a notice informing the appellant of his potential
appeal rights under USERRA. IAF, Tab 11. Therein , she set forth an appellant’s
jurisdictional burden in a USERRA appeal and informed him that he could file a
separate appeal on that basis. Id. According to Board records, the appellant has
not filed such an appeal.
¶10 We find, however, that the appellant’s election of remedies under 5 U.S.C.
§ 7121(e)(1) would foreclose the Board from exercising jurisdiction over a
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USERRA appeal of his removal. In Pittman v. Department of Justice, 486 F.3d
1276, 1280-82 (Fed. Cir. 2007), our reviewing court held that an appellant who
had grieved his removal under a CBA was precluded from raising the same matter
in a subsequent USERRA appeal. The court considered the appellant’s USERRA
discrimination claim regarding his alleged improper removal to fall within the
body of “[s]imilar matters which arise in other personnel systems” described in
section 7121(e)(1), and, because he previously had elected to grieve the removal
under the agency’s negotiated grievance procedure, his appeal was outside of the
Board’s jurisdiction. 3 Pittman, 486 F.3d at 1282; see 5 U.S.C. § 7121(e)(1).
¶11 The appellant also asserts that the agency discriminated against him based
on his age and national origin. PFR File, Tab 1 at 1, 5, 7-10. He explains that he
has a pending EEO complaint with the agency. Id. at 7-8. The initial decision
does not expressly address any claims related to discrimination or retaliation for
EEO activities, which were raised below. IAF, Tab 1 at 4-5, Tab 8 at 2.
However, the appellant has not been prejudiced because the Board lacks
jurisdiction over such matters due to his prior election of grievance procedures.
An aggrieved employee making such claims in connection with a matter that may
be appealed to the Board may raise the matter under a negotiated grievance
procedure or a Board appeal, but not both; and he is deemed to have exercised
this option based on which process is initiated first. 5 U.S.C. § 7121(d). As
previously explained, we find that the appellant elected grievance procedu res
before filing his Board appeal. There is a limited right to seek Board review of a
final grievance decision in such a case, even if the employee first contested the
3
In Weiberg v. Merit Systems Protection Board, 328 F. App’x 619, 620-21 (Fed. Cir.
2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) declined to
follow Pittman because the Weiberg CBA required that persons in the bargaining unit
grieve any matter not specifically excluded by the CBA, and USERRA matters were not
excluded. Here, however, the agency’s negotiated grievance procedures do not impose
such a limitation, though matters that might be brought before the Board under
USERRA may instead be grieved. IAF, Tab 5 at 14, 43 -45.
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matter through grievance procedures. Id. When, as here, there is no final
arbitration decision, however, this limited appeal right is not available, even if the
decision to initiate arbitration decision belongs to the union. See Farmer v. Merit
Systems Protection Board, No. 93-3533, 1994 WL 7103, *2-3 (Fed. Cir. Jan. 13,
1994); 4 Martinez, 85 M.S.P.R. 290, ¶¶ 10, 12.
¶12 Finally, the appellant’s submissions on review contain appended documents
that predate the close of the record before the administrative judge and/or are
already part of the record. PFR File, Tab 1 at 11 -40, Tab 2 at 12-13, Tab 7
at 12-17. We find that these documents are not a basis for granting the petition
for review. The Board generally will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). The appellant has
not alleged that any of the newly submitted documents were unavailable to him
before the record closed. To the extent that some of the documents are already in
the record, they are not “new” evidence for purposes of 5 C.F.R. § 1201.115. See
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). In any event,
none of the documents contain information of sufficient wei ght to warrant an
outcome different from that of the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(a)(1).
¶13 Accordingly, we affirm the initial decision, as modified herein. 5
4
The Board may rely on unpublished Federal Circuit decisions when, as here, it finds
the court’s reasoning persuasive. E.g., Vores v. Department of the Army, 109 M.S.P.R.
191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
5
After the appellant filed his petition for review with th e Board on April 12, 2017, he
submitted an appeal of the initial decision to the Federal Circuit. The appeal was
docketed as Case No. 17-2046 on May 18, 2017. On June 29, 2017, the Federal Circuit
issued an order dismissing the appeal for lack of jurisdi ction due to the appellant’s
pending petition for review with the Board. Fernandez v. Department of Defense, No.
2017-2046 (Fed. Cir. June 29, 2017).
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NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
We also note that the appellant has filed several supplemental pleadings on review,
which the Office of the Clerk of the Board has rejected. PFR File, Tabs 4 -5, 8.
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a c laim of discrimination based on
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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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.