Opinion

Donna Wellington v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 27, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNA WELLINGTON, DOCKET NUMBER

Appellant, AT-0714-19-0109-X-1

DEPARTMENT OF VETERANS DATE: April 27, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lateefah S. Williams, Esquire, Alexandria, Virginia, for the appellant.

Lucille P. Smith, Esquire, Columbia, South Carolina, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 In an April 30, 2020 compliance initial decision, the administrative judge

found the agency in partial noncompliance with the Board’s May 13, 2019 final

decision reversing the appellant’s removal and ordering the agency to

retroactively restore her with back pay and benefits. Wellington v. Department of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Veterans Affairs, MSPB Docket No. AT-0714-19-0109-I-1, Initial Appeal File,

Tab 54, Initial Decision; Wellington v. Department of Veterans Affairs, MSPB

Docket No. AT-0714-19-0109-C-1, Compliance File, Tab 6, Compliance Initial

Decision (CID). For the reasons discussed below, we find the agency in

compliance and DISMISS the appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the compliance initial decision, the administrative judge found the

agency in partial noncompliance with the Board’s final order to the extent it had

failed to pay the appellant back pay with interest, restore her leave, and refund to

her health insurance premiums and debt collection payments that had been

improperly withheld from her paycheck. CID at 2-3. Accordingly, the

administrative judge granted the appellant’s petition for enforcement and ordered

the agency to: (1) pay the appellant her back pay, with interest; (2) restore the

appellant’s leave; (3) cease the debt collection from the appellant’s pay based

upon the agency’s erroneous determination that the appellant was absent without

leave (AWOL); (4) refund to the appellant all money withheld from her paycheck

based upon the erroneous AWOL/debt determination; and (5) withhold health

insurance premiums during the back pay period in accordance with Office of

Personnel Management (OPM) regulations. CID at 3-4.

¶3 In the compliance initial decision, the administrative judge informed the

agency that, if it decided to take the ordered actions, it must submit to the Clerk

of the Board a narrative statement and evidence establishing compliance. CID

at 4. The compliance initial decision also informed the parties that they could file

a petition for review if they disagreed with the compliance initial decision. CID

at 5-6; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party filed a

petition for review and, on June 5, 2020, the agency submitted a statement to the

Board regarding its efforts to comply with the actions identified in the

compliance initial decision. Wellington v. Department of Veterans Affairs, MSPB

Docket No. AT-0714-19-0109-X-1, Compliance Referral File (CRF), Tab 1.

Accordingly, pursuant to 5 C.F.R. § 1201.183(c), the appellant’s petition for

enforcement has been referred to the Board for a final decision on issues of

compliance.

¶4 In its June 5, 2020 compliance submission, the agency stated that it had

submitted to the Defense Finance and Accounting Service (DFAS) all of the

required documentation that DFAS needed in order to take the actions identified

in the compliance initial decision. CRF, Tab 1. However, according to the

agency, DFAS had not yet taken these actions due to a backlog. Id.

¶5 In a supplemental submission filed on September 28, 2021, the agency

informed the Board that it had complied with the Board’s final order by paying

the appellant her backpay with interest; restoring her leave; cancelling all

erroneous debts assessed to her; and ensuring that her health insurance premiums

were withheld in accordance with OPM’s regulations. CRF, Tab 3. As evidence

of its compliance, the agency provided a declaration from the Civilian Payroll and

Agency Cashier Supervisor who performed a review of the Earning and Leave

Statement data and Audit documentation prepared by DFAS that pertained to

appellant’s Master Civilian Payroll account. Id. at 9-12. Attached to this

declaration were copies of two of the appellant’s pay statements for pay periods

ending June 20, 2020, and July 4, 2020, showing the restoration of 64 hours of

annual leave and 55 hours of sick leave; payment of back pay for 480 hours

($14,713.16) plus interest ($971.82); and a refund of $1,121.46 for the health

insurance premiums that had been improperly deducted from her paychecks. Id.

at 13-16. Also attached to this declaration were several “Debt Case” screen shots

showing that each of the three erroneous debt collections assessed to appellant

had been reduced to a zero balance. Id. at 17-25.

ANALYSIS

¶6 When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation he would

have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. An agency’s assertions of

compliance must include a clear explanation of its compliance actions supported

by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.

319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by

making “specific, nonconclusory, and supported assertions of continued

noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325, ¶

5 (2010).

¶7 Here, the agency has demonstrated that it has paid the appellant back pay

for 480 hours plus interest, restored to her 64 hours of annual leave and 55 hours

of sick leave, issued her a refund of $1,121.46 for improper withholdings of

health insurance premiums, and has ceased the improper debt collection from

appellant’s pay. The appellant has not responded to either of the agency’s

compliance submissions, despite being notified of her opportunity to do so,

including having been cautioned that the Board may assume she is satisfied and

dismiss her petition for enforcement if she did not respond. CRF, Tab 2.

Accordingly, we assume that the appellant is satisfied with the agency’s

compliance. See Baumgartner v. Department of Housing & Urban Development ,

111 M.S.P.R. 86, ¶ 9 (2009).

¶8 In light of the foregoing, we find that the agency is now in compliance and

dismiss the appellant’s 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 OF APPEAL RIGHTS 2

You may obtain review of this final decision. 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 bel ow 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

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:

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 notice, the

Board cannot advise which option is most appropriate in any matter.

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

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

(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 Cir cuit or any court

of appeals of competent jurisdiction. 3 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