                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JENIQUA IRENE KNUCKLES,                         DOCKET NUMBER
                   Appellant,                        CB-7121-14-0025-V-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 27, 2015
                 Agency.



                 THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Jeniqua Irene Knuckles, Grovetown, Georgia, pro se.

           Christopher M. Kenny, Fort Gordon, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         Pursuant to 5 U.S.C. § 7121(d), the appellant has filed a request for review
     of a May 20, 2014 step three grievance decision affirming her removal. For the
     reasons set forth below, we DISMISS the appellant’s request for review for lack
     of jurisdiction.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2        On March 25, 2014, the appellant, through her union representative, filed,
     in accordance with negotiated grievance procedure, a step three grievance
     challenging her removal from federal service. Request for Review (RFR) File,
     Tab 3 at 22, 24-25. The appellant claimed, among other things, that the agency
     discriminated against her on the bases of gender and race when it removed her.
     Id. at 25. In a decision dated May 20, 2014, the agency affirmed the removal
     action, finding the action justified by the evidence and reasonable under the
     circumstances. 2 Id. at 32-33.
¶3        On August 1, 2014, in an action separate from the present appeal, the
     appellant filed an appeal of the removal action, which the administrative judge
     dismissed as untimely filed. 3 Knuckles v. Department of the Army, MSPB Docket
     No. AT-0752-14-0881-I-1, Initial Decision (Sept. 4, 2014).             Thereafter, on
     September 5, 2014, the appellant filed the present appeal in which it appeared that
     she was requesting the Board’s review of the step three grievance decision. RFR
     File, Tab 1. The Office of the Clerk of the Board (the Clerk) consequently issued
     a notice, explaining that the submission had been docketed as a request for review
     of a final grievance or arbitration decision. RFR File, Tab 2. The Clerk informed
     the appellant that such a request for review must include: a statement of the
     grounds on which review is requested; references to evidence of record or rulings
     related to the issues before the Board; arguments in support of the stated grounds
     that refer specifically to relevant documents and that include relevant citations of
     authority; and legible copies of the final grievance or arbitration decision, the
     agency decision to take the action, and other relevant documents. Id.


     2
      It appears that the appellant informally requested reconsideration of the May 20, 2014
     grievance decision, which the agency denied in an email dated June 23, 2014. RFR
     File, Tab 1 at 4, 9, Tab 6 at 5, 10.
     3
       The appellant has filed a petition for review of that initial decision.   We do not
     address the merits of that matter herein.
                                                                                            3

¶4         The appellant has filed a timely response to the Clerk’s notice in which she
     argues, among other things, that the Board has jurisdiction to review the
     grievance decision under 5 U.S.C. § 7121(d) and that the agency committed
     harmful procedural error and violated her due process rights when it removed her.
     RFR File, Tab 3 at 5-11. She also continues to assert that the removal action was
     discriminatory. Id. at 12. The agency has filed a response in opposition to the
     appellant’s request for review.       RFR File, Tab 6.       In its response, the agency
     argues that the Board lacks jurisdiction over the matter because the agency did
     not issue a final decision on her grievance under 5 U.S.C. § 7121(d). Id. at 5-6.
     The agency also argues that her request for review is untimely filed and without
     merit. Id. at 6-9.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The Board has jurisdiction over a request for review of a final grievance or
     arbitration 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
     (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).
¶6         Applying this jurisdictional standard, the appellant cannot establish Board
     jurisdiction over her request for review because she fails to satisfy the third
     jurisdictional criterion.     Specifically,   under the applicable Labor-Management
     Agreement, the May 20, 2014 step three grievance decision was not a final
                                                                                       4

     decision appealable to the Board under 5 U.S.C. § 7121(d). 4 Article 34 of the
     Labor-Management Agreement provides that if the appellant or the union was not
     satisfied with the agency’s decision on the appellant’s step three grievance, the
     union could refer the matter to arbitration within 20 workdays of its receipt of the
     decision.    MSPB Docket No. AT-0752-14-0881-I-1, Initial Appeal File, Tab 6
     at 15.     It is undisputed, however, that the union declined to elect arbitration
     pursuant to the negotiated grievance procedure. RFR File, Tab 1 at 18, Tab 6
     at 5. Under these circumstances, the Board lacks jurisdiction over the appellant’s
     request for review.
¶7            Under similar circumstances, the U.S. Court of Appeals for the Federal
     Circuit, in Farmer v. Merit Systems Protection Board, 17 F.3d 1444 (Fed. Cir.
     1994) (Table), affirmed a Board final decision that dismissed the appellant’s
     appeal of his removal by reduction in force for lack of jurisdiction. The court
     determined that the Board lacked jurisdiction over the appeal because the
     appellant made a binding election under 5 U.S.C. § 7121(d) to grieve the adverse
     action through a negotiated grievance procedure and that he, therefore,
     “retain[ed] no statutory right to de novo review of the action” by the Board. Id.
     at *2. The court also found that the Board lacked jurisdiction over the appeal as a
     request for review of a final grievance decision because, due to the union’s
     withdrawal of its request for arbitration in the matter, the appellant lacked an
     arbitrator’s final decision on which to base a Board appeal. Id. In so finding, the
     court rejected the appellant’s argument that his step three grievance decision
     should constitute a final grievance decision for purposes of Board review. Id.
     The court found that, because the collective bargaining agreement provided for


     4
       Pursuant to 5 C.F.R. § 1201.64, we take official notice of the Labor-Management
     Agreement, which was entered into the record by the administrative judge in the
     appellant’s appeal of her removal. MSPB Docket No. AT-0752-14-0881-I-1, Initial
     Appeal File, Tab 6 at 9-18; see Thomson v. Department of Transportation, 92 M.S.P.R.
     392, ¶ 6 (2002).
                                                                                            5

     arbitration as a last resort, his step three grievance decision was not a final
     decision on his grievance. Id. Specifically, the court found:
           Thus, if Farmer were dissatisfied with Navy’s decision at step three
           of the grievance proceeding, his only remaining option was to have
           the Union initiate arbitration proceedings, a decision at the end of
           which would constitute a final decision within the meaning of
           section 1201.154(d). 5     Any other decision in the grievance
           proceeding, if not satisfactory to Farmer, merely provided Farmer
           with an opportunity to pursue a “final decision” on which he could
           appeal to the Board. That Farmer ultimately surrendered his
           opportunity through the Union’s actions, however, does not render
           the decision at step three “final” such that he can then appeal to the
           Board without first following through on a request for arbitration,
           because the agreement specifically provides for the next procedural
           step to be followed.
     Id.
¶8         Although Farmer is nonprecedential and thus not binding on the Board, the
     Board has held that it may rely on unpublished Federal Circuit decisions, where,
     as here, it finds the court’s reasoning persuasive. 6 See Vores v. Department of the
     Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).
     Here, the Federal Circuit applied the same reasoning that the Board has
     consistently   applied   in   comparable     cases.     See   Parks    v.   Smithsonian
     Institution, 39 M.S.P.R. 346, 349 (1988) (finding that a final decision, which is
     appealable to the Board under 5 U.S.C. § 7121(d), is the arbitrator’s decision in
     cases where the grievance procedure provides for arbitration as the last resort);
     see also Clark v. Equal Employment Opportunity Commission, 31 M.S.P.R. 455,



     5
       The regulation governing requests for review of arb itrator’s decisions is now found at
     5 C.F.R. § 1201.155.
     6
       In Rhoads v. Board of Education of Mad River Local School District, 103 F. App’x
     888, 897-98 (6th Cir. 2004) (Table), the Sixth Circuit found the Federal Circuit’s
     reasoning in Farmer persuasive and cited the decision in finding that the
     plaintiff-appellant had not established a due process violation on account of the union’s
     decision not to pursue arbitration.
                                                                                            6

      457 (1986) (same); Garland v. Department of Labor, 13 M.S.P.R. 629, 631
      (1982) (same).
¶9          The Federal Circuit’s reasoning in Farmer is also consistent with the
      Board’s approach in removal appeals under 5 U.S.C. § 7121(e), in which the
      Board has long held that, where an appellant undisputedly elected to first
      challenge his removal through the negotiated grievance procedure, the Board will
      not assert jurisdiction over the matter even in cases where the union decided not
      to arbitrate the appellant’s grievance of his removal. See Martinez v. Department
      of Justice, 85 M.S.P.R. 290, ¶ 10 (2000) 7; see also Higgs v. U.S. Postal
      Service, 14 M.S.P.R. 154, 156-57 (1982) (election of arbitration remedy is
      binding notwithstanding subsequent dissatisfaction with the choice; the Board is
      not a guarantor of merits of review in the grievance and arbitration process),
      overruled on other grounds by Hall v. U S. Postal Service, 26 M.S.P.R. 233
      (1985).
¶10         Because the Labor-Management Agreement provided for arbitration and the
      union did not refer the matter to arbitration, there is no final decision within the
      meaning of 5 U.S.C. § 7121(d).           See Gustave-Schmidt v. Department of
      Labor, 87 M.S.P.R. 667, ¶ 4 (2001) (noting that an arbitration decision is a final
      grievance decision); see also Parks, 39 M.S.P.R. at 349 (explaining that a final
      decision, which is appealable to the Board under 5 U.S.C. § 7121(d), “is the
      arbitrator’s decision in cases where the grievance procedure provides for
      arbitration as the last resort”). Therefore, we dismiss the appellant’s request for




      7
        Although the Board’s decision in Martinez concerned the appellant’s request to reopen
      his removal appeal under 5 U.S.C. § 7121(e), the Board also found, as in Farmer, that it
      lacked jurisdiction over the appellant’s appeal under section 7121(d) because the
      appellant there, like the appellant here, lacked a final grievance decision
      notwithstanding the union’s decision not to elect arb itration. Martinez, 85 M.S.P.R.
      290, ¶ 12.
                                                                                    7

review of the grievance decision for lack of jurisdiction. 8 Absent an otherwise
appealable action, the Board lacks jurisdiction to review the appellant’s claims of
harmful procedural error, due process, and discrimination.             See Wren v.
Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982). 9
                   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.

8
  Given our disposition, we need not address the apparent untimeliness of the
appellant’s request for review.
9
 We make no finding on whether the Equal Employment Opportunity Commission
would determine that it has jurisdiction over a comparable complaint, if the appellant
were to choose to file there. See Gayle-Smith v. Department of Education, EEOC
Appeal No. 02A40012, 2004 WL 2535242 (Nov. 1, 2004).
                                                                                  8

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.
      If you are interested in securing pro bono representation for an appeal to the
United States 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.
