                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ELIZABETH G. TEKLEABIB,                            DOCKET NUMBER
                   Appellant,                           CB-7121-15-0029-V-1

                  v.

     DEPARTMENT OF STATE,                               DATE: June 30, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL ∗

           James Lensen-Callas, San Francisco, California, for the appellant.

           Julie Falis, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a request for review of an arbitrator’s decision that
     denied the grievance that she filed under the agency’s negotiated grievance
     procedure concerning her removal. For the reasons set forth below, we DISMISS
     the request for review for lack of jurisdiction.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2         Following her unsuccessful completion of a performance improvement plan
     (PIP), the agency removed the appellant, a passport specialist, in a chapter 43
     action for unacceptable performance. Request for Review (RFR) File, Tab 1 at
     11-24.     The appellant elected to challenge her removal under the negotiated
     grievance procedure set forth in her collective bargaining agreement and the
     arbitrator denied her grievance.   RFR File, Tab 5 at 11-61.       After carefully
     reviewing the evidence, the arbitrator found that 17 of the 28 Significant
     Knowledge Errors (SKEs) the agency cited were not errors at all.        Id. at 61.
     However, because substantial evidence indicated that the appellant still
     committed 11 SKEs, almost twice the benchmark number of 6 SKEs allowed
     during the term of her PIP, he ultimately determined that the appellant’s removal
     was proper under the terms of the law and her collective bargaining agreement.
     Id.
¶3         In her timely request for review of the arbitrator’s decision, the appellant
     argues that the agency created a hostile work environment by embarrassing,
     intimidating, and insulting her. RFR File, Tab 1 at 6. She also argues that the
     agency committed harmful procedural errors, in that the overcharging of SKE
     errors by the agency affected her performance under the PIP, leaving her
     confused and misguided and ultimately leading to her removal. Id. The Clerk of
     the Board issued an acknowledgement letter setting forth the regulatory
     requirements for a request for review of an arbitrator’s decision. RFR File, Tab
     2. The appellant replied, primarily addressing the substance of her chapter 43
     removal.    RFR File, Tab 4.    The agency has responded in opposition to the
     appellant’s request for review, arguing that her failure to raise a discrimination
     claim before the arbitrator precludes Board review of that decision. RFR File,
     Tab 5.
¶4         The Board has jurisdiction over a request for review of a final grievance or
     arbitrator’s decision under 5 U.S.C. § 7121(d) when: (1) the subject matter of the
     grievance is one over which the Board has jurisdiction; (2) the appellant either
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     (i) raised a claim of discrimination in connection with the underlying action under
     5 U.S.C. § 2302(b)(1) in the negotiated grievance procedure, 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.   5 C.F.R. § 1201.155(a)(1), (c); see Jones v. Department of Energy,
     120 M.S.P.R. 480, ¶ 8 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014).
¶5        Article 20, Section 4 of the appellant’s collective bargaining agreement
     allows her to raise a claim of discrimination under the negotiated grievance
     procedure. RFR File, Tab 5 at 65. The record does not reflect that she did so. In
     its submission, the agency provides a portion of a pleading that the appellant filed
     before    the   Equal   Employment   Opportunity    Commission     in   which   she
     affirmatively states that she did not raise a discrimination claim before the
     arbitrator in the instant matter. Id. at 70-75. The appellant claimed therein that
     she did not have the option of raising a discrimination issue in the negotiated
     grievance procedure because of her prior-filed formal equal employment
     opportunity complaint, and that, if she had raised the issue, the grievance would
     have been dismissed. Id. at 73-74. She also argues that the grievance and the
     EEO complaint are separate matters, and asserts that “an employee who submits a
     discrimination claim to arbitration under a collective bargaining agreement is not
     precluded from suing his or her employer under Title VII.” Id. at 74-75 (citing
     Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 (1974)).
¶6        However, whether the appellant may assert her discrimination claims in
     multiple venues under different authorities is not the question before us.
     Because, as noted above, the appellant’s collective bargaining agreement
     indicates that she may raise a discrimination claim in the negotiated grievance
     procedure, RFR File, Tab 5 at 65, the jurisdictional question in this matter is
     whether the appellant raised a discrimination claim in the arbitration proceeding
     for which she seeks review; only if she did so may she request Board review of
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the arbitrator’s decision, 5 C.F.R. § 1201.155(a)(1), (c).      The record clearly
reflects that the appellant did not raise a discrimination claim in the arbitration
proceeding for which she seeks Board review. We find, therefore, that the Board
does not have jurisdiction over the appellant’s request for review.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
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     If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
