The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PRISCILLA A. EBERHARDT, DOCKET NUMBER
Appellant, AT-0353-11-0436-B-2
v.
UNITED STATES POSTAL SERVICE, DATE: August 20, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samuel L. Lovett, Sr., Atlanta, Georgia, for the appellant.
Earl L. Cotton, Sr., Esquire, Atlanta, Georgia, 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 petition for review of the remand initial decision,
which dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, REVERSE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
remand initial decision, and ORDER the agency to provide the appellant with
back pay and other benefits.
BACKGROUND
¶2 The appellant was a Mail Processing Clerk at the agency’s North Metro
Processing and Distribution Center in Atlanta, Georgia. She suffered a
compensable injury in 1990 and worked in several limited-duty assignments until
September 25, 2010, when she was sent home for the first time. MSPB Docket
No. AT-0353-11-0436-I-1, Initial Appeal File (IAF) (I-1), Tab 5 at 43. On
January 5, 2011, the agency offered the appellant a modified job assignment,
which she accepted. Id. at 25. The appellant returned to work on January 13,
2011. Hearing Recording (HR), File 1 at 8:05 to 8:40. 2 On January 24, 2011, the
agency issued the appellant a letter rescinding the January 5 offer and notifying
her that there was no work available within her medical restrictions. IAF (I-1),
Tab 5 at 23. In its original decision in this matter, the Board found that the
appellant made a nonfrivolous allegation that the denial of restoration on
January 24, 2011, was arbitrary and capricious on the basis of the appellant’s
assertion that the work she had been performing was still available and that other
employees were performing that work. MSPB Docket No. AT-0353-11-0436-I-1,
Remand Order at 5 (May 11, 2012). After the administrative judge again
dismissed the appeal for lack of jurisdiction, the Board again vacated the initial
decision and remanded the appeal, noting that the administrative judge failed to
address the appellant’s evidence indicating that the agency may have approved a
Casual Hiring Request Form to hire a Postal Support Employee (PSE) to absorb
her former duties. The Board indicated that this would have been improper if it
occurred because PSEs, unlike employees in the regular workforce, are not
2
A compact disc containing the hearing recording is located at Tab 13 of the initial
appeal file, and contains three audio (MP3) files.
3
guaranteed any minimum amount of work. MSPB Docket No. AT-0353-11-0436-
B-1, Remand Order at 3 (June 13, 2013).
¶3 Following a hearing, the administrative judge issued a third initial decision
dismissing the appeal for lack of jurisdiction. He found that: (1) the Casual
Hiring Request Form was never processed and that no casual or PSE employees
were hired pursuant to this request, or any other request, during the relevant
period; (2) the PSE employees who were working during the January 13, to
January 24, 2011, period performed duties that career employees could not do
because of medical restrictions; (3) modified duty assignments were reserved for
bid employees who had medical restrictions; (4) the appellant could have bid on
these assignments but did not; and (5) as a result of the appellant’s failure to bid
on an assignment, career employees who were junior to the appellant were
awarded modified duty assignments that the appellant could have had. Initial
Decision (ID) at 6. Based on these findings, the judge concluded that the
appellant failed to establish that the tasks she previously performed were, or
currently are, being performed by casual or PSE employees; these duties were
being performed by career employees with bid assignments. ID at 6-7.
¶4 In her petition for review, the appellant contends that the non-execution of
the Casual Hiring Request Form was irrelevant because the casual and/or PSE
employees who were working at the same time she was in January 2011 had been
hired previously, and she reiterates her assertions that these employees performed
the same duties she was performing during that time and after she was sent home.
Petition for Review File, Tab 1.
ANALYSIS
The appellant established that the agency’s termination of her limited duty
assignment was arbitrary and capricious.
¶5 As stated in the Board’s previous decisions, the relevant framework in cases
such as this for determining whether the denial of restoration was arbitrary and
capricious is as follows: (1) are the tasks of the appellant’s former modified
4
assignment still being performed by other employees or are there other tasks
within her medical restrictions that were available for her to perform; (2) if so,
did those employees lack sufficient work prior to absorbing the appellant’s
modified duties; (3) if so, did the reassignment of that work violate any other law,
rule, or regulation? Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 33
(2012). If, as the appellant asserted, the duties she was performing during the
period from January 13, through January 25, 2011, 3 were also being performed by
casual and/or PSE employees, and those employees absorbed the duties she was
performing after she was forced out on January 25, then the agency’s action
sending the appellant home would be arbitrary and capricious.
¶6 The agency’s January 5, 2011 limited duty assignment offer indicated that
the appellant’s duties would be in Operation 030, Manual Letter Operations. IAF
(I-1), Tab 5 at 25. The appellant testified that, in addition to working in
Operation 030, she worked in Operation 896 (handling letters coming off letter
sorting machines) and in Operation 074 (casing manual flats). HR, File 1 at 3:10
to 4:15. She said she spent most of her time in Operation 896 and that she was
doing this sort of work on January 25, when she was called off the floor and her
limited duty assignment was terminated. Id. at 8:08 to 8:40.
¶7 The appellant testified that there were a lot of casuals working in
January 2011, including in Operations 030, 074, and 896, and that she worked
side by side with them during the January 13-25 period. HR, File 1 at 37:05
to 37:20, 10:15 to 10:55. She said she knew they were casual or temporary
employees because, having been a Postal employee for 25 years, she knew regular
employees by sight and saw a lot of unfamiliar faces in January 2011. She said
she asked one of the supervisors who these workers were and was informed that
they were casuals. Id. at 10:55 to 11:20. She said she asked some of the persons
3
Although the agency’s letter rescinding the offer of January 5, 2011, was dated
January 24, 2011, the appellant testified that she did not receive this letter until the
following day while at work. HR, File 1 at 10:00 to 10:15.
5
with whom she was working their status, and they told her they were casuals. Id.
at 11:20 to 11:45. The appellant further testified that both regular employees and
casual employees were working overtime during this period. HR, File 1 at 8:45
to 9:00, 12:30 to 12:45, 33:05 to 33:20.
¶8 A maintenance mechanic who was an officer of the American Postal
Workers Union testified that a number of casuals were employed at the North
Metro facility in January 2011, that they worked on the same Operations as did
the appellant, and that the casual employees were still working after the
appellant’s limited duty assignment was terminated. HR, File 2 at 25:00 to 25:55.
She further testified that casuals were used in 2011 to replace regular employees
on limited duty assignments and that work was available then (and at the time of
the hearing) that the appellant could perform. Id. at 27:35 to 27:50.
¶9 The Operations Support Specialist for the North Metro facility during the
period in question was the agency’s only witness. She testified that PSEs were
hired for work on the automation machine that sorts mail or the mechanization
machine that sorts flats. HR, File 2 at 59:30 to 59:59. Regarding work records
concerning a casual employee who was working at the same time as the appellant
in January 2011, she testified that he appears to have been working in the 074
Operation casing manual flats. HR, File 3 at 1:05 to 1:35. She testified that, to
her knowledge, the appellant did not work in Operation 074 and that the appellant
would not have worked side by side with 074 employees because they worked in a
different part of the building than did 030 employees. Id. at 3:15 to 3:50. This
witness conceded during cross-examination that she is not a supervisor and would
not know what specific duties the appellant was assigned. HR, File 3 at 16:20
to 17:00. In addition, although she testified that, to her knowledge, no casual
employees were working in Operation 030 at the pertinent time, she conceded that
supervisors could move employees among Operations as needed, and she would
not know if supervisors assigned casual employees to the 030 Operation. Id.
at 21:50 to 22:35.
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¶10 Based on the above evidence, we conclude that the appellant established by
preponderant evidence that casual and/or PSE employees were performing many
of the same limited duties she was performing during the period from January 13
to January 25, 2011, and that they continued to do so after her limited duty
assignment was terminated that day. 4 Accordingly, we conclude that the
termination of the appellant’s limited duty assignment was arbitrary and
capricious.
The appropriate remedy is back pay and associated benefits from the date of the
improper denial of restoration until the effective date of the appellant’s
retirement.
¶11 When an agency’s denial of restoration has been determined to have been
arbitrary and capricious, the Board has ordered the agency to restore the appellant
to her former modified assignment. See Ashley v. U.S. Postal Service,
118 M.S.P.R. 231, ¶ 19 (2012), aff’d in part and vacated in part, 210 M.S.P.R.
363 (2013) (Table); Coles v. U.S. Postal Service, 118 M.S.P.R. 249, ¶¶ 2, 11
(2012). The appellant retired from her position effective June 20, 2012. MSPB
Docket No. AT-0353-11-0436-B-1, IAF (B-1), Tab 3. As restoration to duty is no
longer possible, the appropriate remedy in this case is to order the agency to
provide the appellant back pay and other benefits for the period from January 25,
2011, when the agency arbitrarily and capriciously denied her restoration, until
June 20, 2012.
4
We note the administrative judge’s statement that the appellant’s representative “in his
closing statement admitted that the appellant had failed to meet her burden of proof.”
ID at 7 n.4. The representative stated that, based on the appellant’s credible testimony
at the hearing, it was “more than likely” that the appellant’s duties were absorbed by
casual employees. HR, File 3 at 36:35 to 36:50. The representative then added: “Can
we prove that? No, we can’t prove that. That is a hill that is entirely too steep to
climb.” Id. at 36:50 to 37:00. The burden of proof in this case was by a preponderance
of the evidence, i.e., “more likely than not.” See 5 C.F.R. § 1201.56(c)(2). The
representative was clearly asserting that his client had met this burden of proof. The
“too steep to climb” quotation obviously referred to some burden higher than a
preponderance of the evidence.
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ORDER
¶12 We ORDER the agency to provide back pay and benefits for the period
from January 25, 2011, to June 19, 2012. 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.
¶13 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service Regulations, as appropriate, 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.
¶14 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).
¶15 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
with the office that issued the initial decision on this appeal 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).
¶16 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
8
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 office that issued the initial decision
on your appeal.
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 the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
9
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
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.