Hortencia R. Leija v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HORTENCIA R. LEIJA, DOCKET NUMBER

Appellant, DA-0752-11-0588-M-1

v.

DEPARTMENT OF VETERANS DATE: January 7, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Rogers, San Antonio, Texas, for the appellant.

Thomas Herpin, Esquire, Houston, Texas, 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 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 initial decision is based on an erroneous interpretation of statute or

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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). To the extent the appellant’s claims constitute a possible

compliance matter we FORWARD those claims to the Denver Field Office for

docketing as a timely filed petition for enforcement.

¶2 The Board remanded this appeal for further proceedings consistent with the

court’s decision in Leija v. Department of Veterans Affairs, 530 F. App’x 945

(Fed. Cir. 2013). This case involves the appellant’s July 11, 2011 removal based

on her failure to accept a directed reassignment from the position of Diagnostic

Radiological Technician, GS-9, which she held prior to a compensable work-

related injury, to the position of Medical Support Assistant, GS-4, with retained

pay at the GS-9 grade level. The court vacated the portion of the Board’s initial

decision that affirmed the agency’s removal action.

¶3 On remand, because the parties declined the opportunity to hold a

supplemental hearing to further develop the record, the administrative judge

afforded them the opportunity to file closing briefs. Remand Appeal File, Tab 13,

Remand Initial Decision (RID) at 1. The administrative judge found that, because

the agency declined the opportunity to supplement the record on remand, the

agency accepted the factual background as set forth by the court. RID at 2.

Specifically, the court found that the appellant “was employed as a Medical

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Support Assistant and performing the duties of that position pursuant to several

job offers that she accepted—despite her initial rejection of such employment in

the [agency]’s December 2010 offer.” Leija, 530 F. App’x at 952; RID at 5. The

administrative judge found further that, prior to the appellant’s July 11, 2011

removal, the record showed that the appellant had performed the duties of the

Medical Support Assistant position continuously from August 2010 until she was

granted family medical leave in May 2011. Thus, the administrative judge found

that the agency failed to show by preponderant evidence that the appellant refused

reassignment to the Medical Support Assistant position.

¶4 The administrative judge also found that the appellant failed to prove her

affirmative defenses of disability discrimination and harmful error in the agency’s

alleged failure to apprise her of her right of appeal to the Board or the Equal

Employment Opportunity Commission. RID at 6-7. Regarding her disability

discrimination claim, the administrative judge found that the agency continued to

reasonably accommodate the appellant and that it wrongly removed her based on

its mistaken belief that its charge of failing to accept a directed reassignment was

supported. RID at 7. The administrative judge found that the appellant’s

supervisor credibly testified that the agency fulfilled its obligation to fully assess

the appellant’s medical condition, her job skills, the work environment, and the

agency’s resources in offering the reassignment. RID at 7. Thus, the

administrative judge found that the appellant failed to prove disability

discrimination regarding the agency’s decision to remove her. RID at 7. In

addition, the administrative judge found that the appellant failed to develop her

harmful error claim, either during the hearing or in her various submissions, and

thus he concluded that she failed to prove this claim. The administrative judge

reversed the appellant’s removal and ordered the agency to reinstate the appellant

with back pay and benefits retroactive to the date of the canceled removal,

July 22, 2011.

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¶5 As a preliminary matter on review, we address the appellant’s allegation

that the agency failed to provide her interim relief. Remand Petition for Review

(RPFR) File, Tab 7. It is well established that the purpose of the statutory interim

relief provision is not to make the appellant whole at the interim relief stage of

the proceedings. Norton v. Department of Veterans Affairs, 112 M.S.P.R. 248,

¶ 7 (2009); Ginocchi v. Department of the Treasury, 53 M.S.P.R. 62, 71 n.6

(1992). Rather, the intent of interim relief is to protect the appellant from

hardship during the pendency of her appeal if she prevails in the initial decision.

Herrin v. Department of the Air Force, 95 M.S.P.R. 536, ¶ 15 (2004); Smith v.

Department of Veterans Affairs, 59 M.S.P.R. 340, 350 (1993). More generally,

interim relief is to benefit both the agency and the appellant by limiting the waste

of human and financial resources during the petition for review process. See

Herrin, 95 M.S.P.R. 536, ¶ 15; Ginocchi, 53 M.S.P.R. at 69–70. When a removal

action is reversed, it is a fundamental element of interim relief that the appellant

be reinstated with pay, effective as of the date of the initial decision. Herrin,

95 M.S.P.R. 536, ¶ 15; Lambert v. Department of the Navy, 85 M.S.P.R. 130, ¶ 7

(2000). To establish compliance with an interim relief order, all that an agency

must accomplish by the petition for review filing deadline is to take appropriate

administrative action, such as executing a Standard Form (SF) 50 or SF-52 that

will result in the issuance of a paycheck for the interim relief period. Salazar v.

Department of Transportation, 60 M.S.P.R. 633, 639 (1994).

¶6 Here, the agency counsel has provided a certificate of interim relief, sworn

under penalty of perjury, stating that the agency has rescinded the July 22, 2011

removal and returned the appellant to the Medical Support Position and that the

appellant was placed in an authorized absence pay status from the date of the

initial decision, May 19, 2014, until she was returned to duty on July 28, 2014.

RPFR File, Tab 9 at 6. The certificate states further that the appellant has

received approximately $12,427 in gross pay for the period of May 19, 2014, to

August 9, 2014. Id. Although the appellant argues that the agency failed to

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reinstate her to the proper position and she claims that she has not received the

back pay she is entitled to because she was reinstated to the GS-4 Medical

Support Assistant position, this argument does not establish that the agency failed

to provide interim relief. RPFR File, Tab 3 at 4. In this case, the agency

reinstated the appellant to the Medical Support Assistant position, the same

position in which the court found that she was “employed” and was “performing

the duties of that position pursuant to several job offers that she accepted” at the

time of her removal. Leija, 530 F. App’x at 952. Thus, we reject the appellant’s

contentions that the agency failed to comply with the interim relief order. RPFR

File, Tabs 1, 7.

¶7 On review, the appellant appears to be challenging the Board’s decision to

dismiss her restoration claim for lack of jurisdiction and she asserts that the

Employee’s Compensation Appeals Board (ECAB) decision is “new evidence”

showing that she should have been restored to the position of Diagnostic

Radiological Technologist at the GS-9 level. However, the court affirmed the

Board’s decision to dismiss the appellant’s restoration claim for lack of

jurisdiction. Thus the appellant’s restoration claim is barred from any further

litigation by the doctrine of collateral estoppel. Leija, 530 F. App’x at 954-55;

see Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988) (collateral

estoppel, or issue preclusion, is appropriate when (1) an issue is identical to that

involved in the prior action, (2) the issue was actually litigated in the prior action,

(3) the determination on the issue in the prior action was necessary to the

resulting judgment, and (4) the party precluded was fully represented in the prior

action).

¶8 Further, to the extent the appellant may be arguing that her removal was

improper and that the ECAB decision impacts the merits of the agency’s removal

action, the administrative judge reversed the appellant’s removal and we have

found no basis upon which to disturb this determination. Because the removal

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was correctly reversed, the probative value of the ECAB decision in determining

the merits of the removal is irrelevant. 2

¶9 The appellant also appears to be reasserting her claim of disability

discrimination. However, the administrative judge addressed this argument in the

remand initial decision and we find no basis upon which to disturb his

determination. RID at 7. Specifically, the administrative judge found that the

appellant’s supervisor credibly testified that the agency fulfilled its obligation to

fully assess the appellant’s medical condition, her job skills, the work

environment, and the agency’s resources in offering the reassignment. RID at 7.

Thus, the administrative judge found that the appellant failed to prove disability

discrimination concerning the agency’s decision to remove her. RID at 7. While

the appellant continues to argue that the agency discriminated against her by

“requesting a directed reassignment,” the appellant has shown no basis upon

which to disturb the administrative judge’s finding that the appellant failed to

prove disability discrimination regarding the agency’s decision to remove her.

¶10 In addition, the appellant raises for a first time on review a vague claim of

whistleblower reprisal. See RPFR File, Tab 1. However, the Board will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence. Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980). Because the appellant has made no such showing,

we have not addressed this claim.

¶11 Finally, to the extent the appellant’s claims constitute a possible compliance

matter, it is well settled that allegations of noncompliance should be heard in the

first instance by the administrative judge. See Weed v. Social Security

2

The court noted that the Board “can” consider the probative value of the ECAB

decision regarding the appellant’s removal appeal, but it did not require the Board to

consider the ECAB decision. Leija, 530 F. App’x at 955 n.7.

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Administration, 107 M.S.P.R. 142, ¶ 14 (2007). Accordingly, we forward those

claims to the Denver Field Office for docketing as a petition for enforcement.

ORDER

¶12 We ORDER the agency to cancel the removal action and to restore the

appellant effective July 11, 2011. 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 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.

¶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).

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¶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

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

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.

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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

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.