Appeals process packed with pitfalls

A recent case brought before the U.S. Court of Appeals for the Federal Circuit shows how difficult it is for feds to wend their way through the thicket of confusing rules and regulations covering appeals and grievance procedures.

This case involved a distribution clerk with the U.S. Postal Service whom I will call Clerk Doe. Doe was discharged in March 1992 after being declared medically unfit for duty. She was told in writing that as a veterans preference employee, she could appeal her termination to the Merit Systems Protection Board (MSPB) and could also participate in the negotiated grievance procedures.

But if she appealed to the board, some of the grievance-procedure process available to veterans preference candidates would be foreclosed.

Not wanting to lose any of her rights under the negotiated grievance procedures, she chose that route. This resulted in a decision that upheld her discharge by USPS, leading her to file a petition with the MSPB to review the decision. Doe was in for a surprise. The MSPB said the decision reached by the arbitrator could not be appealed because the applicable section of the U.S. Code ( 7121(d)) that allows the MSPB to review arbitration decisions involving discrimination does not apply to USPS employees.

Therefore, the only way she could have gone to the MSPB would have been to appeal her original termination by USPS within 20 days of her discharge. Unfortunately, almost three years had elapsed since she had been removed from USPS, so the only way the MSPB would consider her appeal was if she could show good cause for appealing late.

Here comes the tricky part. When Doe was terminated, she received a letter telling her that if she appealed to the MSPB, she would be waiving some of the options available to her under the grievance arbitration route. The letter also said she had 20 calendar days from the date of USPS' decision to appeal to the MSPB. So far, so good.

But then, she was given an MSPB regulation that said an arbitrator's decision can be appealed to the MSPB when there is an issue of prohibited discrimination.

Doe maintained that her appeal with the MSPB was filed within 35 days of the arbitrator's decision, which was consistent with the MSPB regulations she was given. Those regulations state that an employee who has suffered a prohibited personnel practice, as defined in another section of the law, can raise the matter with the MSPB or use the negotiated procedure, but not both.

However, selection of the negotiated procedure "in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision in the case of a personnel action that could have been appealed to the board," according to the regulations.

Following these regulations, it would appear that Doe was on solid ground in requesting the MSPB to review the arbitrator's decision because she alleged discrimination based upon handicap and retaliation for equal employment opportunity activity.

Doe argued in court that she received misleading information about the appeal and grievance procedures available to her. The material she was given did not explain that as a USPS employee she was a second-class citizen, and she was not told that the MSPB regulations provided to her did not apply to her.

That, she contended, was the "good cause" for her delay in not filing sooner with the MSPB. Her contention seems reasonable, doesn't it? She was given some written procedures that a reasonable person would assume applied to her; otherwise, why give them to her?

The information she was provided said she could go through the arbitration procedure, and if that didn't work out, she could file an appeal with the MSPB.

Despite the apparent logic of Doe's contention, the court ruled otherwise. The court coldly observed that the letter she received told her she had 20 days to appeal to the MSPB. The court said that because the letter was "plain and unambiguous," any apparent discrepancy between that letter and the MSPB regulations she received should have prompted her to make an inquiry at the time, which she didn't.

Although she was provided with a complicated set of choices, the court said she was "clearly and correctly" informed of her choices by the letter.

However, there seems to be a contradiction in what the court is saying. On the one hand, the court is saying Doe received a clear letter; on the other hand, the court is saying there was a discrepancy between the letter she received and the MSPB regulations she received.

The court also acknowledged that there are complexities associated with the appeal rights and procedures open to Doe. Therefore, the court could have found that there was "good cause" for her not filing with the MSPB sooner. However, the court upheld the MSPB's decision that "good cause" did not exist.

If Doe can afford it, she should take this case to a higher court. I can't imagine how a reasonable person - which hopefully presides at a higher level of appeal - could not find that good cause existed for her late filing with the MSPB.

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week and the author of Bureaucratus Moneyline, a personal finance newsletter for feds, available by subscription on FCW's Web page at http://www.fcw.com.

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