On appeal from the Merit Systems Protection Board. Docket No. AT07529110778.
Before Rich, Plager and Clevenger, Circuit Judges.
Cornell Jones (Mr. Jones) petitions for review of the February 26, 1992 decision of the Merit Systems Protection Board (MSPB or Board), Docket No. AT07529110778, dismissing his action for lack of jurisdiction. We affirm.
Mr. Jones filed a union grievance on March 8, 1988 pursuant to his union's collective bargaining agreement with the Government. Subsequently, on March 31, 1988, and before he received a final arbitration decision, Mr. Jones voluntarily withdrew his grievance. Mr. Jones also filed an Equal Employment opportunity (EEO) complaint alleging, among other things, that his removal was a result of handicap discrimination. The parties dispute when the EEO complaint was filed: Mr. Jones contends it was filed March 8, 1988; the Government contends it was filed on March 31, 1988. On July 2, 1991, the agency issued a final decision canceling Mr. Jones's EEO complaint because it was the basis of a pending civil action Mr. Jones filed in a Federal District Court.
On June 28, 1991, pursuant to 5 C.F.R. § 1201.154, Mr. Jones filed a "mixed" case appeal with the MSPB challenging his removal.*fn1 The administrative Judge issued an initial decision dismissing Mr. Jones's appeal for lack of jurisdiction. The full board affirmed the AJ's decision holding that, pursuant to 5 U.S.C. § 7121(d),*fn2 the MSPB lacks jurisdiction to consider a "mixed" case appeal if an aggrieved employee elects to pursue a union grievance prior to filing the appeal, and the employee is not seeking review of a final arbitration decision rendered in connection with the grievance. The board recognized that it has jurisdiction to review a final arbitration decision; however, since Mr. Jones had voluntarily withdrawn his union grievance, and thus, had never received a final arbitration decision, the board determined that it had no basis for jurisdiction.
Mr. Jones also argues that the board has jurisdiction by virtue of his EEO complaint pursuant to 5 C.F.R. § 1201.154(b)(2). However, section 1201.154(b)(2) does not provide the board with jurisdiction if an aggrieved employee has elected to pursue a union grievance prior to filing the MSPB appeal. 5 C.F.R. § 1201.154(d). In such cases, section 1201.154(d) provides that the MSPB has jurisdiction only to review the arbitrator's final decision.
In addition, just as an aggrieved employee must elect between a union grievance and an MSPB appeal, so must the employee choose between a union grievance and an EEO complaint pursuant to 29 C.F.R. § 1613.219(b).*fn3 On March 8, 1988, Mr. Jones filed his union grievance and apparently mailed his EEO complaint to an EEO counselor. Mr. Jones then mailed the EEO complaint to an EEO officer in Washington, D.C. on March 31, 1988. Under 29 C.F.R. § 1613.214(a)(3), an EEO complaint is deemed filed on the date it is mailed to an "appropriate official" designated to receive complaints. Since Mr. Jones has not shown that the EEO counselor is an "appropriate official" designated to receive complaints, the EEO complaint was not filed until March 31, 1988. Therefore, his election to file a union grievance preempted his EEO complaint and precluded him from appealing the EEO decision to the MSPB.
We have reviewed all of Mr. Jones's arguments on appeal. The MSPB's decision must be affirmed unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). Accordingly, finding no such error here, we affirm.