Altoine Barker v. United States Postal Service
Background
- The U.S. Postal Service proposed removing Altoine Barker from his City Carrier position; Barker filed an MSPB appeal and the union filed a grievance on his behalf.
- The agency issued a removal decision; the union and agency later entered a Step B settlement that reduced the removal to a letter of warning, returned Barker to work, and made him whole for the removal period.
- The settlement expressly stated it was a complete and final resolution of the grievance.
- The administrative judge dismissed Barker’s MSPB appeal for lack of jurisdiction, reasoning the grievance settlement waived his Board appeal rights.
- Barker petitioned for review arguing the union settled on its own behalf and he should not be bound; the Board denied review and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB has jurisdiction over a removal after the employee’s union settled the grievance by agreeing to reduced discipline | Barker: The union acted on its own behalf when it settled, so he should not be bound and Board retains jurisdiction | Agency: The grievance settlement was a voluntary, final resolution of Barker’s challenges and divests the Board of jurisdiction | Board: Settlement presumed voluntary; Barker did not show involuntariness or reservation of Board rights; dismissal for lack of jurisdiction affirmed |
| Whether Barker rebutted the presumption that he waived MSPB appeal rights by participating in and accepting the grievance settlement | Barker: He did not consent to waiver because the union allegedly acted independently | Agency: Barker participated in grievance, acknowledged union representation, accepted substantially reduced penalty—no rebuttal | Board: Barker failed to meet burden to reserve appeal rights; presumption of waiver stands |
Key Cases Cited
- Rhett v. U.S. Postal Service, 113 M.S.P.R. 178 (2010) (grievance settlement that reduces discipline presumptively divests the Board of jurisdiction)
- Swink v. U.S. Postal Service, 111 M.S.P.R. 620 (2009) (same rule; settlement waives MSPB appeal absent a reservation)
- Johnson v. U.S. Postal Service, 108 M.S.P.R. 502 (2008) (burden on employee to establish reservation of Board appeal rights)
- Conforto v. Merit Systems Protection Board, 713 F.3d 1111 (Fed. Cir. 2013) (procedural note on providing correct appeal rights notice when Board lacks jurisdiction)