                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MONYNA Y. DORSEY,                               DOCKET NUMBER
                  Appellant,                         DC-0752-14-0794-I-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: December 3, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Monyna Y. Dorsey, Washington, D.C., pro se.

           Benjamin K. Ahlstrom, Sharyn Danch, and Laurie Wood,
             Alexandria, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal of her 15-day suspension as settled.            For the reasons
     discussed below, we GRANT the appellant’s petition for review, VACATE the
     initial decision, and DISMISS the appeal for lack of jurisdiction.


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2         By letter dated May 8, 2014, the agency notified the appellant that she
     would be suspended for 15 calendar days based on a charge of improper conduct.
     Initial Appeal File (IAF), Tab 6 at 37-42.        The decision letter informed the
     appellant that she could elect to pursue the matter by one of the following routes:
     filing a Board appeal, filing a grievance under the applicable collective
     bargaining agreement (CBA), filing a complaint with the equal employment
     opportunity office, or seeking corrective action with the Office of Special
     Counsel. Id. at 41. The letter further advised the appellant that, if she elected to
     appeal to arbitration under the negotiated grievance procedure, the union had 20
     workdays after the appellant’s receipt of the letter to invoke arbitration. Id. at 42.
     The letter was signed by the deciding official on May 12, 2014. Id. at 37. The
     appellant states, and the agency does not dispute, that she received the letter on
     May 13, 2014. Petition for Review (PFR) File, Tab 1 at 4. On June 11, 2014, the
     National Treasury Employees Union (NTEU) invoked arbitration on the
     appellant’s behalf pursuant to her authorization. 2 Id. at 25; PFR File, Tab 6.
¶3         On June 13, 2014, the appellant filed a timely appeal of her suspension.
     IAF, Tab 1. During the prehearing conference, the parties reached a settlement of
     the appeal, and the administrative judge recorded the terms of the oral settlement
     agreement. See Hearing Compact Disc (HCD). Thereafter, the administrative
     judge dismissed the appeal as settled. Id.; see IAF, Tab 19, Initial Decision (ID)
     at 1-2.
¶4         The appellant submitted a letter to the administrative judge 1 day prior to
     the initial decision becoming final “inform[ing] [him] that [she] would not be
     signing the settlement agreement made at the MSPB Pretrial Hearing[.]”


     2
       The appellant was a member of a bargaining unit represented by the NTEU. IAF,
     Tab 6 at 24. Pursuant to the CBA, “if an employee elects to appeal an adverse action to
     arbitration, [the] NTEU must invoke arbitration within twenty (20) workdays of the
     employee’s receipt of the [agency’s] final decision.” Id. at 28.
                                                                                      3

     PFR File, Tab 1 at 4. In her submission, the appellant alleged that the agency had
     provided her with inaccurate information concerning the timing of filing a
     grievance, and she asserted that her union had timely invoked arbitration several
     days before she filed her Board appeal. Id. The appellant argued that, because
     her union had timely invoked arbitration, the Board was “ineligible” to hear her
     appeal and that she would not sign the agreement. Id. The appellant’s letter was
     forwarded to the Clerk of the Board for docketing as a petition for review.
     PFR File, Tab 2.
¶5        The agency has filed a response in opposition to the appellant’s petition for
     review in which it maintains that the parties entered into a valid, binding oral
     settlement agreement during the prehearing conference before the administrative
     judge and that the appellant has failed to demonstrate that the settlement
     agreement should be set aside. PFR File, Tab 4 at 5-6. Although the appellant
     has not filed a reply in response to the agency’s opposition, the NTEU has filed a
     motion for leave to file a reply and also has moved to permissively intervene
     pursuant to 5 C.F.R. § 1201.34. PFR File, Tabs 7, 9.
¶6        In its motion to intervene, the NTEU contends that it invoked arbitration
     over the appellant’s 15-day suspension 2 days before the appellant filed her Board
     appeal and that it first learned of the settlement reached in the Board appeal when
     the agency provided it with a copy of a draft written settlement agreement
     purporting to withdraw the arbitration proceeding as part of the settlement of the
     appellant’s Board appeal.    PFR File, Tab 7 at 1.      The NTEU thus seeks to
     intervene in this matter as a party of interest because the Board’s decision could
     “impact the arbitration previously invoked by NTEU.” Id. at 2. Based on our
     determination below that the Board lacks jurisdiction over the appellant’s appeal
     because the appellant elected the negotiated grievance procedure, the NTEU’s
     motion to intervene is denied.
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                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        Pursuant to 5 U.S.C. § 7121(e)(1), matters covered under sections 4303 and
     7512 of title 5, which also fall within the coverage of the negotiated grievance
     procedure may be raised, at the discretion of the aggrieved employee, either under
     the appellate procedures of section 7701 of title 5 or under the negotiated
     grievance procedure, but not both.         Kendrick v. Department of Veterans
     Affairs, 74 M.S.P.R. 178, 181 (1997). When an employee has the option of either
     filing an appeal under the procedures of section 7701 or under the negotiated
     grievance procedure, the Board considers the choice between these procedures to
     have been made when the employee timely files an appeal with the Board or
     timely files a written grievance, whichever event occurs first.         Id.; Jones v.
     Department of Justice, 53 M.S.P.R. 117, 120 (1992), aff’d, 983 F.2d 1088 (Fed.
     Cir. 1993) (Table); 5 C.F.R. § 1201.3(c)(2).       Once a timely filing is made to
     pursue a path, the other is forever waived. Rodriguez v. Merit Systems Protection
     Board, 804 F.2d 673, 675 (Fed. Cir. 1986). An agency must notify the employee
     of her options under 5 U.S.C. § 7121(e)(1) for her choice to be deemed a valid,
     informed election. Miyai v. Department of Transportation, 32 M.S.P.R. 15, 20
     (1986); see Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1327 (Fed.
     Cir. 2006) (“In order to comply with [5 U.S.C. § 7121(e)(1)], the agency must
     properly inform an employee of [his] choices.”).
¶8        Here, the appellant challenged her suspension through the negotiated
     grievance procedure prior to filing a Board appeal. IAF, Tab 1, Tab 6 at 25. The
     appellant’s election of the negotiated grievance process was timely because the
     union invoked arbitration within 20 workdays of the appellant’s receipt of the
     decision letter, consistent with the terms of the CBA. 3 IAF, Tab 6 at 25, 91;
     PFR File, Tab 1 at 4.



     3
      The agency alleged below that the appellant’s election of the grievance procedure was
     untimely. IAF, Tab 6 at 15. On review, however, the agency concedes that it
                                                                                         5

¶9             Moreover, the appellant was properly informed of her appeal rights and the
      consequences of exercising one of those options.          The appellant received a
      decision letter, which provided her with several options to appeal the agency’s
      decision to suspend her, including her rights to appeal to the Board or under the
      negotiated grievance procedures. IAF, Tab 6 at 41-42. Additionally, the letter
      stated that the appellant would be deemed to have exercised her choice of appeal
      procedure if and when she made a timely filing as described in the letter. Id.
      at 41.    We therefore find that the appellant’s election to file a grievance was
      informed.      See Atanus, 434 F.3d at 1327 (finding that the appellant made an
      informed election where the agency clearly notified her of her appeal options and
      that she only could pursue one option).
¶10            In addition, we find that the appellant authorized the union to invoke
      arbitration    on   her   behalf.   Cf.   Morales   v.   Merit   Systems   Protection
      Board, 823 F.2d 536, 538-39 (1987) (finding that the union’s election of
      arbitration was void where there was “no evidence that [the appellant] requested
      the union to file an arbitration proceeding on her behalf”).          The appellant
      indicated on her initial appeal form that a grievance challenging her 15-day
      suspension had not been filed by her or by anyone on her behalf. IAF, Tab 1 at 4.
      However, she acknowledged on review that this was not the case. PFR File, Tabs
      1, 6.     She stated that, after receiving the agency’s decision letter, she had
      authorized the union to invoke arbitration on her behalf. PFR File, Tab 6 at 4.
      She alleged that she subsequently filed a Board appeal because she was unable to
      determine whether the union had invoked arbitration within the filing deadline.
      Id.




      miscalculated the timeliness of the election because it counted calendar days, rather
      than workdays, in its calculation. PFR File, Tab 4 at 7.
                                                                                            6

¶11         Under these circumstances, we find that the appellant timely elected the
      negotiated grievance procedure. 4 When she did so, her right to elect a Board
      appeal was forever waived. We therefore vacate the initial decision dismissing
      the appeal as settled and instead dismiss the appeal for lack of jurisdiction. See
      Evans v. Selective Service System, 91 M.S.P.R. 376, ¶ 6 n.3 (2002) (stating that, if
      the Board lacks jurisdiction over an appeal, it also would lack jurisdiction to
      review the terms of a settlement agreement).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            This   Final   Order    constitutes   the   Board’s   final   decision   in   this
      matter. 5 C.F.R. § 1201.113. 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).
      4
        In its response to the appellant’s petition for review, the agency claims that the
      appellant made a knowing election to file a Board appeal. PFR File, Tab 4 at 6-9. We
      find this argument unavailing. The appellant avers, and the record supports, that she
      did not know that the union had timely invoked arbitration on her behalf given the
      agency’s mistaken assertions during the proceeding below that the invocation was
      untimely. IAF, Tab 7 at 15, 24; HCD; PFR File, Tab 1 at 4. Indeed, during the
      prehearing conference in which the oral settlement agreement was reached, the
      appellant declared that she had no outstanding claims against the agency other than the
      present Board appeal. HCD. Under the circumstances, therefore, we find that the
      appellant did not make a knowing election to proceed before the Board.
                                                                                    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 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.
      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.
