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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.