589 F. App'x 972
Fed. Cir.2014Background
- Jones, a DOE Program Analyst, was placed on a 120‑day performance improvement plan in January 2011 and later removed for unacceptable performance effective February 17, 2012.
- The agency’s decision noted failures to perform essential duties, insufficient improvement, and negative impact on the office; Jones could appeal to the Board or pursue grievance/arbitration under the collective bargaining agreement.
- Jones elected the negotiated grievance procedure; an arbitration on August 12, 2012 denied her grievance and upheld the removal.
- Jones then appealed to the Board in December 2012 alleging retaliation related to an EEO complaint; the AJ ordered clarification of the appeal’s scope and noted Jones had resigned February 16, 2012, one day before the removal’s effective date.
- Following proceedings, the AJ construed Jones’s appeal as potentially involving an involuntary retirement claim, which the Board later determined was outside jurisdiction given the prior election, and transferred the case accordingly.
- The Board ultimately dismissed the grievance-review petition for lack of discrimination properly raised under the grievance procedure and dismissed the merits appeal as barred by Jones’s election under 5 U.S.C. § 7121(e)(1); this court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board properly dismissed the grievance-review petition for lack of discrimination claims | Jones contends discrimination was raised before the arbitrator and the Board should review it. | The Board correctly dismissed for lack of discrimination raised under the grievance procedure. | Affirmed; no discrimination raised before arbitrator; Board proper. |
| Whether the merits appeal was properly dismissed as barred by Jones's election of the grievance procedure | Jones argues the involuntary retirement claim should be reviewable on the merits. | Jones elected grievance review of the removal and cannot pursue a separate merits appeal. | Affirmed; election bars the merits appeal under § 7121(e)(1). |
| Whether the Board accurately applied 5 C.F.R. § 1201.155(c) restricting Board review of discrimination claims | Discrimination claims raised in the arbitration should be reviewable by the Board under the new regulation. | Discrimination claims were not raised before the arbitrator; Board proper under § 1201.155(c). | Affirmed; Jones did not raise discrimination in arbitration; Board properly dismissed. |
Key Cases Cited
- Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111 (Fed. Cir. 2013) (defines mixed‑case jurisdiction and review scope)
- Jones v. Department of the Navy, 898 F.2d 133 (Fed. Cir. 1990) (predecessor Jones rule on grievance vs. Board review)
- Rodriguez v. Merit Sys. Prot. Bd., 804 F.2d 673 (Fed. Cir. 1986) (statutory choice between appeal and grievance procedure)
- Whitaker v. Merit Sys. Prot. Bd., 784 F.2d 1109 (Fed. Cir. 1986) (rule on mixed cases and Board jurisdiction)
- Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324 (Fed. Cir. 2006) (proper notice of grievance/appeal election rights)
- Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307 (Fed. Cir. 2003) (standard for review of Board decisions; jurisdictional concerns)