2023 MSPB 15
MSPB2023Background
- Appellant Michelle Kaszowski was removed effective October 16, 2015 from a Drug Demand Reduction Program Manager position and filed an MSPB appeal on November 13, 2015.
- The union timely filed a grievance on her behalf (informal grievance submitted Oct. 20, 2015; a step 4 grievance filed Oct. 30, 2015); the union later declined to pursue arbitration.
- The agency moved to dismiss the MSPB appeal for lack of jurisdiction under 5 U.S.C. § 7121(e), arguing Kaszowski elected the negotiated grievance procedure.
- The administrative judge dismissed the appeal without a hearing, finding Kaszowski had elected to grieve her removal and that the union’s refusal to arbitrate did not invalidate that election.
- On review, the Board found the agency’s decision notice failed to explain that choosing the negotiated grievance procedure would waive the right to an MSPB appeal (as required by 5 C.F.R. § 1201.21(d)(1)), so the appellant’s election was not knowing and informed.
- The Board granted review, vacated the initial decision, and remanded for adjudication on the merits of the removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kaszowski’s election to grieve her removal precluded an MSPB appeal | Kaszowski: union-filed grievance but union refused arbitration, so she did not make a binding, knowing election | Agency/AJ: timely union grievance constituted an election under § 7121(e) that precludes an MSPB appeal regardless of arbitration | Board: election was not knowing and informed because the agency’s decision notice did not explain that electing the grievance procedure would waive MSPB appeal rights; remanded for merits |
Key Cases Cited
- Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013) (elections under § 7121 must be knowing and informed)
- Johnson v. Department of Veterans Affairs, 121 M.S.P.R. 695 (2014) (agency notice omissions can render grievance election nonbinding)
- Martinez v. Department of Justice, 85 M.S.P.R. 290 (2000) (a grievance election can preclude an MSPB appeal)