                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VIRGIE L. GRANT-BROOKS,                         DOCKET NUMBERS
                   Appellant,                        CB-7121-16-0005-V-1
                                                     DC-0432-14-0855-I-1
                  v.

     DEPARTMENT OF THE TREASURY,
                 Agency.                             DATE: June 23, 2016



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Virgie L. Grant-Brooks, Irving, Texas, pro se.

           Christopher Sterbenz, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         In MSPB Docket Nos. DC-0432-14-0855-I-1 and CB-7121-16-0005-V-1,
     the appellant seeks review of an arbitration decision concerning her removal. The
     agency has filed a “Motion to Consolidate Appeals.” For the reasons discussed




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     below, we GRANT the agency’s motion, 2 JOIN the two matters, 3 AFFIRM the
     initial decision, and DISMISS the appellant’s request for review for lack of
     jurisdiction.

                                      BACKGROUND
¶2         Following the appellant’s failure to demonstrate an acceptable level of
     performance after receiving a Notice of Opportunity to Improve Performance
     (NOIP), the agency removed her from her Bank Examiner (Licensing Analyst)
     position effective October 19, 2013.        Grant-Brooks v. Department of the
     Treasury, MSPB Docket No. DC-0432-14-0855-I-1, Initial Appeal File (IAF),
     Tab 5 at 82, 84-85. The appellant elected to challenge her removal under the
     negotiated grievance procedure set forth in the collective bargaining agreement
     (CBA) between the agency and the union that represented her. Id. at 29, 83. In a
     decision issued on June 2, 2014, the arbitrator denied the grievance. Id. at 81.
¶3         On June 23, 2014, the appellant filed an “appeal” with the Board’s
     Washington Regional Office challenging the arbitration decision.        IAF, Tab 1
     at 1-6, 34.     Recognizing that the “appeal” was a request for review of the
     arbitration decision, the administrative judge issued an initial decision dismissing
     the matter and forwarding the request for review to the Clerk of the Board for
     adjudication. IAF, Tab 8, Initial Decision (ID) at 1-2.
¶4         The appellant has filed a petition for review of the initial decision.
     Grant-Brooks v. Department of the Treasury, MSPB Docket No. DC-0432-14-
     0855-I-1, Petition for Review (PFR) File, Tab 1. In response, the agency has
     filed a motion to consolidate the petition for review with the request for review,



     2
      We interpret the agency’s motion to consolidate as a motion for joinder. Request for
     Review File, Tab 8. Joinder, not consolidation, is appropriate where, as here, one
     person has filed two or more appeals. 5 C.F.R. § 1201.36(a).
     3
      We join the two appeals because doing so will expedite case processing and will not
     adversely affect the parties’ interests. 5 C.F.R. § 1201.36(b).
                                                                                           3

     which the Clerk of the Board separately docketed. PFR File, Tab 3; Request for
     Review (RFR) File, Tab 2.
¶5         In a letter acknowledging the request for review, the Clerk of the Board
     informed the appellant of the Board’s regulations regarding a request for review
     of an arbitration decision and her ability to file a supplement to her request for
     review. RFR File, Tab 2 at 1. She has filed a supplement, RFR File, Tab 5, to
     which the agency has responded, RFR File, Tab 7. The Board has issued a Show
     Cause Order apprising the appellant of her jurisdictional burden and ordering her
     to file evidence and argument on whether she raised a claim of discrimination
     under 5 U.S.C. § 2302(b)(1) with the arbitrator. RFR File, Tab 9. Both parties
     have responded. RFR File, Tabs 10-11.

                                          ANALYSIS
     The Board lacks jurisdiction over the appellant’s request for review of the
     arbitration decision.
¶6         The Board has jurisdiction over a request for review of an 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. 4 Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 3, 8 (2013), aff’d,
     589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R. § 1201.155(a)(1), (c).


     4
       In non-Postal Service cases, requests for review of arbitration decisions are properly
     reviewed by the full Board and not by the Board’s administrative judges. 5 U.S.C.
     § 7121(d); Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005), aff’d,
     213 F. App’x 993 (Fed. Cir. 2007). Thus, the administrative judge correctly declined to
     accept jurisdiction over this matter once she realized that the appellant was seeking
                                                                                             4

¶7         Applying this jurisdictional standard, we conclude that the appellant cannot
     establish Board jurisdiction over her request for review of the arbitration decision
     because she could have, but did not, raise a discrimination claim with the
     arbitrator in the grievance proceeding.       See Jones, 120 M.S.P.R. 480, ¶¶ 9-10;
     5 C.F.R. § 1201.155(c). The record reflects that the applicable CBA allows for
     claims of discrimination to be raised in the course of a grievance proceeding.
     RFR File, Tab 7 at 129. 5 The record further reflects that the appellant did not
     raise a claim of discrimination under 5 U.S.C. § 2302(b)(1) in the course of her
     grievance proceeding. The arbitrator stated in his decision that the parties agreed
     that the only two issues before him were: (1) whether the agency sufficiently
     communicated to the appellant the minimum level of performance required to
     avoid removal under 5 U.S.C. chapter 43; and (2) whether the agency provided
     the appellant with a reasonable opportunity to improve her performance during
     the NOIP. IAF, Tab 5 at 72, 77.
¶8         The appellant admits in her response to the Show Cause Order that she did
     not raise a claim of discrimination during the grievance proceeding, but alleges
     that she could not have done so. RFR File, Tab 10 at 3. Specifically, she argues
     that the agency’s restructure mandated by the Dodd-Frank Wall Street Reform
     and Consumer Protection Act (Dodd-Frank Act) “provoked” her termination and
     did not conclude until after the grievance was filed.           Id.   We find that this
     argument does not alter the dispositive facts that the CBA permits allegations of
     discrimination and the appellant did not raise any during the grievance
     proceeding. 5 C.F.R. § 1201.155(c). Further, the appellant’s transfer from the


     review of an arbitration decision rather than filing a direct appeal of her removal. ID at
     2; see Brent, 100 M.S.P.R. 586, ¶ 6.
     5
       The agency states that, between the appellant’s removal and the arbitration hearing,
     the agency and the union that represented her entered into a new CBA that did not
     materially change the ability of represented employees to grieve discrimination
     complaints. RFR File, Tab 7 at 10 n.3. The appellant does not dispute this statement or
     raise the different versions of the CBA as an issue.
                                                                                       5

      Office of Thrift Supervision to the Office of the Comptroller of the Currency,
      consistent with the requirements of the Dodd-Frank Act, was completed prior to
      her removal.    Dodd-Frank Act, Pub. L. No. 111-203, § 322(a)(1)(A), 124 Stat.
      1376, 1529 (2010) (codified at 12 U.S.C. § 5432(a)(1)(A)); PFR File, Tab 10,
      Arbitration Hearing Transcript at 209-10; IAF, Tab 5 at 82, 84.

      The appellant’s other claims do not provide a basis for jurisdiction.
¶9          The appellant alleges that the agency subjected her to several prohibited
      personnel practices under 5 U.S.C. § 2302(b) by providing “falsified and
      misrepresented information” during the grievance proceeding, discriminating and
      retaliating against her for disclosing violations of equal employment opportunity
      (EEO) laws and the Dodd-Frank Act, and denying her training opportunities
      based on her race and sex. RFR File, Tab 1 at 3, Tab 5 at 1-3, Tab 10 at 3;
      PFR File, Tab 1 at 3; IAF, Tab 7 at 1. However, the Board lacks independent
      jurisdiction over prohibited personnel practices. See Wren v. Department of the
      Army, 2 M.S.P.R. 1, 2 (1980) (finding that a prohibited personnel practice under
      5 U.S.C. § 2302(b) is not an independent source of Board jurisdiction), aff’d,
      681 F.2d 867 (D.C. Cir. 1982). Further, the appellant’s reliance on Burlington
      Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70 (2006), in which
      the U.S. Supreme Court addressed the scope of an employee’s protection from
      EEO retaliation, is misplaced because it does not address the dispositive
      jurisdictional issue.   RFR File, Tab 10 at 3.   Similarly, the cases cited by the
      appellant concerning the merits of her performance-based removal do not address
      the dispositive jurisdictional issue. RFR File, Tab 5 at 2-3.
¶10         To the extent the appellant is disputing her lowered performance appraisal
      rating, we find that the Board lacks jurisdiction over that claim. IAF, Tab 7 at 3;
      see Bambl v. Department of the Treasury, 113 M.S.P.R. 55, ¶ 9 (2010) (observing
      that the Board generally lacks jurisdiction over appeals of performance appraisal
      ratings).
                                                                                         6

¶11         Finally, to the extent the appellant is attempting to file an individual right
      of action (IRA) appeal under 5 U.S.C. § 1221(a), she must first exhaust her
      administrative remedies with the Office of Special Counsel (OSC) before filing
      such an appeal with the Board. 5 U.S.C. § 1214(a)(3); Cassidy v. Department of
      Justice, 118 M.S.P.R. 74, ¶ 5 (2012); 5 C.F.R. § 1209.2(b)(1).        Although the
      administrative judge apprised the appellant of this requirement, she has not
      claimed OSC exhaustion on review. ID at 2 n.1.
¶12         We conclude that the Board lacks jurisdiction to review the arbitration
      decision concerning the appellant’s removal, and, thus, deny her request for
      review. 6

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
             You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                    U.S. 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).


      6
        Given the appellant’s pro se status, we have interpreted her arguments liberally.
      RFR File, Tab 5 at 3; see, e.g., Melnick v. Department of Housing & Urban
      Development, 42 M.S.P.R. 93, 97-98 (1989) (observing that parties without legal
      representation are not required to plead issues with precision), aff’d, 899 F.2d 1228
      (Fed. Cir. 1990) (Table).
                                                                                  7

      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 U.S. 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 U.S. 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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. 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.
