Opinion

Mary Abbott v. United States Postal Service

2023 MSPB 14

Court: Merit Systems Protection Board
Filed: Mar 23, 2023
Status: Published
Cited by: 2 cases
Authority: More cited than 63.7%

concluding that the Board was without authority to grant the appellant back pay for the period beyond her disability retirement date when she had not challenged her retirement as a constructive removal and there was no finding of discrimination in connection with the agency’s actions leading to her separation

How later courts described this case

concluding that the Board was without authority to grant the appellant back pay for the period beyond her disability retirement date when she had not challenged her retirement as a constructive removal and there was no finding of discrimination in connection with the agency’s actions leading to her separation

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 14

Docket Nos. DC-0752-12-0366-X-1

DC-0752-12-0366-X-2

Mary A. Abbott,

Appellant,

United States Postal Service,

Agency.

March 23, 2023

Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

Jasmin A. Dabney, Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

OPINION AND ORDER

¶1 This compliance proceeding was initiated by the appellant’s February 21

and October 17, 2017 petitions for enforcement of the Board’s December 20,

2016 Final Order. Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-

0366-B-1, Final Order (Dec. 20, 2016) (B-1 Final Order); Abbott v. U.S. Postal

Service, MSPB Docket No. DC-0752-12-0366-C-1, Compliance File (C-1 CF),

Tab 1; Abbott v. U.S. Postal Service, MSPB Docket No. DC-0752-12-0366-C-2,

Compliance File (C-2 CF), Tab 1. On July 27, 2017, the administrative judge

issued the first of two compliance initial decisions finding the agency not in

compliance with the Board’s order. 1 C-1 CF, Tab 11, Compliance Initial

Decision (C-1 CID). On April 27, 2018, the administrative judge issued the

second compliance initial decision, again finding the agency not in compliance

with the Board’s order. C-2 CF, Tab 10, Compliance Initial Decision (C-2 CID).

¶2 For the reasons discussed below, we REOPEN these cases on our motion

under 5 C.F.R. § 1201.118 and MODIFY the compliance initial decisions to find

that the appellant is not entitled to back pay for the period following her

disability retirement. In addition, we now find the agency in compliance and

DISMISS the petitions for enforcement.

BACKGROUND

The Appellant’s Suspension Appeal

¶3 The appellant was employed as an EAS-17 supervisor for the agency in

Newport News, Virginia. Abbott v. U.S. Postal Service, MSPB Docket

No. DC-0752-12-0366-I-1, Initial Appeal File (IAF), Tab 1 at 1. On January 6,

2012, the agency proposed placing the appellant on enforced leave, claiming there

was no available work within her medical restrictions. IAF, Tab 8 at 61. On

February 6, 2012, the agency issued a final decision effecting the enforced leave

action against her, commencing February 8, 2012. Id. at 17. On February 9,

2012, the appellant appealed the agency’s enforced leave action to the Board.

IAF, Tab 1. She argued that she was able to perform the essential functions of

her position despite her medical restrictions and that the agency’s refusal to allow

her to return to work constituted disability discrimination. IAF, Tab 12 at 2-5.

Due to administrative error, following the issuance of the first compliance initial

decision, the appellant’s first petition for enforcement was not immediately referred to

the Office of General Counsel to obtain compliance. Because the subject matter of the

appellant’s first and second petitions for enforcement are substantially similar, we

hereby JOIN the two petitions for enforcement. 5 C.F.R. § 1201.36(a)(2).

¶4 On or about February 7, 2012, the appellant applied for disability

retirement with the Office of Personnel Management (OPM). IAF, Tab 27 at 17.

In April 2012, OPM prepaid to the appellant the sum of $4,487.00 as part of her

disability retirement annuity. Abbott v. U.S. Postal Service, MSPB Docket

No. DC-0752-12-0366-X-1, Compliance Referral File (CRF), Tab 6 at 6. On

June 4, 2012, OPM granted the appellant’s disability retirement application,

which terminated the appellant’s employment. IAF, Tab 27 at 38.

¶5 On June 23, 2014, the Board issued an opinion holding that the agency’s

action constituted an enforced leave constructive suspension within the Board’s

jurisdiction and remanded the appeal to the administrative judge for adjudication

on the merits. Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 10-11 (2014).

On March 22, 2016, following remand, the administrative judge affirmed the

agency’s enforced leave constructive suspension and found that the appellant

failed to prove her affirmative defense of disability discrimination. Abbott v. U.S.

Postal Service, MSPB Docket No. DC-0752-12-0366-B-1, Remand File, Tab 10,

Remand Initial Decision. The appellant petitioned for review.

¶6 On December 20, 2016, the Board issued a nonprecedential final order

reversing the agency’s suspension action. B-1 Final Order at 1-12. The Board

found that the agency failed to prove by preponderant evidence that the appellant

was unable to perform the essential functions of her position due to her medical

restrictions. Id. at 10. However, the Board affirmed the administrative judge’s

finding that the appellant failed to establish her affirmative defense of disability

discrimination because the record supported the administrative judge’s conclusion

that the agency sufficiently attempted to reasonably accommodate the appellant’s

disability prior to the commencement of her disability retirement. 2

On May 18, 2017, the Equal Employment Opportunity Commission issued a decision

concurring with the Board’s finding on the appellant’s disability claim. Abbott v. U.S.

Id. at ¶¶ 21-22. Based on its findings, the Board ordered the agency to cancel its

suspension action and to pay the appellant the correct amount of back pay, with

interest, and provide other benefits as appropriate. Id. at ¶¶ 23-25. The Board’s

order did not specify the appropriate time period for the back pay award.

The Appellant’s First Petition for Enforcement

¶7 On February 21, 2017, the appellant filed her first petition for enforcement

with the Board. C-1 CF, Tab 1. The appellant argued in her petition that the

agency had not cancelled its suspension action, nor had it paid the appellant any

of the back pay or other benefits she was owed. Id. at 4-5. On March 10, 2017,

the agency responded to the petition for enforcement, arguing that the appellant’s

choice to go on disability retirement obviated the need to reverse the enforced

leave constructive suspension. C-1 CF, Tab 3 at 4-5. The agency further stated

that it had not yet paid the appellant her back pay because it was waiting for

additional data from OPM. Id. at 5. On March 15, 2017, the appellant replied to

the agency’s response, arguing that her back pay should continue past the date her

disability retirement commenced. C-1 CF, Tab 4 at 6-11.

¶8 On July 27, 2017, the administrative judge issued a compliance initial

decision finding the agency not in compliance. C-1 CID at 2. The administrative

judge found that the agency had not taken any action to reverse the suspension.

C-1 CID at 4-5. Additionally, relying on Spencer v. Department of the Navy,

82 M.S.P.R. 149, ¶ 17 (1999), the administrative judge found that the appellant’s

entitlement to back pay and other benefits was not limited by OPM’s award of

disability retirement benefits and thus continued beyond the date she retired. C-1

CID at 4-5. The administrative judge did not specify an end date for the back pay

and other benefits.

Postal Service, MSPB Docket No. DC-0752-12-0366-B-1, Remand Petition for Review

File, Tab 10.

The Appellant’s Second Petition for Enforcement

¶9 On October 17, 2017, the appellant filed a second petition for enforcement.

C-2 CF, Tab 1. The appellant alleged that, after the issuance of the July 27, 2017

compliance initial decision, she received back pay from the agency purportedly

covering the time period of February 8, 2012 (when her suspension began) to

June 4, 2012 (the effective date of her disability retirement), but reasserted her

position that the back pay period should continue past June 4, 2012. Id. at 5. The

appellant also repeated her argument that the agency had not yet taken any steps

to cancel her suspension. Id. at 6. On January 30, 2018, the agency responded to

the second petition for enforcement. Abbott v. U.S. Postal Service, MSPB Docket

No. DC-0752-12-0366-A-2, Attorney Fee File, Tab 10. 3 The agency stated in an

unsworn statement that the enforced leave letter which created the appellant’s

suspension had been deleted from her electronic Official Personnel File. Id.

at 4-5. Regarding the back pay, the agency argued that paying back pay beyond

the disability retirement date would not be appropriate unless the appellant had

filed an involuntary retirement appeal, which she had not done. Id. at 6-7.

Moreover, the agency argued that the appellant had not shown she was ready,

willing, and able to work at any time following the date of her disability

retirement. Id. at 7-9. On February 6, 2018, the appellant replied to the agency’s

response. C-2 CF, Tab 9. The appellant repeated her argument that the disability

retirement award should not limit her back pay award and further argued that, in

any event, she was ready, willing, and able to return to work. Id. at 8-15. The

appellant also argued that the agency still had not provided any proof that it

cancelled her suspension. Id. at 5-7.

It appears that, due to administrative error by the agency, the agency’s response to the

acknowledgment order was inadvertently filed in a separate proceeding related to the

appellant’s petition for attorney fees.

¶10 On April 27, 2018, the administrative judge issued an initial decision on

the second petition for enforcement and again found the agency not in

compliance. C-2 CID at 2. The administrative judge found that the agency still

had not provided any evidence that it cancelled the appellant’s suspension. C-2

CID at 6. With respect to the back pay, the administrative judge found that the

agency failed to account for any interest owed on the back pay and also repeated

her prior finding that the disability retirement award should have no impact on the

appellant’s back pay award under Spencer. Id. Neither party filed a petition for

review with the Board.

The Joined Enforcement Proceedings Before the Board

¶11 On June 8, 2018, the Board issued an acknowledgment order in furtherance

of obtaining compliance with respect to both the first and second compliance

initial decisions. CRF, Tab 1; see 5 C.F.R. § 1201.183(b)-(c).

¶12 On June 23, 2018, the agency submitted a pleading which declared under

penalty of perjury that the letter effecting the appellant’s suspension was removed

from the appellant’s personnel file in July 2017. CRF, Tab 2 at 4-5. On

August 8, 2018, the agency submitted a supplemental response which provided a

narrative explanation of its back pay award, along with evidence that interest was

paid on the back pay. CRF, Tab 6 at 4-27. The agency also reiterated its belief

that the back pay should not continue past the date of the appellant’s disability

retirement (June 4, 2012). Id. at 8-11.

¶13 On August 22, 2018, the appellant replied to the agency’s supplemental

response. CRF, Tab 7. The appellant repeated her argument that her back pay

award should not be limited by her disability retirement award. Id. at 7-24. The

appellant further claimed that the funds the agency paid to the appellant were

both inaccurate and in need of further explanation. Id. at 24.

ANALYSIS

¶14 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. 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).

¶15 The agency’s outstanding compliance issues were its obligations to:

(1) cancel the suspension action; and (2) 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. The agency has submitted multiple pleadings in its

ongoing attempts to reach full compliance. The appellant has raised objections to

the agency’s efforts to reach compliance on each requirement, which will be

addressed in turn below.

Cancellation of Suspension

¶16 The appellant argues that the agency has not provided evidence that it

cancelled the suspension action. CRF, Tab 7 at 5-7. We disagree. The agency’s

sworn statement that the letter which created the appellant’s suspension has been

removed from her personnel file is sufficient to demonstrate compliance. CRF,

Tab 2 at 4-5. The appellant’s suspension was an enforced leave constructive

suspension, rather than a traditional agency-initiated suspension, meaning that the

documentation reflecting that suspension would be the letter forcing her to take

leave. The removal of that letter from her personnel file effectively cancelled the

enforced leave constructive suspension. Accordingly, we find that the agency is

now in compliance with respect to the cancellation requirement.

Back Pay

¶17 The appellant argues that the amount of back pay paid by the agency is

incorrect, in terms of the accuracy of the amount actually paid and the scope of

the award. CRF, Tab 7 at 7-24. As explained below, we find the agency to be in

compliance in both aspects.

Back Pay Scope

¶18 The parties’ primary disagreement pertains to the proper termination date

of the back pay period. The appellant maintains that the back pay period should

not be cut off by her retirement and should instead continue through the present,

despite the fact that she retired. The agency argues that the appellant’s right to

back pay should end on the date her disability retirement commenced. In both the

first and second compliance initial decisions, the administrative judge agreed with

the appellant, relying on Spencer. C-1 CID at 4-5; C-2 CID at 6-7. Upon further

review of the parties’ submissions, we disagree with the administrative judge’s

ruling and modify the compliance initial decisions to hold that the back pay

period ends on the date the appellant retired, June 4, 2012.

¶19 We held in Spencer that the appellant’s disability retirement award did not

preclude a back pay award stemming from a reversed removal decision. Spencer,

82 M.S.P.R. 149, ¶ 17. This was because, when the removal decision was

reversed, the appellant was reinstated on the employment rolls and, as a result,

OPM retroactively rescinded its award of disability retirement benefits. Id. The

appellant now argues that this holding should be extended to her cancelled

suspension. But the appellant in this case is not in the same posture as the

appellant in Spencer. She was not removed, nor did she appeal—let alone obtain

a reversal of—her retirement, and thus she remains on disability retirement.

Applying Spencer in this manner would be beyond the bounds of the Board’s

authority. The Board’s authority under the Back Pay Act is limited to granting

back pay for the personnel action that was corrected; here, that was the

suspension. See 5 U.S.C. § 5596(b)(1)(A). To extend the back pay period

beyond her disability retirement date would be to grant back pay for the

termination of her employment, i.e., for a removal or constructive removal.

Because the appellant did not appeal her retirement as a constructive removal, the

Board is without authority to grant back pay beyond the reversed suspension.

Thus, the appellant’s back pay under this appeal cannot extend beyond the date of

her disability retirement.

¶20 Before the administrative judge, the appellant argued that Smith v.

Department of the Army, 458 F.3d 1359 (Fed. Cir. 2006), allowed the Board to

grant back pay for an unappealed personnel action. The Federal Circuit held in

Smith that the Board and the Equal Employment Opportunity Commission’s

(EEOC) finding that the petitioner was subjected to illegal disability

discrimination required that the Board award damages not just for the personnel

action at issue, but also for the discrimination. Id. at 1365-70. The Federal

Circuit further found that, because the illegal discrimination directly led to a

separate personnel action that was never appealed to the Board, the Board was

empowered by Title VII to order back pay for that separate personnel action in

order to grant relief for the discrimination, even though that personnel action was

not appealed. Id. Here, Smith does not apply because both the Board and the

EEOC expressly found no discrimination by the agency. As such, the Board’s

authority here is limited to remedying only the actual personnel action appealed. 4

Because we are not addressing the unappealed personnel action, we do not reach the

agency’s contention that the appellant was not ready, willing, and able to work.

Paid Back Pay Funds

¶21 Finally, with respect to the actual amount of back pay paid by the agency,

we find the agency in compliance. The agency’s documentation shows its

calculations regarding salary, benefits, deductions, and interest are all accurate

for the back pay period approved in the preceding section. The appellant claims

that the agency improperly deducted $117.46 from her back pay for retirement,

but did not add to her retirement or Thrift Savings Plan (TSP). CRF, Tab 7 at 24.

This argument appears to be based on a misunderstanding of the retirement

deduction. The agency’s withholding of the $117.46 was not for the appellant’s

TSP contribution—it was the 0.8% retirement deduction required of all Federal

employees hired prior to December 31, 2012. See 5 U.S.C. § 8422(a)(3)(A). As

such, the agency’s withholding of these funds was proper.

¶22 The appellant is similarly mistaken with respect to the $4,487.00 withheld

from her back pay. The appellant interprets the agency’s narrative statement to

mean that it paid the appellant these funds. However, the agency’s statement

indicates that the appellant was paid this amount by OPM in 2012 as a

prepayment on her disability retirement award. CRF, Tab 6 at 6. As a result, the

agency was required by regulation to pay those funds back to OPM to avoid her

gaining a windfall. Id.; see 5 C.F.R. 550.805(e). As the appellant has not in any

way disputed the agency’s statement that she originally received those funds from

OPM, we find the withholding to be appropriate.

¶23 Regarding the interest owed on the back pay, the agency’s documentation

demonstrates that it paid the appellant the correct amount of interest. The interest

accounted for all gross back pay owed to her, minus the funds attributed to her

OPM repayment and her terminal leave payment. 5 CRF, Tab 6 at 19-27.

Terminal leave payments are not eligible for interest under the Back Pay Act. See

5 U.S.C. § 5596(b)(2)(A); see also Athey v. United States, 123 Fed. Cl. 42, 60-61

(2015), aff’d, 908 F.3d 696 (Fed. Cir. 2018).

Consequently, the agency has demonstrated that it is in full compliance regarding

the interest owed to the appellant.

¶24 In light of the foregoing, because the agency’s combined submissions

demonstrate that the agency has provided the appellant back pay and benefits for

the period of her suspension through the date of her disability retirement, we find

that the agency has now reached full compliance. Accordingly, the Board finds

that the agency is in compliance and dismisses the petitions for enforcement.

This is the final decision of the Merit Systems Protection Board in these

compliance proceedings. Title 5 of the Code of Federal Regulations,

section 1201.183(b) (5 C.F.R. § 1201.183(c)(1)).

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.

NOTICE OF APPEAL RIGHTS 6

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).

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.

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

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 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 Circuit or any court

of appeals of competent jurisdiction. 7 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