One Appeal Process Isn’t Enough

Can an employee who decides to file a grievance change her mind and go to the MSPB instead? What if, as the employee claimed, the union misled her when explaining her options?

When an employee decides to challenge her removal by electing to file a grievance rather than go the MSPB, can she change her mind, withdraw the grievance, and file an appeal with the Board? The Board said no and the U.S. Court of Appeals for the Federal Circuit agreed. (Atanus v. Merit Systems Protection Board, No. 05-3123, 1/6/06 (Precedential))

The General Services Administration removed Ms. Atanus from her procurement analyst position on charges of disorderly conduct and failure to follow authorized instructions. The decision letter spelled out her options for challenging the action. She could either file a grievance or appeal to the MSPB, but not both. She was told if she elected to file a grievance, then she “may be represented and assisted by the union in exercising any of your grievance rights.” Within a five day period, she sent three letters to the agency. The first indicated she wished to grieve her removal; the second confirmed this election, requested arbitration and designated a representative; and the third letter withdrew her grievance. That same day she filed an appeal with the Board.

GSA moved to dismiss her appeal since she had waived her right to do so when she made her election. Ms. Atanus argued that her election to grieve the removal was not an “informed” one “because she was misled by her union representative.” She claimed the union had told her they would assist. She assumed this meant that she would be represented by the union throughout the process and on this basis she opted the grievance route. She claimed that after making her election the union told her it was no longer willing to represent her, which is why she withdrew the grievance and filed with the Board. (Opinion, p. 1)

The Board held Ms. Atanus to her original election. Once she opted for a grievance procedure, she had waived her right to appeal. The only exception to this rule is where the agency fails to clearly explain to the employee the options. That was not the case here. Therefore, her appeal was dismissed. (Atanus v. Gen. Serv. Admin., No. CH-0752-03-0703-I-1 (M.S.P.B. Jan. 26, 2004) ).

The Federal Circuit agreed with the Board and in a 2-1 decision affirmed. Pointing out the “unfortunate” fact that Ms. Atanus lost her appeal right to the MSPB when she elected to file a grievance, and lost her grievance right when she subsequently withdrew the grievance, nevertheless she was bound by her own actions. As for her argument that her grievance election was uninformed “because the letter did not completely notify her of the scope of her union representation and the union representative misled her,” the court ponts out that “these are allegations of union misconduct, and are not the fault of the agency. Moreover, there is nothing in the record from which to ascertain what the union representative may or may not have told Atanus. Thus, we can only evaluate Atanus’s undisputed actions, which are that she opted for the grievance procedure having been previously told by the agency that grieving would preclude an appeal.” (p. 5)

In short, the former employee gets to live with the consequences of her own actions. In this day and age it seems that many want to duck their personal responsibility by pointing the finger at someone else. This case illustrates that such a tactic will not always work.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.