Daryl S. Jackson v. Department of the Army, CH-072-02-0217-1-1 (July 1, 2003).

The union filed a grievance under the negotiated grievance procedure (NGP) on behalf of the appellant after the agency had decided to remove him, but before the effective date of the removal. The appellant later filed an appeal with the Board after the effective date of the removal, challenging the severity of the penalty and alleging that the agency had discriminated against him on the basis of race, sex, and age. Although the AJ, noting that a grievance had been filed before the appeal, dismissed the appeal for lack of jurisdiction, the Board reversed, noting that "[n]o election under 7121(d) or (e) can occur before the effective date of the appealable action."

On July 24, 2001, the agency proposed to remove the appellant based on charges of AWOL and failure to request leave. On November 6, 2001, it issued its decision in which it found the charges supported and that they warranted removal. The removal was to be effective on November 23, 2001. On November 9, 2001, the union filed a grievance on behalf of the appellant. The removal action was actually carried out on November 27, 2001.

The appellant filed an appeal with the Board on December 28, 2001, challenging the severity of the penalty. He later amended the appeal to include an allegation that the agency discriminated against him on the basis of his race, sex, and age.

The AJ dismissed the appeal for lack of jurisdiction on the ground that since the appellant had elected to file a grievance before filing his appeal, he was precluded from filing an appeal with the Board under 5 U.S.C. §§ 7121(d) and (e). The appellant filed a petition for review.

After noting that the appellant must elect an NGP or a Board appeal, but not both, when contesting a removal, the Board went on add that it "has consistently held that '[n]o election under 7121(d) or (e) can occur before the effective date of the appealable action.' e.g., Sylvester v. Veterans Administration, 34 M.S.P.R. 215, 216 (1987); Riddick, 27 M.S.P.R. at 592." It continued as follows:

When the union filed the grievance on the appellant's behalf on November 9, 2001, his removal was not yet effective. Thus, the grievance could not have been a valid election because it did not concern a matter appealable to the Board. See Landsiedel v. Department of the Air Force, 89 M.S.P.R. 256, 6 (2001). Because the appellant did not make a valid election of the grievance procedure, the filing of his grievance does not cause the appeal of his removal to be excluded from the Board's jurisdiction.

The Board accordingly remanded the appeal for further adjudication.