Rosalind Davis v. Social Security Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROSALIND DAVIS, DOCKET NUMBER

Appellant, CB-7121-14-0015-V-1

v.

SOCIAL SECURITY DATE: August 21, 2014

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Patricia J. McGowan, Esquire, Baltimore, Maryland, for the appellant.

Lauren Donner Chait, Philadelphia, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a request for review of an arbitration decision,

which mitigated the appellant’s removal to a time-served suspension. For the

reasons discussed below, we GRANT the appellant’s request for review under

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

5 U.S.C. § 7121(d) and MODIFY the arbitrator’s decision. The appellant’s

removal is MITIGATED to a suspension of 120 days.

BACKGROUND

¶2 Effective January 22, 2013, the agency removed the appellant from her Case

Intake Technician (CIT) position with the agency’s Office of Disability

Adjudication and Review in Pittsburgh, Pennsylvania, based on a charge of

misuse of her official position. Request for Review (RFR) File, Tab 1, Subtabs 2,

5. In support of the charge, the agency alleged that the appellant assigned three

disability cases of family members or friends to a particular administrative law

judge without authorization. Id., Subtab 2 at 1-2. The appellant’s union filed a

grievance of the removal action, which proceeded to arbitration. RFR File, Tab 4

at 55-68. After holding a hearing, the arbitrator issued a decision on March 24,

2014, in which he sustained the charge and found that the appellant failed to

substantiate her claims of race discrimination and retaliation for protected equal

employment opportunity (EEO) activity. Id. at 69-104. The arbitrator also found,

however, that the penalty of removal was “too severe” for the sustained charge

and awarded the appellant “reinstatement with no back pay from the date of her

removal on January 22, 2013, until reinstated.” 2 Id. at 104. The arbitrator further

found that the appellant was not entitled to compensatory damages or attorney

fees. Id.

¶3 The appellant has requested review of the arbitration decision, alleging that

the arbitrator erred in mitigating the penalty to a time-served suspension. RFR

File, Tab 1 at 1, 4-6. The agency has responded in opposition. RFR File, Tab 4

at 4-12.

2

In its response to the appellant’s request for review, the agency states that the

appellant returned to work at the agency on May 5, 2014. RFR File, Tab 4 at 8 n.5.

The appellant has not disputed this statement.

3

ANALYSIS

The Board has jurisdiction over the appellant’s request for review.

¶4 The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.

§ 7121(d) when the subject matter of the grievance is one over which the Board

has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.

§ 2302(b)(1) in connection with the underlying action, and a final decision has

been issued. Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74,

¶ 10 (2013). Each of these conditions has been satisfied in this case. 3 First, the

appellant’s grievance concerns her removal, a subject matter over which the

Board has jurisdiction. RFR File, Tab 4 at 55; see 5 U.S.C. § 7512(1). Second,

the appellant alleged in her grievance and in her request for review that the

agency’s action was based on race discrimination and was taken in retaliation for

filing EEO complaints. 4 RFR File, Tab 1 at 1, Tab 4 at 121. Finally, the

arbitrator has issued a final decision. RFR File, Tab 4 at 69-104.

The penalty ordered by the arbitrator is not entitled to deference.

¶5 The scope of the Board’s review of an arbitration decision is narrow; such

decisions are entitled to a greater degree of deference than initial decisions of the

3

We note that t he agency has not contested the Board’s jurisdiction over the appellant’s

request for review. See RFR File, Tab 4 at 4-12.

4

The appellant asserts that she raised a discrimination claim before the arbitrator and

“does not wish to relinquish any of her claims or defenses for further review.” RFR File,

Tab 1 at 1. We broadly construe this claim as a challenge to the arbitrator’s finding that the

appellant failed to prove her discrimination and retaliation claims. See RFR File, Tab 4

at 102. However, the appellant has not specified how the arbitrator erred as a matter of law

in interpreting civil service law, rule, or regulation in this regard, and we defer to the

arbitrator’s findings on this issue and discern no reason to disturb them. See Keller v.

Department of the Army, 113 M.S.P.R. 557, ¶ 6 (2010) (the Board cannot substitute its

conclusions for those of the arbitrator absent legal error); Cirella v. Department of the

Treasury, 108 M.S.P.R. 474, ¶ 15 (a request for review of an arbitration decision must

contain sufficient specificity to enable the Board to ascertain whether there is a serious

evidentiary challenge), aff’d, 296 F. App’x 63 (Fed. Cir. 2008); see also RFR File, Tab 2

(informing the appellant of the required contents for a request for review of an arbitration

decision as set forth in 5 C.F.R. § 1201.155(d)).

4

Board’s administrative judges. Keller, 113 M.S.P.R. 557, ¶ 6. Even if the Board

disagrees with an arbitration decision, the Board cannot substitute its conclusions

for those of the arbitrator absent legal error. Id. The Board will modify or set

aside an arbitration decision only if the arbitrator has erred as a matter of law in

interpreting civil service law, rule, or regulation. Id.

¶6 The deference that is due to an arbitrator’s findings extends to findings

related to penalty determinations. Fulks v. Department of Defense, 100 M.S.P.R.

228, ¶ 20 (2005). In making these findings, however, arbitrators are required to

apply the same rules the Board applies. Id. When the arbitrator does not apply

those rules, his penalty determination is not entitled to deference, and the Board

will conduct its own analysis. Id.

¶7 In her request for review, the appellant asserts that the Board should not

defer to the penalty ordered by the arbitrator because he failed to explain how he

arrived at the penalty imposed, i.e., a time-served suspension. RFR File, Tab 1

at 6. Our reviewing court’s predecessor, the Court of Claims, first addressed

time-served suspensions in Cuiffo v. United States, 137 F. Supp. 944 (Ct. Cl.

1955). There, the court set aside Mr. Cuiffo’s time-served suspension as

“arbitrary and unfair” because it was “determined by accident, and not by a

process of logical deliberation and decision.” Id. at 950. Relying on Cuiffo, the

Board and its reviewing court have held that mitigating a removal to a

time-served suspension without articulating a basis for the length of the

suspension is inherently arbitrary, and that the arbitrary penalty is not entitled to

deference. See, e.g., Greenstreet v. Social Security Administration, 543 F.3d 705,

707-10 (Fed. Cir. 2008); Fulks v. Department of Defense, 100 M.S.P.R. 228,

¶¶ 23, 29 (2005); Belldina v. Department of Justice, 50 M.S.P.R. 497, 501-02

(1991).

¶8 The appellant in Fulks, who suffered from narcolepsy, was removed from

his position as an Education Technologist at a high school for sleeping while on

duty and failing to follow established leave procedures, resulting in his being

5

absent without leave. Fulks, 100 M.S.P.R. 228, ¶ 2. The arbitrator found that

Mr. Fulks should be reinstated as of the date of his decision, thereby effectively

mitigating the removal to a time served suspension of 20 months and 13 days.

Id., ¶ 22. On review, the Board noted that in Cuiffo, Belldina, and Montalvo v.

U.S. Postal Service, 50 M.S.P.R. 48, 50-51 (1991), the Court of Claims and the

Board had found time-served suspensions inappropriate because the penalty in

those cases was determined by accident, i.e., by reference to the length of time

taken by the appeal or other administrative review process. Fulks, 100 M.S.P.R.

228, ¶ 27. The Board found that the arbitrator’s mitigation of Mr. Fulks’s

removal to a time-served suspension was not entitled to deference because the

record “le[ft] no doubt that the unusual length of the suspension to which the

arbitrator mitigated the appellant’s removal was determined by reference to the

time that had elapsed since that removal.” Id., ¶¶ 28-29. In particular, the Board

found that the arbitrator appeared to have relied on his analysis of the factors for

determining the appropriateness of a penalty set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 306 (1981), only as a basis for finding that

Mr. Fulks was entitled to reinstatement in his former position. Fulks,

100 M.S.P.R. 228, ¶ 28. The Board found, however, that the arbitrator’s decision

that mitigation was warranted was entitled to deference, and it mitigated the

penalty to a 120-day suspension. Id., ¶¶ 29, 31.

¶9 In Greenstreet, the petitioner was terminated from his position as an

Information Technology Specialist with the Social Security Administration for

damaging a computer and other office equipment in an apparently isolated

outburst. Greenstreet, 543 F.3d at 706. Mr. Greenstreet conceded that his

conduct had been improper but argued that termination was too severe a penalty.

Id. Applying the Douglas factors, the arbitrator found that termination was an

excessive penalty and ordered Mr. Greenstreet reinstated without back pay,

thereby effectively mitigating the termination to a time-served suspension. Id.

6

¶10 The Federal Circuit vacated the arbitrator’s imposition of a time-served

suspension, finding that the length of the suspension was arbitrary because it was

based solely on time served. Id. at 710. In that regard, the court noted that,

although the arbitrator conducted an analysis under the Douglas factors, his

analysis was directed entirely toward whether termination was an appropriate

penalty, and his opinion contained no findings or analysis concerning the

appropriate length of Mr. Greenstreet’s suspension. Id. The court concluded,

“[T]he reasoning of Cuiffo, consistent with the holdings of the MSPB, is sound

and [we] hold that the length of a suspension is arbitrary when it is based solely

on the suspended employee’s ‘time served’ awaiting decision.” Id. (citing Fulks,

100 M.S.P.R. at 239).

¶11 In opposition to the appellant’s request for review, the agency asserts that

the appellant “principally relies” upon Fulks to support her argument that the

time-served suspension imposed by the arbitrator is not entitled to deference.

RFR File, Tab 4 at 8. The agency contends that Fulks is distinguishable from the

present matter for two reasons. First, the agency asserts that, in Fulks there was a

relationship between the appellant’s illness and his misconduct, whereas the

appellant in this case “has no excuse of medical issues for her admitted actions,

her misconduct is not one that could be avoided through medical intervention, and

there was no external force, such as a medical issue, that would mitigate the

penalty.” Id. at 8-9. Second, the agency contends that the arbitrator’s analysis of

the Douglas factors in the present appeal was much more extensive than the

arbitrator’s analysis of those factors in Fulks. Id. at 10-12. In particular, the

agency asserts that the arbitrator in Fulks considered only five of the twelve

Douglas factors; however, in this case, the arbitrator considered all of the

Douglas factors. Id. at 10.

¶12 We find these arguments unpersuasive. Even assuming arguendo that the

factual distinctions between Fulks and this case support the agency’s apparent

7

argument that the appellant should receive a more severe penalty than Mr. Fulks, 5

those distinctions have no bearing on the issue of whether the arbitrator’s chosen

penalty of a time-served suspension is arbitrary and, thus, not entitled to

deference. Moreover, contrary to the agency’s apparent assertion on review, the

Board in Fulks did not find the penalty of a time-served suspension inappropriate

because the arbitrator’s analysis of the Douglas factors was inadequate. RFR

File, Tab 4 at 8-9; see Fulks, 100 M.S.P.R. 228, ¶ 27 (explaining that the Board

and the Court of Claims had not found time-served suspensions inappropriate

because of a failure to consider appropriate factors in deciding whether mitigation

was appropriate). Rather, the Board found that the imposition of a time-served

suspension was inappropriate because the penalty was “determined by accident”

insofar as the length of the suspension was determined by reference to the time

that had elapsed since the appellant’s removal. Fulks, 100 M.S.P.R. 228,

¶¶ 27-29.

¶13 In support of its argument that the time-served suspension at issue in this

case is not arbitrary, the agency also relies on our reviewing court’s

nonprecedential decision in Stilley v. Department of Veterans Affairs, 225 F.

App’x 889, 890 (Fed. Cir. 2007). RFR File, Tab 4 at 9. In that case, an arbitrator

mitigated Ms. Stilley’s removal penalty to a time-served suspension because she

had not been permitted to have a union representative present during questioning

5

In its response to the appellant’s request for review, the agency states that it “does not

agree with the arbitrator’s conclusion that the appellant should be returned to her CIT

position.” RFR File, Tab 4 at 7 n.4. The agency also asserts that an arbitrator should

disturb the penalty chosen by an agency only when the agency has abused its discretion

and failed to consider certain factors when evaluating the propriety of a penalty. Id.

at 8. To the extent that the agency is challenging the arbitrator’s decision to mitigate

the removal penalty, the Board has held that, under 5 U.S.C. § 7121(d), agencies lack

an independent right to seek Board review of arbitration decisions. E.g., Pace v.

Department of the Treasury, 118 M.S.P.R. 542, ¶ 3 n.1 (2012). Thus, although we have

considered the agency’s opposition to the appellant’s request for review, we otherwise

lack the authority to review the agency’s apparent allegations of error in the arbitration

decision. See id.

8

concerning her misconduct. Stilley, 225 Fed. App’x at 890. On appeal, the panel

in Stilley rejected Ms. Stilley’s argument that “a ‘time-served’ suspension is an

inappropriate penalty” and affirmed the arbitrator’s imposition of a time-served

suspension, relying on the Federal Circuit’s Back Pay Act decisions in Ollett v.

Department of the Air Force, 253 F.3d 692, 693 (Fed. Cir. 2001), and American

Federation of Government Employees, Local 2718 v. Department of Justice,

768 F.2d 348, 350 (Fed. Cir. 1985). 6 Stilley, 225 Fed. App’x at 890.

¶14 In Greenstreet, our reviewing court rejected the agency’s argument that the

time-served suspension at issue in that case should be upheld pursuant to Stilley.

Greenstreet, 543 F.3d at 709. The court found that the agency’s reliance on

Stilley was not persuasive for various reasons, including the following: unlike

Mr. Greenstreet, who argued that his suspension was arbitrary in length because it

was solely based on time served, Ms. Stilley argued that her time-served

suspension was an inappropriate, i.e., disproportionate, penalty. Id. In addition,

the court found, because the Stilley panel cited and relied on the court’s Back Pay

Act decisions in Ollett and American Federation, the panel understood

Ms. Stilley’s argument to be premised on the Back Pay Act. Id. By contrast, the

court noted, Mr. Greenstreet’s argument was not based on the Back Pay Act. Id.

¶15 The aforementioned reasons cited by the court in Greenstreet for finding the

agency’s reliance on Stilley unpersuasive also apply here. As in Greenstreet, the

appellant in this case argues that her suspension is arbitrary because it was solely

based on the time served; she does not claim that the time-served suspension is a

6

In both Ollett and American Federation, an arbitrator mitigated an employee’s

termination or removal to a suspension and denied back pay. Ollett, 253 F.3d at 693;

American Federation, 768 F.2d at 350. On appeal to the Federal Circuit, each of these

employees claimed that he was entitled to back pay pursuant to 5 U.S.C.

5596(b)(1)(A)(i) of the Back Pay Act, which provides that an employee who has been

subjected to an unwarranted and unjustified action is entitled to back pay. See Ollett,

253 F.3d at 693; American Federation, 768 F.2d at 350. As the court explained in

Greenstreet, neither of these cases involved an arbitrariness challenge to the length of

the suspension, and neither case holds that the length of a suspension can be determined

solely on the basis of “time served.” Greenstreet, 543 F.3d at 709.

9

disproportionate penalty for her misconduct. RFR File, Tab 1 at 6. Further, the

appellant’s argument is not based on the Back Pay Act, i.e., she is not contending

that she is entitled to back pay because she was subjected to an unwarranted

action. See generally RFR File, Tab 1. Thus, the agency’s argument regarding

Stilley is unavailing.

¶16 Based on our review of the record, and in light of the precedent discussed

above, we agree with the appellant that the suspension imposed by the arbitrator

is arbitrary. The unusual length of the suspension in this case 7 was determined by

accident as it was based on the length of the arbitration proceedings and the

amount of time it took the agency to reinstate the appellant to her position

following those proceedings. See Cuiffo, 137 F. Supp. at 950 (finding that the

length of a suspension ordered by a grievance review board was arbitrary and

unfair, in part because it was dependent on the amount of time it took the agency

to “get around to reinstating” the employee). Accordingly, we do not defer to the

penalty ordered by the arbitrator.

We defer to the arbitrator’s judgment to mitigate the appellant’s removal to a

lengthy suspension.

¶17 We defer, however, to the arbitrator’s conclusion that the evidence

presented in this case warrants mitigation of the appellant’s removal. As

discussed above, the arbitration decision reflects that the arbitrator weighed the

relevant Douglas factors, including numerous mitigating factors such as the

appellant’s lengthy service, satisfactory work record, remorse for her actions and

potential for rehabilitation, and the lack of notoriety of the offense. RFR File,

Tab 4 at 101-04; see Douglas, 5 M.S.P.R. at 303-08.

7

Although both the appellant and the agency identify the length of the appellant’s

suspension as 390 days, RFR File, Tab 1 at 6, Tab 4 at 7, the record indicates that the

suspension was actually 466 days, as the appellant was removed on January 22, 2013,

and returned to work at the agency on May 5, 2014, see RFR File, Tab 1, Subtab 5

at 12; Tab 4 at 8 n.5.

10

¶18 As the arbitrator found, however, “the offense was a very serious matter

involving the elements of public trust, honesty, reputation of the agency, and

conformance to agency policies.” RFR File, Tab 4 at 102-03. Further, the

appellant’s misconduct directly related to her duties, position, and

responsibilities. In addition, the appellant had prior discipline for misuse of a

government credit card, which also implicated the appellant’s trustworthiness.

See id. at 43. Under these circumstances, we find that a 120-day suspension is

the maximum reasonable penalty for the appellant’s misconduct.

ORDER

¶19 We ORDER the agency to cancel the removal and to substitute a 120-day

suspension, effective January 22, 2013. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶20 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶21 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it

took to carry out the Board’s Order. The appellant, if not notified, should ask the

agency about its progress. See 5 C.F.R. § 1201.181(b).

¶22 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

11

with the Clerk of the Board if the appellant believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant believes that the agency has not fully carried out the Board’s Order, and

should include the dates and results of any communications with the agency.

5 C.F.R. § 1201.182(a).

¶23 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

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 out 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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the Clerk of the Board.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request further review of this final decision.

12

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

13

file on time. 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. § 2000e5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium,

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay

System), a statement certifying any lump sum payment with number of hours and

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes:

a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period.

c. Statement of erroneous payments employee received such as; lump sum leave, severance

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as

ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise

information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63)

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to

be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and

amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address

to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay

Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.