                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2006-3293



                                 DEBORAH BANKS,

                                                           Petitioner,

                                            v.


                   NATIONAL PERSONNEL RECORDS CENTER,

                                                           Respondent.



      Deborah Banks, of St. Louis, Missouri, pro se.

       Dawn S. Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and William F. Ryan, Assistant Director.


On appeal from: The arbitrator’s decision
                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                        2006-3293



                                   DEBORAH BANKS,

                                                         Petitioner,

                                             v.

                     NATIONAL PERSONNEL RECORDS CENTER,

                                                         Respondent.



                            __________________________

                            DECIDED: January 9, 2007
                            __________________________



Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.




       Ms. Deborah Banks seeks review of an arbitrator's decision upholding her removal

from employment by the National Personnel Records Center ("NPRC"). Ms. Banks

contends that the arbitrator applied the incorrect statute, and that the correct statute does

not support the removal action. We affirm the arbitrator's decision.
                                       BACKGROUND

       Ms. Banks worked as an Archive Technician at the NPRC in St. Louis, Missouri.

She was responsible for sending requested military documents to United States veterans.

These documents usually contained personal information protected by the Privacy Act of

1974, 5 U.S.C. §552a, including such information as the veteran's social security number.

The charge, which Ms. Banks does not dispute, was that on six occasions she sent to a

requesting veteran the records of another person, which contained protected personal

information. Despite two counseling letters from NPRC, Ms. Banks did not improve her

performance. NPRC removed Ms. Banks on October 1, 2004, on the charge that she

released protected information to unauthorized persons. The agency states that it also

relied on other factors, particularly several past instances of absence without leave.

       Ms. Banks filed a grievance, through the American Federation of Government

Employees Local 104. The grievance was denied. Ms. Banks then proceeded to invoke

arbitration. After a hearing, the arbitrator ruled that NPRC's removal action did not violate

the Collective Bargaining Agreement, and that Ms. Banks was removed for just cause. Ms.

Banks appeals the arbitrator's decision.1

                                       DISCUSSION

       Pursuant to 5 U.S.C. §7121(f), "this court reviews decisions of arbitrators in

grievances affecting federal employees under the same standard of review that is applied


       1      Ms. Banks initially filed the appeal in the United States District Court for the
Eastern District of Missouri, appealing the arbitrator's decision and also filing a Title VII
discrimination complaint. The district court dismissed the Title VII complaint for failure to
exhaust administrative remedies, and transferred the appeal of the arbitrator's decision to
this court pursuant to 28 U.S.C. '1631. Banks v. Nat'l Personnel Records Center., No.
4:05-CV-1813 CAS (E.D. Mo. June 15, 2006).


2006-3293                                     2
to decisions from the Merit Systems Protection Board." Giove v. Dep't of Transportation,

230 F.3d 1333, 1338 (Fed. Cir. 2000). Thus the arbitrator's decision is reviewed to

determine if it was arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; obtained without procedures required by law, rule, or regulation; or

unsupported by substantial evidence. Cf. 5 U.S.C. §7703(c); Cheeseman v. Office of

Personnel Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

       The arbitrator's ruling that the notice and other provisions of the Collective

Bargaining Agreement were met is not challenged by Ms. Banks. The arbitrator found that

the criteria for removal under 5 U.S.C. §7501 et seq. ("Chapter 75") were met, in that the

agency had shown that the charged conduct occurred; that there is a nexus between the

charged conduct and the efficiency of the service; and that the penalty is appropriate to the

circumstances. Pope v. United States Postal Service, 114 F.3d 1144, 1147 (Fed. Cir.

1997) (citing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981)). The

arbitrator found no evidence that Ms. Banks was improperly removed, and that the removal

was for just cause. Ms. Banks argues that the arbitrator erred by applying Chapter 75

instead of 5 U.S.C. §4301 et seq. ("Chapter 43") to her removal. She states that Chapter

75 applies an "absolute" standard to assess performance, instead of the relative standard

that she attributes to Chapter 43.

       The arbitrator described the removal action as due to Ms. Banks' negligence in

performance of the duties of her position. In Fairall v. Veterans Administration, 844 F.2d

775 (Fed. Cir. 1988) this court discussed that negligent performance can include issues of

misconduct, neglect of duty, or malfeasance. 5 C.F.R. §731.202(b) includes "misconduct

or negligence in employment" as one of the factors to be considered in determining


2006-3293                                    3
whether the removal action will protect the integrity or promote the efficiency of the agency.

Prior disciplinary actions can also be considered.

       Chapter 75 states that an adverse personnel action can be taken "only for such

cause as will promote the efficiency of the service," a standard that can be met by

persistent employee error. Moreover, as reported in Guillebeau v. Dep't of the Navy, 362

F.3d 1329 (Fed. Cir. 2004), even Chapter 43 does not prohibit the use of absolute

performance standards when necessary to meet the agency's obligations.

       Ms. Banks does not dispute that the charged events occurred. The arbitrator found

that her negligent performance of her position's responsibilities adversely affected NPRC's

efficiency, caused delay and inconvenience to the veterans served by the agency, that the

penalty of removal was not excessive in view of the persistence of error, and that there

were no mitigating circumstances. See Fairall, 844 F.2d at 776 (affirming the Veterans

Administration's removal under chapter 75 of a medical technologist who had made errors

in recording blood test results). It has not been shown that the arbitrator's decision was

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

       Ms. Banks wrote to this court that she received disparate treatment due to

discrimination based on color and gender. Discrimination claims are not within our

jurisdiction, see n.1 supra.

       Affirmed, no costs.




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