# Agustin Carrion v. Department of Veterans Affairs

> Merit Systems Protection Board · December 29, 2014

URL: https://www.frixlaw.com/law-library/cases/2765109

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** December 29, 2014
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

AGUSTIN CARRION, DOCKET NUMBER
Appellant, SF-0432-13-1460-I-1

v.

DEPARTMENT OF VETERANS DATE: December 29, 2014
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bradley J. Mancuso, Esquire, Woodland Hills, California, for the appellant.

Evan Stein, Esquire, Los Angeles, California, and Hansel Cordeiro,
Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

initial decision is based on an erroneous interpretation of statute or regulation or
the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).

BACKGROUND
¶2 The appellant appealed the agency’s decision to remove him effective
July 29, 2013, from the position of Equal Employment Opportunity (EEO)
Specialist (EES), GS-260-9, based on unacceptable performance. Initial Appeal
File (IAF), Tab 1. Prior to his removal, the appellant, who has a service
computation date in 1979, was employed with the agency as an EES, GS-7.
Based on the recommendation of the appellant’s former supervisor, Tracy Strub,
the appellant was promoted to an EES, GS-9, on August 26, 2012. IAF, Tab 5 at
96. On January 30, 2013, Ms. Strub notified the appellant that his performance in
the critical elements entitled “Counseling, sub-element – Quality #1 & 3 and
Timeliness #1, and Administrative File, sub-element – Quality” was unacceptable
and she placed the appellant on a performance improvement plan (PIP). See id. at
72. The agency removed the appellant, effective July 29, 2013, based on
unacceptable performance. Id. at 16, 33.
3

¶3 The record reflects that, as an EES, the appellant conducted fact finding
inquiries into EEO allegations, serving as an EEO counselor (counselor). Id. at
78-84. Specifically, once an individual initiates the EEO complaint process by
contacting a counselor, the complaint is assigned to an individual counselor who
advises the individual of his or her right to pursue the EEO allegations, including,
as applicable, the right to timely file a mixed case with the Board. The counselor
then attempts to resolve the complaint through alternative dispute resolution
(ADR) or other options. If the individual opts to file a formal EEO complaint,
then the EES must accurately identify the claims raised by the individual, identify
the responding management officials, summarize and document any resolution
attempts, and assemble the counselor’s report. Hearing Compact Disc (CD)
(Strub testimony). Timeliness and accurate documentation are paramount
throughout the process because the agency and its EES employees must comply
with the timelines set forth in the Equal Employment Opportunity Commission’s
(EEOC) regulations as well as the EEOC Management Directive (MD).
Inaccurate or incomplete reports will delay the processing of the complaint and/or
cause the EEO office to incorrectly dismiss or accept issues, hindering the
individual’s ability to pursue his or her claim through the EEO process. Id.
¶4 Here, the PIP memorandum notified the appellant that he had performed
unacceptably in two Critical Elements (CE) of the EES position, specifically in
Counseling (CE-1) and in Administrative File (CE-2). IAF, Tab 5 at 68-70. The
memorandum addressed the appellant’s performance in the following
sub-elements: quality of the counseling and report; quality for ADR participation;
timeliness of initial contacts; properly maintaining administrative files; and
accurately populating the Complaint Automated Trading System (CATS) 2 entries
with data and documents. IAF, Tab 5 at 68-70. The rating system applicable to
the appellant’s EES position was three-tiered, rating each CE as Exceptional,

2
See Hearing CD (Strub testimony).
4

Fully Successful, or Less Than Fully Successful, with Fully Successful being the
minimally acceptable level of performance. See id. at 78-84. The PIP notice
informed the appellant that, in order to achieve a Fully Successful rating for
CE-1, no more than 4 percent of reviewed cases should involve instances where
the written reports do not accurately reflect the claimed bases and management
responses; ADR participation should be within 9 percent of the field office or the
Office of Resolution Management average; and 90 percent of initial interviews
must be conducted within 2 business days of the initial contact. Id. at 68-70. As
to CE-2, no more than 4 percent of reviewed files should be incomplete or
different in content compared to the CATS data entries. Id.
¶5 The agency issued the appellant a notice of proposed removal on June 28,
2013, stating that he had failed to meet the counseling and administrative file
elements of the PIP. See id. at 44. The notice specified that under CE-1, three of
the reports, 1207, 2083, and 2298, “required substantial review and were
returned” to the appellant. Id. The proposal notice stated that 1207 was returned
for clarification of the EEO basis; 2083 was returned twice for further
identification of the EEO basis and “to ensure that data was accurately reflected
in” the appellant’s CATS entry; and 2298 required further review to capture a
second claim. Id. The proposal notice explained that no more than 4 percent of
reviewed reports should have had issues with articulation of claims, bases, and
management responses; however, 20 percent of the reviewed reports did not
accurately reflect an appropriate articulation of the claims or bases. Id.
Regarding CE-2 and citing Note 5, the proposal notice explained that the
appellant twice failed to enter the notice of right to file dates into CATS for
reports; as a consequence, approximately 13 percent of his “cases contained data
that was incomplete or different than the content in CATS.” Id. The proposal
notice stateed that the appellant had been advised through Note 3 “to pay closer
attention to CATS” data entry. Id.
5

¶6 The appellant’s response to the proposal notice did not dispute that he had
made the errors, but he argued that he was not counseled during the PIP for any
serious performance issues, and that he was given “verbal passes” by Ms. Strub at
all evaluation points within the PIP. See id. at 37-40. The agency sustained the
proposed removal. Id. at 33. On appeal, the appellant did not dispute the factual
assertions. However, he asserted that his PIP reviews did not sufficiently note
any CE failures and he stated that he had been told that he had passed the PIP.
IAF, Tab 1.
¶7 The administrative judge found that, on their face, the performance
standards for the CEs are both realistic and attainable, and that the appellant
committed the errors as set forth in the proposal notice. IAF, Tab 28, Initial
Decision (ID) at 11. However, the administrative judge found that the agency
failed to show that the appellant was given a reasonable opportunity to improve.
ID at 14-17. Specifically, the administrative judge considered the PIP review
notes and found that the record did not show that the PIP directly assisted the
appellant in improving the subordinate elements of the CEs identified by the
agency in its proposal notice or that he was given regular assistance with
identifying and addressing his deficiencies. ID at 14. The administrative judge
found further that, based on the application of the 4 percent error formula to the
15 reports the appellant submitted, the appellant could not demonstrate
improvement when a single error had already exceeded the 4 percent margin of
error. Thus, the administrative judge did not sustain the charge of unacceptable
performance. The administrative judge also did not sustain the appellant’s
affirmative defense of reprisal for whistleblowing. ID at 17-20. Accordingly, the
administrative judge reversed the agency’s removal action and ordered the
agency, if a petition for review was filed by either party, to provide interim relief
to the appellant, effective as of the date of the initial decision. ID at 20-22.
6

INTERIM RELIEF
¶8 When an initial decision grants the appellant interim relief, if either party
files a petition for review, the agency must file a certification that it has complied
with the interim relief order. In order to comply with the interim relief order, the
agency must either provide the interim relief ordered by the administrative judge,
or make a determination that returning the employee to the position designated by
the administrative judge would cause undue disruption to the work environment.
See 5 U.S.C. § 7702(b)(2)(A)(ii). In an appeal from an adverse action that was
reversed, the agency’s evidence must show, at a minimum, “that it has appointed
the appellant to a position carrying the appropriate title, grade, and rate of pay,
effective as of the date of the initial decision.” Archerda v. Department of
Defense, 121 M.S.P.R. 314, ¶ 11 (2014) (emphasis added).
¶9 Here, the agency counsel has provided a certificate of interim relief, sworn
under penalty of perjury, stating that the appellant received a letter instructing
him to return to duty. Petition for Review (PFR) File, Tab 4. The agency counsel
also included a copy of a letter dated June 30, 2014, instructing the appellant to
return to duty “[e]ffective July 14, 2014.” This letter does not address the period
of time between the May 5, 2014 issuance date of the initial decision, and the
appellant’s July 14, 2014 return to work. Id. Thus, there is a question as to
whether the agency has shown that it has fully complied with the interim relief
order. If an agency fails to establish its compliance with the interim relief order,
the Board has discretion to dismiss its petition for review, but need not do so.
Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-34 (Fed. Cir. 2004);
Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101, ¶ 11
(2013). Under the circumstances of this case, we exercise our discretion not to
dismiss the agency’s petition for review because the agency has submitted
evidence that it has attempted to comply with the interim relief order and, based
on the outcome of our decision in this case, the shortcomings in the agency’s
7

certification of compliance are not sufficiently serious to warrant dismissal.
Therefore, to the extent the appellant is arguing that the agency’s petition should
be dismissed for failure to comply with the interim relief order, we deny the
appellant’s motion.

DISCUSSION OF ARGUMENTS ON REVIEW
¶10 In performance-based actions taken under 5 U.S.C. § 4303, the opportunity
to improve is a substantive right. The agency must prove by substantial evidence
that such an opportunity was afforded. Adorador v. Department of the Air Force,
38 M.S.P.R. 461, 464 (1988). Further, in Zang v. Defense Investigative Service,
26 M.S.P.R. 155, 157 (1985), the Board noted that an employee’s right to a
meaningful opportunity to improve is one of the most important substantive rights
in the entire chapter 43 performance appraisal framework.
¶11 On review, the agency reasserts that the appellant was counseled about his
performance during the PIP and that it provided him with a reasonable
opportunity to demonstrate acceptable performance. PFR File, Tab 4 at 10. For
instance, the agency asserts that the appellant was informed that “he should pay
closer attention to updating CATS[,] specifically the dates the aggrieved [party]
accepts or declines [ADR], [as] both of these elements are monitored.” Id. at 8.
The agency also asserts that the appellant was informed that one counselor report
that he submitted to management was being returned to him for more information
so that a “third party can understand the document without additional context.”
Id. at 9.
¶12 We have considered the agency’s arguments on review concerning the
administrative judge’s weighing of the evidence; however, the applicable law and
the record evidence support the administrative judge’s findings that the agency
failed to show by preponderant evidence that it afforded the appellant a
reasonable opportunity to demonstrate acceptable performance for CE-1 and
CE-2. Thus, we discern no reason to reweigh the evidence or substitute our
8

assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶13 Specifically, the administrative judge thoroughly analyzed the PIP notes
and found that, while the proposal notice identifies that several reports were
returned for corrections, the record fails to reflect that the PIP focused on these
mistakes and provided any assistance or direction, even while the appellant
provided one report for a third submission. ID at 15. For instance, the
administrative judge noted that, while one report states that the appellant should
pay closer attention to initial interview dates in CATS, it specified that none of
the submitted reports required any major modifications and that all were timely
submitted. The administrative judge found that the first three PIP meeting notes
did not indicate that the appellant was failing to capture the claims or bases for
the EEO complaints, nor did they state that the appellant might exceed the
maximum rate for incomplete or differing CATS entries as specified in the
proposal notice. ID at 14-15. The administrative judge found further that Note 4
specifically states that the appellant was continuing to take timely actions in his
work and it did not raise any quality concerns, adding that the appellant showed
marked improvement. ID at 15. The administrative judge found that, while Note
5 states that report 1207 was returned for more information and two other
unspecified reports were returned because the notice of right to file dates were
not captured in CATS, no other specific data entry concerns were raised and Ms.
Strub noted the appellant’s otherwise marked improvements and fully successful
performance. ID at 15. Finally, regarding Note 6, the administrative judge found
that, while it indicated that report 2083 was returned twice for more information
and correction of the basis, it too states that the appellant’s work was timely and
9

that he was otherwise continuing to improve. ID at 15. In addition, the
administrative judge found that, while Notes 5 and 6 indicated that reports 1207
and 2083 were returned for corrections and the appellant was provided the
opportunity to resubmit the reports, there is nothing in the record to describe the
agency’s efforts to address and assist the appellant with identifying and
correcting the deficiencies in those reports. Thus, while the agency’s proposal
notice relied on reports 1207 and 2083 as evidence of the appellant’s
unacceptable performance in CE-1, the administrative judge found little evidence
that the appellant was assisted with these deficiencies during the PIP period. ID
at 15.
¶14 Moreover, the administrative judge found that, once the errors in reports
1207 and 2083 were identified and returned, it was unclear how the appellant
could have demonstrated improved performance because the acceptable error
rates were already exceeded. Specifically, the administrative judge found that
CE-1 of the PIP was based on 4 percent of the number of cases the appellant
submitted, and, by the time the appellant learned of his first report deficiency as
specified in Note 5, he already would have exceeded the 4 percent standard set
forth under CE-1 for quality based solely on the fact that the identification of this
first error alone would have caused the appellant to fail the first CE with a 6.67
percent error rate. Thus, based on the aggregate count of the cases evaluated, the
appellant would have exceeded the 4 percent margin for error with a single error
even if he made no similar errors. The administrative judge concluded that, under
the reasoning and the method of the PIP involving 15 reports, it was unclear how
the appellant was afforded a reasonable opportunity to demonstrate acceptable
performance with respect to the relevant quality sub-element within CE-1 when
the first identification of an error resulted in the failure of this CE. Thus, the
administrative judge found that the agency failed to show by substantial evidence
that it afforded the appellant a reasonable opportunity to demonstrate acceptable
performance for CE-1. ID at 16.
10

¶15 Similarly, the administrative judge found that, concerning CE-2, by the time
the appellant was first informed that a notice of right-to-file field in CATS was
not properly entered, he had had already exceeded the 4 percent standard set forth
under CE-2 for quality. The identification of this first error alone would have
caused the appellant to fail the CE-2 with a 6.67 percent incomplete rate, even if
he made no other similar errors.
¶16 On review, the agency challenges the administrative judge’s determination
that, by the time the appellant’s errors were first identified, the acceptable rates
were exceeded. PFR File, Tab 4 at 10. The agency argues that the appellant
knew that his error rates were based on the number of case counselor reports he
submitted and that the agency could not control his error rate “other than to
extend his PIP period until he submitted at least 26 counselor reports” which, as
the administrative judge found, was a number that would allow the appellant
room to make an error in a case without failing his PIP. The agency argues that,
because the only controlling factor was the number of counselor reports that the
appellant submitted during the PIP, the appellant could have made more than one
error if he had submitted more counselor reports during the PIP period. See id. at
13.
¶17 However, the Performance Plan for the position of EES, GS-9, explicitly
states that, “[a]t the entry level, counselor trainees may be assigned and expected
to manage a monthly inventory of 6 to 8 counseling events. One mediation
session will be credited as a counseling episode.” IAF, Tab 4 at 19. The
counseling quality element does not specify or require an EES, GS-9,
non-counselor trainee to submit a specific number of cases monthly, nor does it
identify the monthly inventory. Thus, even if the appellant, who had been in the
EES GS-9 position for roughly 6 months when placed on a PIP, had submitted the
high end of the expected number of monthly inventory for a counselor trainee,
i.e., 8 counseling events, he still would not have submitted enough cases to allow
11

him room to make more than one error. Thus, we find no merit to the agency’s
argument.
¶18 Finally, while the agency contends that the administrative judge implied
that the agency’s standards were absolute because a single incident of poor
performance would result in an unsatisfactory rating on a critical element, we
disagree. Rather, the administrative judge found that, while “on its face the
performance standards for the CEs are both realistic and attainable,” here, the
application of the 4 percent margin of error to 15 counseling events during a
90-day period precluded the appellant from being afforded a reasonable
opportunity to demonstrate acceptable performance. While the agency disagrees
with the administrative judge’s findings in this regard, we find that the
administrative judge thoroughly addressed the record evidence, as well as the
hearing testimony, which support his findings. Thus, because the agency has
failed to prove by substantial evidence that the appellant received the statutorily
required meaningful opportunity to improve, we conclude that the administrative
judge correctly reversed the appellant’s removal. Cf. Zang, 26 M.S.P.R. at 157
(chapter 43 demotion could not be sustained for the agency’s failure to give the
employee sufficient opportunity to improve, in light of evidence that counseling
sessions given to the employee by her supervisor were often disparaging in
nature, did not produce guidance or advice on how to improve, and were not used
to warn her of the possibility of an impending performance-based action).

ORDER
¶19 We ORDER the agency to cancel the removal action and to restore the
appellant effective July 29, 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
12

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
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).
¶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.
13

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 (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). 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
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. 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 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
14

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 an appeal to
the United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2765109. Public record. Not legal advice.