UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SARAH P. EMANUELE,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

PH-0752-15-0539-I-1

DATE: August 19, 2016

THIS ORDER IS NONPRECEDENTIAL1

Sarah P. Emanuele, Cornwall, New York, pro se.

Elizabeth J. Head, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review, VACATE the initial decision, and 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND the case to the regional office for further adjudication in accordance 

with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The administrative judge dismissed this removal appeal for lack of 

jurisdiction because she found that the appellant had elected to challenge her 

removal through the negotiated grievance procedure before she filed the formal 

equal employment opportunity (EEO) complaint through which she sought to 

appeal her removal as a mixed case before the Board. Initial Appeal File (IAF),

Tab 21, Initial Decision (ID). The appellant reiterates in her petition for review

that the union filed the grievance at issue, not she, that the union’s filing does not 

represent an election by her to grieve her removal, and that the Equal 

Employment Opportunity Commission (EEOC) found no evidence that she had 

elected to use the negotiated grievance procedure. Petition for Review (PFR) 

File, Tab 1; IAF, Tab 18. The agency has responded to the petition for review. 

PFR File, Tab 3. 

¶3 Pursuant to the statute governing grievance procedures, 5 U.S.C. 

§ 7121(e)(1), matters such as the appellant’s removal that are covered under a 

negotiated grievance procedure and Board jurisdiction “may, in the discretion of 

the aggrieved employee, be raised either under the appellate procedures of 

section 7701 of this title or under the negotiated grievance procedure, but not 

both.” Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 6 (2016). 

Subsection (e)(1) further provides that an employee is deemed to have elected to 

file under either the appellate procedures or the grievance procedure based on 

whichever she timely files first. Kendrick v. Department of Veterans Affairs, 

74 M.S.P.R. 178, 181 (1997). 

¶4 By law, however, both the exclusive representative and the bargaining unit 

employee have independent rights to file a grievance over a matter within the 

scope of the grievance procedure. 5 U.S.C. § 7121(b)(1)(C)(i)‐(ii); Kendrick, 
3

74 M.S.P.R. at 181. Therefore, the mere fact that a grievance has been filed 

regarding an action otherwise appealable to the Board does not remove that action 

from the Board’s jurisdiction due to the employee’s “election” of the grievance 

procedure over the Board’s appellate procedures. Kendrick, 74 M.S.P.R. at 181. 

Rather, to be outside the Board’s purview, it must be shown that the employee 

either filed the grievance on her own behalf, or authorized the union to file on her

behalf. Id. If it is shown that the union filed without the explicit or implicit 

authorization of the employee, then the employee has not made an election of the 

grievance procedure, and the matter remains within the jurisdiction of the Board. 

See, e.g., Morales v. Merit Systems Protection Board, 823 F.2d 536, 538‐39 (Fed.

Cir. 1987) (finding that an employee did not either request or ratify a grievance 

filed by her union on her behalf, and therefore her grievance was “void,” and she 

was entitled to proceed before the Board); Stone v. Department of the Army,

37 M.S.P.R. 56, 59‐61, 63 (1988) (remanding an appellant’s removal appeal for 

full adjudication after finding that neither the appellant nor his designated 

representative elected to utilize the grievance procedure to challenge

the removal). 

¶5 The evidence on which the administrative judge relied to find that the 

appellant elected the negotiated grievance procedure before she filed the instant 

appeal, a May 4, 2011 letter from the National Air Traffic Controllers Association 

requesting expedited arbitration, does not bear the appellant’s signature. ID at 2; 

IAF, Tab 11 at 4, Tab 19 at 2. Additionally, it does not appear from the face of 

the document that the union provided the appellant with a copy of that document, 

and the record does not contain a copy of the grievance filing referenced in that 

letter. IAF, Tab 11 at 4; IAF, Tab 19. In an unsworn pleading below, 2 the 

appellant claimed that she did not file the grievance, and as noted above, she 

 2 An unsworn statement by an appellant is admissible evidence, although the fact that it 

is unsworn may detract from its probative value. Scott v. Department of Justice,

69 M.S.P.R. 211, 228 (1995), aff’d per curiam, 99 F.3d 1160 (Fed. Cir. 1996) (Table). 
4

further contends that the EEOC found no evidence that she had elected to pursue 

her removal through the negotiated grievance process. IAF, Tab 18. With her 

petition for review, she provided a copy of the EEOC’s decision denying the 

agency’s motion for reconsideration, but it was not clear from the text of that 

decision whether the appellant had amended her EEO complaint to include her 

removal. PFR File, Tab 1 at 19-20. 

¶6 Because the record was insufficient to properly determine whether the 

appellant had authorized the union to file the grievance on her behalf, we issued a 

show cause order in which we explained the deficiency in the record and ordered 

the appellant to file evidence and argument on the issue. PFR File, Tab 4. The 

appellant has filed a sworn response. PFR File, Tab 11. The agency has not 

responded. Unrebutted sworn statements are competent evidence of the matters 

asserted therein. See Truitt v. Department of the Navy, 45 M.S.P.R. 344, 347 

(1990); Schaefer v. U.S. Postal Service, 42 M.S.P.R. 592, 595 (1989). 

¶7 In her response, the appellant avers that she amended her formal EEO 

complaint to include her removal. PFR File, Tab 11 at 5‐6. She includes an

August 2, 2012 dismissal letter in which the agency appears to acknowledge that 

the substance of the appellant’s formal EEO complaint included her termination. 

Id. at 16. The appellant also includes the EEOC’s decision remanding her 

complaint for adjudication following the agency’s erroneous jurisdictional 

dismissal, in which the EEOC clearly found that the appellant’s formal EEO 

complaint encompassed her “separation from Agency employment.” Id. at 28. 

¶8 Although the administrative judge found that the appellant had filed the 

grievance, ID at 4, we find that preponderant evidence instead indicates that the 

union filed it on its own accord. The appellant has provided unrebutted evidence 

that she was not aware of the grievance when it was filed and has not 

subsequently ratified it. IAF, Tab 1 at 3, Tab 11 at 4; PFR File, Tab 11 at 2, 8‐9. 

Moreover, despite the fact that the union requested “expedited arbitration,” IAF, 
5

Tab 11 at 4, the administrative judge found that as of December 15, 2015, the 

date that she issued her initial decision, the grievance was still pending, ID at 2. 

¶9 In light of the appellant’s sworn response to the Board’s show cause order,

we find that preponderant evidence indicates that the appellant chose to challenge 

her removal in her formal EEO complaint and that she did not elect to do so

through the negotiated grievance procedure. Therefore, we must remand her 

removal appeal to the regional office for adjudication on the merits. 

ORDER

¶10 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this remand order. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board