Johnson v. Department of Veterans Affairs
2010 U.S. App. LEXIS 24157
| Fed. Cir. | 2010Background
- Johnson was employed in VA Prosthetics and Sensory Aids Service in Maryland and faced proposed removal for using a Government Travel Credit Card for personal purchases about 92 times.
- Johnson responded requesting rescission of the proposed removal; later, the agency removed her effective April 24, 2008.
- The agency provided multiple appeal options: MSPB appeal, ADR, union-grieved process, and EEOC complaint.
- Johnson designated the union to represent her in ADR; the agency refused to participate in ADR after July 3, 2008.
- The union filed a Step 3 grievance on August 15, 2008 alleging the agency’s ADR refusal; the agency deemed it non-grievable/arbitrable because it was untimely.
- Arbitrator later held Johnson’s May 20, 2008 letter was not a grievance and dismissed the grievance for lack of jurisdiction; Johnson sought court review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether May 20 letter was a grievance | Johnson's letter expressed removal objection and sought ADR, constituting a grievance. | Letter was not labeled as a grievance and did not meet Article 42, §2 form requirements. | Letter constituted a grievance and ADR request. |
| Proper interpretation of the May 20 letter | The letter, read liberally, expresses intent to grieve removal and request ADR. | Arbitrator properly treated it as an ADR request, not a grievance. | Johnson's intent shows it was a grievance and ADR request. |
| Timeliness of the grievance | May 20/22/23 transmission and reception dates show timely filing under the CBA. | Timeliness was not reached due to the arbitrator’s interpretation. | Agency conceded timely receipt; grievance timely. |
Key Cases Cited
- Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991 (8th Cir. 2007) (interpretation of pleadings rests with court as a matter of law)
- Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481 (1933) (liberal construction of pleadings; pro se filings)
- Erickson v. Pardus, 551 U.S. 89 (2007) (liberal construction of pro se filings)
- Kent v. Principi, 389 F.3d 1380 (Fed.Cir. 2004) (arbitrary, capricious, abuse of discretion review in MSPB context)
- Frank v. Dep't of Transp., 35 F.3d 1554 (Fed.Cir. 1994) (standard of review for MSPB-like decisions)