# Thomas Glass v. Department of the Treasury

> Merit Systems Protection Board · August 16, 2023

URL: https://www.frixlaw.com/law-library/cases/9556391

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 16, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

THOMAS C. GLASS, DOCKET NUMBER
Appellant, NY-0752-19-0200-I-1

v.

DEPARTMENT OF THE TREASURY, DATE: August 16, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher J. Keeven, Esquire, and Michael Joseph Sgarlat, II, Esquire,
Washington, D.C., for the appellant.

Gabriel A. Hindin and Ashley W. Walker, Washington, D.C., 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
sustained his reduction in grade. For the reasons discussed below, we GRANT
the appellant’s petition for review and REVERSE the initial decision. The
agency’s action is REVERSED.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND
¶2 The appellant served as a Supervisory National Bank Examiner, Level VII ,
with the agency’s New York City office. On March 22, 2019, the Examiner-in-
Charge for Citibank proposed the appellant’s reduction in pay and grade to
National Bank Examiner, Level VI, based on five specifications of conduct
unbecoming a supervisor and three specifications of failure to follow established
policies and procedures. 2 Initial Appeal File (IAF), Tab 9 at 110. The conduct
unbecoming specifications consisted of five instances wherein the agency alleged
that the appellant engaged in inappropriate conduct with three of his direct reports
and a subordinate regarding work-related matters.
¶3 Following the appellant’s oral and written replies, IAF, Tab 6 at 4 1, 46, on
May 24, 2019, the Deputy Comptroller for Large Banks issued a decision letter in
which he found all five specifications of charge 1, and the charge itself,
sustained. Id. at 35. He did not sustain charge 2. Nonetheless, he determined
that the proposed penalty was appropriate, and the appellant was reduced to a
lower grade, effective July 7, 2019. 3 IAF, Tab 6 at 27. The appellant filed an
appeal with the Board. IAF, Tab 1.
¶4 Following the requested hearing, the administrative judge, in her initial
decision, found all five specifications of the charge, and the charge itself,
sustained. IAF, Tab 37, Initial Decision (ID) at 4-8. She considered, but found

2
The agency had previously proposed the identical action against the appellant, with
the same charges and specifications. The same deciding official sustained the proposal
in its entirety and the appellant was reduced in grade, effective August 5, 2018. He
filed a Board appeal, and during adjudication, the agency rescinded the action and
moved for dismissal. With the appellant’s agreement, the administrative judge
dismissed the appeal as moot. Glass v. Department of the Treasury, MSPB Docket No.
NY-0752-18-0183-I-1, Initial Decision (Jan. 31, 2019). That decision became the
Board’s final decision on March 7, 2019. The agency proposed the instant action two
weeks later.
3
It is unclear whether the appellant suffered a reduction in pay. IAF, Tab 6 at 27. The
agency states that he did not, Petition for Review File, Tab 3 at 6, and the appellant has
not challenged that assertion.
3

unsupported, the appellant’s claim that the agency denied him due process when
it posted a vacancy announcement for his former position after issuance of the
first proposal notice. ID at 8-9. The administrative judge found that the agency’s
action promotes the efficiency of the service, ID at 9, and that reduction in grade
is a reasonable penalty for the sustained charge. ID at 9 -11. Accordingly, she
affirmed the action. ID at 1, 11.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has responded, PFR File, Tab 3, and the appellant has
replied. PFR File, Tab 4.

ANALYSIS
¶6 An agency may take an action under 5 U.S.C. chapter 75 against an
employee “only for such cause as will promote the efficiency of the serv ice.”
5 U.S.C. § 7513(a). “Cause” generally connotes some specific act or omission on
the part of the employee that warrants disciplinary action, and an agency action
that does not set forth actionable misconduct cannot be sustained. Gonzalez v.
Department of Homeland Security, 114 M.S.P.R. 318, ¶ 10 (2010); see Wilson v.
Department of Justice, 66 M.S.P.R. 287, 297 (1995) (“Regardless of whether the
charged misconduct actually occurred, we agree with the administrative judge’s
finding that the charged misconduct is not actionable.”); Ray v. Department of the
Army, 97 M.S.P.R. 101, ¶ 54 (2004) (finding no basis to disturb the
administrative judge’s conclusion that the charged conduct did not constitute
actionable misconduct), aff’d, 176 F. App’x 110 (Fed. Cir. 2006).
¶7 The appellant in this case was a supervisor and the agency identifies the
four employees mentioned in the specifications as either his direct reports or
otherwise his subordinate. IAF, Tab 6 at 10-11. The specifications all relate to
the manner in which the appellant dealt with these individuals regarding
work-related matters.
4

¶8 In specification (1), the agency alleged that the appellant called one of his
direct reports, P.B., a liar. IAF, Tab 9 at 110. In what is described as
“Background” to this specification, the agency stated that, during a group meeting
with visiting examiners in November 2016, the appellant asked P.B. about his
reporting on information that he had reviewed related to a specific monthly
report; that the appellant addressed P.B. in a scolding manner, questioning which
of P.B.’s two statements, that he had been reviewing the reports or that he had not
been reviewing the reports, was true; and that the appellant told P.B. that his
explanation was not a good excuse and that he was ill -prepared for the meeting.
The agency did not allege that the events at the November meeting constituted
misconduct but alleged in the first specification that during a December meeting
the appellant called P.B. a liar. The statement occurred during P.B.’s annual
performance review. In sustaining this specification, the administrative judge
found that the appellant behaved in a manner unbecoming a supervisor. ID at 5.
¶9 Even taking the agency’s version of this incident as accurate, 4 the fact
remains that the appellant was discussing his direct report’s performance with
him, and, in that discussion, the appellant indicated that he believed that P.B. had
not been truthful when, during the earlier meeting, he indicated both that he had,
and had not, been reviewing the monthly reports. The appellant was correct that
it is impossible for both of P.B.’s statements to have been truthful. It is the job of
a supervisor to address the performance of his subordinates and the making of
inaccurate or false statements about a work-related matter is serious. Although
the appellant’s language may have been direct or indelicate, that does not make
his conduct actionable. See Ray, 97 M.S.P.R. 101, ¶ 54 (finding that, while
statements the appellant made to a subordinate regarding matters within his area

4
According to the appellant, during their discussion, P.B. first asked if the appellant
was calling him a liar, to which the appellant replied “Yes, if you prefer that word.”
IAF, Tab 7 at 87 (the appellant’s deposition). Regardless of who first used the word
“liar,” the conduct does not equate to actionable misconduct.
5

of responsibility may have been indelicately worded, there is no evidence that the
appellant’s opinion was malicious or offered in bad faith). For these reasons, the
conduct charged in specification (1) is not actionable.
¶10 In specification (2), the agency alleged that, on January 2, 2017, the
appellant was having a discussion with another of his direct reports, Bank
Examiner E.S., in which the appellant sought to clarify how many of a particular
type of work item there were pending, and that when E.S. appeared not to
understand his question, the appellant held up one finger from each hand in her
face and said, loudly enough so that others could hear, words to the effect of
“Here’s one finger and here’s one finger. How many fingers?” IAF, Tab 9 at 10.
In E.S.’s written statement, she indicated that other staff members overheard the
appellant. Id. at 31. In sustaining this specification, the administrative judge
found that the appellant behaved in a manner that was disrespectful and that
caused E.S. to feel intimidated and embarrassed. ID at 5-6.
¶11 Again, even taking the agency’s version of the incident as accurate, 5 it
remains true that the appellant was seeking information from a direct report about
a work-related matter, as is within a supervisor’s responsibilities to do. That is so
regardless of whether the appellant’s statement made E.S. feel uncomfortable. 6
To the extent that the appellant’s reaction to E.S. may have been exaggerated, it
still does not constitute actionable misconduct. See Ray, 97 M.S.P.R. 101, ¶ 54.

5
According to the appellant, he was two to three feet away from E.S., he was not
yelling, agitated, or angry, IAF, Tab 7 at 105, and, based on the setup of the work
space, it was unlikely that anyone overheard the conversation. Id. at 105-06. He also
stated that P.M.’s “cube” was next to the appellant’s. Id. at 106. The parties stipulated,
however, that, although P.M. was sitting at his desk, adjacent to E.S.’s work station, at
the time of the conversation, he had no recollection of it. IAF, Tab 30.
6
A supervisor checking on the status of a work project, holding an employee
accountable for timely completing work, reviewing th e quality of an employee’s work,
and generally exercising supervisory authority over an employee can sometimes make
the employee angry, uncomfortable, frustrated, or embarrassed. The employee’s
reaction to that sort of supervisory oversight does not make the supervi sor’s conduct
improper.
6

¶12 In specification (3), the agency alleged that, on February 6, 2017, during
another conversation, E.S. asked the appellant a question about a work project to
which he responded, “We have talked about this five times!” IAF, Tab 9 at 111.
Although the parties generally agree as to what the appellant said, they disagree
about whether the question had previously been addressed. 7 In sustaining this
specification, the AJ found that the appellant made it obvious to E.S. that he was
annoyed and angry because of her question, and that he did not behave in a tactful
manner but rather in a way that was unbecoming a supervisor. ID at 6.
¶13 Even taking the agency’s version of the incident as accurate, E.S.’s question
to the appellant, to whom she reported, concerned a work-related matter and his
response to her was in the context of his supervisory role. That is so even if the
appellant’s response made E.S. feel afraid to ask further questions of him, as she
claimed. IAF, Tab 9 at 132. To the extent that the appellant’s response reflected
that he was frustrated by the question, it does not amount to actionable
misconduct. See Ray, 97 M.S.P.R. 101, ¶ 54.
¶14 In specification (4), the agency alleged that, between January and
February 2017, the appellant asked R.T., a subordinate, to schedule a meeting to
include him, the proposing official, and a member of bank management, and that,
after R.T. made several attempts to confirm the appellant’s attendance, he
responded to her to the effect that “I told you this three times. We have to go
over this again?” IAF, Tab 9 at 111. Although the parties generally agree as to
what the appellant said, they disagree about his tone. 8 In sustaining this
specification, the administrative judge found that the appellant was annoyed and

7
In her written statement, E.S. said that she did not recall having previously talked
about the matter at issue. IAF, Tab 9 at 132. During his deposition, t he appellant
stated that the question E.S. asked was a simple one that she had repeatedly asked over
a period of days. IAF, Tab 7 at 108.
8
In her written statement, R.T. stated that the appellant raised his voice. IAF, Tab 9
at 134. In his deposition, the appellant stated that he was merely “questioning”
inasmuch as the matter had already been addressed and resolved . IAF, Tab 7 at 126.
7

impatient and made his feelings known to R.T., and that he did not behave in a
tactful manner but rather in a way that was unbecoming to a supervisor. ID at 7.
¶15 Even crediting the agency’s version of the incident as accurate, the
discussion between the appellant and his subordinate concerned the scheduling of
a meeting which is a work-related matter and, in addressing her, the appellant was
acting within the scope of his responsibilities. That is so even though R.T. may
have felt belittled as she claimed. IAF, Tab 7 at 134. To the extent the
appellant’s response may have reflected that he was annoyed, it did not amount to
actionable misconduct.
¶16 In specification (5), the agency alleged that, in an email exchange on
May 5, 2016, to L.S., one of the appellant’s direct reports, he told her to
henceforth submit her questions either to him or another named individual, and to
“PLEASE stop emailing” C.L. IAF, Tab 9 at 111. The parties do not disagree as
to the content of the email, a copy of which is in the record. Id. at 139. In
sustaining this specification, the administrative judge found that the tone of the
appellant’s email indicated that he was annoyed and that he should have
understood that his email could have been construed that way. ID at 9.
¶17 It is within a supervisor’s responsibility to direct who should be provided
certain information and to whom questions should be addressed. Putting a written
word in all capital letters is generally intended to draw the reader’s attention to it.
To the extent that R.T. found the appellant’s email “belitting [sic]” and indicated
that she felt that she had been “beaten up” by it, IAF, Tab 16 a t 41, those feelings
cannot serve to turn the appellant’s email into actionable misconduct.
¶18 In sum, none of the five specifications that make up the charge constitute
actionable misconduct and, therefore, the sole charge supporting the agency’s
action cannot be sustained. 9 On this basis, the initial decision is reversed, and the

9
We do not suggest that a supervisor’s conduct may never be actionable and therefore
supportive of discipline, but only that the appellant’s conduct in this case does not rise
to that level.
8

agency’s action is reversed as well. Because the agency has failed to allege or
prove that there is “cause” for action, the Board’s inquiry stops and no other
claims need be reached. 10 Gonzalez, 114 M.S.P.R. 318, ¶ 25; Ray, 97 M.S.P.R.
101, ¶ 54; Wilson, 66 M.S.P.R. at 297.

ORDER
¶19 We ORDER the agency to cancel the appellant’s reduction in grade and
restore him to his supervisory position, effective July 7, 2019. 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.
¶20 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.
¶21 We further ORDER the agency to tell the appellant promptl y 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).
¶22 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

10
Based on this disposition, the Board need not consider the appellant’s claims that the
administrative judge failed to make credibility findings or address his due process
argument, and did not properly determine the reasonableness of the penalty. PFR File,
Tab 1 at 11, 14-23, 23-25.
9

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).
¶23 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.

NOTICE OF APPEAL RIGHTS 11
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
11
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.
10

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.
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.
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 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
12

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 a ny court
of appeals of competent jurisdiction. 12 The court of appeals must receive your

12
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
13

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
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.

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.
14

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9556391. Public record. Not legal advice.