The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTOPHER D. KELLY, DOCKET NUMBER
Appellant, AT-0752-15-0064-C-1
v.
TENNESSEE VALLEY AUTHORITY, DATE: January 5, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jennifer B. Morton , Esquire, and Pat Kelly , Knoxville, Tennessee, for the
appellant.
Jennifer L. Grace , Knoxville, Tennessee, for the agency.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Additionally, the agency filed a motion for leave to file additional pleadings.
Compliance Petition for Review File, Tab 20. In this motion, the agency is seeking
leave to supplement its legal argument with an Equal Employment Opportunity
Commission (EEOC) decision, Alyce R. v. U.S. Postal Service, EEOC Appeal No.
0120160107, 2017 WL 3214465 (July 18, 2017), which was issued after the record
closed in this case. The agency, however, has failed to explain how Alyce R. is material
and would warrant an outcome different from that of the initial decision, given that the
administrative judge, in the initial decision, applied the same long-standing legal
doctrines that the EEOC relies on. Accordingly, the agency’s motion for leave is
denied.
2
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
The agency has filed a petition for review of the initial decision, which
granted the appellant’s petition for enforcement and found the agency in
noncompliance. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
BACKGROUND
In the underlying appeal, the administrative judge reversed the agency’s
decision to remove the appellant from his position as a Senior Nuclear Security
Officer (NSO) for failure to meet the medical requirements of his position,
2
We also deny the agency’s request to set aside the Final Order in the underlying
appeal. See 5 C.F.R. § 1201.118 (providing that the Board will exercise its discretion to
reopen an appeal only in unusual or extraordinary circumstances and generally within a
short period of time after the decision becomes final).
3
finding that the appellant established his affirmative defense of disability
discrimination. Kelly v. Tennessee Valley Authority, MSPB Docket No.
AT-0752-15-0064-I-1, Initial Decision (Sept. 9, 2015). Specifically, the
administrative judge found that the agency failed to engage in a good faith effort
to accommodate the appellant, and thus, the appellant proved that the agency
failed to meet its obligation to reasonably accommodate his disability by
reassigning him to another position for which he was qualified and could have
been assigned. Id. at 7-10. Accordingly, the administrative judge reversed the
removal action. Id. at 11.
The agency filed a petition for review, and the Board issued a Final Order
denying the agency’s petition. Kelly v. Tennessee Valley Authority, MSPB
Docket No. AT-0752-15-0064-I-1, Final Order (June 16, 2016). The Board
agreed with the administrative judge that the agency failed to make a good faith
effort during the interactive process. Id., ¶ 11. The agency was ordered to
“cancel the removal and to restore and reassign the appellant the Custodian
(Trainee) position, or to another position at or below the appellant’s formal grade
level for which he is qualified, effective September 11, 2014.” Id., ¶ 13.
The agency subsequently advised the appellant in a letter dated August 15,
2016, that it considered itself as having complied with the requirements of the
Board’s order because it had “reclassified” the appellant within its human
resources system as a Custodian (Trainee) retroactive to September 11, 2014, and
that he had been receiving full pay and benefits “for that job classification” since
September 9, 2015, the date the initial decision was issued. Compliance File
(CF), Tab 10 at 20. The letter further advised the appellant that he owed the
agency $2,131.59 “after all credits, deductions, and offsets,” and it instructed the
appellant to forward a check in the full amount to the agency. Id.
The appellant filed a petition for enforcement, arguing that, from the date
of the issuance of the initial decision in September 2015 through August 2016,
the agency made no effort to contact him to discuss his abilities, job
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opportunities, or possible accommodations that he might need to perform the
Custodian (Trainee) job or any other job within the agency. CF, Tab 9. The
appellant also identified the following outstanding compliance issues: (1) he
claimed that the agency failed to reimburse him for medical expenses incurred
due to the loss of health insurance between September 2014, the month in which
the agency removed him, and September 2015, the month the initial decision
ordered the agency to reinstate him and to provide interim relief if the agency
filed a petition for review of the initial decision; (2) he sought verification of the
agency’s back pay calculations from documents the agency relied on for its
calculations, including supporting documents for the agency’s calculation of his
base salary, performance bonuses, raises, night differential, and interest
calculation; (3) he sought verification of the agency’s calculation of his annual
and sick leave balances from documents on which the agency relied to calculate
these balances; (4) he sought verification that he was actually paid $7,652.25 as
“Lump Sum Leave Paid”; (5) to the extent that he was unable to work as a
Custodian (Trainee) due to the progression of his disease, he sought an order
requiring the agency to reassign him to another position for which he was
qualified; (6) he sought an order prohibiting the agency from engaging in
retaliatory conduct toward him; and (7) he sought an order referring the
proceeding to mediation with a Board attorney. CF, Tab 9.
The agency responded that the appellant failed to “allege with any
specificity TVA’s noncompliance with the Final Order.” CF, Tab 10 at 5. The
agency asserted that it has complied “because it has placed Appellant in the
Custodian Trainee position effective September 11, 2014, and it has given him his
back pay, interest, and benefits.” Id. at 8.
After considering the appellant’s petition for enforcement, the agency’s
response thereto, and the appellant’s reply to the agency’s response, the
administrative judge found that the agency failed to establish that it is in
compliance with the Board’s Final Order. CF, Tab 14, Compliance Initial
5
Decision (CID) at 8. The administrative judge found that, while the initial
decision and the Board’s Final Order both found that there was at least one vacant
position for which the appellant was qualified at the time, neither the initial
decision nor the Final Order determined that the Custodian (Trainee) job was the
position to which the appellant was entitled to be reassigned in accordance with
the agency’s obligations under the Rehabilitation Act. CID at 8. The
administrative judge found that the agency offered no evidence to establish that
the Custodian (Trainee) position to which it reassigned the appellant was the
vacant position for which the appellant was qualified and that came closest to the
appellant’s NSO position “in terms of pay, status, etc.” CID at 8-9. Further,
because the agency calculated the appellant’s back pay on the Custodian
(Trainee) position without sufficient evidence to determine whether that was the
position to which the agency should have reinstated the appellant, the
administrative judge found that the agency had submitted insufficient evidence to
allow the Board to determine whether the agency’s back pay calculations were
correct. CID at 9. To the extent the appellant challenged the agency’s off-setting
of the lump-sum payment he received for his unused annual leave, the
administrative judge found that the agency is required to offset a lump-sum
payment for annual leave under the Back Pay Act and that the appellant failed to
provide a reasonable basis to support a conclusion that the offset amount was not
properly calculated. CID at 9. Regarding the appellant’s claim that he should be
reimbursed for his medical expenses, the administrative judge found that, while
the appellant may be entitled to reimbursement for medical expenses incurred
during the period of his removal, the Board has no authority to direct an agency
to pay an employee additional or consequential expenses in connection with a
back pay award. CID at 10. Additionally, because the agency is required to
submit documentation sufficient to establish that it properly calculated the back
pay amount due to the appellant, the administrative judge denied the appellant’s
request to engage in discovery concerning the overpayment. Finally, the
6
administrative judge denied the appellant’s motion for a Board order requiring the
agency to cease collection of the lump-sum payment the appellant received for his
unused annual leave.
The agency filed a petition for review of the compliance initial decision.
Compliance Petition for Review (CPFR) File, Tab 5. The appellant filed a
response, and the agency filed a reply to the response. CPFR File, Tabs 12, 18.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency remains in noncompliance regarding the restoration of the appellant
to a position at or below his former grade level for which he is qualified.
When the Board finds a personnel action unwarranted, as in this case, the
goal is to place the appellant, as nearly as possible, in the status quo ante, i.e., the
situation he would have been in had the wrongful personnel action not occurred.
See Tubesing v. Department of Health and Human Services, 112 M.S.P.R. 393,
¶ 5 (2009). When an appellant who has prevailed before the Board files a petition
for enforcement, it is the agency’s burden to prove its compliance with the
Board’s final order. Id. 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).
Here, the agency argues on review that the administrative judge
erroneously interpreted and misapplied the plain language in the Board’s order
concerning the restoration of the appellant. CPFR File, Tab 5. Specifically, the
agency contends that the administrative judge erred when she found the agency
“to be noncompliant” and “ordered the parties to go back to the very beginning
and engage in an interactive discussion, rather than enforcing the Final Order as
written based on its plain meaning.” Id. at 5-6. The agency also continues to
challenge the initial decision and the Board’s decision on the removal action. Id.
at 24-30. Indeed, the agency asserts that the Board has a “lack of understanding”
of the applicable law and that the Final Order “did little more than rubber stamp
7
the [administrative judge’s] initial decision and further misconstrue the law.” Id.
at 27.
However, the agency continues to fail to understand that an employee only
has a general responsibility to inform his employer that he needs accommodation
for a medical condition. Paris v. Department of the Treasury, 104 M.S.P.R. 331,
¶ 17 (2006). Once the employee has requested accommodation, the employer
must engage in the interactive process in an effort to determine an appropriate
accommodation, and the employer cannot escape liability for disability
discrimination simply because the employee failed to suggest a particular
accommodation. Id. As stated in the initial decision, the Board has repeatedly
held that an employing agency is in a better position than a disabled employee to
know about its ability to modify duties or working conditions to meet the needs of
the employee. Id.
Here, the Final Order explicitly ordered the agency to “cancel the removal
and to restore and reassign the appellant to the Custodian (Trainee) position, or
to another position at or below the appellant’s formal grade level for which
he is qualified, effective September 11, 2014 .” Kelly, MSPB Docket No.
AT-0752-15-0064-I-1, Final Order, ¶ 13 (emphasis added). The wording of this
order intentionally did not require the agency to reassign the appellant to the
Custodian (Trainee) position. Rather, the agency was specifically ordered to
reassign the appellant to a position for which he is qualified, and the Custodian
(Trainee) position was one possible position if the appellant was qualified to
perform the duties. Id. On review, the agency does not deny that it failed to
engage in the interactive process in locating a position within the appellant’s
qualifications. CPFR File, Tab 5. Rather, the agency continues to challenge the
Board’s determination that the agency engaged in disability discrimination when
it removed the appellant. Id. For example, the agency continues to assert that it
was not obligated to engage in the interactive process prior to the hearing because
it was the appellant’s burden to prove that a position was available for which he
8
was qualified, and the only position the appellant identified was the Custodian
(Trainee) job. Id. at 27-28. However, we find no merit to the agency’s argument
that it has no obligation or responsibility to participate in the interactive process
with the appellant to comply with the Board’s Final Order.
It is undisputed that the agency has made no effort at any time prior to the
appellant’s removal in 2014 through this compliance appeal filed in January 2017
to engage, in good faith, in the interactive process with the appellant to determine
whether the agency has any position, duties, or working conditions which could
be modified to meet the appellant’s restrictions. Instead, the agency appears to be
arguing that it believes it has complied because it finally “reassigned” the
appellant to the Custodian (Trainee) position, but because the appellant’s medical
conditions have now advanced, thereby preventing him from performing the
duties of the Custodian (Trainee) position, the Board should vacate the Final
Order. CPFR File, Tab 5 at 32-34.
However, both the administrative judge and the Board previously have
found that the agency discriminated against the appellant on the basis of his
disability when it removed him from his NSO position without making a good
faith effort to engage in the interactive process. Although the agency continues
to challenge these findings and it reasserts the arguments it previously raised
before the Board, we decline to disturb the Final Order. CPFR File, Tab 5
at 24-27. Furthermore, the agency’s delayed reassignment of the appellant to the
Custodian (Trainee) position and its subsequent determination that he cannot
perform the position’s duties do not constitute engaging in good faith in the
interactive process to reassign him to a position that “comes closest to the
employee’s current position in terms of pay, status, etc.,” for which he is
qualified to perform the duties. See EEOC, Enforcement Guidance; Reasonable
Accommodation and Undue Hardship Under the American with Disabilities Act,
www.eeoc.gov/policy/docs/accommodation.html (2002); see also Tubesing,
9
112 M.S.P.R. 393, ¶ 5. Accordingly, the administrative judge correctly found the
agency in noncompliance with the Final Order.
The agency also raises numerous arguments alleging that the appellant has
submitted a disability retirement application, or applications with the Office of
Personnel Management (OPM), which have been granted. However, any such
applications were submitted after the agency failed to engage in the interactive
process and assist the appellant in locating a position for which he was qualified.
Moreover, 5 U.S.C. § 7701(j) provides that “[i]n determining the appealability
under [section 7701] of any case involving a removal from the service . . . ,
neither an individual’s status under any retirement system established by or under
Federal statute nor any election made by such individual under any such system
may be taken into account.” Id.; Fox v. Department of the Army, 120 M.S.P.R.
529, ¶ 21 (2014). The essential occurrence in such cases is the timing of the
agency’s action, rather than the timing of the grant of retirement by OPM. As
long as an agency effects an action prior to the grant of retirement by OPM, the
Board has jurisdiction over the action, regardless of the effective date of the
retirement. Fox, 120 M.S.P.R. 529. ¶ 21. Here, it is undisputed that the appellant
applied for disability retirement benefits after the agency removed him from his
position. CPFR File, Tab 5 at 17. Accordingly, the agency’s arguments
concerning the status of the appellant’s retirement in this compliance appeal are
unavailing.
In addition, the agency asserts that, “[b]ecause the Board designated its
Final Order as nonprecedential under 5 C.F.R. § 1201.117(c), that effectively
stripped TVA of the opportunity to appeal to the Federal Circuit.” CPFR File,
Tab 5 at 30. However, the agency’s argument shows that it lacks an
understanding of the Board’s statutory judicial appeal process. As set forth in
5 U.S.C. § 7703(d)(1), the agency does not have a direct right of appeal of a
Board decision, whether the decision is designated as nonprecedential or not.
Rather, the right to appeal a Board final decision is restricted to the Director of
10
OPM. Specifically, the OPM Director may request review of any final order or
decision of the Board within 60 days after its issuance. To request review, the
Director may timely file “a petition for judicial review in the United States Court
of Appeals for the Federal Circuit if the Director determines, in the discretion of
the Director, that the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the Board’s decision will
have a substantial impact on a civil service law, rule, regulation, or policy
directive.” 5 U.S.C. § 7703(d)(1). If the Director “did not intervene in a matter
before the Board, the Director may not petition for review of a Board decision
under this section unless the Director first petitions the Board for a
reconsideration of its decision, and such petition is denied.” Id. Here, because
the OPM Director did not intervene, nor did the Director timely file a petition for
reconsideration of the Board’s decision and have it denied, the agency had no
right to appeal the Board’s Final Order to the Federal Circuit.
Because we are affirming the compliance initial decision that found the
agency in noncompliance, the agency is directed to file evidence of compliance
with the Office of the Clerk of the Board, and the appellant will be afforded the
opportunity to respond to that evidence. The appellant’s petition for enforcement
will be referred to the Board’s Office of General Counsel and, depending on the
nature of the submissions, an attorney with the Office of General Counsel may
contact the parties to further discuss the compliance process. The parties are
required to cooperate with that individual in good faith. Because the purpose of
the proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and any objections to
that evidence. Thereafter, the Board will issue a final decision fully addressing
11
the petition for review of the compliance initial decision and setting forth the
appellant’s further appeal rights and the right to attorney fees, if applicable. 3
ORDER
We ORDER the agency to submit to the Office of the Clerk of the Board
within 60 days of the date of this Order satisfactory evidence of compliance. This
evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(a)(6)(i), including submission of evidence and a narrative statement
of compliance. The agency’s submission must demonstrate, as set forth above,
that the appellant has been reassigned to a position for which he is qualified, a
position which is at or below his former grade level as an NSO, effective
September 11, 2014. To be in compliance regarding the provisions of back pay,
interest on back pay, and benefits of employment, the agency must provide a
detailed and clear explanation of the calculations it has made in determining the
amount due the appellant, supported by relevant documentary evidence, in the
form of copies of correspondence, statements, and declarations made under
penalty of perjury. Among other things, the agency must (1) clearly set forth the
gross amount due to the appellant and show how that amount was determined;
(2) clearly set forth the amount and reason for all deductions, reductions, and
offsets from the gross amount due of the appellant; (3) clearly set forth the source
and amount of all checks or electronic payments already received by the appellant
and provide evidence that such checks or electronic payments were received; and
(4) clearly set forth the amount of interest due the appellant and how that amount
was calculated. The agency must also clearly set forth its calculations relating to
the appellant’s sick and annual leave balances, his Thrift Savings Plan account,
including both the appellant’s and the agency’s contributions, and any other
benefit of employment the appellant would have received but for the agency’s
unwarranted personnel action. Finally, the agency must provide evidence that it
3
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
12
has restored the appellant’s health insurance benefits. In addition to the
calculations, the agency must provide a clear and detailed narrative explanation
of its calculations so that the Board may understand the calculations and verify
that they are correct. The agency must provide an explanation of all codes and
abbreviations used in its documentation. The agency must serve all parties with
copies of its submission.
We also ORDER the agency to submit to the Office of the Clerk of the
Board within 60 days of the date of this Order the name, title, grade, and address
of the agency official charged with complying with the Board’s order, and inform
such official in writing of the potential sanction for noncompliance as set forth in
5 U.S.C. § 1204(a)(2) and (e)(2)(A). 5 C.F.R. § 1201.183(a)(2). In the absence
of this information, the Board will presume that the highest-ranking appropriate
agency official who is not appointed by the President by and with the consent of
the Senate is charged with compliance. Id.
The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. AT-0752-15-0064-
X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653-7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the Board’s e-Appeal
site (https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
13
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.