Federal Employee Who Elected Grievance Procedure But Failed To Request Arbitration Has Limited Remedies: Federal Circuit | Practical Law

Federal Employee Who Elected Grievance Procedure But Failed To Request Arbitration Has Limited Remedies: Federal Circuit | Practical Law

In Appleberry v. DHS, the US Court of Appeals for the Federal Circuit affirmed an arbitrator's judgment that a federal employee was precluded from challenging the bases for her removal from the Department of Homeland Security (DHS) because she failed to follow the exclusive process for the remedy that she elected.

Federal Employee Who Elected Grievance Procedure But Failed To Request Arbitration Has Limited Remedies: Federal Circuit

by Practical Law Labor & Employment
Published on 14 Jul 2015 • USA (National/Federal)
In Appleberry v. DHS, the US Court of Appeals for the Federal Circuit affirmed an arbitrator's judgment that a federal employee was precluded from challenging the bases for her removal from the Department of Homeland Security (DHS) because she failed to follow the exclusive process for the remedy that she elected.
On July 8, 2015, in Appleberry v. DHS, the US Court of Appeals for the Federal Circuit affirmed an arbitrator's judgment that a federal employee was precluded from challenging the bases for her removal from the Department of Homeland Security (DHS) because she failed to follow the exclusive process for such challenges as outlined in the applicable collective bargaining agreement (CBA). The employee had abandoned the process after filing grievances over a performance improvement plan (PIP) issued to her as well as DHS's later determination that she failed to meet the PIP's expectations. (No. 2014-3123, (Fed. Cir. July 8, 2015).)

Background

Cathy Appleberry worked as an Immigration Services Officer for the US Citizenship and Immigration Services, an agency within DHS. In December 2012, after receiving an unsatisfactory job performance rating, DHS issued Appleberry a performance improvement plan (PIP) outlining what she had to do to improve her performance and giving her 90 days to do so. In May 2013, DHS issued Appleberry a "closeout letter" informing her that she had failed to meet the standards for improvement outlined in the PIP. In October 2013, DHS removed Appleberry, terminating her employment.
Prior to her removal, Appleberry filed three grievances based on the procedures spelled out in a CBA that covered her. The grievances challenged:
  • Her unsatisfactory job performance rating.
  • The manner in which DHS reviewed her work under the PIP.
  • The PIP closeout letter.
Appleberry initially followed the grievance procedures set forth in the CBA. All three grievances were denied. The CBA required that an employee request arbitration within thirty days of a grievance being denied. For each of the three grievances, Appleberry failed to request arbitration.
After Appleberry's removal, she filed for an expedited arbitration challenging the removal decision. The arbitrator:
  • Granted DHS's motion to bar consideration of the issues Appleberry raised in her three grievances because, by failing to timely request arbitration on those grievances, Appleberry failed to follow the exclusive process outlined in the CBA for challenging an agency's determinations.
  • Denied Appleberry's removal grievance.
Appleberry appealed, claiming the arbitrator erroneously excluded the issues she raised in the three grievances.

Outcome

The Federal Circuit:
  • Held that:
    • the arbitrator’s review of the underlying issues leading to Appleberry's removal was limited by procedural terms in the CBA; and
    • Appleberry's failure to request arbitration of her PIP-related grievances within the time allowed under the CBA precluded the arbitrator from reviewing the reasons behind her removal.
  • Affirmed the arbitrator's judgment denying Appleberry's grievance regarding her removal.
The Federal Circuit noted that:
  • The Civil Service Reform Act allows an employee to either appeal her removal to the Merit Systems Protection Board (MSPB) or to grieve the removal through her CBA's negotiated grievance procedure, but she must elect one procedure and is stuck with the procedure she elects first (5 U.S.C. § 7121(e)(1)).
  • Had Appleberry decided to appeal DHS's removal decision to the MSPB, the MSPB would have been able to address the issues in Appleberry's prior grievances related to her PIP.
  • Instead, Appleberry chose arbitration, and the applicable CBA provides that:
    • the specific arbitration procedure negotiated by DHS and the union is "exclusive" for resolving grievances;
    • after a final determination on an employee grievance, the union or DHS has 30 days from the date of that final decision to request arbitration;
    • a failure to timely move forward to the next stage of a grievance results in the grievance being withdrawn; and
    • the arbitrator has no authority to deviate from any provision in the CBA.
The Federal Circuit found that:
  • There was no dispute that Appleberry initiated but did not complete the process outlined in the CBA for processing her three grievances related to her job performance, the PIP, and the closeout letter. She failed to request arbitration within 30 days from receiving the final decisions on those grievances.
  • Because the three grievances were effectively withdrawn, the CBA prohibited the arbitrator from reviewing DHS's PIP-related actions.

Practical Implications

The Federal Circuit's decision in Appleberry illustrates that:
  • A federal public employee can challenge removal based on unacceptable job performance either through:
    • a negotiated grievance procedure; or
    • an appeal to the MSPB.
  • The employee may elect only one procedure. Once the employee chooses a forum, she must stick with that forum.
  • The employee's failure to follow the steps in the remedial procedure she elects may limit the employee's remedies available under the law.