                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY J. SILVERIA,                             DOCKET NUMBER
                   Appellant,                         SF-531D-16-0042-I-1

                  v.

     DEPARTMENT OF VETERANS                           DATE: January 6, 2017
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony J. Silveria, Citrus Heights, California, pro se.

           Barbara Ann T. Konno, Esquire, Palo Alto, California, 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 for lack of jurisdiction his appeal of the agency’s denial of a
     within-grade increase (WIGI). Generally, we grant petitions such as this one only
     in the following circumstances: the initial decision contains erroneous findings


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     of material fact; the initial decision is based on an erroneous interpretation of
     statute or regulation or the erroneous application of the law to the facts of the
     case; the administrative judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. Title 5 of
     the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
     fully considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     We therefore DENY the petition for review. Except as MODIFIED as to the basis
     for finding that the Board lacks jurisdiction over the appellant’s WIGI denial, we
     AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant held the General Schedule position of Veterans Service
     Representative (Rating) at the agency’s Veterans Service Center in Oakland,
     California.     Initial Appeal File (IAF), Tab 4 at 42.    By memorandum dated
     January 14, 2014, the appellant’s supervisor notified him that his work
     performance was at a less than acceptable level of competence (ALOC) and, as a
     result, both his scheduled promotion and his WIGI were being withheld.            Id.
     at 12-13, 37.     The supervisor notified the appellant of his right to request
     reconsideration of the negative determination within 15 days of his receipt of the
     notice.   Id. at 37.    The supervisor also informed the appellant that, under
     article 40, section 1(E) of the Master Agreement, 2 he could be considered for a




     2
       The Master Agreement is a collective bargaining agreement between the agency and
     the American Federation of Government Employees, of which the appellant is a
     member. IAF, Tab 4 at 15, 44.
                                                                                             3

     WIGI not later than 60 days after he became eligible for the promotion action if
     he was able to demonstrate an ALOC in his work. Id. at 37, 47.
¶3         On January 28, 2014, the appellant wrote a “personal statement response”
     addressed to his supervisor that was “to be submitted in conjunction with the
     [American Federation of Government Employees (AFGE)] union’s [step-1]
     grievance” of his WIGI denial. Id. at 21-24. The appellant copied union officials
     on his response. Id. at 21.
¶4         On February 19, 2014, the appellant, his supervisor, and union officials
     exchanged email messages setting up a meeting for that day to discuss the
     step-1 grievance.     Id. at 19-20.    At the meeting, the supervisor read to the
     appellant and the union representative his written decision dated F ebruary 19,
     2014, that denied the step-1 grievance.        Id. at 14, 17-18, 20.     The supervisor
     declared under penalty of perjury that the appellant and the union did not notify
     him of any further grievance proceedings concerning the WIGI denial. Id. at 14.
¶5         Effective June 29, 2014, the agency removed the appellant from his
     position. IAF, Tab 1 at 14. The appellant filed a Board appeal of his removal
     and the WIGI denial.        Id. at 1-5.    He raised claims of harmful procedural
     error, hostile   work   environment,      disability   discrimination,   retaliation   for
     whistleblowing activity, and retaliation for equal employment opportunity (EEO)
     activity. Id. at 5.
¶6         The administrative judge separately docketed the instant appeal of the WIGI
     denial and the appellant’s removal appeal.               IAF, Tab 2 at 1. 3        In an
     acknowledgment order, the administrative judge informed the appellant of his
     burden of proving jurisdiction over his appeal of the WIGI denial. Id. at 2. She
     explained to him that the Board generally may exercise jurisdic tion over an
     appeal from an agency’s withholding of a WIGI only if the agency has affirmed
     its decision on reconsideration or denied the appellant an opportunity for
     3
       The appellant’s removal appeal was docketed as MSPB Docket No. SF-0752-15-0749-
     I-1. IAF, Tab 2 at 1.
                                                                                        4

     reconsideration. Id. at 3. She ordered him to file evidence and argument on the
     jurisdictional issue. IAF, Tab 2 at 3, Tab 6 at 1.
¶7         The appellant filed responses regarding jurisdiction. IAF, Tabs 5, 7. He
     also filed motions to compel discovery and to disqualify the administrative judge,
     and an objection to the separation of his claim regarding the WIGI denial from his
     removal appeal. IAF, Tabs 3, 5. The agency filed a motion to dismiss the appeal
     for lack of jurisdiction. IAF, Tab 4 at 4-10. The administrative judge denied the
     appellant’s motions for her recusal and for the assignment of another
     administrative judge to his appeal, and found it appropriate to stay discovery until
     the resolution of the jurisdictional issue. IAF, Tab 6 at 2.
¶8         In an order reopening the record, the administrative judge noted that the
     agency’s final agency decision (FAD) on the appellant’s EEO complaint
     referenced a request for reconsideration of the WIGI denial. IAF, Tab 1 at 45 n.3,
     Tab 11 at 1. She ordered the agency to produce, in pertinent part, the request for
     reconsideration referenced in the FAD.       IAF, Tab 11 at 2.    The agency filed
     responses to the order. IAF, Tabs 13-14. The appellant replied. IAF, Tab 15.
¶9         Without holding a hearing, the administrative judge issued an initial
     decision granting the agency’s motion and dismissing the appeal for lack of
     jurisdiction. IAF, Tab 17, Initial Decision (ID) at 2, 11. Specifically, she found
     that the appellant had not requested reconsideration of the WIGI denial.         ID
     at 10-11. She found, too, that the appellant was precluded from appealing the
     WIGI denial to the Board except as a request for review of a final decision under
     5 U.S.C. § 7121(d) because he had elected to pursue the matter through the
     negotiated grievance procedure. ID at 8, 10. She concluded that the Board lacks
     jurisdiction under section 7121(d) because the appellant had not pursued his
     grievance beyond the step-1 level, and his supervisor’s decision denying the
     step-1 grievance was not a final decision. ID at 8, 10-11.
                                                                                         5

¶10        The appellant has filed a petition for review. Petition for Review (PFR)
      File, Tab 1. The agency has filed a response. PFR File, Tab 4. The appellant has
      filed a reply to the agency’s response. PFR File, Tab 5.

                                          ANALYSIS
      The appellant has failed to establish the Board’s jurisdiction over his appeal of a
      WIGI denial as an otherwise appealable action.
¶11        The Board’s jurisdiction is limited to those matters over which it has been
      given jurisdiction by law, rule, or regulation.          Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
      of proving by preponderant evidence the Board’s jurisdiction over his appeal.
      5 C.F.R. § 1201.56(b)(2)(i)(A). An employee under the General Schedule earns
      periodic increases in pay, or WIGIs, as long as his performance is at an ALOC.
      5 U.S.C. § 5335(a).    When an agency determines that an employee is not
      performing at an ALOC and that a WIGI should be withheld, he is entitled to
      “prompt   written   notice   of   that   determination   and   an   opportunity   for
      reconsideration of the determination.”         5 U.S.C. § 5335(c); see 5 C.F.R.
      § 531.410 (setting forth the Office of Personnel Management’s uniform
      procedures for reconsideration).         If the agency affirms its decision on
      reconsideration, “the employee is entitled to appeal to the [ Board].”      5 U.S.C.
      § 5335(c); see 5 C.F.R. § 531.410(d).
¶12        A bargaining-unit employee who is subject to an appealable action that falls
      within the scope of the grievance procedure may elect either to appeal the action
      to the Board or challenge it through the grievance procedure. 5 U.S.C. § 7121(d).
      If, as here, the collective bargaining agreement provides for review of WIGI
      denials under the grievance procedure, then that procedure is exclusive. 5 C.F.R.
      § 531.410(d). An exception to this rule occurs when, as here, the appellant has
      alleged discrimination in connection with the action appealed. In such cases, the
      Board is not divested of jurisdiction, but there still must be a final decision
      resulting from arbitration. Little v. Department of the Treasury, 65 M.S.P.R. 360,
                                                                                         6

      362 (1994).   The Board has jurisdiction over a request for review of a final
      grievance or arbitration decision under 5 U.S.C. § 7121(d) if:      (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 under 5 U.S.C. § 2302(b)(1)
      in connection with the underlying action in the negotiated grievance procedure, or
      (ii) raises a claim of discrimination under 5 U.S.C. § 2302(b)(1) in connection
      with the underlying action 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. Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 8 (2013),
      aff’d per curiam, 589 F. App’x 972 (Fed. Cir. 2014); see 5 U.S.C. §§ 7702(a)(1),
      7121(d); 5 C.F.R. § 1201.155(a)(1), (c).
¶13        Thus, we find that the administrative judge erred in finding that the
      appellant made an election pursuant to 5 U.S.C. § 7121(d) to contest the WIGI
      denial through the negotiated grievance procedure. ID at 8, 10. We vacate this
      finding and modify the administrative judge’s analysis of the jurisdictional issue
      to explain why the appellant did not have an option to make an election when
      contesting the WIGI denial.     We clarify that, if an employee is covered by a
      collective bargaining agreement that provides for review of WIGI denials, and
      that employee has received an agency determination that his performance is not at
      an ALOC such that a WIGI should be withheld, the Board has jurisdiction over
      the WIGI denial claim only when the following conditions are met:            (1) the
      employee first has requested reconsideration of the negative determination under
      5 U.S.C. § 5335(c); (2) the agency has sustained the negative determination on
      reconsideration; and (3) the employee thereafter has pursued the matter through
      the negotiated grievance procedure, in connection with a discrimination claim
      resulting in a final decision under 5 U.S.C. § 7121(d).       See Goines v. Merit
      Systems Protection Board, 258 F.3d 1289, 1292 (Fed. Cir. 2001) (interpreting
      5 U.S.C.   § 5335(c)   as   requiring   an   employee   to   make   a   request   for
      reconsideration of a WIGI withholding before appealing such action to the
                                                                                               7

      Board); Hunt v. Department of Veterans Affairs, 88 M.S.P.R. 365, ¶ 6 (2001)
      (stating that the Board can exercise jurisdiction over an appeal of a WIGI
      withholding      only   if   the   agency   has   affirmed   its   initial   decision   on
      reconsideration); 5 C.F.R. § 531.410(d).
¶14            Here, the Master Agreement permits bargaining unit employees to grieve
      the denial of a WIGI. IAF, Tab 4 at 45-50. Therefore, the appellant was required
      to satisfy the three jurisdictional requirements above. We find that he has failed
      to meet all three of these requirements. First, we agree with the administrative
      judge’s finding that the appellant failed to request reconsideration of the WIGI
      denial. ID at 10-11. It is undisputed that the agency notified the appellant of his
      right to request reconsideration of the negative determination of competence, and
      the record below lacks direct evidence that he made such a request. IAF, Tab 4
      at 37.
¶15            Although the record contains the appellant’s “personal statement response”
      concerning the WIGI denial, the administrative judge properly found that his
      response was part of the step-1 grievance and was not a reconsideration request.
      ID at 10; IAF, Tab 4 at 21-24. Based on our review of the record, we agree with
      the administrative judge’s finding that the agency erroneously characterized the
      appellant’s response as a “request for reconsideration” during the EEO process.
      ID at 9-10; IAF, Tab 1 at 45 n.3, Tab 14 at 5 n.2, 6 n.4. 4 The subject line of the
      appellant’s response shows that he intended to submit it “in conjunction with the
      AFGE union’s grievance.” IAF, Tab 4 at 21. He also copied union officials on
      his response. Id. Moreover, his supervisor referenced the contentions made in
      the appellant’s response in his decision denying the step -1 grievance. Id. at 17.
      The supervisor also declared under penalty of perjury that the appellant did not
      request reconsideration, but instead submitted a response, referencing a step -1
      grievance that the union filed on his behalf. Id. at 13.
      4
       The administrative judge made a typographical error by citing to Tab 13 of the Initial
      Appeal File instead of Tab 14. ID at 9-10.
                                                                                         8

¶16         The appellant argues on review that his grievance should function as his
      reconsideration request because the two processes “serve the same function.”
      PFR File, Tab 5 at 4-5. He also argues that no grievance was filed. PFR File,
      Tab 1 at 1-2, 14-15, Tab 5 at 5. However, the Board has found that the pursuit of
      a grievance by an appellant through the grievance procedure does not comply
      with the regulatory requirement for requesting reconsideration under 5 C.F.R.
      § 531.410(a)(1). Jones v. Department of the Air Force, 29 M.S.P.R. 241, 243-44
      (1985). Here, although the agency gave proper notice to the appellant of his right
      to request reconsideration of the negative determination, he did not make such a
      request.     IAF, Tab 4 at 37.    Further, we find that the appellant’s “personal
      statement response” was sufficient to constitute a grievance under the Master
      Agreement, which states that the union, a covered employee, or both may file a
      grievance.    Id. at 21-24, 49, 51.   Next, we find that the appellant has failed
      to satisfy the second jurisdictional requirement because the record below
      lacks evidence     that   the    agency   sustained   the   negative   determination
      on reconsideration.
¶17         Finally, we agree with the administrative judge’s finding that the
      supervisor’s step-1 grievance decision was not a final decision reviewable by the
      Board under 5 U.S.C. § 7121(d). ID at 8. Here, Article 43, section 7(B) of the
      Master Agreement provides for a four-step grievance procedure with the last step
      involving a referral of the matter to arbitration.      IAF, Tab 4 at 51-52.   It is
      undisputed, however, that neither the union, nor the appellant, pursued the
      grievance of the WIGI denial beyond step 1 of the grievance procedure. Id. at 14.
      Thus, a final arbitration decision that is reviewable by the Board under 5 U.S.C.
      § 7121(d) has not been rendered in this case.           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, e.g., Little, 65 M.S.P.R. at 362-63 (dismissing for lack of jurisdiction
                                                                                        9

      the appellant’s request for review of a grievance decision affirming a WIGI denial
      because the applicable collective bargaining agreement provided for arbitration as
      the last step in the grievance procedure and no arbi tration decision had
      been issued).
¶18         In his petition for review, the appellant reasserts claims of disability
      discrimination, reprisal for EEO activity, harassment, and a hostile work
      environment. PFR File, Tab 1 at 1-2, 6-16, Tab 5 at 6. Although EEO claims
      satisfy one of the requirements for Board jurisdiction over a request for review of
      a final arbitration decision under 5 U.S.C. § 7121(d), as we found above, a final
      arbitration decision has not been rendered in this case, the appellant did not
      request reconsideration, and the agency did not issue a reconsideration decision.
      See Jones, 120 M.S.P.R. 480, ¶ 8.       Thus, he had not satisfied the remaining
      jurisdictional elements.
¶19         The appellant also disputes the agency’s determination that his work
      performance was at a less than ALOC, claims that he was denied training
      necessary to perform his job, and argues that the agency failed to follow the
      procedures described in the Master Agreement for withholding a WIGI.          PFR
      File, Tab 1 at 2, 8-9. We find that these arguments are not relevant to the Board’s
      jurisdiction over the appellant’s otherwise appealable action claim, and thus,
      do not provide a basis for review. See, e.g., Sapla v. Department of the Navy,
      118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on the
      merits of her appeal were not relevant to the jurisdictional question).

      The appellant’s remaining arguments do not provide a basis for granting review.
¶20         The appellant objects to the administrative judge’s decision to docket
      separately the instant appeal from his removal appeal. PFR File, Tab 1 at 6, 16,
      Tab 5 at 6; IAF, Tab 2 at 1. Administrative judges may separate claims if doing
      so would expedite their processing and not adversely affec t the interests of the
      parties. See Maki v. U.S. Postal Service, 41 M.S.P.R. 449, 460 (1989) (discussing
                                                                                          10

      this standard in the context of the separation of two previously joi ned appeals).
      We find that the administrative judge properly exercised her discretion.
¶21         The appellant further claims that the administrative judge should have
      disqualified herself because she was biased and failed to provide guidance and
      demonstrate patience given his pro se status. 5 PFR File, Tab 1 at 2-8, 15. The
      appellant filed a motion below for the administrative judge to withdraw from his
      appeal, IAF, Tab 3 at 5-11; however, she denied his motion, IAF, Tab 6 at 2.
      Because the appellant did not request certification of the issue to the Board as an
      interlocutory appeal under 5 C.F.R. § 1201.91, he is considered to have waived
      the request for withdrawal. Boechler v. Department of the Interior, 109 M.S.P.R.
      638, ¶ 14 (2008), aff’d per curiam, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R.
      § 1201.42(c).
¶22         In any event, based on our review of the record and the appellant’s claims
      of bias, we find that he has failed to overcome the presumption of honesty and
      integrity that accompanies administrative adjudicators. PFR File, Tab 1 at 2-8,
      15; see Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). We
      also find that the administrative judge appropriately interacted with the appellant
      given his pro se status. In particular, she provided him with two opportunities to
      respond on the jurisdictional issue. IAF, Tab 2 at 3, Tab 6 at 1.
¶23         Finally, the appellant claims that the administrative judge failed to consider
      all of the record evidence, including his status as a disabled veteran and his past
      good performance. PFR File, Tab 1 at 2, 8, 15. However, her failure to mention
      all of the evidence of record does not mean that she did not consider it in reaching




      5
        The appellant’s arguments regarding a “teleconference” and status conference seem to
      refer to events that may have occurred during the proceedings of his separate removal
      appeal because the administrative judge did not hold a status conference in the instant
      appeal. PFR File, Tab 1 at 3-4; IAF, Tab 8. Thus, we decline to respond further to
      these arguments.
                                                                                          11

      her decision. Marques v. Department of Health & Human Services, 22 M.S.P.R.
      129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 6
¶24         Accordingly, we find that the administrative judge properly dismissed this
      appeal for lack of jurisdiction.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by 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 U.S. 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).

      6
        On review, the appellant again raises his whistleblower reprisal claim. PFR File,
      Tab 1 at 6-7, 9, 11-12, 14-15, Tab 5 at 6; IAF, Tab 1 at 5, Tab 5 at 4-7, 12, 16. The
      appellant may file a separate individual right of action (IRA) appeal concerning his
      allegation that he was denied a WIGI in retaliation for whistleblowing activity. Under
      the Whistleblower Protection Enhancement Act of 2012, the Board has jurisdiction over
      an IRA appeal if, after the appellant has exhausted his administrative remedies before
      the Office of Special Counsel, he makes nonfrivolous allegations that: (1) he made a
      protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected
      activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
      disclosure or protected activity was a contributing factor in the agency’s decision to
      take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v.
      Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v Department of
      Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an
      assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
                                                                                 12

      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 fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you ma y 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
