Silveria v. Department of Veterans Affairs, SF-531D-16-0042-I-1
| Decision Date | 06 January 2017 |
| Docket Number | SF-531D-16-0042-I-1 |
| Court | Merit Systems Protection Board |
| Parties | ANTHONY J. SILVERIA, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency. |
UNPUBLISHED
THIS FINAL ORDER IS NONPRECEDENTIAL[1]
Anthony J. Silveria, Citrus Heights, California, pro se.
Barbara Ann T. Konno, Esquire, Palo Alto, California, for the agency.
BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member.
¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency's denial of a within-grade increase (WIGI). Generally, we grant 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. We therefore DENY the petition for review. Except as MODIFIED as to the basis for finding that the Board lacks jurisdiction over the appellant's WIGI denial, we AFFIRM the initial decision.
¶2 The appellant held the General Schedule position of Veterans Service Representative (Rating) at the agency's Veterans Service Center in Oakland, California. Initial Appeal File (IAF), Tab 4 at 42. By memorandum dated January 14, 2014, the appellant's supervisor notified him that his work performance was at a less than acceptable level of competence (ALOC) and, as a result, both his scheduled promotion and his WIGI were being withheld. Id. at 12-13, 37. The supervisor notified the appellant of his right to request reconsideration of the negative determination within 15 days of his receipt of the notice. Id. at 37. The supervisor also informed the appellant that, under article 40, section 1(E) of the Master Agreement, [2] he could be considered for a WIGI not later than 60 days after he became eligible for the promotion action if he was able to demonstrate an ALOC in his work. Id. at 37, 47.
¶3 On January 28, 2014, the appellant wrote a “personal statement response” addressed to his supervisor that was “to be submitted in conjunction with the [American Federation of Government Employees (AFGE)] union's [step-1] grievance” of his WIGI denial. Id. at 21-24. The appellant copied union officials on his response. Id. at 21.
¶4 On February 19, 2014, the appellant, his supervisor, and union officials exchanged email messages setting up a meeting for that day to discuss the step-1 grievance. Id. at 19-20. At the meeting, the supervisor read to the appellant and the union representative his written decision dated February 19, 2014, that denied the step-1 grievance. Id. at 14, 17-18, 20. The supervisor declared under penalty of perjury that the appellant and the union did not notify him of any further grievance proceedings concerning the WIGI denial. Id. at 14.
¶5 Effective June 29, 2014, the agency removed the appellant from his position. IAF, Tab 1 at 14. The appellant filed a Board appeal of his removal and the WIGI denial. Id. at 1-5. He raised claims of harmful procedural error, hostile work environment, disability discrimination, retaliation for whistleblowing activity, and retaliation for equal employment opportunity (EEO) activity. Id. at 5.
¶6 The administrative judge separately docketed the instant appeal of the WIGI denial and the appellant's removal appeal. IAF, Tab 2 at 1.[3] In an acknowledgment order, the administrative judge informed the appellant of his burden of proving jurisdiction over his appeal of the WIGI denial. Id. at 2. She explained to him that the Board generally may exercise jurisdiction over an appeal from an agency's withholding of a WIGI only if the agency has affirmed its decision on reconsideration or denied the appellant an opportunity for reconsideration. Id. at 3. She ordered him to file evidence and argument on the jurisdictional issue. IAF, Tab 2 at 3, Tab 6 at 1.
¶7 The appellant filed responses regarding jurisdiction. IAF, Tabs 5, 7. He also filed motions to compel discovery and to disqualify the administrative judge, and an objection to the separation of his claim regarding the WIGI denial from his removal appeal. IAF, Tabs 3, 5. The agency filed a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 4 at 4-10. The administrative judge denied the appellant's motions for her recusal and for the assignment of another administrative judge to his appeal, and found it appropriate to stay discovery until the resolution of the jurisdictional issue. IAF, Tab 6 at 2.
¶8 In an order reopening the record, the administrative judge noted that the agency's final agency decision (FAD) on the appellant's EEO complaint referenced a request for reconsideration of the WIGI denial. IAF, Tab 1 at 45 n.3, Tab 11 at 1. She ordered the agency to produce, in pertinent part, the request for reconsideration referenced in the FAD. IAF, Tab 11 at 2. The agency filed responses to the order. IAF, Tabs 13-14. The appellant replied. IAF, Tab 15.
¶9 Without holding a hearing, the administrative judge issued an initial decision granting the agency's motion and dismissing the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID) at 2, 11. Specifically, she found that the appellant had not requested reconsideration of the WIGI denial. ID at 10-11. She found, too, that the appellant was precluded from appealing the WIGI denial to the Board except as a request for review of a final decision under 5 U.S.C. § 7121(d) because he had elected to pursue the matter through the negotiated grievance procedure. ID at 8, 10. She concluded that the Board lacks jurisdiction under section 7121(d) because the appellant had not pursued his grievance beyond the step-1 level, and his supervisor's decision denying the step-1 grievance was not a final decision. ID at 8, 10-11.
¶10 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 4. The appellant has filed a reply to the agency's response. PFR File, Tab 5.
The appellant has failed to establish the Board's jurisdiction over his appeal of a WIGI denial as an otherwise appealable action.
¶11 The Board's jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden of proving by preponderant evidence the Board's jurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). An employee under the General Schedule earns periodic increases in pay, or WIGIs, as long as his performance is at an ALOC. 5 U.S.C. § 5335(a). When an agency determines that an employee is not performing at an ALOC and that a WIGI should be withheld, he is entitled to “prompt written notice of that determination and an opportunity for reconsideration of the determination.” 5 U.S.C. § 5335(c); see 5 C.F.R. § 531.410 (setting forth the Office of Personnel Management's uniform procedures for reconsideration). If the agency affirms its decision on reconsideration, “the employee is entitled to appeal to the [Board].” 5 U.S.C. § 5335(c); see5 C.F.R. § 531.410(d).
¶12 A bargaining-unit employee who is subject to an appealable action that falls within the scope of the grievance procedure may elect either to appeal the action to the Board or challenge it through the grievance procedure. 5 U.S.C. § 7121(d). If, as here, the collective bargaining agreement provides for review of WIGI denials under the grievance procedure, then that procedure is exclusive. 5 C.F.R. § 531.410(d). An exception to this rule occurs when, as here the appellant has alleged discrimination in connection with the action appealed. In such cases, the Board is not divested of jurisdiction, but there still must be a final decision resulting from arbitration. Little v. Department of the Treasury, 65 M.S.P.R. 360, 362 (1994). The Board has jurisdiction over a request for review of a final grievance or arbitration decision under 5 U.S.C. § 7121(d) if: (1) the subject matter of the grievance is one over which the Board has jurisdiction; (2) the appellant either (i) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) in connection with the underlying action in the negotiated grievance procedure, or (ii) raises a claim of discrimination under 5 U.S.C. § 2302(b)(1) in connection with the underlying action 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. Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013), aff'd per curiam, 589 Fed.Appx. 972 (Fed. Cir. 2014); see 5 U.S.C. §§ 7702(a)(1), 7121(d); 5 C.F.R. § 1201.155(a)(1), (c).
¶13 Thus, we find that the administrative judge erred in finding that the appellant made an election pursuant to 5 U.S.C § 7121(d) to contest the WIGI denial through the negotiated grievance procedure. ID at 8, 10. We vacate this finding and modify the administrative judge's analysis of the jurisdictional issue to explain why ...
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