UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TAUNYA JEFFERSON,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

CB-7121-15-0010-V-1

DATE: May 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Eleanor J. Lauderdale, Esquire, Washington, D.C., for the appellant.

Candyce Phoenix, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant requests review of an arbitrator’s decision regarding her

removal. For the reasons set forth below, we DENY the request for review for 

failure to meet the requirements of 5 C.F.R. § 1201.155(d). 

¶2 The agency removed the appellant from her position as a Management Staff 

Assistant with the agency’s Office of Unemployment Insurance for unacceptable 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

performance while on a performance improvement plan, and she challenged that 

action through arbitration pursuant to the negotiated grievance procedure set forth 

in her collective bargaining agreement. Request for Review (RFR) File, Tabs 

1-2, 9 at 21. The appellant subsequently filed this request for Board review of the 

arbitrator’s decision. RFR File, Tabs 1-2. 

¶3 The Clerk of the Board issued a February 20, 2015 acknowledgment letter 

in which he informed the appellant, in pertinent part, that the Board’s regulations 

require that a request for review of an arbitration decision must contain: (1) a 

statement of the grounds on which review is requested; (2) references to evidence 

of record or rulings related to the issues before the Board; (3) arguments in 

support of the stated grounds that refer specifically to relevant documents and 

that include relevant citations of authority; and (4) legible copies of the final 

grievance or arbitration decision, the agency decision to take the action, and other 

relevant documents, which may include a transcript or tape recording of the 

hearing. RFR, Tab 6; see 5 C.F.R. § 1201.155(d). The Clerk further explained 

that, to the extent that the appellant had not yet complied with those 

requirements, she may file a supplement to her request for review by March 2, 

2015, and that the record would close upon the expiration of the period allotted 

for the agency to file its response to the appellant’s request for review, April 6, 

2015. RFR, Tab 6 at 1; see 5 C.F.R. § 1201.155(f). The appellant resubmitted a 

corrected copy of her request for review, RFR, Tab 8, and the agency responded 

in opposition to the appellant’s request, RFR, Tab 9. 

¶4 After the record closed, the appellant requested leave to submit a copy of 

the transcript. RFR, Tab 10. The agency responded in opposition, explaining 

that, because the appellant failed to show that the transcript was not readily 

available before the close of the record, she could not meet her burden in order to 

file it after the record had closed. RFR, Tab 11 at 4-5; see 5 C.F.R. § 1201.155(f) 

(“Once the record closes, no additional evidence or argument will be accepted 

unless the party submitting it shows that the evidence was not readily available 
3

before the record closed.”). The agency also asserted that the appellant’s request 

for review was incomplete because she had failed to file a copy of the agency’s 

decision removing her as required by 5 C.F.R. § 1201.155(d)(4). RFR, Tab 11 at 

4-5.2 

¶5 Although the appellant, who is represented by counsel, provided a copy of 

the arbitration decision and has explained the grounds on which she bases her 

request, with apparent citations to the transcript of the arbitration proceedings and 

to relevant authorities, RFR, Tab 4, she neglected to file the required copy of the 

agency’s decision, or to even address her failure to do so in her subsequent 

pleadings, see RFR, Tabs 10, 12. Because the Clerk of the Board correctly 

articulated these requirements in its February 20, 2015 acknowledgment letter, 

the appellant was on notice regarding the requirement for her to submit, among 

other items, the agency’s decision. RFR File, Tab 5. Her failure to fully meet the

mandatory requirements of 5 C.F.R. § 1201.155(d) precludes the Board from 

granting her request for review. 

¶6 Moreover, even if she had complied with Board regulation and filed a copy 

of the agency’s decision, the appellant’s failure to submit the transcript,3

or 

anything at all in support of the allegations set forth in her request for review,

 2 The appellant subsequently submitted a request for an extension of time in which to 

file a reply to the agency’s response in opposition to her request for review. RFR, Tab 

12. The Clerk of the Board denied the appellant’s request because Board regulations do 

not provide for the filing of a reply to a response to a request for review of an 

arbitrator’s decision. RFR, Tab 13; see 5 C.F.R. § 1201.155. 

3 The appellant’s request to supplement the record with a copy of the transcript 

indicates that she had a copy of the transcript in her possession but that she chose not to 

submit it when the record was still open because she did not have an electronic version 

of it. RFR, Tab 10 at 4. However, the appellant could have timely submitted the hard 

copy. Although the appellant’s representative registered as an e-filer, the appellant did 

not do so, and, in any event, the Board’s electronic filing regulations do not require the 

e-filing of any pleading, even for those who register as e-filers. See 5 C.F.R. 

§ 1201.14(f). Because the appellant has failed to show that the transcript was 

unavailable, despite her due diligence, before the close of the record, we deny her 

request to supplement the record with it. 5 C.F.R. § 1201.155(f). 
4

leaves her unable to overcome the deference afforded the arbitrator’s factual 

determinations. See, e.g., Weaver v. Social Security Administration, 94 M.S.P.R. 

447, ¶ 13 (2003) (an arbitrator’s factual determinations are entitled to deference 

unless he erred in his legal analysis, e.g., by misallocating burdens of proof or 

employing the wrong analytical framework); Holly v. Department of Health & 

Human Services, 92 M.S.P.R. 601, ¶ 10 (2002) (an appellant seeking review of an 

arbitration decision has the burden of providing the Board with materials 

necessary to support matters raised on review, including a transcript or tape 

recording of the arbitration hearing); Higgs v. Social Security Administration, 

71 M.S.P.R. 48, 51-52 (1996) (employee’s unsupported assertions that arbitrator 

erred in her fact findings were insufficient to show that the arbitrator’s findings 

conflicted with Board substantive law and thus did not provide a basis for setting 

aside or modifying the arbitrator’s award where the record did not contain the 

hearing transcript or exhibits). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:
5

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of
6

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board