Sarah P. Emanuele v. Department of Transportation
Background
- Appellant Sarah P. Emanuele was removed from her position at the Department of Transportation and appealed to the MSPB.
- The regional administrative judge dismissed the removal appeal for lack of jurisdiction, finding the appellant had elected the negotiated grievance procedure because the union filed for expedited arbitration before she filed a formal EEO complaint.
- The appellant contended she did not file or authorize the grievance and that the union filed on its own; she also argued her formal EEO complaint encompassed the removal (a mixed case).
- The record lacked evidence that the appellant signed or ratified the grievance; the union’s May 4, 2011 letter requesting expedited arbitration bore no appellant signature and no grievance filing was in the record.
- On review the Board issued a show-cause order; the appellant submitted a sworn response and EEOC documents indicating her formal EEO complaint included her separation.
- The Board found the preponderance of evidence showed the union filed without appellant’s authorization, that she elected the EEO process, and remanded the removal appeal to the regional office for merits adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant elected the negotiated grievance procedure, barring MSPB jurisdiction | Emanuele: she did not file or authorize the grievance; she amended her EEO complaint to include the removal | Agency: the union’s grievance filing constituted an election of the grievance procedure, divesting the Board of jurisdiction | The Board held appellant did not authorize or ratify the grievance; she elected the EEO process, so MSPB retains jurisdiction and case is remanded for merits |
| Whether a union-filed grievance automatically constitutes the employee’s election | Emanuele: a union filing alone is not the employee’s election absent authorization or ratification | Agency: the grievance filing demonstrates election | The Board held election requires employee filing or explicit/implicit authorization; a unilateral union filing does not bind the employee |
| Sufficiency of the record to determine election | Emanuele: EEOC findings and sworn statement show she pursued EEO and did not authorize grievance | Agency: administrative judge relied on union letter and treated grievance as dispositive | The Board found the record initially insufficient, issued a show-cause, then accepted appellant’s sworn, unrebutted evidence as competent and dispositive |
| Proper remedy when union files without employee authorization | Emanuele: proceed before MSPB on removal appeal | Agency: proceed through grievance/arbitration | The Board remanded to regional office for adjudication on the merits before the MSPB |
Key Cases Cited
- Pirkkala v. Department of Justice, 123 M.S.P.R. 288 (MSPB 2016) (explaining election between grievance and appellate procedures)
- Kendrick v. Department of Veterans Affairs, 74 M.S.P.R. 178 (MSPB 1997) (employee deemed to have elected based on which forum is timely filed; employee or authorized union filing required to effect election)
- Morales v. Merit Systems Protection Board, 823 F.2d 536 (Fed. Cir. 1987) (union-filed grievance without employee request or ratification does not bar Board adjudication)
- Stone v. Department of the Army, 37 M.S.P.R. 56 (MSPB 1988) (remanding where neither appellant nor representative elected grievance procedure)
- Truitt v. Department of the Navy, 45 M.S.P.R. 344 (MSPB 1990) (unrebutted sworn statements are competent evidence)
- Schaefer v. U.S. Postal Service, 42 M.S.P.R. 592 (MSPB 1989) (same on competency of sworn, unrebutted evidence)