The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY D. DAVIS, DOCKET NUMBER
Appellant, PH-0353-10-0500-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 20, 2015
Agency.
THIS FINAL O RDER IS NONPRECEDENTIAL ∗
Paul A. Bureau, Nashua, New Hampshire, for the appellant.
Anna V. Crawford, Esquire, Windsor, Connecticut, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The Board issued a nonprecedential final order finding the agency in
noncompliance with the Opinion and Order in the underlying restoration appeal.
MSPB Docket No. PH-0353-10-0500-C-1, Compliance Order. For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
∗
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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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DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On September 13, 2013, the Board issued an Opinion and Order finding that
the agency arbitrarily and capriciously denied the appellant restoration as a
partially recovered individual. MSPB Docket No. PH-0353-10-0500-B-1,
Opinion and Order at 1-2 (Sept. 13, 2013). The Board ordered the agency to
conduct a proper search for available tasks, consistent with the criteria laid out in
the Opinion and Order. Id. at 2.
¶3 The appellant filed a petition for enforcement, and the administrative judge
issued a compliance initial decision finding the agency in noncompliance with the
Opinion and Order. MSPB Docket No. PH-0353-10-0500-C-1, Compliance Initial
Decision at 4 (Mar. 20, 2014). The administrative judge ordered the agency to
submit “documentation of available tasks or work within the local commuting
area that it searched for retroactive to April 2009.” Id. at 7. If the agency found
available work to which it could have assigned the appellant, it was ordered to
pay her back pay, with interest, and benefits. Id. at 7-8.
¶4 The appellant petitioned for review. On February 25, 2015, the Board
issued a nonprecedential final order affirming the compliance initial decision,
with some modification to the search terms. Compliance Order at 2. The Board
ordered the agency to submit documentation regarding available tasks and
positions within the local commuting area between April 2009 and December 28,
2009. Id. at 7. If the agency’s search uncovered available work to which it could
have restored the appellant, the agency was required to pay her back pay, with
interest, and benefits. Id.
¶5 The Board referred the case to the Office of General Counsel to obtain
compliance. On March 3, 2015, the Board issued an acknowledgement order
instructing the agency to file the evidence required by the February 25, 2015 final
order. MSPB Docket No. PH-0353-10-0500-X-1, Compliance Referral File
(CRF), Tab 5 at 2. The Board informed the appellant that if she did not file a
response within 15 days of the date of service of the agency’s submission, the
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Board might assume she was satisfied and dismiss her petition for enforcement.
Id.
¶6 On March 17, 2015, the agency submitted evidence of purported
compliance, stating that it had paid the appellant back pay, with interest, and
benefits for the period between April 1, 2009, and December 28, 2009. CRF, Tab
6 at 4. The appellant did not file a response.
¶7 Because the agency has submitted evidence of purported compliance and
the appellant has not challenged it, we now find the agency in compliance,
assume the appellant is satisfied, and dismiss the petition for enforcement. This
is the final decision of the Merit Systems Protection Board in this compliance
proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1)
(5 C.F.R. § 1201.183(c)(1)).
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
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
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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
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
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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.