                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TAUNYA JEFFERSON,                               DOCKET NUMBER
                  Appellant,                         CB-7121-15-0010-V-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: May 22, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Eleanor J. Lauderdale, Esquire, Washington, D.C., for the appellant.

           Candyce Phoenix, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant requests review of an arbitrator’s decision regarding her
     removal. For the reasons set forth below, we DENY the request for review for
     failure to meet the requirements of 5 C.F.R. § 1201.155(d).
¶2        The agency removed the appellant from her position as a Management Staff
     Assistant with the agency’s Office of Unemployment Insurance for unacceptable

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     performance while on a performance improvement plan, and she challenged that
     action through arbitration pursuant to the negotiated grievance procedure set forth
     in her collective bargaining agreement.      Request for Review (RFR) File, Tabs
     1-2, 9 at 21. The appellant subsequently filed this request for Board review of the
     arbitrator’s decision. RFR File, Tabs 1-2.
¶3        The Clerk of the Board issued a February 20, 2015 acknowledgment letter
     in which he informed the appellant, in pertinent part, that the Board’s regulations
     require that a request for review of an arbitration decision must contain: (1) a
     statement of the grounds on which review is requested; (2) references to evidence
     of record or rulings related to the issues before the Board; (3) arguments in
     support of the stated grounds that refer specifically to relevant documents and
     that include relevant citations of authority; and (4) legible copies of the final
     grievance or arbitration decision, the agency decision to take the action, and other
     relevant documents, which may include a transcript or tape recording of the
     hearing. RFR, Tab 6; see 5 C.F.R. § 1201.155(d). The Clerk further explained
     that, to the extent that the appellant had not yet complied with those
     requirements, she may file a supplement to her request for review by March 2,
     2015, and that the record would close upon the expiration of the period allotted
     for the agency to file its response to the appellant’s request for review, April 6,
     2015. RFR, Tab 6 at 1; see 5 C.F.R. § 1201.155(f). The appellant resubmitted a
     corrected copy of her request for review, RFR, Tab 8, and the agency responded
     in opposition to the appellant’s request, RFR, Tab 9.
¶4        After the record closed, the appellant requested leave to submit a copy of
     the transcript. RFR, Tab 10. The agency responded in opposition, explaining
     that, because the appellant failed to show that the transcript was not readily
     available before the close of the record, she could not meet her burden in order to
     file it after the record had closed. RFR, Tab 11 at 4-5; see 5 C.F.R. § 1201.155(f)
     (“Once the record closes, no additional evidence or argument will be accepted
     unless the party submitting it shows that the evidence was not readily available
                                                                                              3

     before the record closed.”). The agency also asserted that the appellant’s request
     for review was incomplete because she had failed to file a copy of the agency’s
     decision removing her as required by 5 C.F.R. § 1201.155(d)(4). RFR, Tab 11 at
     4-5. 2
¶5            Although the appellant, who is represented by counsel, provided a copy of
     the arbitration decision and has explained the grounds on which she bases her
     request, with apparent citations to the transcript of the arbitration proceedings and
     to relevant authorities, RFR, Tab 4, she neglected to file the required copy of the
     agency’s decision, or to even address her failure to do so in her subsequent
     pleadings, see RFR, Tabs 10, 12.          Because the Clerk of the Board correctly
     articulated these requirements in its February 20, 2015 acknowledgment letter,
     the appellant was on notice regarding the requirement for her to submit, among
     other items, the agency’s decision. RFR File, Tab 5. Her failure to fully meet the
     mandatory requirements of 5 C.F.R. § 1201.155(d) precludes the Board from
     granting her request for review.
¶6            Moreover, even if she had complied with Board regulation and filed a copy
     of the agency’s decision, the appellant’s failure to submit the transcript, 3 or
     anything at all in support of the allegations set forth in her request for review,


     2
       The appellant subsequently submitted a request for an extension of time in which to
     file a reply to the agency’s response in opposition to her request for review. RFR, Tab
     12. The Clerk of the Board denied the appellant’s request because Board regulations do
     not provide for the filing of a reply to a response to a request for review of an
     arbitrator’s decision. RFR, Tab 13; see 5 C.F.R. § 1201.155.
     3
       The appellant’s request to supplement the record with a copy of the transcript
     indicates that she had a copy of the transcript in her possession but that she chose not to
     submit it when the record was still open because she did not have an electronic version
     of it. RFR, Tab 10 at 4. However, the appellant could have timely submitted the hard
     copy. Although the appellant’s representative registered as an e-filer, the appellant d id
     not do so, and, in any event, the Board’s electronic filing regu lations do not require the
     e-filing of any pleading, even for those who register as e-filers. See 5 C.F.R.
     § 1201.14(f). Because the appellant has failed to show that the transcript was
     unavailab le, despite her due diligence, before the close of the record, we deny her
     request to supplement the record with it. 5 C.F.R. § 1201.155(f).
                                                                                 4

leaves her unable to overcome the deference afforded the arbitrator’s factual
determinations. See, e.g., Weaver v. Social Security Administration, 94 M.S.P.R.
447, ¶ 13 (2003) (an arbitrator’s factual determinations are entitled to deference
unless he erred in his legal analysis, e.g., by misallocating burdens of proof or
employing the wrong analytical framework); Holly v. Department of Health &
Human Services, 92 M.S.P.R. 601, ¶ 10 (2002) (an appellant seeking review of an
arbitration decision has the burden of providing the Board with materials
necessary to support matters raised on review, including a transcript or tape
recording of the arbitration hearing); Higgs v. Social Security Administration,
71 M.S.P.R. 48, 51-52 (1996) (employee’s unsupported assertions that arbitrator
erred in her fact findings were insufficient to show that the arbitrator’s findings
conflicted with Board substantive law and thus did not provide a basis for setting
aside or modifying the arbitrator’s award where the record did not contain the
hearing transcript or exhibits).

                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:
                                                                                    5

                           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 United States
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 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
                                                                            6

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.
