United States Court of Appeals
for the Federal Circuit
__________________________
KAREN JOHNSON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2009-3292
__________________________
Petition for review of an arbitrator’s decision in FMCS
No. 090602-57266-1 by Alfred O. Haynes, Sr.
__________________________
Decided: November 24, 2010
__________________________
PHILLIP R. KETE, Attorney at Law, of Washington, DC,
argued for petitioner.
HILLARY A. STERN, Senior Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
TODD M. HUGHES, Deputy Director.
__________________________
JOHNSON v. VA 2
Before RADER, Chief Judge, NEWMAN, and CLEVENGER,
Circuit Judges.
CLEVENGER, Circuit Judge.
Karen Johnson seeks review of an arbitrator’s finding
that the arbitrator was without jurisdiction to review her
discharge from the Department of Veterans Affairs
(“agency”). We reverse and remand.
I
Prior to her removal, Johnson was employed in the
Prosthetics and Sensory Aids Service at the agency’s
Maryland Health Care Center. On March 10, 2008,
Johnson received a letter from her supervisor, Regina
Kennedy, notifying her that it was proposed that she be
removed from employment for having used a Government
Travel Credit Card for personal purchases approximately
ninety-two times between May 26, 2007 and November
21, 2007. Johnson responded to the letter on March 24,
2008, requesting that the agency rescind the proposed
removal.
On April 22, 2008, Johnson received a letter from
Dennis Smith, Director of the agency’s Maryland Health
Care System, informing her of the agency’s decision to
remove her from employment effective April 24, 2008.
Smith’s letter also provided Johnson with the following
appeal options and time periods: (1) appeal to the Merit
Systems Protection Board in writing to be filed no later
than thirty calendar days after the effective date of the
removal; (2) resolve the dispute through an alternative
dispute resolution process by mutual agreement of the
parties in writing prior to timely filing an appeal, which
extends the time limit for filing an appeal by thirty calen-
dar days; (3) grieve the action under the negotiated griev-
ance procedure contained in Article 42 of the Collective
3 JOHNSON v. VA
Bargaining Agreement (“CBA”) between the American
Federation of Government Employees, AFL-CIO Local
1923 (“union”) and the agency to be filed within thirty
calendar days of the notice of removal; and (4) file a
complaint of discrimination with the Equal Employment
Opportunity Commission.
On May 22, 2008, Johnson faxed a letter to Smith,
dated May 20, 2008, which stated: “I am appealing the
recently received removal from you dated April 22, 2008
and request through the [union], for an Alternate Dispute
Resolution (ADR) be [sic] scheduled through them with
me to revisit the Removal to obtain an amicable decision
with the opportunity of Union Representation present. I
do not agree with the reasoning behind the removal and I
feel I was not given a fair and equitable disciplinary
action prior to the proposed removal leading up to the
removal.”
In a letter to Smith, dated May 22, 2008, union repre-
sentative Sandra Flowers advised Smith that Johnson
had designated the union to represent her in ADR proce-
dures concerning her removal. The union’s letter also
requested that a meeting be scheduled not later than ten
days after receipt of the notice. Smith did not respond to
the union’s letter in writing. Rather, the agency informed
the union by telephone, on July 3, 2008, that it did not
intend to participate in the ADR process.
On August 15, 2008, the union sent a letter to Smith
stating that the correspondence constituted a Step 3, Note
5 grievance, pursuant to Article 42 of the CBA between
the union and the agency, which it was filing on behalf of
itself and Johnson. The union further noted that the
basis of its grievance was the agency’s July 3, 2008 re-
fusal to engage in ADR as requested by both Johnson and
the union.
JOHNSON v. VA 4
On August 29, 2008, the union made an oral presenta-
tion on Johnson’s behalf and, on September 9, 2008,
Smith responded by letter to the union’s August 15, 2008
Step 3 grievance. Specifically, Smith wrote that he found
no CBA violation of Article 6 with respect to the election
to utilize ADR, as it is a voluntary procedure that was not
elected by management. Smith also stated that he con-
sidered the August 15, 2008 grievance non-grievable and
non-arbitrable, because it was filed more than thirty
calendar days from the July 3, 2008 date that the agency
informed the union it was not electing to participate in
ADR concerning Johnson’s removal. Thus, Smith denied
the grievance.
On May 11, 2009, Ericka Lewis, Assistant General
Counsel for the union, filed a Step 2 grievance letter
regarding Johnson’s removal. In the letter, Lewis noted
that management had not yet submitted a written re-
sponse to Johnson’s May 20, 2008 grievance. Lewis also
noted that the parties had an arbitration scheduled for
May 20, 2009, but stated that the union would withdraw
the grievance and cancel the arbitration unless it covered
the merits of Johnson’s removal.
On May 20, 2009, the agency responded to Lewis’s let-
ter, rejecting the Step 2 grievance. More particularly, the
agency’s response stated: “To the extent that you charac-
terize the employee’s May 20, 2008 letter as a ‘Step 1
grievance,’ you are incorrect. There is nothing in the
letter or in the actions of the employee or Union subse-
quent to May 20, 2008 to indicate that that letter was
intended to be a grievance submitted for consideration
pursuant to the negotiated grievance process.”
On May 21, 2009, Lewis filed a Step 3 grievance and
requested a Step 3 decision regarding Johnson’s removal.
On May 26, 2009, Smith issued a decision rejecting
5 JOHNSON v. VA
Lewis’s Step 3 grievance as untimely under Article 42 of
the CBA. On June 1, 2009, the union invoked arbitration.
II
Prior to addressing the merits of the matter before the
arbitrator, the agency raised the question of jurisdiction,
as it believed that the matter was non-arbitrable because
it was time-barred. On July 23, 2009, the arbitrator
issued his decision on arbitrability. Noting that the
relevant facts in dispute were “crystal clear,” the arbitra-
tor concluded that Johnson’s May 20, 2008 letter to Smith
was simply a request for ADR, not a grievance. Based on
this decision, the arbitrator reasoned that August 15,
2008 “was, in fact, the first time in this case, that the
Union filed a formal appeal of the Agency’s action to
remove [Johnson] from her employment.” The arbitrator
then noted that the August 15, 2008 formal appeal was
submitted more than 100 days after Johnson received her
April 22, 2008 removal notice and more than 40 days after
the July 3, 2008 date the agency informed the union that
it was not going to participate in ADR. On this basis, the
arbitrator found Johnson’s grievance appeal untimely and
dismissed the grievance for lack of jurisdiction.
Johnson timely petitioned for review in this court. We
have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and
7703.
III
We review an arbitrator’s decision under the same
standard of review that is applied to decisions from the
Merit Systems Protection Board. 5 U.S.C. § 7121(f);
Frank v. Dep’t of Transp., 35 F.3d 1554, 1556 (Fed. Cir.
1994). Thus we must affirm the decision of the arbitrator
unless it is: “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
JOHNSON v. VA 6
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c)(1)-(3). “[T]he ‘arbitrary,
capricious, and abuse of discretion, or otherwise not in
accordance with law’ standard of review . . . contemplates
de novo review of questions of law.” Kent v. Principi, 389
F.3d 1380, 1384 (Fed. Cir. 2004).
Johnson argues that the arbitrator erred in conclud-
ing that her May 20, 2008 letter did not constitute a
grievance under Article 42, Section 2 of the parties’ CBA.
In Johnson’s view, the May 20, 2008 letter said two
things; first, I object to the removal and second, I request
that ADR procedures be scheduled through the union.
In rejecting Johnson’s position that her May 20, 2008
letter was a timely grievance, the arbitrator found that
the May 20 letter did not constitute a grievance under
Article 42, Section 2 of the CBA. Accordingly, the arbitra-
tor based his decision as to the timeliness of Johnson’s
grievance in part on his interpretation of Johnson’s May
20 letter. “The interpretation of a pleading is a function
that rests with a court as a determination of law.”
Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 998
(8th Cir. 2007); see Lilly v. Grand Trunk W. R.R. Co., 317
U.S. 481, 489-90 (1943) (noting that the function of inter-
preting a pleading rests primarily with the trial judge).
Therefore, we must determine whether Johnson’s May 20,
2008 letter was indeed a grievance under Article 42,
Section 2 of the CBA.
Pursuant to Article 42, Section 2 of the CBA a “griev-
ance” means “any complaint by an employee(s) or Union
concerning any matter relating to employment . . . .”1 The
1 Likewise, 5 U.S.C. § 7103(a)(9) defines a “griev-
ance” as, among other things, “any complaint – (A) by any
7 JOHNSON v. VA
CBA does not include any mandatory requirements as to
the form that a grievance must take, other than the fact
that it must be in writing. Nor does it indicate that an
employee must use certain words in her writing to consti-
tute a grievance. Moreover, “a document filed pro se is to
be liberally construed . . . .” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citation and internal quotation marks
omitted); see Melendez v. Dep’t of Veterans Affairs, 106
M.S.P.R. 128, 131 (2007) (“The Board has a long history of
construing pro se pleadings liberally.”). Here Johnson
wrote: “I am appealing the recently received removal from
you dated April 22, 2008 . . . . I do not agree with the
reasoning behind the removal and I feel I was not given a
fair and equitable disciplinary action prior to the proposed
removal leading up to the removal.” Giving Johnson’s
May 20, 2008 letter to Smith a liberal reading, we find as
a matter of law that, although not labeled as such, it
adequately communicated Johnson’s intent to grieve her
removal under Article 42, Section 2 of the CBA, as it is a
complaint concerning a matter of employment. In other
words, we find that Johnson’s intent to grieve her removal
was evident from the face of her May 20, 2008 letter, and
accordingly, the letter was both a grievance and a request
for ADR proceedings to resolve the matter.
Further, to the extent that the arbitrator concluded
that Johnson’s May 20 letter was nothing more than a
request for informal resolution of her removal through the
voluntary ADR process, that conclusion would yield an
unfortunate result in Johnson’s case, as she would be left
with no recourse to grieve or appeal her removal. It
makes more sense that an employee who disagrees with
her removal would request formal and definite review.
employee concerning any matter relating to the employ-
ment of the employee . . . .”
JOHNSON v. VA 8
Indeed, the CBA encourages the parties to use informal
ADR while the parties are participating in the formal
grievance process: “ADR methods may be used prior to or
during a grievance/arbitration or statutory appeal.”
Thus, under the terms of the CBA, Johnson could have,
and did, file a letter which simultaneously served as a
formal grievance and requested ADR, and it was legal
error for the arbitrator to find otherwise. 2
IV
For the foregoing reasons, we reverse the arbitrator’s
decision that Johnson failed to file a timely grievance
contesting her removal. We remand the case to the
arbitrator to adjudicate the merits of Johnson’s grievance.
REVERSED AND REMANDED
2 Having found that the arbitrator’s construction of
Johnson’s May 20, 2008 letter was erroneous, the only
remaining issue is whether she timely filed her letter.
The record contains a document that shows a fax trans-
mission on May 22, 2008. Johnson maintains that this
document relates to her fax transmission of her May 20,
2008 letter. Another document in the record shows re-
ceipt of that letter by Smith on May 23, 2008. The record
thus presents the question of whether the May 20 letter
was received by the agency by fax on May 22, or whether
it was not received until May 23, which would have been
one day late. For purposes of this case, the agency con-
ceded at oral argument that the letter was timely re-
ceived, thus resolving the issue in Johnson’s favor.