explaining that the Board generally must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing
How later courts described this case
- explaining that the Board generally must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing
- discussing the Board’s obligation to determine its jurisdiction over an agency action
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FLOYD B. MAIBIE, DOCKET NUMBERS
Appellant, DE-0752-17-0030-I-1
DE-0752-17-0030-C-1
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: December 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL 1
J.R. Pritchett, McCammon, Idaho, for the appellant.
Michael R. Tita, Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed separate petitions for review of the initial decision,
which reversed his suspension on due process grounds, and the compliance initial
decision, which denied his subsequent petition for enforcement for failure to state
a claim. The agency has filed a cross petition for review of the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
which reversed the appellant’s suspension. Generally, we grant petitions such as
these only in the following circumstances: the initial decision contains erroneous
findings of material fact; the 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 administrative 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. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in these appeals, we JOIN them because doing
so will expedite processing without adversely affecting the interests of the
parties. 5 C.F.R. § 1201.36(a)(2), (b). We conclude that neither party has
established any basis under section 1201.115 for granting the petition s or cross
petition for review. Therefore, we DENY the petitions for review and the cross
petition for review. Except as expressly MODIFIED to clarify the analysis of the
appellant’s age and disability discrimination claims, we AFFIRM the initial
decision. We VACATE the compliance initial decision and DISMISS the
appellant’s petition for enforcement as premature.
BACKGROUND
¶2 The appellant is a preference-eligible Postal Service employee. Maibie v.
U.S. Postal Service, MSPB Docket No. DE-0752-17-0030-I-1, Initial Appeal File
(IAF), Tab 5 at 31, Tab 13 at 11, Tab 15 at 1. As of November 2015, he was
employed as an Electronics Technician (ET) in Kalispell, Montana. IAF, Tab 13
at 11. In November 2015, the agency notified him that his position was being
abolished. IAF, Tab 5 at 12, Tab 13 at 11. The agency offered him several
placement options: (1) a carrier position in the Kalispell Post Office; (2) a
laborer custodian position in his current installation assignment; or (3) an ET
3
position in Aurora, Colorado. 2 Id. at 11, 13. The appellant chose the laborer
custodian position, but subsequently withdrew his bid for the custodial position
because, according to the appellant, he found that the duties were “too physical
for him to perform.” IAF, Tab 5 at 17, Tab 13 at 13, Tab 15 at 1. On
February 23, 2016, the agency notified the appellant of his reassignment to a city
carrier position, consistent with his second choice of assignment. IAF, Tab 5
at 27, Tab 13 at 11, Tab 15 at 27. In association with that reassignment, the
appellant filled out a Postal Service (PS) Form 2485-C, Medical Assessment
Questionnaire, on which the agency identified the functional requirements of the
city carrier position, e.g., heavy lifting (up to 70 pounds), and heavy carrying (up
to 45 pounds). IAF, Tab 5 at 28-29. The appellant indicated on that form that he
had no medical limitations that could interfere with his ability to perform those
duties. Id. On the basis of the appellant’s PS Form 2485-C, an agency
Occupational Health Nurse Administrator (OHNA) determined that the appellant
was suitable for reassignment with no identified physical restrictions or
limitations. IAF, Tab 13 at 14. At the time of his reassignment, the appellant
was 73 years old. IAF, Tab 5 at 27.
¶3 The appellant attempted to perform the carrier position, but he soon
discovered that he was physically unable to do so. Id. at 12, 17. The agency
subsequently allowed him to temporarily perform various duties within his
capabilities on an unofficial basis. Id. at 13. The agency also referred him to the
District Reasonable Accommodation Committee (DRAC), which asked him to
provide information from his physician. Id. at 14-15, 26. After receiving that
information, the DRAC determined that, due to medical restrictions limiting his
lifting to 15 pounds and his standing to 15 minutes, the appellant could not
perform the essential functions of his city carrier position with or without
accommodation. Id. at 14-15. The appellant made a request for reconsideration
2
The options were made available pursuant to a settlement between the agency and th e
American Postal Workers Union. IAF, Tab 13 at 11.
4
to an agency Human Resources Manager, asking that he be returned to the
temporary duties he was performing during the DRAC process. Id. at 12-13. The
Human Resources Manager denied his request because no reasonable
accommodation had been identified that would allow him to perform the essential
functions of his position. Id. at 11. As the administrative judge found in his
initial decision, hearing testimony indicated that the agency orally notified the
appellant in September 2016 that it could not accommodate his disability and that
he should therefore no longer report for work. IAF, Tab 41, Initial Decision (ID)
at 4; IAF, Tab 34, Hearing Recording, Day 1 (testimony of the Officer in Charge
(OIC) of Kalispell Post Office); Tab 37, Hearing Recording, Day 2 (testimony of
the Human Resources Manager). Nevertheless, the agency failed to issue a
formal notice of the appellant’s placement on enforced leave until March 7, 2017,
after he filed this appeal. IAF, Tab 26 at 4-5. The agency subsequently issued a
decision letter placing the appellant on enforced leave effective April 8, 2017.
Maibie v. U.S. Postal Service, MSPB Docket No. DE-0752-17-0030-C-1,
Compliance File (CF), Tab 3 at 14.
¶4 The administrative judge found that the appellant established that the Board
has chapter 75 jurisdiction over his suspension of longer than 14 days. ID at 4-6.
Although he initially analyzed the appeal as a constructive suspension,
concluding under that rubric that the appellant made nonfrivolous allegations
sufficient to entitle him to a hearing, the administrative judge also gave the
appellant notice of the elements and burdens of establishing adverse action
jurisdiction based on an actual suspension exceeding 14 days. ID at 4 -5; IAF,
Tab 22. Because the record showed that the agency directed the appellant not to
report for work, and that directive remained in effect for more than 14 days, the
administrative judge found that the appellant established by preponderant
evidence that the agency subjected him to an actual suspension of more than
14 days. ID at 5-6. Because the agency did so without providing written notice
5
and an opportunity to be heard, the administrative judge issued an initial decision
reversing the agency’s action on due process grounds. ID at 6-7, 17.
¶5 Concerning the appellant’s affirmative defenses, the administrative judge
determined that the appellant failed to establish his age discrimination claim,
finding no direct or circumstantial evidence showing a discriminatory motive for
his placement on enforced leave. ID at 10-12. The administrative judge similarly
found that the appellant failed to establish his claim of disability discrimination .
ID at 12-15. He determined that the appellant was disabled because he had a
medical condition that substantially limited his major life activities of lifting and
walking. ID at 12-13. However, the administrative judge concluded that the
record did not show that the agency failed to provide the appellant with a
reasonable accommodation that would have allowed him to perfor m the essential
functions of the carrier position or a vacant, funded position. ID at 13-15. The
administrative judge also found that the appellant failed to identify any evidence,
either direct or circumstantial, demonstrating that disability discrimina tion was a
motivating factor in the agency’s decision to place him on e nforced leave. ID
at 15-17.
¶6 The appellant also alleged that his placement in the carrier craft was
inconsistent with his rights under the Rehabilitation Act and a grievance
arbitration decision. He asserted that both the Act and the arbitration decision
required the agency to conduct a more thorough assessment of his ability to
perform the physical requirements of the carrier position prior to placement. IAF,
Tab 15 at 2. The administrative judge found it unnecessary to reach the
appellant’s claim arising from the arbitration decision. ID at 2 n.4. He did not
address the appellant’s claim that under the Rehabilitation Act the agency was
required to conduct an individualized assessment of whether the appellant was
able to perform in the carrier position.
¶7 In his petition for review, the appellant contests the administrative judge’s
findings regarding his affirmative defenses. Maibie v. U.S. Postal Service, MSPB
6
Docket No. DE-0752-17-0030-I-1, Petition for Review (PFR) File, Tab 1 at 4-8.
The agency has responded to the appellant’s petition for review and filed a cross
petition for review urging the Board to issue a precedential decision clarifying the
distinction between enforced leave and a constructive suspension. PFR File,
Tabs 2-3. The appellant has filed a reply to the agency’s response and also
responded to the agency’s cross petition for review. PFR File, Tabs 5, 7. He
moves to dismiss the cross petition because the agency has allegedly failed to
provide interim relief. PFR File, Tab 7. The agency opposes the appellant’s
motion to dismiss. PFR File, Tabs 8-9.
¶8 After filing the petition for review in his suspension appeal, the appellant
filed a petition for enforcement contending that the agency failed to restore him
to duty and provide back pay. CF, Tab 1. The agency responded in opposition to
the appellant’s petition for enforcement. CF, Tab 3. The administrative judge
dismissed the appellant’s petition for enforcement for failure to state a claim .
CF, Tab 9, Compliance Initial Decision (CID) at 1, 4. He reasoned that , in light
of the petition and cross petition for review in the suspension appeal, that initial
decision was not yet final and, under 5 U.S.C. § 7701(b)(2)(C), no back pay may
be required before a decision becomes final. CID at 2-5.
¶9 In his petition for review of the compliance initial decision, the appellant
challenges the administrative judge’s observation that the agency argues he may
not have been ready, willing, and able to work during the period he claims he is
entitled to back pay. Maibie v. U.S. Postal Service, MSPB Docket No. DE-0752-
17-0030-C-1, Compliance Petition for Review (CPFR) File, Tab 1 at 2. He also
reiterates some of his arguments regarding the underlying initial decision. Id.
The agency has responded in opposition to the compliance petition for review.
CPFR File, Tab 3.
7
DISCUSSION OF ARGUMENTS ON REVIEW
We deny the agency’s cross petition for review because the appellant established
Board jurisdiction over his suspension and the record reflects that the agency
denied him due process.
¶10 “The Board has jurisdiction over appeals only from the types of agency
actions specifically enumerated by law, rule, or regulation. ” Perez v. Merit
Systems Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991). These appealable
actions include suspensions for more than 14 days. 5 U.S.C. §§ 7512(2), 7513(d).
A “suspension” is the temporary placement of an employee in a nonpay, nonduty
status. 5 U.S.C. § 7501(2). This definition covers not just unpaid absences but
also an agency’s placement of an employee on sick or annual leave against his
will. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 6 (2014). For
jurisdictional purposes, whether the employee was able to perform his regular
duties is immaterial. Id. Rather, the only question is whether the employee ’s
placement in a leave status was voluntary or involuntary; only the latter is
appealable. Id.
¶11 The record reflects that the appellant’s placement on leave was involuntary
and we agree with the administrative judge that the appellant established
jurisdiction over an actual suspension of longer than 14 days . Id., ¶ 9; ID at 4-6.
The agency took affirmative steps to instruct the appellant not to report to work.
A constructive suspension, by contrast, arises when an absence that appears
voluntary actually is not. Abbott, 121 M.S.P.R. 294, ¶ 7. Citing precedential and
nonprecedential decisions of the Board and the U.S. Court of Appeals for the
Federal Circuit, the agency argues that the Board should clari fy its case law to
find that an employee’s absence for medical reasons always should be reviewed
as a potential constructive suspension. We are not persuaded. To the extent that
the agency cites nonprecedential decisions, such decisions have no precedential
value. 5 C.F.R. § 1201.117(c)(2); see also Morris v. Department of the Navy,
123 M.S.P.R. 662, ¶ 13 n.9 (2016) (explaining that the Board may follow a
8
nonprecedential decision of the Federal Circuit when it finds its reasoning
persuasive).
¶12 The only precedential decision cited by the agency is Thomas v. Department
of the Navy, 123 M.S.P.R. 628 (2016), which the agency argues is inconsistent
with prior case law suggesting that the constructive suspension and actual
suspension claims are mutually exclusive. PFR File, Tab 7 at 16-19. In Thomas,
the Board analyzed the appellant’s absence as an alleged constructive suspension,
and remanded the appeal for a jurisdictional hearing on that claim. 123 M.S.P.R.
628, ¶¶ 9, 14-16. The Board instructed that on remand, if the appellant did not
establish her constructive suspension claim, the administrative judge should
consider her claim that her absence was an actual suspension . Id., ¶ 17. We do
not agree with the agency’s characterization of the Board’s decision as suggesting
that an employee’s absence can be both an actual and a constructive suspension.
PFR File, Tab 3 at 19. Rather, the Board was fulfilling its obligation to
determine whether it has jurisdiction over a particular appeal by considering
jurisdiction under either theory. See Parrish v. Merit Systems Protection Board,
485 F.3d 1359, 1363-64 (Fed. Cir. 2007) (discussing the Board’s obligation to
determine its jurisdiction over an agency action) (citation omitted). Thus, we
deny the agency’s cross petition for review.
¶13 The parties do not dispute the administrative judge’s finding that the agency
did not provide the appellant with notice and an opportunity to respond prior to
suspending him. ID at 6-7. Thus, we discern no basis to disturb the
administrative judge’s decision that the agency violated the appellant’s right to
due process, requiring reversal of the suspension. ID at 6-7; see Martin v. U.S.
Postal Service, 123 M.S.P.R. 189, ¶ 11 (2016) (observing that an agency action
9
suspending an employee must be reversed if the agency implemented the
suspension without providing the appellant with a hearing of any kind). 3
The appellant failed to establish his affirmative defenses.
¶14 Concerning the appellant’s affirmative defenses, we also agree with the
administrative judge that the appellant failed to establish his claim of age
discrimination. ID at 7-12. The administrative judge found that the record lacked
any direct or circumstantial evidence of age discrimination. ID at 10. On the
basis of testimony that he found was unequivocal, specific, detailed, and
internally consistent, the administrative judge found that the OHNA, who was
also the chairman of the DRAC, and the OIC, who instructed the appellant not to
return to work, were both unaware of the appellant’s age. ID at 10-11. He found
nothing in their testimony to suggest that they were motivated by discriminatory
animus or that the decision to place the appellant on enforced leave was pretext
for age discrimination. Id. The administrative judge determined that, despite the
fact that the Human Resources Director knew the appellant’s age, his decision to
uphold the DRAC finding was not based on age, but instead on the conclusion
that the agency could not reasonably accommodate the appellant. ID at 11-12.
¶15 As the administrative judge observed, an appellant alleg ing age
discrimination must prove that such discrimination was a motivating factor in the
agency’s employment decision. ID at 7-8; Pridgen v. Office of Management &
Budget, 2022 MSPB 31, ¶ 21 (citing Babb v. Wilkie, 140 S. Ct. 1168, 1173-74
(2020)). In proving his claim, an appellant may rely on direct or circumstantial
evidence, or some combination of the two. Pridgen, 2022 MSPB 31, ¶¶ 23-24
3
To the extent that the appellant continues to argue that the agency violated an
arbitration decision in connection with his placement in a carrier position, we decline to
reach that issue. PFR File, Tab 1 at 7; IAF, Tab 15 at 87-100, Tab 22 at 4; ID at 2 n.1.
Because the administrative judge properly reversed the appellant’s suspension on due
process grounds, it is unnecessary for us to determine whether the agency committed
harmful error. See Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 22
n.5 (2015) (declining to reach a harmful error question in light of a finding that an
agency violated an appellant’s due process rights).
10
(citations omitted). Here, the administrative judge properly considered all of the
relevant evidence. ID at 8-12. The appellant disputes the administrative judge’s
credibility-based finding that the OHNA was unaware of the appellant’s age ,
describing it as “difficult to believe.” PFR File, Tab 1 at 5. Nevertheless, the
appellant identifies nothing to discredit the testimony. Id.; see Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the
Board generally must defer to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing). He further argues that because the Postmaster
and an agency staffing specialist were aware of the appellant’s age, they had a
responsibility to report to others, including the OHNA, “that the appellant’s age
could adversely affect his ability to perform” the duties of the carrier position.
PFR File, Tab 1 at 5. We disagree with the appellant’s assertion that the agency
should have considered his age as suggesting that he lacked the physical ability to
perform the duties of the carrier position. Because the administrative judge
properly considered the documentary and testimonial evidence , see Pridgen,
2022 MSPB 31, ¶ 24, and the appellant has identified no reason on review to
upset his conclusions, we affirm the conclusion that the appellant did not prove
his age discrimination claim.
¶16 Concerning the appellant’s disability discrimination claim, neither party
disputes the administrative judge’s finding that the appellant was an individual
with a disability. 4 ID at 12-13. We see no basis to disturb this finding. IAF,
Tab 5 at 15, 24, 26. The administrative judge also found that the appellant failed
4
The administrative judge properly adjudicated the appellant’s disability discrimination
claim under the regulatory standards for the Americans with Disabilities Amendments
Act, which has been incorporated by reference into the Rehabilitation Act. Sanders v.
Social Security Administration, 114 M.S.P.R. 487, ¶¶ 16-19 (2010).
11
to establish his claim of status-based disability discrimination. ID at 15-17. The
appellant does not challenge this finding on review, and we decline to disturb it. 5
¶17 In regards to the appellant’s failure to accommodate claim, he argues that
the agency conducted a “faux” interactive process in determining that it could not
reasonably accommodate him in the carrier position. PFR File, Tab 1 at 6. The
administrative judge discussed the agency’s DRAC process and he agreed with
the agency’s determination that there was no reasonable accommodation that
would have allowed the appellant to perform the essential duties of the carrier
position, or any other vacant, funded position. 6 ID at 3, 14-15. The appellant
identifies nothing in his petition for review that would indicate that the agency
participated in the interactive process in bad faith. See Collins v. U.S. Postal
Service, 100 M.S.P.R. 332, ¶¶ 10-11 (2005) (finding that both parties should
engage in an interactive process in good faith to determine what actions might
constitute a reasonable accommodation of an employee’s disability).
5
Since the initial decision was issued in this matter, we issued our decision in Pridgen,
2022 MSPB 31. In Pridgen, we clarified the burdens of proof regarding disparate
treatment, age, Title VII, and disability discrimination claims. 2022 MSPB 31,
¶¶ 20-22, 42. In particular, we explained that an appellant may obtain “forward-looking
relief” in connection with such claims if he proves discrimination was a motivating
factor in the agency’s decision; however to obtain status quo ante relief, he “must show
that . . . discrimination was a but-for cause of the employment outcome.” Id. (quoting
Babb, 140 S. Ct. at 1177-78). We have considered whether our holdings in Pridgen
impact the administrative judge’s findings here, and conclude that they do not. In
particular, although the administrative judge incorrectly stated that the agency had the
burden of proving that it would have taken the same action absent a discriminatory
motive, i.e., that the agency had the burden of disproving but-for causation, he properly
found that the appellant failed to prove discrimination was a motivating factor in his
suspension. ID at 7-12, 15-17. Thus, the administrative judge never reached the issue
of whether discrimination was a “but-for” cause of the suspension, and we see no
reason to do so here. See Pridgen, 2022 MSPB 31, ¶ 48 (recognizing that a motivating
factor standard is a lower burden of proving causation than a “but-for” standard).
6
The appellant does not challenge the administrative judge’s finding that the agency
searched for, but was unable to locate a vacant, funded position that the appellant could
perform within his medical restrictions, even with a reasonable accommodatio n. ID
at 15.
12
¶18 Pursuant to the terms of a grievance settlement with the union, the agency
offered the appellant several placement options, and he selected a custodial
position in his current installation. 7 IAF, Tab 13 at 11. The record does not
reflect that the appellant notified the agency why he subsequently withdrew his
bid for the custodial position, id. at 13, or that he previously had ever requested
light duty due to any physical restrictions, and he asserts on review that he was
able to manage his chronic back condition when performing ET duties, PFR File,
Tab 1 at 6. When the appellant withdrew his bid for the custodial position, the
agency placed him in his second preferred option, a carrier position. IAF, Tab 13
at 11. The agency had the appellant execute a PS Form 2485-C, on which the
agency apprised him of the physical requirements of the carrier position, and he
certified to the agency that he had no physical condition or limitation that could
interfere with his ability to perform those duties. IAF, Tab 5 at 28-29. Thus, the
record does not show that the agency had any reason to believe that the appellant
could not perform the duties of the carrier position before his reassignment.
¶19 The appellant argues that the agency violated the Rehabilitation Act by
failing to determine whether he posed a “direct threat,” i.e., a significant risk of
substantial harm to himself or others, before placing him in the carrier position.
PFR File, Tab 1 at 7; see Rosario-Fabregas v. Department of the Army,
122 M.S.P.R. 468, ¶ 14 (2015) (explaining that an agency may only inquire as to
the severity of an employee’s disability if it has a reasonable belief that the
disability causes him to pose a direct threat), aff’d, 833 F.3d 1342 (Fed. Cir.
2016). Although the administrative judge did not address this claim below, we
find any error harmless. See Karapinka v. Department of Energy, 6 M.S.P.R.
124, 127 (1981) (explaining that an administrative judge’s procedural error is of
7
The appellant does not assert that the agency either failed to follow the dictates of the
pertinent settlement or that the settlement, which does not appear to be part of the
record, either provided or should have provided him with any em ployment options other
than those that the agency offered him. IAF, Tab 5 at 28-29.
13
no legal consequence unless it is shown to have adversely affected a party’s
substantive rights). While an agency only may conduct an examination if it
believes an employee poses a direct threat, it is not required to do so. In fact, the
direct threat is a narrow exception to the general prohibition on an employer
requiring employees to undergo medical exams or respond to medical inquiries.
42 U.S.C. § 12112(d)(1)-(2); 29 C.F.R. §§ 1630.2(r), .13(b), .14(c). Thus, we
find that the agency did not violation the Rehabilitation Act by failing to conduct
a more exhaustive examination of the appellant’s physical ability to perform in
the carrier position.
The administrative judge should have dismissed the appellant’s petition for
enforcement as premature.
¶20 The appellant contended in his compliance petition for enforcement that the
agency had failed to provide him with back pay. CF, Tab 1. The administrative
judge dismissed the appellant’s petition for enforcement for failure to state a
claim because the initial decision was not final and, under those circumstances,
5 U.S.C. § 7701(b)(2)(C) prohibits an award of back pay. CID at 5-6. The
appellant renews his argument in his compliance petition for review. CPFR File,
Tab 1. He also moves to dismiss the agency’s cross petition for review of the
initial decision on the basis that the agency did not restore him to duty or pay him
back pay. PFR File, Tab 7 at 4-7.
¶21 An agency is not required to pay an award of back pay before a decision is
final. Hall v. Department of the Interior, 90 M.S.P.R. 32, ¶ 9 (2001) (citing
5 U.S.C. § 7701(b)(2)(C)); 5 C.F.R. § 1201.116(f). Therefore, we agree with the
administrative judge that the appellant was not entitled to such pay. Because the
appellant filed a petition for review of the initial decision in his suspension
appeal, that decision was not a final order, and the administrative judge should
have dismissed the petition for enforcement of that initial decision as premature.
See Walker v. Department of Health & Human Services, 99 M.S.P.R. 367, ¶ 8
(2005) (finding that a petition for enforcement was premature because the initial
14
decision at issue had not yet become final); Thomas v. U.S. Postal Service,
65 M.S.P.R. 268, 271 n.* (1994) (finding that because the appellant had filed a
petition for review of the initial decision at issue, the administrative judge should
have dismissed the petition for enforcement of that initial decision as premature).
In any event, we find that the administrative judge was correct to dismiss the
petition for enforcement.
¶22 In his compliance petition for review, the appellant also challenges the
administrative judge’s observation that the agency opposes the appellant’s back
pay claim because he may not have been ready, willing, and able to work during
the period of back pay. PFR File, Tab 1 at 2; CID at 3 n.2. However, the
administrative judge made no finding as to the agency’s argument, and therefore
there is no finding to review. Both in his compliance petition for review and in
his motion to dismiss the petition for review, the appellant argues that th e agency
has failed to restore him to duty, and failed to certify its compliance with the
interim relief order. ID at 18; PFR File, Tab 7 at 4-6; CPFR File, Tab 1 at 1-2.
¶23 The agency placed the appellant on enforced leave, effective April 8, 2017,
which was around 2 weeks after the first day of the hearing and approximately
1 month prior to the issuance of the initial decision reversing his suspension.
IAF, Tab 26 at 4-5; CF, Tab 3 at 14-15; ID at 1. The appellant did not file an
appeal from that action. We decline to find that the agency violated the order of
interim relief by failing to return the appellant to duty under these circumstances.
See Rothwell v. U.S. Postal Service, 68 M.S.P.R. 466, 468 (1995) (finding that an
interim relief order does not insulate an appellant from a subsequent adverse
action so long as that action is not inconsistent with the initial decision ).
¶24 We also decline to dismiss the agency’s cross petition for review based on
its admitted failure to provide the required certification of compliance with
interim relief. See 5 C.F.R. § 1201.116(a), (e) (permitting the Board to dismiss
an agency’s cross petition for review for failure to include a certification that it
has complied with the interim relief order); PFR File, Tab 9. Given that we have
15
denied the agency’s cross petition for review on the merits, as discussed above,
we decline to exercise our discretionary authority to dismiss the cross petition for
review. See Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 16
(2015) (explaining that the Board’s authority to dismiss an agency’s petition for
review is discretionary).
¶25 If the agency fails to comply with the order below, the appellant may file a
new petition for enforcement consistent with the instructions below.
¶26 Accordingly, we affirm as modified the initial decision reversing the
agency’s suspension of the appellant and we dismiss the appellant’s compliance
appeal as premature.
ORDER
¶27 We ORDER the agency to cancel the suspension and retroactively restore
the appellant effective September 15, 2016. 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.
¶28 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, interes t
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.
¶29 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 has
taken 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).
16
¶30 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).
¶31 For agencies whose payroll is administered by either the National Financ e
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 forth 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
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
17
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision in MSPB Docket No. DE-
0752-17-0030-C-1. 5 U.S.C. § 7703(a)(1). The initial decision in MSPB Docket
No. DE-0752-17-0030-I-1, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision in MSPB Docket No. DE-0752-17-0030-I-1.
5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time
limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the not ice, the
Board cannot advise which option is most appropriate in any matter.
18
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
19
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
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-50s (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.