Opinion

Kathy Porter v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Mar 20, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHY H. PORTER, DOCKET NUMBERS

Appellant, CH-0752-17-0010-X-1

CH-0752-17-0010-C-1

UNITED STATES POSTAL SERVICE, DATE: March 20, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kathy H. Porter , Rochester, Kentucky, pro se.

Roderick D. Eves , Esquire, and Thao T. Pham , Esquire, St. Louis,

Missouri, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member

FINAL ORDER

In a February 1, 2024 Order, the Board affirmed an August 2, 2018

compliance initial decision that found the agency in noncompliance with an

April 28, 2017 initial decision, which had become the final decision of the Board

after neither party filed a petition for review. Porter v. U.S. Postal Service,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

MSPB Docket No. CH-0752-17-0010-I-1, Initial Appeal File, Tab 19,

Initial Decision (ID); Porter v. U.S. Postal Service, MSPB Docket No. CH-0752-

17-0010-C-1, Compliance Petition for Review (CPFR) File, Tab 5. The

April 28, 2017 decision found that the appellant’s retirement was involuntary and

ordered the agency to reverse her separation, to restore her, effective

October 1, 2014, and to pay her the appropriate amount of backpay with interest.

ID at 2, 14-15. For the reasons that follow, we now find the agency in

compliance and DISMISS the appellant’s petition for enforcement and petition

for review.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

In its February 1, 2024 Order, the Board found that the agency had not

established compliance with its April 28, 2017 decision and affirmed the

compliance initial decision findings that: (1) the agency improperly withheld

from the appellant’s backpay award the amount of her 2014 pay for performance

(PFP) award and her union dues; (2) the agency did not pay the appellant the

proper amount of interest due because of its improper deduction of the PFP bonus

and union dues; and (3) the agency needed to ensure the correct effective date of

the appellant’s placement in the Part-Time Flexible (PFT) Sales, Service

Distribution Associate position was reflected in the appellant’s official personnel

file (OPF). CPFR File, Tab 5 at 4. Accordingly, given outstanding issues of

compliance remained, the Board referred the appellant’s petition for enforcement

to its Office of General Counsel to obtain compliance. Id. at 6.

On September 6, 2018, before the Board issued its February 1, 2024 Order,

the agency submitted a statement of compliance asserting that it had paid the

appellant the backpay owed, excluding the improper bonus and union dues

deductions. Porter v. U.S. Postal Service, MSPB Docket No. CH-0752-17-0010-

X-1, Compliance Referral File (CRF), Tab 1. As evidence of its compliance, the

agency submitted a payment summary showing it had recalculated the backpay

without withholding the bonus and union dues for a total amount of $4,365.24.

CRF, Tab 1 at 10. The agency also submitted a copy of a check payment for the

recalculated backpay in the amount of $2,924.71, which it represented was the

total backpay of $4,365.24 less the $1,440.53 it had previously paid the appellant

in 2017. Id. at 5, 8, 12. Finally, the agency submitted a Postal Service (PS)

Form 50 reflecting that the appellant was placed in the PFT Sales position,

effective February 7, 2015. 2 Id. at 5, 14. On February 19, 2024, the appellant

filed a response to the agency’s statement of compliance, disputing receipt of the

backpay check in the amount of $2,924.71 and stating that the agency did not

provide proof that it had recalculated and paid her the proper amount of interest

owed based on the recalculated backpay award. CRF, Tab 5.

On October 2, 2024, the agency filed a supplemental compliance response

in which it asserted that it had determined that the backpay check in the amount

of $2,924.71 was never negotiated and was automatically cancelled on

September 30, 2020, two years after its issuance. CRF, Tab 6 at 6, 55. Thus, the

agency asserted that it had re-issued the check for $2,924.71 and submitted

evidence that it had mailed the appellant a new check in the amount of $2,986.02,

which was delivered on June 28, 2024. 3 Id. at 16-21. Regarding interest, the

agency submitted evidence that it had issued an additional interest check in the

amount of $1,003.31 based on the recalculated backpay award, which was

received by the appellant on September 7, 2024. 4 Id. at 6, 8-12. As additional

evidence, the agency submitted its interest calculations. Id. at 13-15. On

According to the agency, the appellant was reinstated, effective September 30, 2014,

CRF, Tab 6 at 37; but she was placed in the PFT Sales position, effective

February 7, 2015, because her prior position had been abolished due to reorganization.

Porter v. U.S. Postal Service, MSPB Docket No. CH-0752-17-0010-C-1, Compliance

File (CF), Tab 3 at 5; CRF, Tab 1 at 14.

The agency did not explain the reason for the difference of $61.31 between the two

checks.

The agency had previously paid the appellant $1,738.36 in interest. CF, Tab 3 at 5,

32-39; CF, Tab 15, Compliance Initial Decision at 4; CPFR File, Tab 5 at 2.

February 5, 2025, the Board issued an Order affording the appellant an

opportunity to respond to the agency’s supplemental compliance response. CRF,

Tab 7. The appellant has not filed a response.

ANALYSIS

When the Board finds a personnel action unwarranted, the aim is to place

the appellant, as nearly as possible, in the situation she would have been in had

the wrongful personnel action not occurred. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,

100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191

(Fed. Cir. 2006). The agency bears the burden to prove compliance with the

Board’s order by a preponderance of the evidence. 5 Vaughan, 116 M.S.P.R. 319,

¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions of compliance must include

a clear explanation of its compliance actions supported by documentary evidence.

Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence

of compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

As noted, to comply with the Board’s final order, the agency was required

to provide evidence that it had recalculated the appellant’s backpay award to

exclude the improper bonus and union dues deductions, recalculated the interest

owed to the appellant, and ensured that her OPF reflected the proper effective

date of her placement in the PFT Sales, Service Distribution Associate position.

The agency’s submissions show that it has now reached full compliance. As

described above, the agency has provided evidence reflecting that it properly

recalculated the backpay amount, less the bonus and union dues, and issued the

appellant an additional backpay check. CRF, Tab 6 at 6, 16-21. The agency also

recalculated the interest owed on the additional backpay and submitted evidence

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

that it had mailed the appellant an interest check payment of $1,003.31. Id. at 6,

8-15. The agency also submitted a PS Form 50 confirming the appellant was

placed in the PTF Sales, Service Distribution Associate position, effective

February 7, 2015. CRF Tab 1 at 14. As the appellant has not responded to the

agency’s supplemental statement of compliance, or to the Board’s

February 5, 2025 Order affording her an opportunity to do so, CRF, Tab 7, the

Board assumes that she is satisfied, see Baumgartner v. Department of Housing &

Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).

In light of the foregoing, we find the agency in compliance with its

outstanding compliance obligations and dismiss the petition for enforcement and

the petition for review. This is the final decision of the Merit Systems Protection

Board in these compliance proceedings. Title 5 of the Code of Federal

Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS 6

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.

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.

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

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. 7 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).

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.

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