Appleberry v. Department of Homeland Security
2015 U.S. App. LEXIS 11715
Fed. Cir.2015Background
- Appleberry worked as an Immigration Services Officer under a union contract with a performance system (PPA).
- Following a 2012 low PPA rating, the Department issued a 90‑day Performance Improvement Plan (PIP) in December 2012.
- The Department informed her she could be removed if performance did not improve within the PIP period and year‑long risks.
- She filed three grievances at Step I–III challenging the PPA rating, bullying, and PIP closeout, but did not file arbitration within the 30‑day window.
- Removal was proposed in June 2013 and effectuated in October 2013; an expedited arbitration was later sought, and the arbitrator barred consideration of PIP issues not timely arbitrated.
- The court affirmed the arbitrator’s decision, holding the exclusive grievance procedure controlled review and that Cornelius does not override the contract’s exclusivity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the arbitrator proper to bar PIP issues not timely arbitrated? | Appleberry argues the arbitrator should review PIP issues from prior grievances. | Department contends the exclusive grievance procedure barred non‑timely arbitral review. | Yes; the arbitrator correctly enforced the exclusive contract grievance procedure. |
| Does Cornelius require arbitrators to apply Board standards despite the contract's exclusivity? | Appleberry relies on Cornelius to apply Board standards to arbitration. | Department argues Cornelius is inapplicable where the contract limits arbitrator authority. | No; Cornelius does not override the contract’s exclusive process. |
Key Cases Cited
- Cornelius v. Nutt, 472 U.S. 648 (1985) (arbitrator applies same substantive standards when proceeding via arbitration under the negotiated procedure)
- Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324 (Fed. Cir. 2006) (limits on arbitrator authority; choice between Board and arbitration)
- Wissman v. Soc. Sec. Admin., 848 F.2d 176 (Fed. Cir. 1988) (arbitrator must follow contract and statute; authorities governed by contract)
- Pyett (14 Penn Plaza LLC v. Pyett), 556 U.S. 247 (2009) (Supreme Court on arbitration of union‑employee grievances under contract)
- Johnson v. Dep’t of Veterans Affairs, 625 F.3d 1373 (Fed. Cir. 2010) (standard of review for arbitrator decisions under § 7121(f))
- Garcia v. Dep’t of Homeland Sec., 780 F.3d 1145 (Fed. Cir. 2015) (interpreting contract‑based grievance procedures)