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Appleberry v. Dep't of Homeland Security

United States Court of Appeals, Federal Circuit

July 8, 2015


Petition for review of an arbitrator's decision by Dennis Nolan.

DAVID R. SCHLEICHER, Schleicher Law Firm, PLLC, Waco, TX, argued for petitioner.

K. ELIZABETH WITWER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN.

Before MOORE, WALLACH, and TARANTO, Circuit Judges.


Taranto, 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. Deeming her performance unsatisfactory, the agency placed her on a " performance improvement plan" and then found that she failed to improve. Eventually, relying on that failure, the Department fired her.

When Ms. Appleberry brought her removal to arbitration, 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 placed on the performance-improvement plan and that she failed 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 abandoned that process after initiating it through filing grievances, allowing the time for completing the challenges to run. The arbitrator thus barred reconsideration of " issues that were raised in [her] earlier grievances, or that could 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 arbitrator 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 process designated as " exclusive" in the collective bargaining agreement. Accordingly, we affirm.


Ms. Appleberry worked as an Immigration Services Officer. The Department had a collective bargaining agreement (Agreement) with the American Federation of Government Employees pursuant to 5 U.S.C. ch. 71. The Agreement refers to an " Employee Performance Plan and Appraisal Form" (PPA) for evaluating employee performance, established by the Department under 5 U.S.C. § 4302 (" Establishment of performance appraisal systems" ). See 5 C.F.R. § § 430.201-430.210 (appraisal and rating regulations); J.A. 54-65 (PPA); J.A. 135-41 (Agreement Article 22, " Performance Management" ).

The PPA delineates areas of " core competency," 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 detailed 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 grade or removal, pursuant to 5 U.S.C. § 4303.

Ms. Appleberry's performance rating for 2012 was lackluster. Consequently, on 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," explained what she had to do to make her performance 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). It also warned her that, if she did not " maintain acceptable performance in [her] core competencies and performance 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 " closeout letter" informing Ms. Appleberry that she had performed unacceptably and therefore had failed the PIP standards. J.A. 46-54. The next month, on June 27, 2013, the Department proposed her removal, essentially (as Ms. Appleberry here accepts) for failing 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 agreement's negotiated procedure. The Agreement's definition of a " grievance" includes " a complaint . . . by a unit employee concerning his or her conditions of employment." J.A. 20 (Article 38(B), " Definition" ). The procedure it sets out for resolving grievances includes 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 ...

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