Opinion

Michael Ervin v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Aug 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL W. ERVIN, DOCKET NUMBER

Appellant, SF-0752-17-0722-X-1

UNITED STATES POSTAL SERVICE, DATE: August 29, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mary DiGioia , Bellflower, California, for the appellant.

Catherine V. Meek , Long Beach, California, for the agency.

Roderick Eves , St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 This compliance proceeding was initiated by the appellant’s petition for

enforcement of the Board’s December 3, 2018 final decision in Ervin v. United

States Postal Service, MSPB Docket No. SF-0752-17-0722-I-1. On May 10,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2019, the administrative judge issued a compliance initial decision finding the

agency not in compliance with the Board’s December 3, 2018 final decision.

Ervin v. United States Postal Service, MSPB Docket No. SF-0752-17-0722-C-1,

Compliance Initial Decision (CID) at 4 (May 10, 2019); Compliance File (CF),

Tab 5. For the reasons discussed below, and notwithstanding the agency’s

egregious failure to respond to the Board’s orders and otherwise cooperate in

resolving this case, we find the agency in compliance and DISMISS the petition

for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On September 25, 2017, the appellant appealed his removal from the

position of Manager, Customer Service. Ervin v. United States Postal Service,

MSPB Docket No. SF-0752-17-0722-I-1, Initial Appeal File (IAF), Tab 1. On

December 3, 2018, the administrative judge issued an initial decision mitigating

the appellant’s removal to a demotion to the position of Supervisor, Customer

Service. Ervin v. United States Postal Service, MSPB Docket No. SF-0752-17-

0722-I-1, Initial Decision (ID) at 14 (Dec. 13, 2018); IAF, Tab 30. The

administrative judge ordered the agency to cancel the appellant’s removal and

substitute in its place a demotion to the position of Supervisor, Customer Service;

and to pay the appellant the appropriate amount of back pay, with interest, as well

as adjusting the appellant’s benefits with appropriate credits and deductions. ID

at 14-15. That initial decision became the final decision of the Board on

January 7, 2019, after neither party petitioned the full Board for review. ID

at 16-17.

¶3 On March 18, 2019, the appellant filed a petition for enforcement of the

Board’s order, alleging that the agency had not yet returned him to work. CF,

Tab 1 at 3. On May 10, 2019, the administrative judge issued an initial decision

granting the petition for enforcement because the agency failed to demonstrate

that it cancelled the appellant’s removal; placed him in a Supervisor position; or

paid him back pay, interest, and benefits. CID at 4. The administrative judge

again ordered the agency to: (1) cancel the removal and substitute in its place a

demotion to the position of Supervisor, Customer Service; (2) pay the appellant

the correct amount of back pay, interest, and benefits; and (3) inform the Board in

writing of all actions taken to comply with the Board’s order and the date on

which it believed it had fully complied. As neither party filed any submission

with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114,

the administrative judge’s findings of noncompliance have become final, and the

appellant’s petition for enforcement has been referred to the Board for a final

decision on compliance pursuant to 5 C.F.R. § 1201.183(c). 2 See 5 C.F.R.

§ 1201.183(b). On June 21, 2019, the Board issued an acknowledgement order

requiring the agency to file evidence of compliance. Ervin v. United States Postal

Service, MSPB Docket No. SF-0752-17-0722-X-1, Compliance Referral File

(CRF), Tab 1.

¶4 On July 9, 2019, the agency filed its response, in which it stated that it

believed there was no need to cancel the appellant’s removal because the removal

was never actually effectuated due to the appellant’s intervening resignation.

CRF, Tab 3 at 4. The agency further stated that it reactivated the appellant’s

employment and placed him into a position as Supervisor, Customer Service, at

the Pico Rivera Post Office, where he reported for the first time on June 24, 2019.

Id. The agency finally stated that, for the agency to be able to complete the back

As noted in the compliance initial decision, the Board’s regulations provide that, upon

a finding of noncompliance, the party found to be in noncompliance must do the

following: (i) To the extent that the party decides to take the actions required by the

initial decision, the party must submit to the Clerk of the Board, within the time limit

for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party

has taken the actions identified in the initial decision, along with evidence establishing

that the party has taken those actions; and/or (ii) To the extent that the party decides not

to take all of the actions required by the initial decision, the party must file a petition

for review under the provisions of 5 C.F.R. §§ 1201.114-1201.115. 5 C.F.R.

§ 1201.183(a)(6).

pay requirement, the appellant needed to complete the agency’s back pay forms

addressing outside employment and other sources of income. Id. at 5.

¶5 On July 22, 2019, the appellant responded to the agency’s proof of

compliance. CRF, Tab 4. The appellant asserted that his new assignment was

farther from his home than his original position, although similar vacant positions

existed in his original facility. CRF, Tab 4 at 11. The appellant further stated

that he had submitted the requisite back pay forms to the agency on July 1, 2019.

Id.

¶6 On June 19, 2020, the Clerk of the Board issued an order stating that further

evidence from the agency was required before the Board could make a

determination on compliance. CRF, Tab 5 at 2-3. The Clerk of the Board noted

that, as of the date of the Order, the agency had not yet submitted any evidence

demonstrating that all back pay funds had been paid to the appellant, provided

any explanation as to how it chose the appellant’s new position, or stated whether

it cancelled the PS Form 50 reflecting the appellant’s retirement, as required by

the Board’s final order. Id. The Clerk of the Board directed the agency to inform

the Board whether all back pay funds had been paid to the appellant, and if the

agency claimed that the back pay funds had been paid, the agency’s submission

was required to include full details of the back pay calculations and a narrative

summary of the payments. Id. The Clerk of the Board further directed the

agency to state whether it had cancelled the petitioner’s retirement PS Form 50,

inform the Board regarding how it chose the appellant’s new position, including

the location, and explain why the appellant was not returned to his original work

location. Id.

¶7 On April 23, 2021, the Clerk of the Board issued another order due to the

agency’s failure to respond to the June 19, 2020 Order. CRF, Tab 6. The

April 23 Order repeated the June 19, 2020 directive to the agency, and also

warned the agency that failure to submit the required information may lead to the

issuance of sanctions against the responsible agency official pursuant to 5 U.S.C.

§ 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c). Id. at 2. The agency provided no

response to the April 23, 2021 Order.

¶8 On September 28, 2022, the Board issued an order to show cause due to the

agency’s failure to respond to the April 23, 2021 Order. CRF, Tab 9. The Board

ordered the agency to submit evidence of compliance and further ordered

Ms. Cynthia Garcia, the agency management official identified as responsible for

ensuring the agency’s compliance, to show cause why the Board should not

impose sanctions for the agency’s noncompliance. Id. at 4.

¶9 On December 13, 2023, after multiple attempts by the Board’s Office of

General Counsel to contact the representative who appeared throughout this

proceeding, Ms. Catherine Meek, 3 the agency finally submitted what it deemed its

“Notice of Compliance.” CRF, Tab 12. In its submission, the agency asserted

that it believed it was in compliance with the Board’s December 3, 2018 Order

with respect to appellant’s return to employment, but also stated that it was still

researching whether the appellant had been paid all back pay. Id. at 4-6. The

agency did not, however, respond to the Clerk’s order that the agency show cause

why Ms. Cynthia Garcia should not be sanctioned for the agency’s failure to

respond to previous orders. Id.

¶10 After the agency filed its December 13, 2023 submission, the Board’s

Office of General Counsel again made multiple attempts to contact agency

counsel regarding the agency’s efforts at further compliance, and again failed to

receive a substantive response from agency counsel demonstrating that the agency

was attempting to reach full compliance. The Board thus issued another order to

show cause, requiring the agency to show why it should not be sanctioned for its

failure to comply with the Board’s December 3, 2018 Order. CRF, Tab 13.

¶11 On March 18, 2024, the agency finally submitted a substantive pleading that

included evidence of its attempts to reach compliance. CRF, Tab 14. The agency

The second agency representative, Mr. Roderick Eves, joined the proceeding only in

March 2024, after the Board’s Office of General Counsel contacted him for assistance

in getting the agency to respond to the Board’s orders.

apologized for the delay, explaining that staff turnover and structural changes led

to a significant delay in its responses. Id. at 3-19. The agency explained that it

had paid all back pay owed to the appellant on November 5, 2019, and included in

the pleading a detailed explanation of the back pay calculations. Id.

¶12 The agency supplemented that pleading with a second pleading on April 6,

2024, in which it explained that the agency official previously designated to

ensure compliance actually left her position in 2021 due to a reduction in force

(though she did not retire from the agency until April 2024). CRF, Tab 15. The

agency did not explain why it took 3 years to inform the Board of this event or

why it did not fulfill its obligation to provide current information for the agency

official designated to ensure compliance, despite the Board’s multiple orders and

reminders to do so.

¶13 On April 23, 2024, the appellant responded to the agency’s March 18, 2024

response. CRF, Tab 16. In his response, the appellant only asserted that he had

not yet received any response from the agency to the March 15, 2024 Order to

Show Cause. Id. at 4.

¶14 On April 25, 2024, the agency responded to the appellant’s April 23, 2024

pleading. CRF, Tab 17. The agency argued that, as an e-filer, the appellant

should have received all of its submissions via e-Appeal. Id. at 3. The agency

also stated that it served the appellant’s designated representative with copies of

all of its pleadings via mail. Id.

¶15 On May 7, 2024, the appellant filed a response to the agency’s April 23,

2024 pleading. CRF, Tab 18. In the pleading, the appellant only included a

generic statement that the agency had not yet complied with the Board’s orders.

Id.

ANALYSIS

¶16 When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation she

would have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. An agency’s assertions of

compliance must include a clear explanation of its compliance actions supported

by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.

319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by

making “specific, nonconclusory, and supported assertions of continued

noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,

¶ 5 (2010).

¶17 The agency’s outstanding compliance issues were its obligations to:

(1) cancel the appellant’s removal and substitute in its place a demotion to the

position of Supervisor, Customer Service; and (2) pay the appellant the correct

amount of back pay, interest, and benefits. The agency’s combined submissions,

while significantly delayed, show that the agency has now reached full

compliance. Addressing the cancellation of the appellant’s removal and demotion

to a supervisor position, the agency’s submissions demonstrate that the agency

has reached compliance with respect to these obligations. The agency provided

unrebutted evidence that, because the appellant initially retired shortly after his

removal in September 2017, no PS Form 50 was ever entered into his personnel

folder reflecting his removal. CRF, Tab 3 at 4-5. The agency further provided

evidence that the appellant was placed in a supervisor position, effective June 22,

2019, where he worked until his second retirement in February 2020. CRF, Tab 3

at 4-8, Tab 12 at 4-9. Additionally, in response to the Board’s inquiry as to why

he was placed in a separate work location, which was located 23 miles from his

previous facility, upon his return to employment, the agency explained that he

was placed in his new work location due to a lack of vacancies in his old location,

as well as to avoid disruption in the old work location due to the charges against

him, which the Board partially sustained. CRF, Tab 3 at 4-8, Tab 12 at 4-9.

¶18 Regarding the back pay and interest, the agency’s submissions show that the

appellant was paid all back pay and interest owed in November 2019. CRF,

Tab 14. The agency included with its submissions the required detailed

calculations of its payments. Id.

¶19 We would be remiss not to note our profound disappointment in the

agency’s failure to cooperate in this case. The agency ignored multiple Board

orders, including show cause orders; and the agency representative refused to

respond substantively, or frequently at all, to the multiple attempts by the Board’s

Office of General Counsel to reach her. This is especially disappointing because

the agency representative is a supervising attorney.

¶20 The extreme delay in resolving this case rests largely with the agency.

Indeed, even now, despite admitting (without apology or explanation) that it

submitted woefully outdated information regarding the identity of the agency

official charged with compliance, the agency still has not fulfilled its obligation

under the Board’s regulations to name its current such official. See 5 C.F.R.

§ 1201.183(a)(7).

¶21 The agency’s extreme lack of cooperation and failure to comply with Board

orders are worthy of sanction. However, our case law generally does not permit

us to sanction an agency that has complied with its substantive obligations, as the

agency has finally done. E.g., Mavronikolas v. U.S. Postal Service, 53 M.S.P.R.

113, 116 (1992), aff’d per curiam, 979 F.2d 216 (Table). Nonetheless, we

admonish the agency to take care not to act similarly in other cases. If it does, we

may move toward sanctions far earlier in the compliance process.

¶22 In light of the agency’s unrebutted evidence of compliance, the Board finds

the agency in compliance and dismisses the petition for enforcement. This is the

final decision of the Merit Systems Protection Board in this compliance

proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)

(5 C.F.R. § 1201.183(c)(1)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the Clerk of the Board.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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 prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.