Appleberry v. Dep't of Homeland Sec., No. 14-3123 (Fed. Cir. 2015)Annotate this Case
Appleberry worked for the U.S. Citizenship and Immigration Services, under 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 agency fired her. When 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; 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 Appleberry had abandoned that process after initiating it through filing grievances, allowing the time for completing challenges to run. The arbitrator barred reconsideration of “issues that were raised in [her] earlier grievances, or that could have been raised but were not.” The Federal Circuit affirmed, rejecting an argument that the arbitrator should not have barred consideration of the performance-improvement-plan issues raised in her earlier, uncompleted grievances; the arbitrator properly enforced the grievance process designated as “exclusive” in the collective bargaining agreement.