The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL W. ERVIN, DOCKET NUMBER
Appellant, SF-0752-17-0722-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 28, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Mary DiGioia, Bellflower, California, for the appellant.
Catherine V. Meek, Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER TO SHOW CAUSE
¶1 On September 25, 2017, the appellant appealed his removal from the
position of Manager, Customer Service, to the Board. Ervin v. United States
Postal Service, MSPB Docket No. SF-0752-17-0722-I-1, Initial Appeal File
(IAF), Tab 1. On December 3, 2018, the administrative judge issued an initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision mitigating the appellant’s removal to a demotion to the position of
Supervisor, Customer Service. IAF, Tab 30, Initial Decision (ID) at 14. The
administrative judge ordered the agency to cancel the appellant’s removal and
substitute in its place a demotion to the position of Supervisor, Customer Service;
and to pay the appellant the appropriate amount of back pay, with interest, as well
as to adjust the appellant’s benefits with appropriate credits and deductions. ID
at 14-15. That initial decision became the final decision of the Board on
January 7, 2019, after neither party petitioned the full Board for review. ID
at 16-17.
¶2 On March 18, 2019, the appellant filed a petition for enforcement of the
Board’s order, alleging that the agency had not yet returned him to work. Ervin
v. United States Postal Service, MSPB Docket No. SF-0752-17-0722-C-1,
Compliance File (CF), Tab 1 at 3. On May 10, 2019, the administrative judge
issued a compliance initial decision granting the petition for enforcement because
the agency failed to demonstrate that it cancelled the appellant’s remova l; placed
him in a Supervisor position; or paid him back pay, interest, and benefits. CF,
Tab 5, Compliance Initial Decision at 4. The administrative judge again ordered
the agency to: (1) cancel the removal and substitute in its place a demotion to the
position of Supervisor, Customer Service; (2) pay the appellant the correct
amount of back pay, interest, and benefits; and (3) inform the Board in writing of
all actions taken to comply with the Board’s order and the date on which it
believes it has fully complied.
¶3 On July 9, 2019, the agency filed a statement of compliance pursuant to
5 C.F.R. §§ 1201.183(a) and 1201.183(a)(6)(ii). Ervin v. United States Postal
Service, MSPB Docket No. SF-0752-17-0722-X-1, Compliance Referral File
(CRF), Tab 3. The agency stated in its response that it believed there was no need
to cancel the appellant’s removal because the removal was never actually
effectuated due to the appellant’s resignation. CRF, Tab 3 at 4. The agency
further stated that it reactivated the appellant’s employment and placed him into a
3
position as Supervisor, Customer Service, at the Pico Rivera Post Office, w here
he reported for the first time on June 24, 2019. Id. The agency finally stated
that, for the agency to be able to complete the back pay requirement, the appellant
needed to complete the agency’s back pay forms addressing outside employment
and other sources of income. Id. at 5.
¶4 On July 22, 2019, the appellant responded to the agency’s proof of
compliance. CRF, Tab 4. The appellant asserted that his new assignment was
farther from his home than his original position, despite similar vacant positions
existing in his original facility. Id. at 11. The appellant further stated that he
submitted the requisite back pay forms to the agency on July 1, 2019. Id.
¶5 On June 19, 2020, the Clerk of the Board issued an order stating that further
evidence from the agency was required before the Board could make a
determination on compliance. CRF, Tab 5 at 2-3. The Clerk of the Board noted
that, as of the date of the order, the agency had not yet submitted any evidence
demonstrating that all back pay funds have been paid to the appellant, provided
any explanation as to how it chose the appellant’s new position, or stated whether
it cancelled the Standard Form (SF) 50 reflecting the appellant’s retirement. Id.
The Clerk of the Board directed the agency to inform the Board whether all back
pay funds had been paid to the appellant, and if the agency claimed that the back
pay funds had been paid, the agency’s submission was required to include full
details of the back pay calculations and a narrative summary of the payments. Id.
The Clerk of the Board further directed the agency to state whether it had
cancelled the petitioner’s retirement SF-50, and also inform the Board regarding
how it chose the appellant’s new position, including the location, and explain why
the appellant was not returned to his original work location. Id.
¶6 On April 23, 2021, the Clerk of the Board issued another order due to the
agency’s failure to respond to the June 19, 2020 Order. CRF, Tab 6. The
April 23 Order repeated the June 19, 2020 directive to the agency, and also
warned the agency that failure to submit the required information may lead to the
4
issuance of sanctions against the responsible agency offi cial pursuant to 5 U.S.C.
§ 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c). Id. at 2.
¶7 Because the agency has still not filed any response to the June 19, 2020 and
April 23, 2021 Orders, the Board hereby ORDERS the agency to submit evidence
that it has fully complied with the Board’s December 3, 2018 Order. This
evidence must include, but is not limited to, the information requested in the
June 19, 2020 and April 23, 2021 Orders. Additionally, the Board also ORDERS
Cynthia Garcia, the agency management official identified as responsible for
ensuring the agency’s compliance, to SHOW CAUSE why the Board should not
impose sanctions for the agency’s noncompliance in this case, including an order
that Ms. Garcia not receive salary for the period during which the agency remains
in noncompliance. 2 The agency and Ms. Garcia shall submit their responses
within 30 days of the date of this Order.
¶8 Within 21 days of the agency’s submissions, the appellant shall file a
response. Failure to do so may cause the Board to assume he is satisfied and
dismiss the petition for enforcement.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
2
Because the agency did not provide proper contact information for Ms. Garcia, the
agency is hereby ORDERED to serve a copy of this Order upon Ms. Garcia. In the
event that Ms. Garcia is no longer employed by the agency, the agency is hereby
ORDERED to identify the agency official that has replaced Ms. Garcia as ensuring
agency compliance in this matter, and serve a copy of this Order on that replacement
official. Further, the identified replacement must fulfill all obligations of Ms. Garcia
under this Order.