Opinion

Alika Seay v. United States Postal Service

Court: Merit Systems Protection Board
Filed: May 23, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALIKA SEAY, DOCKET NUMBER

Appellant, AT-0752-19-0147-X-1

UNITED STATES POSTAL SERVICE, DATE: May 23, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alika Seay, Quitman, Georgia, pro se.

James M. Reed, Esquire, Clearwater, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 On January 23, 2020, the administrative judge issued a compliance initial

decision granting the appellant’s petition for enforcement and 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

in partial noncompliance with an August 13, 2019 initial decision reversing the

appellant’s removal. Seay v. U.S. Postal Service, MSPB Docket No. AT-0752-

19-0147-C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID);

Seay v. U.S. Postal Service, MSPB Docket No. AT-0752-19-0147-I-1, Initial

Appeal File (IAF), Tab 43, Initial Decision (ID). 3 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 Effective November 7, 2018, the agency removed the appellant from her

Part-Time Flexible Clerk position at the Quitman, Georgia Post Office. IAF,

Tab 5 at 4, 13, 58-62. The appellant appealed her removal to the Board. IAF,

Tab 1. In the August 13, 2019 initial decision, the administrative judge reversed

the removal and ordered the agency to reinstate the appellant with back pay and

benefits. ID at 7-10, 12-13. When neither party filed a petition for review by

September 17, 2019, the initial decision became the final decision of the Board.

ID at 15; see 5 C.F.R. § 1201.113.

¶3 On November 8, 2019, the appellant petitioned for enforcement of the

initial decision. 4 CF, Tab 1. In the January 23, 2020 compliance initial decision,

the administrative judge found that the agency was in partial noncompliance with

the initial decision to the extent that it had not paid the appellant back pay for the

period from May 23 through August 20, 2019. CID at 4. Accordingly, she

granted the appellant’s petition for enforcement and ordered the agency to pay her

back pay for that period with interest and to adjust her benefits with appropriate

The August 13, 2019 initial decision also addressed the appellant’s constructive

suspension appeal in Seay v. U.S. Postal Service, MSPB Docket No. AT-0752-19-0398-

I-1.

On March 6, 2020, the appellant filed a second petition for enforcement, which the

administrative judge denied in a June 22, 2020 compliance initial decision. Seay v. U.S.

Postal Service, MSPB Docket No. AT-0752-19-0147-C-2, Compliance File, Tabs 1, 6.

credits and deductions. CID at 4-5. Neither party filed any submission with the

Clerk of the Board within the applicable time limits, and the appellant’s petition

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

compliance pursuant to 5 C.F.R. § 1201.183(b)-(c). Seay v. U.S. Postal Service,

MSPB Docket No. AT-0752-19-0147-X-1, Compliance Referral File (CRF),

Tab 1.

¶4 In a February 28, 2020 acknowledgment order, the Office of the Clerk of

the Board directed the agency to submit evidence showing that it had complied

with all actions identified in the compliance initial decision. CRF Tab 1 at 3.

The Clerk’s Office informed the appellant that she had the right to respond to the

agency’s submission and that, if she did not respond, the Board m ight assume she

was satisfied and dismiss her petition for enforcement. Id. On March 9, 2020,

the agency notified the Board that it had taken all actions required by the initial

decision. CRF, Tab 2 at 4. In support, the agency provided a Back Pay

Decision/Settlement Worksheet signed by the appellant on March 1, 2020, and by

the agency official on March 5, 2020, reflecting that the agency would process

back pay and benefits to the appellant for the period from May 23 through

August 20, 2019. Id. at 5-11. In a response dated March 20, 2020, the appellant

alleged that the agency had failed to comply with the administrative judge’s order

“to issue a statement after every obligation was met.” CRF, Tab 3 at 1. The

remainder of her response pertained to her personal health issues and new

problems with the agency following her return to work in late 2019, including

alleged harassment, retaliation, denial of leave, and issues with pay. Id. at 2-6.

¶5 When, as here, the Board finds a personnel action unwarranted, the aim is to

place the appellant, as nearly as possible, in the situation she would have been in

had the wrongful personnel action not occurred. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,

100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.

2006). The agency bears the burden to prove compliance with the Board’s order

by a preponderance of the evidence. 5 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.

§ 1201.183(d). An agency’s assertions of compliance must include a clear

explanation of its compliance actions supported by documentary evidence.

Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence

of compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

¶6 As described above, the administrative judge found that the agency was in

partial noncompliance with the initial decision to the extent it had not paid the

appellant back pay for the period from May 23 through August 20, 2019. CID

at 4. The agency has now submitted evidence indicating that the appellant has

been paid appropriate back pay and benefits for this period. CRF, Tab 2. The

appellant has not challenged the agency’s evidence of compliance with its

obligation to provide her back pay and benefits, and the Board therefore assumes

she is satisfied. See Baumgartner v. Department of Housing and Urban

Development, 111 M.S.P.R. 86, ¶ 9 (2009). Regarding the appellant’s claim that

the agency failed to comply with the administrative judge’s order to submit a

statement after “every obligation was met,” the agency was under no such

obligation. See CID at 4-5. Finally, the appellant’s allegations concerning

problems with the agency arising after her return to work in late 2019 are

unrelated to the agency’s compliance with the relief ordered in the compliance

initial decision and provide no basis to find noncompliance.

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

dismiss 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(c)(1) (5 C.F.R. § 1201.183(c)(1)).

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

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).

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 t ime

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. 420 (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 secur ity. 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 deliver y 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 app eals 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