shaw bransford & roth case law update

Board Grants Jurisdiction but Dismisses Appeal of 2009 Removal

A former federal employee’s confusion over what he was contesting in a disability retirement appeal did not entitle him to a finding of good cause for the lengthy delay in filing an appeal of his removal.

A Correctional Treatment Specialist was removed from federal service in March 2009 after testing positive for an illegal drug in a random drug screening. The employee grieved the decision to remove him through the negotiated grievance procedure, but filed the grievance (requesting rescission of the removal) a month after the deadline to do so. The grievance was rejected by the agency as untimely filed, and the employee’s union invoked arbitration. But in August 2009, the union withdrew from the arbitration, citing the employee’s status as a non-dues paying member. Because of the union’s withdrawal, the arbitrator declined to arbitrate the matter, and there was no further movement on the arbitration. On March 27, 2015, six years after the employee was removed, the employee filed an appeal with the Merit Systems Protection Board. An MSPB administrative judge found that the employee had elected to pursue his removal through the negotiated grievance procedure, and that the Board therefore did not have jurisdiction to hear the appeal. The employee petitioned the full Board for review. On March 31, 2016, the Merit Systems Protection Board vacated the initial decision, but dismissed the appeal nonetheless.

The Board disagreed with the administrative judge’s finding that the Board lacked jurisdiction over the employee’s appeal. Citing 5 U.S.C. § 7121(e)(1), the Board observed that an election of remedies only occurs “at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties’ negotiated grievance procedure, whichever event occurs first.” The Board considered the language of the statute and legislative history before stating that “[w]hile it may appear incongruous to give someone who has untimely invoked one remedial scheme the benefit of another remedial scheme, we are constrained by the relevant statutory language enacted by Congress.”

However, the Board also found that that the employee’s Board appeal was untimely filed, without good cause shown for the delay. The employee argued that due to his mental disability, he was not aware that a disability retirement appeal before the Board was not also an appeal of his removal, and therefore he believed that his removal would be adjudicated within the context of his disability retirement appeal, filed on October 11, 2011, and decided in his favor on February 20, 2015, on the basis of a physical disability (specifically, a torn labrum) rather than on the basis of post-traumatic stress disorder or any other mental disability.

Although the Board may find good cause for a waiver of its filing time limits where an appellant suffered from an illness that affected his ability to file on time, the Board found that the employee could not show why his torn labrum prevented him from timely filing his appeal. The employee also raised severe anxiety and depression as reason for the lateness of his appeal, but because there was a period of almost one year after the union declined to represent the employee at arbitration and the commencement of the employee’s treatment for anxiety and depression, the Board found that the employee could not show good cause for the filing delay.

For the above stated reasons, the Merit Systems Protection Board dismissed the employee’s appeal as untimely.

Read the full case: Pirkkala v. Department of Justice


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: case law update, grievance appeal, conor d dirks, conor dirks, drug screening



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