The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCHELLE M. WYATT, DOCKET NUMBER
Appellant, AT-0353-16-0492-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 2, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David Champion, Memphis, Tennessee, for the appellant.
Luis O. Rodriguez, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The appellant has filed a petition for review of the September 25, 2017
compliance initial decision, which found the agency in partial noncompliance
with the Board’s final decision in the underlying appeal. Wyatt v. U.S. Postal
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Service, MSPB Docket No. AT-0353-16-0492-C-1, Compliance Petition for
Review (CPFR) File, Tab 1; Wyatt v. U.S. Postal Service, MSPB Docket No.
AT-0353-16-0492-C-1, Compliance File (CF), Tab 10, Compliance Initial
Decision (CID). For the reasons set forth below, the appellant’s com pliance
petition for review is DISMISSED as untimely filed without good cause shown.
5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 On September 25, 2017, the administrative judge issued a compliance
initial decision finding the agency in noncompliance with the Board’s final
decision in the underlying appeal to the extent it had failed to pay the appellant
any back pay. CID at 1-3. Accordingly, the administrative judge granted the
appellant’s petition for enforcement and ordered the agency to pay her the
ordered back pay. CID at 3. Regarding the disputed issue of entitlement to
overtime pay as part of the back pay award, the administrative judge agreed with
the agency’s position that the appellant was not entitled to it because she did not
have a history of working overtime during the time of year included in the back
pay period. CID at 3 n.2.
¶3 The administrative judge informed the agency that, if it decided to take the
actions required by the compliance initial decision, it must submit to the Clerk of
the Board a narrative statement and evidence of compliance and that, if it decided
not to take the required actions, it must file a petition for review. CID at 4-5;
5 C.F.R. § 1201.183(a)(6)(i)-(ii). The administrative judge also informed the
appellant that she could request Board review of the compliance initial dec ision
by filing a petition for review within 35 days, i.e., no later than October 30, 2017,
or within 30 days after she actually received the decision if she proved that she
received it more than 5 days after issuance. CID at 5. The administrative judge
provided the appellant specific instructions regarding how to file a petition for
review. CID at 5-8.
3
¶4 On October 30, 2017, the agency filed a statement of compliance pursuant
to 5 C.F.R. § 1201.183(a)(6)(i), and the matter was referred to the Board for a
final decision on the agency’s compliance. 2 Wyatt v. U.S. Postal Service, MSPB
Docket No. AT-0353-16-0492-X-1, Compliance Referral File (CRF), Tabs 1-2;
see 5 C.F.R. § 1201.183(c). In a November 15, 2017 response, the appellant,
through her representative, challenged the agency’s compliance, arguing that it
had not paid her the appropriate amount of back pay and impro perly denied her
overtime back pay. CRF, Tab 3.
¶5 In a May 22, 2018 Order, the Board informed the appellant that her
response to the agency’s compliance submission appeared to challenge the
administrative judge’s finding that she was not entitled to overt ime pay as part of
her back pay award but that such challenge must be raised with the Board through
a petition for review of the compliance initial decision. 3 CRF, Tab 4.
Accordingly, the Board ordered the appellant to state whether she intended her
November 15, 2017 compliance response to also serve as a petition for review of
the compliance initial decision. Id. at 1-2. The appellant responded in the
affirmative, and the Board docketed her November 15, 2017 submission as a
petition for review of the September 25, 2017 compliance initial decision. CRF,
Tab 5 at 2; CPFR File, Tabs 1-2.
¶6 In a June 14, 2018 letter acknowledging the appellant’s compliance petition
for review, the Board informed her that her petition appeared to be untimely filed
because it was not filed on or before October 30, 2017, the 35 th day following the
issuance of the compliance initial decision, or within 30 days after receipt of the
2
The agency’s compliance with the actions identified in the compliance initial decision
will be addressed in a separate order in MSPB Docket No. AT -0353-16-0492-X-1.
3
Pursuant to the Board’s regulations, an appellant’s challenges to an initial decision
may be raised with the Board through a petition for review of that decision, not through
a response to the noncomplying party’s statement of compliance. See 5 C.F.R.
§§ 1201.114(a)(1), 1201.183(a)(1).
4
decision if it was received more than 5 days after issuance. CPFR File, Tab 2 at
1-2. The letter explained to the appellant that the Board’s regulations require a
petition for review that appears untimely filed to be accompanied by a motion to
accept the filing as timely and/or to waive the time limit for good cause. Id. at 2.
¶7 On June 25, 2018, the appellant filed a motion to waive the deadline for
filing her petition for review on the ground that she did not understand that the
compliance initial decision denied her claim for overtime back pay. 4 CPFR File,
Tab 3
ANALYSIS
¶8 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). Here, the appellant has not alleged that she received the
compliance initial decision more than 5 days after its issuance. Therefore, her
petition for review of the September 25, 2017 compliance initial decision must
have been filed no later than October 30, 2017, i.e., the 35 th day after issuance of
the compliance initial decision. CID at 5. As the appellant did not file her
petition for review until November 15, 2017, it is untimely filed by 16 days.
CPFR File, Tab 1 at 1.
¶9 The Board will waive the deadline for filing a petition for review upon a
showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing of a petition, a party must show that
4
On July 10, 2018, the agency responded to the appellant’s motion to waive the time
limit, 1 day after the agency’s deadline to file such a response. CPFR File, Tab 5; see
5 C.F.R. § 1201.55(b). The agency subsequently filed a motion to waive its own
untimeliness. CPFR File, Tab 7. Because we find herein that the appellant did not
demonstrate good cause to waive the untimeliness of her petition for review, we also
hereby deny as moot the agency’s motion to waive its untimeliness.
5
she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Rivera v. Social Security Administration,
111 M.S.P.R. 581, ¶ 4 (2009); Alonzo v. Department of the Air Force, 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of her excuse and
her showing of due diligence, whether she is proceeding pro se, and whether she
has presented evidence of the existence of circumstances beyond her control th at
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to her inability to timely file
her petition. Rivera, 111 M.S.P.R. 581, ¶ 4; Moorman v. Department of the
Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶10 The appellant argues that good cause exists to excuse her 16 -day filing
delay because she did not understand that the compliance initial decision denied
her claim for overtime back pay as it “did not clearly state the appellant would
not receive overtime.” CPFR File, Tab 3 at 1-2. Ordinarily, the belated
discovery of a basis for filing a petition for review does not establish good cause
for waiving the filing deadline. Carroll v. Office of Personnel Management,
114 M.S.P.R. 310, ¶ 10 (2010). Nonetheless, the Board has found good cause to
excuse an untimely filed petition for review when the outcome of the appeal itself
was unclear because of ambiguities in the initial decision. Id.
¶11 Here, the compliance initial decision did not leave the outcome of the
appeal itself unclear but rather included a sufficiently clear statement that the
administrative judge agreed with the agency’s argument that the appellant was not
entitled to overtime pay as part of her back pay award. CID at 3 n.2.
Specifically, the administrative judge stated that, “[b]ased upon the evidence
submitted in this matter, it appears that the agency’s position that the appellant is
not entitled to overtime is valid because she does not have a history of working
overtime except around Christmas, and the back pay period in the instant matter
does not include the Christmas period.” Id. She also noted that “[t]he Board’s
6
back pay award does not seek to put the appellant in a better position than she
would have been otherwise.” Id. The appellant’s claim that she failed to
comprehend the effect of these statements, particularly given that she was
represented at all times during the compliance proceedings, is not reasonable and
thus does not demonstrate good cause for her untimeliness.
¶12 The appellant has not alleged any other basis for finding that good ca use
existed to excuse her filing delay and thus has not shown that she exercised due
diligence or ordinary prudence in filing her petition. In addition, we note that she
was represented and that her filing delay of 16 days was not minimal. See, e.g.,
Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (finding
13-day delay in filing petition for review was not minimal); Beck v. General
Services Administration, 86 M.S.P.R. 489, ¶ 7 (2000) (15-day delay not minimal).
Accordingly, the appellant has not established good cause to excuse her filing
delay.
¶13 In light of the foregoing, we dismiss the appellant’s petition for review as
untimely filed without good cause shown. 5 This Order does not constitute a final
order and therefore is not subject to judicial review under 5 U.S.C. § 7703(a)(1).
Upon the Board’s final resolution of the remaining issues in this petition for
5
Even if the appellant had timely filed her petition for review, she has not shown any
error in the administrative judge’s determination that she was not entitled to overtime
pay as part of her back pay award. Overtime may be calculated either on the basis of an
employee’s prior overtime assignments or upon the experience of similarly situated
employees during the relevant period. Ball v. U.S. Postal Service, 91 M.S.P.R. 364,
¶ 8, aff’d, 53 F. App’x 910 (Fed. Cir. 2002). However, a status quo ante remedy does
not require that the appellant be placed in a better position than she was in at the time
of the agency’s action. Hagan v. Department of the Army, 99 M.S.P.R. 313, ¶ 8 (2005).
Here, the back pay period at issue was March 16 through July 26, 2016. The agenc y
provided evidence showing that, during the same 4 -month period in 2015 and 2017, the
appellant did not work any overtime hours. CF, Tab 6 at 6 -44. The appellant’s
submitted evidence does nothing to dispel the agency’s claim, as it only shows that she
worked overtime around the Christmas holiday in 2015, which does not overlap with the
relevant back pay period. CF, Tab 8 at 3-4. Thus, as the administrative judge properly
found, the appellant is not entitled to overtime pay as part of her back pay award .
7
enforcement, a final order shall be issued, which shall be subject to judicial
review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.