# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CATHY APPLEBERRY, Petitioner

v.

DEPARTMENT OF HOMELA ND SECURITY, Respondent

______________________

2014

- 3123

______________________
Petition for revi ew of an arbitrator ’ s decision by De nnis Nolan.

______________________

Decided: July 8, 2015

______________________

D AVID R. S CHLEICHER , Schleicher Law Firm, PLLC, Waco, TX, argued for petitioner.

K. E LIZABETH W ITWER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by J OYCE R. B RANDA , R OBERT E. K IRSCHMAN , J R ., S COTT D. A USTIN

.

_____________________

Before M OORE , W ALLACH , and T ARANTO , Circuit Judges.APPLEBERRY v. DHS 2

T ARANTO , Circuit Judge

. Cathy Appleberry worked for the U.S. Citizenship and Immigration Services , an agency within the Department of Homeland Security

, and was covered by a collective bargaining agreement. Dee ming her performance unsa tisfactory, the agency placed her on a “ performance i mprovement plan ” and then found that she failed to improve. Eventually, relying on that failure, the Depar tment fired her

. When Ms. Appleberry brought her removal to arbitr ati on, as authorized (but not required) by the collective bargaining agreement, the arbitrator concluded that she could not challenge the key bases for the removal

, i.e. , the agency determinations that she should be place d on the performance

- improvement plan and that she fail ed under the plan. He concluded that the collective bargaining agreement , pursuant to 5 U.S.C. § 7121
, prescribed the exclusive process , including time limits, for challenging those determinations, but that Ms . Appleberry had aba ndoned that process after initiating it through filing grie vances, allowing the time for completing the challenges to

run. The arbitrator thus barred re consideration of “issues that were raised in [her] earlier grievances , or that coul d have been raised but were not

. ” J.A. 9. In this court, Ms. Appleberry accepts that, if that rationale was correct, the removal was properly upheld.
Ms. Appleberry appeals on the ground that the arb itrator should not have barred consideration of the performance

- improvement

- plan issues raised in her earlier

, uncompleted grievances. We conclude that the arbitrator properly enforced the grievance proce ss designated as “exclu sive” in the collective bargaining agreement

. A ccordingly , we affirm.APPLEBERRY v. DHS 3

B ACKGROUND

M s. Appleberry worked as an Immigration Services Officer . T he Department had a collective bargaining agreement (Agreement) with the American Federation of Government Employees pursuant to 5 U.S.C. ch. 71. Th e Agreement refers to an “Employee Performance P lan and Appraisal Form” (PPA) for evaluating employee performance , established by the Department under 5 U.S.C. § 4302 (“Establishment of performance appraisal sy stems”)

. S ee 5 C.F.R. §§ 430.201

– 430.210 (appraisal an d rating regula tions) ; J.A. 54

– 65 (PPA); J.A. 135

– 41 (Agreement Article 22, “Performance Management”).

The PPA delineates areas of “core competen cy ,” such as “communication” and “customer service,” as well as the standards that must be met to “ [a] chieve[] [e] xpectations” or “ [a] chieve[] [e] xcellence” in these areas. J.A. 55

– 56. It also sets out “ critical [p] erformance [g]oals ,” such as “National Security/Fraud Detection,” and lays out d etailed standards. J.A. 57

– 59. The PPA directs the Department to rate an employee based on various competencies and goals , weight the ratings, and combine them to determine the employee’s overall performance rating for any given period

. J.A. 55, 57. Unacceptable performance under the PPA may lead to a reduction in

gra de or removal

, pursuant to 5 U.S.C. § 4303

. Ms. Appleberry’s performance rating for 2012 was lackluster. Consequently, o n December 6, 2012
, the Department issued a written “Performance Improvement Plan” (PIP)

. JA 39

– 45; see also J.A. 142 ( Agreement Article 30(B), “Performance Improvement Plan ” ); 5 C.F.R. § 432.104 (“Addressing unacceptable performance”). It identified critical elements of the PPA for which Ms. Appleberry was “performing unacceptably,” ex plained what she had to do to make her perform ance acceptable

, and gave her 90 days to improve

. J.A. 39

– 45 ; see also 5 U.S.C. § 4301 (“ Definitions ”); 5 C.F.R. § 430.203 ( same )

.APPLEBERRY v. DHS 4

It also warned her t hat, if she did not “maintain accept able performance in [her] core competencies and perfo rmance goals for one (1) year from the beginning of the PIP period,” she might be subjected to “reduction in grade or removal without any further opportunity to demonstrate acceptable performance.” J.A. 45.

On May 23, 2013, the Department issued a PIP

“ clo seout letter ” informing Ms. Appleberry that she had perform ed unacceptably and therefore had failed the PIP standards . J.A. 46

– 54. T he next month, on June 27, 2013, the Department proposed her removal , essentially (as Ms. Appleberry here accepts) for fa iling the PIP standards

. J.A. 305

– 07. The Department removed Ms. Appleberry four months later, on October 31, 2013. J.A. 33

– 38.
Before the removal decision, Ms. Appleberry had filed several grievances under the collective bargaining agre ement’s negotiated procedure. The A greement’s definition of a “grievance” includes “a complaint .

. . by a unit e mployee concerning his or her conditions of employment.” J.A. 20 (Article 38(B), “Definition”)

. The procedure it sets out for resolving grievances i ncludes several stages, with time limits applicable at each stage

. The Agreement states that, with exceptions neither invoked nor relevant here (including where the employee has made an appeal of an adverse action to the Merit Systems Protection Board), “ [t]his negotiated procedure shall be the exclusive procedure available to the Union and employees in the unit for resolving grievances w hich come within its cove rage

. . . .” J.A. 20 (Article 38(A), “Purpose”).
The negotiated procedure begins with the D epar tment ’s consideration of the merits of a grievance , moves through increasingly formal steps, and culminates in arbitration

— if the employee meets prescribed filing deadlines

. Specifically, the employee must first file either a “Step I” or “Step II” grievance within 35 days of theAPPLEBERRY v. DHS 5

complained

- of incident. If the employee ch oo ses to file at Step I instead of immediately starting at Step II, and the Step I grievance is denied, the employee must file a Step

II grievance withi n 14 days of receiving the Step I dec ision. No matter how the employee gets to Step II, if the Step II grievance is denied, the employee has 15 days from receiving the denial to file a Step III grievance. A rbi tration may be invoked only after a Step III decision, and only by meeting a 30- day deadline.
Ms. Appleberry had filed three sets of grievances u nder that procedure

. The first challe nged her 2012 PPA rating, arguing that it was based on performance stan dards that violated 5 U.S.C. § 4302 (b)(1)

. The second claimed workplace bullying, including allegations that the Department had improperly reviewed her work under the PIP. E .g. , J.A. 325. The third challenged the PIP closeout letter, claiming, among ot he r things, that the PIP was neither established n or conducted in accordance with the negotiated PPA standards and that Ms. Appleberry’s performance “met expectations.” E.g. , J.A. 364. All three sets of grievances were filed at the Step I, II, and III levels, and all three were denied at each level. As is undisputed

, Ms. Appleberry failed to invoke arbitration for any of the grievances within the permitted 30

- day period. The deadline to invoke arbitration of her PPA

rating grievance fell before the De partment proposed her removal; the deadlines for her bullying and PIP -closeoutletter grievances fell after her removal was proposed but before the removal decision was actual ly made. Ms. Appleberry timely opposed the proposed removal on July 8, 2013.

Aft er her removal, Ms. Appleberry filed for an expedited arbitration of the removal decision , a s provided for by the Agreement ’s Article 39(K). Before considering Ms. Appleberry’s challenge, the arbitrator granted the D epartment’s motion to bar consideration of the issues that she raised or could have raised in her earlier grievancesAPPLEBERRY v. DHS 6

but failed to request be arbitrated

. Shortly thereafter, the arbitrator denied her removal grievance.
Ms. Appleberry appeals

. She rests h er appeal entirely

on the contention that the arbitrator erroneously exclu ded issues relating to her failure of the PIP that she raised in her earlier grievances but did not take to arbitration

. We have jurisdiction pursuant to 5 U.S.C. § § 7121(f) and 770 3(b)(1).

D ISCUSSION
“We review an arbitrator’s decision under the same standard of review that is applied to decisions from the Merit Systems Protection Board.” Johnson v. Dep’t of Veterans Affairs , 625 F.3d 1373, 1376 (Fed. Cir. 2010) (citing 5 U.S.C. § 7121(f)). Thus, “ we must affirm the decision of the arbitrator unless it is: ‘(1) arbitrary, capr icious, an abuse of discretion, or otherwise not in accor dance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. ’ ” Id . (quoting 5 U.S.C. § 7703(c)). This standard of review “contemplates de novo review of questions of law.” Id

. (quotation marks and citations omitted). “I nterpretation of a collective

bargaining agr eement is a question of law we review de novo.” Garcia v. Dep’t of Homeland Sec. , 780 F.3d 1145, 1147 (Fed. Cir. 2015); see Giove v. Dep’t of Transp. , 230 F.3d 1333, 1340

– 41 (Fed. Cir. 2000); Huey v. Dep’ t of Health & Human Servs. , 782 F.2d 1575, 1577

– 78 (Fed. Cir. 1986).
The basis for Ms. Appleberry’s removal was her fai lure to improve adequately under the PIP. It is undispu ted that Ms. Appleberry initiated but did not complete the Agreement- prescribed p roce ss for challenging the dete rmination of her PIP failure: she did not take the matter to arbitration , much less do so within the time allowed. The question present ed is whether, as the arbitrator conclu ded, the terms of the specific collective bargaining agre e-APPLEBERRY v. DHS 7

ment here precluded him, in evaluating the removal decision, from considering the PIP

- failure is sues raised in Ms. Appleberry’s earlier grievance s but not timely su bmitted to arbitration.

We conclude that t he arbitrator correctly determined that he was precluded. The government indicated at oral argument that, had Ms. Appleberry opted (as she was entitled to do ) to appeal the removal decision to the Merit Systems Protection Board instead of challenging the removal before an arbitrator, the Board, unlike the arb itrator, would not have been preclud ed from considering the PIP

- related issues raised in Ms. Appleberry’s prior grievances. Oral Argument at 15:00

– 15:38; see also 5 U.S.C. § 7121(e)(1)

. Under that position, th at particular difference between forums, among others, would be one that employee s in Ms. Appleberry’s position might well consider in making a choice of forum for a removal dec ision. But Ms. Appleberry chose the arbitral forum , an d the contract providing for arbitration circumscribed the arbitrator’s authority. Specifically

, the Agr eement pr ohibit ed his review of the PIP

- related actions in the r emoval arbitration

— those actions had to be challenged according to the process that the Agreement said was exclusive

, and Ms. Appleberry did not bring that process to completion.
Article 38(A) of the Agreement states that , aside from certain exceptions neither argued n or applicable here

, the “negotiated procedure shall be the exclusive procedure available

. . . for resolving grievances which come within its coverage. ” J.A. 20 (emph asis added). There is no dispute that the PIP actions were the proper subject of a “grievance,” under Article 38(B); indeed, Ms. Appleberry did bring those actions into the grievance process

— though she did not complete that process. Article 38(F), which lays out the grievance framework , in cludes a prov ision permitting arbitration in accordance with Article 39 should “the employee [be] dissatisfied with the Step IIIAPPLEBERRY v. DHS 8

decision.” J.A. 25. Article 39(B) provides that, “[i]f the Agency and the Union fail to s ettle any grievance pr ocessed under the grievance procedures, such grievance, upon written request by the Union or the Agency, may be submitted to arbitration within (30) calendar days from the date the Agency or the Union’s final decision is r eceived.” J .A. 27. This is a timing requirement

, generally implying that the invocation of arbitration may not occur outsi de th e 30

- day period , and Ms. Appleberry has not presented to us any argument for relaxing the requir ement in this case

. And Article 38(I) declares that a grie vance, once brought, if not timely moved forward to the next stage, “shall be deemed to have been withdrawn.” J.A. 26. Finally, and critically, we have been pointed to no basis on which, short of the government’s consen t, t he arbitrator could deviate from this prescribed procedure : Article 39(O) states that “[t]he arbitrator shall be bound by the terms of this Agreement and shall have no author ity to add to, subtract from, alter, amend or modify any provision of this Agr eement .” J.A. 31. Together, t ho se provisions establish the exclusivity of the Agreement’s prescribed proce ss for an arbitrator ’s review of the merits of a covered employer action.

The Civil Service Reform Act is not to the contrary. Indeed, the Act’s definition of a “grievance” includes “any complaint . . . by any employee concerning any matter relating to the employment of the employee . . . [or] any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting cond itions of e mployment.” 5 U.S.C. § 7103(a)(9)(A), (a)(9)(C)(ii). And t he Act declares that, subject to exceptions inapplicable here,

“ any collective bargaining agreement shall provide proc edures for the settlement of griev ances .

. . [and] the proc edures shall be the exclusive administrative procedures for resolving grievanc es which fall within [ the collective bargaining agreement’s ] coverage. ” § 7121(a)(1) (emph asis added).APPLEBERRY v. DHS 9

Ms. Appleberry contends that the limitation on arb itral consideration here is contrary to Cornelius v. Nutt , in which the Supreme Court ruled that “[i]f the employee elects . . . to proceed [with a negotiated grievance proc edu re instead of an appeal to the B oard], and the union or the agency invokes binding arbitration, . . . th e arbitrator is to apply the same substantive standards that the Board would apply if the matter had been appealed.” 472 U.S. 648 , 652 (1985) (citation omit ted). We do not find Co rnelius to be applicable

— even though performance -related evaluations are re levant to the Board’s review of whether a removal for unacceptable performance is proper

, s ee , e.g. , 5 U.S.C. § 4302(b); Lovshin v. Dep’t of Navy , 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc) , and even though the government has acknowledged that Ms. Appleberry could have had the PIP actions reviewed by the Board had she challenged her removal in that forum

. The arbitrator here did not alter applicable “substantive standards,” Cornelius

, 472 U.S. at 652, but rather adhered to proc edural requirements c learly stated in the collective ba rgaining agreement

. As we have had occasion to explain, Cornelius requires that arbitrators “adhere to the board’s interpretation of .

. . substantive rules ,” such as “the standard of review for substantial evidence and t he harmful error rule .” Wissman v. Soc. Sec. Admin. , 848 F.2d 176, 178 (Fed. Cir. 1988)

. But “[t] he only procedures [the] arbitrator must follow are those specified in the collective bargaining agreement, in the submission of the parties to the arbitrator, or required by statute.” Id

. Indeed, the statutory provi sion relied on in Corneliu s , 5 U.S.C. § 7121(e)(2)

— which directs arbitrators to apply the standards in 5 U.S.C. § 7701(c)(1) governing Board review

— contains limiting language that forecloses using it to circumvent the A greement’s “exclusive” procedure here

. Section 7121(e)(2) applies only to “matters covered under sec tions 4303 and 7512 .

. . which have been raised under the negotiated grievance procedure .” 5 U.S.C.APPLEBERRY v. DHS 10

§ 7121(e)(2) (emphasis a dded)

. In Cornelius

, the grievant was raising a matter through the prescribed grievance procedure, and there was no question about failure to meet procedural requirements for presenting that matter; the question was what standard governed the assessment

o f that matter. In this case , however, the arbitrator’s decision rests on the determination that t he basis for removal, PIP failure, was not properly “raised under the negotiated griev ance procedure” i n the first place. Proc edures differ between arbitration and Board review , and § 7121(e) gives an employ ee a choice between the m for a
matter under both the Board’s jurisdiction and the arb itrator’s contractual authority

. See Cornelius , 472 U.S. at 650, 652; Atanus v. Merit Sys. Prot. Bd. , 434 F.3d 1324, 1326

– 27 (Fed. Cir. 2006). I t does not expand the arbitr ator’s authority to decide issues beyond the authority provided in the contract

. In following the procedural requirements of the Agreement, the arbitrator , consistent with Cornelius

, applied t he same substantive standards as applied by the Board

. T he arbitrator’s reason for limiting consideration of certain issues had everything to do with the process required by the agreement . As Ms. Appleberry has poin ted to no statutory provision, in C hapter 43 or otherwise,

pre venting the adop tion of this contracted

- for process

, we conclude that the arbitrator did not err. See Wissman

, 848 F.2d at 178 ; cf

. 14 Penn Plaza LLC v. Pyett , 556 U.S. 247, 257

– 60 (2009)

. C ONCLUSION For the foregoing reasons, t he judgment of th e arb itrator is affirmed.

No costs.

AFFIRMED