Lasure v. MSPB , 657 F. App'x 994 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TOMEKA D. LASURE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1567
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-7121-15-0034-V-1.
______________________
Decided: August 15, 2016
______________________
TOMEKA D. LASURE, Walla Walla, WA, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
Judges.
2 LASURE V. MSPB
PER CURIAM.
Tomeka D. Lasure was a Pharmacy Technician for the
Department of Veterans Affairs (“VA”) in Walla Walla,
Washington. On October 31, 2014, Ms. Lasure was re-
moved from service on charges of AWOL, failure to com-
ply with instructions, and conduct unbecoming an agency
employee. Ms. Lasure ultimately challenged her removal
in an arbitration proceeding, contending that the VA’s
removal was retaliation for protected union activity in
violation of 5 U.S.C. § 2302(b)(9). The arbitrator con-
firmed the VA’s decision. Ms. Lasure subsequently ap-
pealed the arbitrator’s decision to the Merit Systems
Protection Board (“MSPB” or “the Board”). However, the
Board dismissed her appeal without reaching the merits,
finding that it lacked jurisdiction to review the arbitra-
tor’s decision. See Lasure v. Department of Veterans
Affairs, Docket No. CB-7121-15-0034-V-1 (Dec. 31, 2015).
Ms. Lasure timely petitioned this court for review of the
Board’s final decision. For the reasons stated below, we
affirm.
BACKGROUND
In January of 2014, Ms. Lasure became a Pharmacist
Technician at a VA facility in Walla Walla, Washington,
having transferred from a similar position in Cincinnati.
A few months after taking the position in Walla Walla,
Ms. Lasure also became president of the local chapter of
her union, the Local 181. Beginning shortly thereafter, in
April of 2014, Ms. Lasure and the management of the
Walla Walla VA facility became embroiled in a series of
escalating disputes over Ms. Lasure’s division of her time
between her duties as a Pharmacist Technician and her
duties as the Local 181 president. These disputes appear
from the record to have eventually generated a great deal
of personal animosity between Ms. Lasure and manage-
ment, and resulted in escalating disciplinary actions
against Ms. Lasure. The culmination of these events was
LASURE V. MSPB 3
Ms. Lasure’s removal from service on October 31, 2014, on
charges of being away without leave (“AWOL”), failure to
comply with instructions, and conduct unbecoming a VA
employee.
Ms. Lasure ultimately invoked the arbitration clause
of the applicable collective bargaining agreement to
appeal her removal. In front of the arbitrator, Ms. Lasure
argued that the VA had failed to prove any of the charges,
and moreover argued that the disciplinary actions against
her were motivated by “union animus,” i.e. were retalia-
tion for her protected union activities in violation of 5
U.S.C. § 2302(b)(9). The arbitrator, however, upheld each
of the charges as supported by sufficient evidence and
further found no evidence that any of management’s
actions were motivated by “union animus.”
Ms. Lasure timely filed an appeal of the arbitrator’s
decision to the Board. As she had in front of the arbitra-
tor, Ms. Lasure asserted to the Board that the VA had
failed to proffer sufficient evidence to support the charges,
and that the disciplinary actions taken against her were
motivated by “union animus” in violation of 5 U.S.C. §
2302(b)(9). However, the Board found that it lacked
jurisdiction over Ms. Lasure’s claims. The Board held
that it was permitted to review arbitration decisions
where (in relevant part) there was a claim for discrimina-
tion in violation 5 U.S.C. § 2302(b)(1). Because Ms.
Lasure’s claims arose under § 2302(b)(9), the Board
dismissed her appeal for lack of jurisdiction.
Ms. Lasure timely appealed the Board’s dismissal for
lack of jurisdiction to this court. We have jurisdiction
over the appeal pursuant to 28 U.S.C. § 1295(a)(9); see
also Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1117
(Fed. Cir. 2013) (holding that an appeal from the Board's
dismissal for lack of jurisdiction properly belongs in this
court).
4 LASURE V. MSPB
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Whether the Board has jurisdiction to adjudicate a par-
ticular appeal is a question of law, which we review
without deference. Kelley v. Merit Sys. Prot. Bd., 241 F.3d
1368, 1369 (Fed. Cir. 2001). We are, however, bound by
the Board's factual findings on which a jurisdictional
determination is based unless those findings are not
supported by substantial evidence. See Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
With respect to the Board’s jurisdiction to hear Ms.
Lasure’s case, we understand Ms. Lasure to argue that in
certain circumstances a claim for reprisal for filing a
discrimination complaint can be recognized under 5
U.S.C. § 2302(b)(1) or 5 U.S.C. § 2302(b)(9). See Informal
Brief of Petitioner Continuation Pages at 2 (citing to
Williams v. Social Security Administration, 101 M.S.P.R.
587, ¶8 (2006)). We also understand Ms. Lasure to argue
that such a situation applies here, where she alleges
retaliation against her for filing various Equal Employ-
ment Opportunity (“EEO”) claims pursuant to her duties
as union president. Id. For the reasons explained below,
we are not persuaded by Ms. Lasure’s argument and
agree with the Board that they lacked jurisdiction to hear
Mr. Lasure’s claim.
The Board’s jurisdiction is not plenary, but is limited
to those matters over which it has been granted jurisdic-
tion by law, rule or regulation. Johnston v. Merit Sys.
Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). Here, 5
LASURE V. MSPB 5
U.S.C. § 7121(d) states that “[a]n aggrieved employee
affected by a prohibited personnel practice under section
2302(b)(1) of this title which also falls under the coverage
of the negotiated grievance procedure may raise the
matter under a statutory procedure or the negotiated
procedure, but not both.” The Board’s regulations inter-
preting this provision similarly cabin the Board’s jurisdic-
tion over arbitration proceedings to review of claims for
discrimination raised under § 2302(b)(1). See 5 C.F.R. §
1201.155(a)(1) & (c).
In practice then, the Board exercises jurisdiction over
an arbitration decision only when (1) the subject matter of
the grievance is one over which the Board has jurisdic-
tion; (2) the appellant either (i) raised a claim of discrimi-
nation under 5 U.S.C. § 2302(b)(1) with the arbitrator in
connection with the underlying action, 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. See Jones v. Dep't of Energy, No. CB-
7121-13-0111-V-1, 2013 WL 6858180 (M.S.P.B. Dec. 31,
2013), aff'd sub nom. Jones v. Merit Sys. Prot. Bd., 589 F.
App'x 972 (Fed. Cir. 2014). The MSPB does not dispute
that Ms. Lasure’s case met the first and third require-
ments. See Respondent’s Informal Brief at 6 n. 2. Thus,
the only relevant question here is whether Ms. Lasure
raised a 5 U.S.C. § 2302(b)(1) claim in front of the arbitra-
tor or the Board. 1
1 Because the collective bargaining agreement is
not in the record, it is unclear whether Ms. Lasure would
have been allowed to raise a 2302(b)(1) claim to the arbi-
trator. However, as we explain below, Ms. Lasure did not
raise such a claim at either level, making the question of
her ability to raise it to the arbitrator moot.
6 LASURE V. MSPB
Under § 2303(b)(1), discrimination is prohibited on
the basis of criteria in five enumerated subsections: (A)
“race, color, religion, sex, or national origin, as prohibited
by [42 U.S.C. § 2000e-16)],” (B) “age, as prohibited under
[29 U.S.C. §§ 631, 633a],” (C) “sex, as prohibited under [29
U.S.C. § 206(d)],” (D) “handicapping condition, as prohib-
ited under [29 U.S.C. § 791],” or (E) “marital status or
political affiliation as prohibited under any law, rule, or
regulation.” The Board determined that Ms. Lasure’s
claim (in front of the Board and the arbitrator) did not
allege any retaliation based on the criteria in § 2303(b)(1).
Having thoroughly reviewed Ms. Lasure’s post-
hearing brief to the arbitrator (see Supplemental Appen-
dix at 33-89), her request to the Board for review of the
arbitrator’s decision (see id. at 90-134) and her Supple-
mental Response to the Board (see id. at 135-149), we
agree with the Board. Ms. Lasure does not allege that the
VA retaliated against her based on any of the categories
of discrimination prohibited by § 2303(b)(1). On the
record in front of us, we can find only generalized allega-
tions of bias and harassment; nowhere did Ms. Lasure
specifically claim that the VA discriminated against her
on the basis of any protected category listed in §
2303(b)(1). Nor did Ms. Lasure claim (or allege facts to
support a claim) that the alleged retaliation for filing
EEO grievances was motivated by any discrimination
prohibited by any criteria listed in § 2303(b)(1). In other
words, Ms. Lasure does not claim that she was retaliated
against on the basis of race, color, religion, sex, national
origin, age, handicapping condition, marital status or
political affiliation, nor does she claim that any alleged
retaliation for filing EEO grievances was motivated by
animus towards one of those categories (either directed
towards her or someone she was representing as part of
her union duties).
Instead, the Board found that Ms. Lasure alleged that
the discrimination against her was motivated by “union
LASURE V. MSPB 7
animus,” i.e. that “the agency discriminated against her
because of her participation in union activity” in violation
of § 2302(b)(9). See Supplemental Appendix at 2. 5 U.S.C.
§ 2302(b)(9) protects an employee from retaliation for
exercising appeal, complaint, or grievance rights. 2 As a
general matter, the Board does not have jurisdiction over
“unfair labor practice allegation[s] based on anti-union
animus.” Bodinus v. Dep't of Treasury, 7 M.S.P.R. 536,
542 (1981). However, “[p]erforming union-related duties,
such as filing grievances and representing other employ-
ees in the grievance process, are protected activities under
section 2302(b)(9).” See Alarid v. Dep't of Army, No. SF-
0752-14-0256-I-1, 2015 WL 4979637, ¶ 10 (M.S.P.B. Aug.
21, 2015). We agree with the Board that, at best, Ms.
Lasure’s claims fall under 2302(b)(9) to the extent she
claims that the VA retaliated against her for filing griev-
ances (for herself or on behalf of others) as part of her
union duties.
For example, in her post-hearing brief to the arbitra-
tor Ms. Lasure explained at length how her union activi-
2 The text of the statute states that covered em-
ployees shall not “(9) take or fail to take, or threaten to
take or fail to take, any personnel action against any
employee or applicant for employment because of (A) the
exercise of any appeal, complaint, or grievance right
granted by any law, rule, or regulation (i) with regard to
remedying a violation of paragraph (8); or (ii) other than
with regard to remedying a violation of paragraph (8); (B)
testifying for or otherwise lawfully assisting any individ-
ual in the exercise of any right referred to in subpara-
graph (A)(i) or (ii); (C) cooperating with or disclosing
information to the Inspector General of an agency, or the
Special Counsel, in accordance with applicable provisions
of law; or (D) for refusing to obey an order that would
require the individual to violate a law.”
8 LASURE V. MSPB
ties were the reason for the alleged retaliation, including
filing EEO grievances on behalf of herself and other
employees. See Supplemental Appendix at 72 (arguing
that management harassment was retaliation for serving
grievances on behalf of the union and for alleged AWOL
time when she was instructing new employees on how to
join the union); id. at 73-74 (harassment was due to
serving union grievance on behalf of another employee).
In explaining what “protected activity” she engaged in,
Ms. Lasure emphasized her status as the president of the
Local 181 and her union duties, which included filing
grievances for union members. See id. at 80.
Her brief to the Board is no different. The emphasis
is solely on Ms. Lasure’s claim that the VA was punishing
her in retaliation for her union activities. See e.g. Sup-
plemental Appendix at 100-123 (under the heading “De-
partment of Veteran Affairs Union Animus Behavior,”
alleging hostility of management towards the union as
basis for retaliation). Ms. Lasure made clear to the Board
that her claim for discriminatory retaliation was entirely
related to her union activity: “The Agency did not bring
her up on charges and fire her due to her job performance
as a Pharmacy Technician; but they did use and threaten
her Pharmacy Job and Federal Career as a platform to
execute actions against her and fire her in response to her
Union Activity.” Id. at 125. Indeed, it is significant that
the only reference to § 2302(b)(1) in any of her briefs
below is a recitation in her brief to the Board of the cor-
rect legal standard for the Board’s jurisdiction to review
an arbitrator’s decision (a standard her case failed to
meet). See id. at 132. Nowhere did Ms. Lasure allege that
the retaliation was based on any status other than her
position as a union president.
We therefore uphold the Board’s finding that Ms.
Lasure did not allege any discriminatory action by VA
management that is prohibited by § 2302(b)(1), and that
her claims at best fall under § 2302(b)(9). Because the
LASURE V. MSPB 9
Board does not have jurisdiction to review an arbitration
decision where only § 2302(b)(9) claims are raised, we
affirm the Board’s dismissal of Ms. Lasure’s case.
AFFIRMED
COSTS
No Costs.