Opinion

Sandra Corum v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Mar 31, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SANDRA R. CORUM, DOCKET NUMBERS

Appellant, DC-0353-06-0728-X-1

DC-0353-06-0728-C-1

UNITED STATES POSTAL SERVICE,

Agency.

DATE: March 31, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sandra R. Corum, Manassas, Virginia, pro se.

LaDonna L. Griffith-Lesesne, Esquire, Landover, Maryland, for the

agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 This compliance proceeding was initiated by the appellant’s March 14, 2014

petition for enforcement of the Board’s July 10, 2012 Opinion and Order in

Corum v. U.S. Postal Service, MSPB Docket No. DC-0353-06-0728-I-1. On

September 6, 2016, the Board issued a nonprecedential order finding the agency

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

in partial noncompliance with the July 10, 2012 Opinion and Order. Corum v.

U.S. Postal Service, MSPB Docket No. DC-0353-06-0728-C-1, Order (Sept. 6,

2016); Corum v. U.S. Postal Service, MSPB Docket No. DC-0353-06-0728-C-1,

Compliance Petition for Review (CPFR) File, Tab 10, Compliance Order (CO).

For the reasons discussed below, we now find the agency in compliance and

DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On July 26, 2006, the appellant filed an appeal alleging improper denial of

her request for reinstatement following a compensable injury. Corum v. U.S.

Postal Service, MSPB Docket No. DC-0353-06-0728-I-1, Initial Appeal File

(IAF), Tab 1 at 3-4. On April 12, 2007, the administrative judge issued an initial

decision dismissing her appeal for lack of jurisdiction. IAF, Tab 25, Initial

Decision. Following the appellant’s petition for review, the Board issued a

July 10, 2012 Opinion and Order reversing the denial of jurisdiction, finding that

the agency arbitrarily and capriciously denied her restoration, and ordering the

agency to conduct a proper job search. Corum v. U.S. Postal Service, MSPB

Docket No. DC-0353-06-0728-I-1, 118 M.S.P.R. 288 (2012); Corum v. U.S.

Postal Service, MSPB Docket No. DC-0353-06-0728-I-1, Petition for Review

File, Tab 7, Opinion and Order.

¶3 On March 14, 2014, the appellant filed a petition for enforcement of the

Board’s July 10, 2012 Opinion and Order. Corum v. U.S. Postal Service, MSPB

Docket No. DC-0353-06-0728-C-1, Compliance File (CF), Tab 1. On

November 6, 2015, the administrative judge issued a compliance initial decision

finding the agency in compliance with the Board’s July 10, 2012 Opinion and

Order. CF, Tab 30, Compliance Initial Decision.

¶4 On December 9, 2015, the appellant filed a petition for review of the

compliance initial decision, challenging only the administrative judge’s findings

on the appellant’s restored annual leave and the calculation of her overtime back

pay. CPFR File, Tab 1. On September 6, 2016, the Board issued a

nonprecedential order affirming the compliance initial deci sion in part and

reversing the decision in part. CO. The Board found the agency in compliance

regarding the restored annual leave, but not in compliance for the appellant’s

overtime back pay because it failed to consider a similarly situated employee in

calculating the overtime back pay. 2 CO at 5-9. The Board referred the matter to

the Office of General Counsel to obtain compliance.

ANALYSIS

¶5 The Board’s September 6, 2016 Order instructed the agency to recalculate

the appellant’s overtime back pay and include in its calculations the overtime

hours of an employee similarly situated to the appellant who was not considered

in the agency’s original overtime calculation. CO at 8-9. On November 4, 2016,

the agency submitted a pleading demonstrating that it had recalculated the

appellant’s overtime back pay and included the overtime hours of the previously

excluded similarly situated employee in its calculations. Corum v. U.S. Postal

Service, MSPB Docket No. DC-0353-06-0728-X-1, Compliance Referral File

(CRF), Tab 2 at 4-6. On November 14, 2016, the agency submitted a

supplemental pleading demonstrating that it paid the recalculated overtime back

pay to the appellant. 3 CRF, Tab 3 at 4-7. On May 22, 2018, the Board noted that

the agency appeared to have changed its methodology for calculating the

appellant’s overtime back pay beyond what was ordered and directed the agency

to explain its change. CRF, Tab 5 at 2-3.

The Board’s September 6, 2016 Order is incorporated into this Final Order by

reference.

On June 6, 2018, the agency submitted a second supplemental pleading indicating that

interest on the recalculated overtime back pay was paid to the appellant on

November 18, 2016, and that the agency had simply neglected to inform the Board of

the interest payment at that time. CRF, Tab 7 at 4-13.

¶6 On June 1, 2018, the agency submitted a pleading explaining that when it

previously attempted to pay the appellant funds for overtime back pay on

February 6 and August 1, 2014, it calculated the funds for the payment based on a

mistaken belief about the appellant’s position. CRF, Tab 6 at 4-6. The agency

also indicated, however, that this mistake eventually led to the appellant being

paid for significantly more overtime hours for the time period of the 24 th pay

period of 2008 through the year 2013 than she otherwise would have been entitled

to, had the agency used the proper methodology for determining her overtime

back pay. 4 Id. at 5-6. The agency stated that, because its incorrect methodology

led to the appellant receiving significantly more funds than she otherwise would

have been entitled to, it believed it was in compliance concerning the funds owed

to the appellant for her overtime back pay for that time period. Id. On June 15,

2018, the appellant submitted a reply to the agency’s June 1 and June 6, 2018

responses, and in that reply, the appellant argued that the agency was not in

compliance because it utilized the aforementioned incorrect methodology to

determine her overtime back pay. CRF, Tab 8 at 1-2.

¶7 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 she

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. Id., ¶ 6. 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

The agency’s original, incorrect calculation led to her re ceiving approximately

338 hours of overtime back pay, whereas its revised calculation would have resulted in

her only being paid for approximately 126 hours of overtime back pay. CRF, Tab 6

at 5-6.

assertions of continued noncompliance.” Brown v. Office of Personnel

Management, 113 M.S.P.R. 325, ¶ 5 (2010). A careful review of the agency’s

latest submission shows that the agency has now reached full compliance.

Viewed together with the agency’s narrative statements, the agency’s submitted

documentation demonstrates that the agency properly calculated the appellant’s

overtime back pay using the correct comparators and paid the appellant an

amount at least equal to what it owed her, along with interest. While the agency

ultimately did not use the correct method to determine the appellant’s overtime

back pay, its error resulted in her earning more overtime back pay than she

otherwise would have received under the proper methodology, and thus leads to

the conclusion that the agency was in compliance with the requirement to pay her

the correct amount of overtime back pay owed. Therefore, we find that the

agency is now in full compliance with the Board’s July 10, 2012 Opinion and

Order.

¶8 Accordingly, the Board finds that the agency is in compliance and dismisses

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(b) (5 C.F.R. § 1201.183(b)).

NOTICE OF APPEAL RIGHTS 5

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 below do not represent a

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.

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 f ile 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:

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 commercia l 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 practi ce 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. 6 The court of appeals must receive your petition for

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.

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