The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANN MURRAY, DOCKET NUMBER
Appellant, AT-0432-16-0588-I-1
v.
NATIONAL AERONAUTICS AND DATE: June 22, 2023
SPACE ADMIN,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Archibald J. Thomas, III, Esquire, Jacksonville, Florida, for the appellant.
Daniel Shaver, Orlando, Florida, for the agency.
Miata L. Coleman, Esquire, Kennedy Space Center, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her performance-based removal under 5 U.S.C., chapter 43. For the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reasons discussed below, we GRANT the appellant’s petition for review and
REVERSE the initial decision. The appellant’s removal is NOT SUSTAINED.
BACKGROUND
¶2 The appellant was a GS-13 Aerospace Technologist, stationed at the
agency’s Kennedy Space Center (KSC). Initial Appeal File (IAF), Tab 1 at 1,
Tab 6 at 4. The appellant’s summary performance was rated on a four-tier scale,
ranging from Distinguished to Unacceptable. IAF, Tab 8 at 27; see 5 C.F.R.
§ 430.208(d)(1), Pattern F. Her performance plan contained two critical
elements, each rated on a three-tier scale ranging from Substantively Exceeds
Expectations to Fails to Meet Expectations. IAF, Tab 8 at 28 -31. These two
critical performance elements were as follows: (1) “Provide quality products and
services for Center Planning and Development Directorate operations and to the
KSC Institution. Provide innovative technologies and technical solutions and
support to relevant missions of KSC and the Agency;” and (2) “Provide
engineering and research and technology services to meet customer needs for
mission: Provide services for safe and efficient Technology Development and
Innovation.” Id. at 28, 30. Each of these two performance elements encompassed
multiple components and subcomponents. Id. at 28-31. The appellant’s
performance appraisal period ran from May 1 to April 30, of each year. Id. at 27.
¶3 After a summary Unacceptable performance rating for the period ending
April 30, 2015, the agency placed the appellant on a 90-day performance
improvement plan (PIP), beginning October 22, 2015. IAF, Tab 7 at 92-97, Tab 8
at 27. After the PIP period ended, the agency determined that the appellant’s
performance remained unacceptable in both critical elements, and it removed her
effective May 10, 2016. IAF, Tab 1 at 8-25, Tab 6 at 4.
¶4 The appellant filed a Board appeal, arguing among other things that the
agency committed a prohibited personnel practice by failing to accommodate her
disabling allergy and respiratory conditions. IAF, Tab 1 at 1-6, Tab 19 at 5-6.
3
After a hearing, the administrative judge issued an initial decision affirming the
appellant’s removal. IAF, Tab 54, Initial Decision (ID). He found that the
agency proved each element of its case by substantial evidence, and that the
appellant did not prove any of her affirmative defenses, including her affirmative
defense of reasonable accommodation disability discrimination. ID at 3-33.
¶5 The appellant has filed a petition for review, disputing several of the
administrative judge’s findings of fact and conclusions of law, including his
findings on her reasonable accommodation disability discrimination claim.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.
ANALYSIS
¶6 After the initial decision in this appeal was issued, the United States Court
of Appeals for the Federal Circuit issued a precedential decision holding that part
of the agency’s burden in a chapter 43 appeal is to justify the initiation of the PIP
in the first instance by providing substantial evidence that the appellant’s
performance prior to the PIP was unacceptable. Santos v. National Aeronautics
and Space Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021). Consistent
with the Board precedent at the time, the administrative judge did not address this
issue in his initial decision. Normally, this would require a remand for further
development of the record and issuance of a new initial decision. See, e.g., Lee v.
Department of Veterans Affairs, 2022 MSPB 11, ¶¶ 16-17. However, because we
are reversing the agency’s action on other grounds, a remand in this case is
unnecessary.
¶7 Furthermore, apart from reasonable accommodation disability
discrimination, the appellant raised several other affirmative defenses that we
decline to address on petition for review. Specifically, the appellant does not
challenge the administrative judge’s findings that she failed to prove her
affirmative defenses of race discrimination, disparate treatment disability
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discrimination, or retaliation for equal employment opportunity activity. ID
at 30-33; see 5 C.F.R. § 1201.115 (“The Board normally will consider only issued
raised in a timely filed petition or cross petition for review.”). The appellant
argues that the administrative judge failed to adjudicate her affirmative defense of
harmful procedural error, PFR File, Tab 1 at 13-14, but because we are reversing
the appellant’s removal on other grounds and she could not gain any additional
relief even if she proved this affirmative defense, we likewise decline to address
that argument on review, see Wilson v. Department of Veterans Affairs,
2022 MSPB 7, ¶ 34 & n.9.
The appellant proved her affirmative defense of disability discrimination under a
reasonable accommodation theory.
¶8 A Federal agency may not discriminate against a qualified individual on the
basis of disability and is required to make reasonable accommodation to the
known physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that reasonable accommodation would
cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she
was denied a reasonable accommodation, an appellant must show that: (1) She is
an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a
“qualified ” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide her with a reasonable accommodation. Bryce B.
v. Central Intelligence Agency, EEOC Appeal No. 2021002721, 2022 WL
103752421, at *10 (Sept. 28, 2022). 2 If the appellant makes this showing, the
burden shifts to the agency to show whether the accommodation, even if
plausible, would nonetheless impose an undue hardship (i.e., a significant
difficulty or expense) on the operations of the agency. Harvey G. v. Department
2
The Board will defer to the Equal Employment Opportunity Commission on matters of
substantive discrimination law. Southerland v. Department of Defense, 122 M.S.P.R.
51, ¶ 12 (2014).
5
of Transportation, EEOC Appeal No. 2022000813, 2022 WL 16848386, at *6
(Oct. 20, 2022).
¶9 An employer has an affirmative obligation to provide a reasonable
accommodation for an individual with a disability. School Board of Nassau
County, Florida v. Arline, 480 U.S. 273, 289, n.19 (1987). In general, an
accommodation is any change in the work environment, or in the way things are
customarily done, that enables an individual with a disability to enjoy equal
employment opportunities. 29 C.F.R. § 1630.2(m). Although an employee is not
necessarily entitled to her accommodation of choice, “a reasonable
accommodation must be an effective accommodation. It must provide an
opportunity for a person with a disability to achieve the same level of
performance or to enjoy benefits or privileges equal to those of an average
similarly situated [person without a disability].” EEOC Technical Assistance
Manual on the Employment Provisions of the Americans with Disabilities Act at
III, 3.3 (Jan. 1, 1992), https://www.eeoc.gov/laws/guidance/technical-assistance-
manual-employment-provisions-title-i-americans-disabilities-act. An “effective”
accommodation removes a workplace barrier, thereby providing an individual
with an equal opportunity to apply for a position, to perform the essential
functions of a position, or to gain equal access to a benefit or privilege of
employment. Barney G. v. Social Security Administration, EEOC Appeal
No. 2021000802, 2022 WL 4546523, at *7 (Sept. 12, 2022).
¶10 In this case, the appellant first reported her symptoms to an agency
Environmental Health official on February 5, 2014, when she complained of
tightness in her chest and difficulty breathing. She attributed her symptoms to
environmental conditions at the Headquarters building in which she worked. 3
3
It is undisputed that, during this time period, environmental conditions in the
Headquarters building caused similar symptoms in numerous other employees, at least
some of whom the agency permitted to telework as a result. IAF, Tab 53, Hearing
Recording (HR), Track 3 at 9:10 (testimony of the appellant’s supervisor), Track 7
at 20:22 (testimony of the appellant). At the time of the hearing in this appeal, the
6
IAF, Tab 25 at 78-79. On February 11, 2014, the appellant requested reasonable
accommodations in the form of a change in duty location to a different building at
KSC. Id. at 73. On March 3, 2014, the agency granted the appellant’s request on
an interim basis, pending the receipt of medical documentation. Id. at 50-51, 54.
On March 20, 2014, the appellant’s allergist provided medical documentation to
support the relocation request. Id. at 76. On April 14, 2014, the agency officially
denied the appellant’s request on the bases that the medical documentation d id
not support the request, and the appellant’s Headquarters work area had already
undergone significant allergen remediation. Id. Notwithstanding, the agency
kept the appellant’s interim accommodation in place, ostensibly due to another
reasonable accommodation request that the appellant had recently filed. Id. at 48,
50-51, 54.
¶11 Specifically, on April 11, 2014, the appellant submitted an update to her
original reasonable accommodation request, which the agency processed as a
separate request. Id. at 85-86. The appellant related that the agency intended to
terminate her current flexible workweek arrangement, and that this would
negatively affect her medical condition. Id. at 85. She explained that she was
suffering from sleep apnea in connection with her allergies, and that flexible work
hours and telework arrangements had theretofore played an importan t role in
managing her symptoms:
Sometimes I max out at 6 hours per day of capability, other days I
can work 12 hours. The variable work schedule allows me to control
the levels of my sleep deprivation, control my exposure to allergens
which have effects on sleep apnea, and maximize work productivi ty.
So I need the capability of variable start times every day. I also have
many medical appointments associated with my illness, so I need the
flexibility of a variable work schedule to maximize my work hours
by keeping my appointments outside of my 40 hour week.
Headquarters building had been slated for demolition. HR, Track 3 at 8:05 (testimony
of the appellant’s supervisor).
7
Id. at 85-86. The agency construed this as a request for a maxi -flex duty schedule
and up to 24 hours of telework per week. Id. at 90.
¶12 After receiving medical documentation from the appellant’s sleep specialist,
on September 10, 2014, the agency denied her request for telework and flexible
hours as not being supported by the medical documentation. Id. at 91. However,
due to a change in the location of the appellant’s work unit, the agency decided to
reopen her other request, and it approved her relocation to a different office at
KSC. Id. at 95.
¶13 Nevertheless, even after changing work stations, the appellant continued to
experience symptoms. Id. at 54. Therefore, on February 4, 2015, the appellant’s
allergist recommended some additional changes to her work environment,
including increased air filtration and circulation, no carpet or cloth-based
partitions in the office, weekly cleaning of the work area with damp cloths, and
relocation to alternate non-allergenic work areas, including working from home.
Id. at 54-55. On April 16, 2015, the agency decided to implement the first three
recommendations, but it again denied the appellant’s request to telework because
of her alleged performance deficiency. Id. at 52, 55. On June 22, 2015, the
appellant renewed her request for a flexible schedule, but the agency denied that
request as well, and for the same reason. Id. at 47. Despite the agency’s efforts
at environmental remediation, the appellant continued to experience allergic
reactions at her duty station and had to leave the area fr equently. IAF, Tab 26
at 47, Tab 53, Hearing Recording (HR), Track 4 at 30:25 (testimony of the
appellant). She went so far as to spend long stretches of her workday working
outdoors, until the agency ordered her to cease this practice and return to her
indoor office. IAF, Tab 26 at 21.
¶14 Turning to the appellant’s case in chief, the administrative judge found that
the appellant was disabled within the meaning of 29 C.F.R. § 1630.2(g) because,
by virtue of her allergies to mold and other substances, she was substantially
limited in one or more major life activities, including working. ID at 26. This
8
finding is supported by the record and is not in dispute. Regarding whether the
appellant was “qualified” within the meaning of 29 C.F.R. § 1630.2(m), the
administrative judge did not specifically address that issue in his initial decision.
Nevertheless, we observe that this issue is intertwined with the issue of whether
there existed a reasonable accommodation that would have allowed the appellant
to perform the essential functions of her position. We therefore proceed to that
portion of the analysis.
¶15 The administrative judge found, and the parties do not dispute, that the
agency provided the appellant with several of her requested accommodations,
including multiple office relocations, removing the carpet from her office and
replacing it with tile, no cloth-based partitions in her office, periodic replacement
of air circulation vent filters, and weekly cleaning of her work area. ID at 26 -27;
IAF, Tab 8 at 57-58, Tab 25 at 54-55, Tab 43 at 35-36. Nevertheless, the
accommodations provided by the agency were not effective. That is, the
appellant was not performing the essential functions of her job to the extent
deemed necessary by the agency to avoid removal for poor performance. See
Natalie S. v. Department of Veterans Affairs, EEOC Appeal Nos. 0120140815,
0120142049, 2018 WL 703733, at *12 (Jan. 26, 2018). Where, as here, the
accommodation appears ineffective, the employer a nd employee should
reexamine the reasonable accommodation. Id. at *13.
¶16 Indeed, the facts of this case indicate that telework, a flexible wor k
schedule, or a combination thereof, would have been the next logical
accommodation for the agency to try after determining that it could not offer any
additional modifications to the appellant’s on-site working environment. The
record shows that the appellant was working a flexible schedule in the same job
until April 2014. IAF, Tab 25 at 85. The agency’s revocation of this flexible
arrangement coincided with the appellant’s alleged decline in performance for the
9
2014-2015 performance year, which began the following month. 4 IAF, Tab 8
at 27-34. Similarly, the appellant had previously been permitted to telework as
part of a reasonable accommodation, but the agency revoked her teleworking
arrangement in December 2013, less than 6 months prior to the onset of the
2014-2015 performance year. HR, Track 7 at 16:20 (testimony of the appellant).
There is no evidence that the appellant experienced any performance deficiencies
while she was teleworking, and in fact, the appellant testified, without
contradiction, that when she was permitted to telework, her performance was
excellent. HR, Track 8 at 35:35 (testimony of the appellant). Furthermore, it is
undisputed that most of the appellant’s peer employees were permitted to
telework during the time period at issue, and that they were able to perform the
essential functions of their positions. HR, Track 3 at 16:05, Track 4 at 19:50
(testimony of the appellant’s supervisor), Track 7 at 15:40, 20:00 (testimony of
the appellant). Moreover, there is good reason to believe that these
accommodations would have been effective. As the appellant has explained
repeatedly, from her first accommodation request through the Board hearing,
teleworking and a flexible schedule would have reduced her exposure to the
allergens present at the work site, facilitated her access to medical care, and
afforded her some flexibility in managing the sleep problems that were being
caused by her respiratory impairments. IAF, Tab 25 at 85-86; HR, Track 8
at 35:05 (testimony of the appellant). The appellant’s explanation of the reason
for her telework and flexible schedule requests makes sense on its face and
presents a straightforward pathway to reducing the workplace barriers attendant
to her disability. The agency does not specifically argue that part-time telework
and a flexible schedule would not have been effective in accommodating the
4
It is undisputed that the appellant never experienced any performance problems du ring
her 23 years of service with the agency prior to the events at issue in this appeal. HR,
Track 5 at 29:00, 34:10 (testimony of the appellant).
10
appellant’s disability, and for the reasons explained above, we find that these
accommodations would more likely than not have been effective.
¶17 Nevertheless, the agency denied the appellant’s requests for telework and a
flexible schedule on the basis that such accommodations would create an undue
hardship. IAF, Tab 25 at 55. In general, an undue hardship exists when
provision of the requested accommodation would cause the employing agency
significant difficulty or expense. 29 C.F.R. § 1630.2(p)(1). In determining
whether an undue hardship exists, the Board will consider the totality of the
circumstances, including the factors listed in 29 C.F.R. § 1630.2(p)(2), as
applicable. See Josephine S. v. Department of Homeland Security, EEOC Appeal
No. 0120161196, 2018 WL 3415747, at *5 (June 26, 2018). The agency bears the
burden of establishing, through case-specific evidence, that a reasonable
accommodation would cause an undue hardship. U.S. Airways v. Barnett,
535 U.S. 391, 402 (2002)
¶18 In this case, the agency proffered two seemingly related reasons for its
undue hardship determination: (1) There was a need for the appellant to “fully
integrate with her team,” and (2) the performance difficulties that the appellant
was experiencing required that she be closely supervised. IAF, Tab 25 at 55.
Essentially, the agency is arguing that accommodating the appellant through
telework or a flexible schedule would adversely affect “the operation of the
[KSC] facility, including the impact on the ability of other employees to perform
their duties and the impact on the facility’s ability to conduct business.” 5 C.F.R.
§ 1630.2(p)(2)(v). Regarding the first point, the agency did not explain what it
would mean for the appellant to “fully integrate with her team.” Presumably, this
pertains to the appellant engaging in effective real-time communication with her
coworkers. Nevertheless, it appears to us that being integrated with the team is
not an essential function of the Aerospace Technologist position but is instead a
means by which an Aerospace Technologist may accomplish the essential
functions of her position. See Gilberto S. v. Department of Homeland Security,
11
EEOC Petition No. 0320110053, 2014 WL 3571431, at *4-*5 (July 10, 2014). In
any event, the agency does not claim that other teleworkers are not fully
integrated with the team, and it has not explained why it believes that a flexible
schedule or teleworking arrangement would necessarily prevent the appellant
from being “fully integrated.” 5 Regarding the second point, the agency did not
present evidence as to why it could not provide close supervisory instruction to
the appellant during the times that she teleworked or during the remaining hours
when she worked at the office. Simply put, the agency has not provided eno ugh
to show that the telework or flexible schedule accommodation would cause an
undue disruption to its operations or other undue hardship. This is particularly so
considering that the telework infrastructure was already in place and ready for the
appellant to access, and the agency has significant institutional experience
managing both flexible schedule employees and teleworkers. 6 See Elsa S. v.
National Aeronautics and Space Administration, EEOC Appeal No. 0720180021,
2020 WL 949689 at *9 (Feb. 14 2020) (finding no undue hardship when the
complainant’s requested accommodations were in place within the agency,
available to employees, and allowed her to perform the essential functions of her
5
The appellant’s supervisor testified that, after the agency moved the appellant out of
the Headquarters building to various other locations on the KSC campus, she
experienced significant difficulty in reaching the appellant by email, telephone, and
office visit. HR, Track 4 at 10:10 (testimony of the appellant’s supervisor). The
agency does not seem to have considered the possibility that working from home might
have allowed the appellant to remain at her workstation with less frequent breaks,
thereby facilitating her supervisor’s ability to reach her during the workday.
6
To the extent that the agency harbored any doubts about whether these
accommodations would be effective or whether they would unduly impede
communications between the appellant, her supervisor, and her coworkers, the correct
course of action would have been to offer the accommodations on an interim or trial
basis. See, e.g., Mario H. v. Department of Health and Human Services, EEOC Appeal
No. 2021004035, 2022 WL 1449503, at *5 (Apr. 20, 2022). “Using a possible
accommodation for a limited trial period is often part of the ongoing interacti ve process
and can be a path towards identifying an effective accommodation. ” Tyson A. v.
Department of Agriculture, EEOC Appeal No. 2020000972, 2021 WL 3839942, at *6
(Aug. 16, 2021).
12
position). For these reasons, we disagree with the administrative judge’s finding
that the agency proved that these accommodations would constitute an undue
hardship. ID at 29-30.
¶19 We are aware that it is common practice in Federal agencies to revoke,
suspend, or otherwise curtail flexible schedule and telework privileges for
employees who are experiencing performance problems. Nothing in this decision
is intended to cast doubt on the propriety of those policies and practices in
general. Nevertheless, even if for most employees these arrangements are a
privilege, for qualified disabled employees, reasonable accommodations are a
right, even if those accommodations entail telework or a flexible work schedule.
No agency policy or management preference can override the statutory
requirements of the Rehabilitation Act and the Americans with Disabilities Act
(ADA). See Garza v. Office of Personnel Management, 83 M.S.P.R. 336, ¶ 5
(1999), aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). As the appellant accurately
observes, “denial of an accommodation on the ground that a non-accommodated,
disabled employee is experiencing performance inadequacies turns the rationale
for the ADA’s rule of reasonable accommodation on its head.” PFR File, Tab 1
at 9 (quoting Goonan v. Federal Reserve Bank of New York, 916 F.Supp.2d 470,
483 (S.D.N.Y. 2013)). “Failure to consider the possibility of reasonable
accommodation for such disabilities, if it leads to discharge for performance
inadequacies resulting from the disabilities, amounts to a discharge solel y
because of the disabilities.” Borkowski v. Central Valley School District, 63 F.3d
131, 143 (2nd Cir. 1995). In this case, it is undisputed that the appellant’s alleged
performance difficulties were the primary reason that her requests for telework
and a flexible schedule were denied. HR, Track 3 at 15:40, 17:55 (testimony of
the appellant’s supervisor).
¶20 For these reasons, we find that the appellant has proven her affirmative
defense of disability discrimination. She was a qualified individual with a
disability, and the agency failed to provide her a reasonable accommodation. Nor
13
has the agency shown that accommodating the appellant with a flexible schedule
or part-time telework would have caused an undue hardship. Further, because the
agency required the appellant to work without an effective reasonable
accommodation both during the PIP period itself and the months immediately
preceding the PIP period, we find that there is a sufficient connection between the
agency’s failure to accommodate and the performance-based removal action such
that the removal was based on a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1)(D). Therefore, the appellant’s removal cannot be sustained. See
5 U.S.C. § 7701(c)(2)(B).
ORDER
¶21 We ORDER the agency to cancel its removal action and restore the
appellant to duty effective May 10, 2016. See Kerr v. National Endowment for
the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶22 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶23 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
14
¶24 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶25 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
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.
15
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 7
This Final Order constitutes the Board’s final decision in this matter.
5 C.F.R. § 1201.113. 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 time
limit may result in the dismissal of your case by your chosen forum.
7
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.
16
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 partic ular
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
17
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 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:
18
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 i n
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. 8 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).
8
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.
19
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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.