Jones v. Merit Sys. Prot. Bd.
| Decision Date | 08 October 2014 |
| Docket Number | 2014-3081,2014-3072 |
| Parties | MARIA LAVINIA JONES, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. CB-7121-13-0111-V-1.
Petition for review of the Merit Systems Protection Board in No. DC-0752-13-0168-I-1.
MARIA LAVINIA JONES, of Cheltenham, Maryland, pro se.
MICHAEL A. CARNEY, General Attorney, and CALVIN M. MORROW, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With them on the briefs was BRYAN G. POLISUK, General Counsel.
Before LOURIE, REYNA, and TARANTO, Circuit Judges.
These consolidated appeals stem from an agency decision to remove Maria Lavina Jones ("Jones") from federal employment. Jones appeals from a final decision and a final order of the Merit Systems Protection Board (the "Board") in companion cases that dismissed for lack of jurisdiction (1) a request for review of an arbitrator's decision denying a grievance challenge to her removal as barred by Board regulations and (2) a merits appeal of the initial removal decision itself as barred by her prior election of the grievance process. Jones v. Dep't of Energy, No. CB-7121-13-0111-V-1, 120 M.S.P.R. 480 (2013) ("Jones I"); No. DC-0752-13-0168-I-1 (M.S.P.B. Jan. 27, 2014) ("Jones II"). Because the Board did not err in denying the petitions, we affirm.
Jones was employed as a Program Analyst in the Office of Budget and Financial Management within theOffice of Fossil Energy at the U.S. Department of Energy (the "agency"). Beginning in January 2011, the agency placed Jones on a Performance Improvement Plan ("PIP") for a period of 120 days. Appeal No. 2014-3072 Resp't's App. 14. Upon the conclusion of the PIP, the agency proposed to remove Jones from her position for unacceptable performance effective February 17, 2012. Id. at 14, 26-34. The agency's final decision stated that key factors it considered were the inability to perform essential duties of the position, the inability to improve despite assistance provided, and the impact of unsatisfactory performance on the office. Id. at 31. The agency's removal decision notified Jones of her right to appeal to the Board and the time limit for doing so or, in the alternative, of her right to request that the National Treasury Employees Union seek arbitration pursuant to an applicable collective bargaining agreement. Id. at 31-33.
Jones elected to seek review of the agency's removal decision through the negotiated grievance procedures of the collective bargaining agreement, and the Union timely invoked arbitration on the issue stipulated by the parties: whether the agency provided Jones with a reasonable opportunity to improve her performance before removing her from federal service and, if not, what the remedy should be. Id. at 15.
After conducting a hearing on August 12, 2012, the arbitrator issued a decision on November 3, 2012, which denied Jones's grievance and found that the agency had met its burden of establishing by substantial evidence that Jones was given a reasonable opportunity to improve her performance under 5 U.S.C. § 4303, as interpreted by 5 C.F.R. § 432.104 and applicable provisions of the collective bargaining agreement, and that the agency's decision to remove her for unacceptable performance was reasonable. Id. at 13-25. The arbitrator specifically found that there had been "no verbal abuse, no insults nor harassment which interfered with [Jones's] ability towork" in response to her allegations of "bias, hostility or the presence of a predetermined outcome." Id. at 23.
On December 2, 2012, Jones filed an appeal of her removal with the Board. Id. at 35-45. in that appeal, Jones alleged that the agency's action was in retaliation for an Equal Employment Opportunity ("EEO") complaint that she had filed. Id. at 38-40. On February 14, 2013, the administrative judge (the "AJ") issued an order noting that Jones had filed a grievance concerning her removal prior to filing her appeal and that 5 U.S.C. § 7121(e)(1) required an employee challenging an adverse action to choose between either one of an applicable negotiated grievance procedure or an appeal to the Board. Id. at 46. That order also noted that the record contained evidence that Jones had resigned her position on February 16, 2012, which was one day prior to the effective date of her removal. Id. at 47. The AJ ordered Jones to clarify the nature of her appeal and to address whether she was appealing a removal for unacceptable performance or was claiming an involuntary resignation by coercion or misrepresentation. Id.
In a second order issued March 18, 2013, the AJ noted that in her response to the February order, Jones stated that she intended that the Board review her appeal "based on discrimination and legal errors that were made by the Arbitrator." Id. at 49. The AJ determined that such a request was not within his jurisdiction and transferred the case to the Board for further consideration. Id. at 50. However, the AJ retained jurisdiction over what he construed as Jones's involuntary retirement claim on the ground that it had not been raised before the arbitrator. Id. Upon receipt of the transferred case, the Clerk of the Board issued a Notice to the Parties that a new docket number CB-7121-13-0111-V-1 had been assigned to the request for review of the arbitration decision, while the previous appeal stemming from Jones's December 2012filing remained docketed under number DC-0752-13-0168-I-1. Id. at 52.
The AJ subsequently issued an initial decision relating to the retained case in which he found that Jones had failed to satisfy the standard for establishing jurisdiction over what he had construed as a claim for involuntary retirement. Appeal No. 2014-3081 Resp't's App. 6-14. (March 21, 2013). On petition for review from that decision, the Board found that the AJ had erred in construing Jones's appeal as raising a separate claim for involuntary requirement. Id. at 1-5 (Jan. 27, 2014); Jones II at 3. The Board therefore concluded that Jones's appeal had raised only a challenge to her removal, which was precluded under 5 U.S.C. § 7121(e)(1) because she had earlier elected to pursue such challenge through the negotiated grievance procedures. Jones II at 3-4. The Board consequently denied the petition for review and affirmed the AJ's initial decision as modified by the Board's own final order and dismissed that appeal for lack of jurisdiction. Id. at 2.
The Board issued a decision on December 31, 2013 in the appeal from the arbitration decision in which it likewise dismissed for lack of jurisdiction in view of its amended regulation, 5 C.F.R. § 1201.155(c), which went into effect on November 13, 2012, and provides that, in cases in which the negotiated grievance procedure permits allegations of discrimination, the Board will review only those claims of discrimination that were raised in the negotiated procedure. Jones I, 120 M.S.P.R. 480, ¶¶ 3, 9-11. The Board found that the collective bargaining agreement governing Jones's arbitration allowed for claims of discrimination to be raised in the course of that grievance proceeding, but that Jones had not raised a claim of discrimination under 5 U.S.C. § 2302(b)(1). Id. Applying its new jurisdictional standard, the Board thus dismissed Jones's request for review of the arbitrator's decision for lack of jurisdiction. Id.
Jones appealed to this court from both rulings under 28 U.S.C. § 1295(a)(9), which only provides us with jurisdiction over appeals from a final order or a final decision of the Board pursuant to 5 U.S.C. § 7703(b)(1) and (d).
Before addressing the merits of the Board's decisions to dismiss for lack of jurisdiction, we must first address whether we have jurisdiction to review the Board's rulings under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. The district court, not this court, is vested with jurisdiction over any mixed case appeal that the Board resolves either on the merits or on procedural grounds. Kloeckner v. Solis, 568 U.S. ___, 133 S. Ct. 596, 607 (2012). A mixed case is one that involves allegations of unlawful discrimination as well as other grounds for appealing an adverse action. Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1115-16 (Fed. Cir. 2013). In Conforto, we held that the ruling in Kloeckner concerning district court jurisdiction did not extend to the Board's dismissal for lack of jurisdiction, and therefore that an appeal from the Board's dismissal for lack of jurisdiction properly belongs in this court. Id. at 1117. We thus possess jurisdiction to decide the instant companion appeals.
However, the scope of our review in an appeal from a Board decision is limited. We can only set aside the Board's decision 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 particular appeal is a question of law, which we review without deference. Kelly 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 jurisdictionaldetermination 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).
Jones argues that the Board erred in dismissing her appeals for lack of jurisdiction because her discrimination claim was before the arbitrator. The government responds that the Board correctly dismissed Jones's petition for review of the grievance proceeding because there is no evidence in the record that a...
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