The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY H. PORTER, DOCKET NUMBER
Appellant, CH-0752-17-0010-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 1, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kathy H. Porter , Rochester, Kentucky, pro se.
Thao Pham , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
The appellant has filed a petition for review of the compliance initial
decision, which granted in part and denied in part her petition for enforcement.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 compliance initial
decision.
In an April 28, 2017 initial decision that became the final decision of the
Board after neither party filed a petition for review, the administrative judge
found the appellant’s retirement to be involuntary and ordered the agency to
reverse her separation and to restore her effective October 1, 2014. Porter v. U.S.
Postal Service, MSPB Docket No. CH-0752-17-0010-I-1, Initial Decision
(Apr. 28, 2017). The administrative judge also ordered the agency to pay the
appellant “the appropriate amount of back pay, with interest[,] and to adjust
benefits with appropriate credits and deductions as required by Postal Service
regulations no later than 60 calendar days after the date of the final decision of
the Board.” Id. On October 10, 2017, the agency sent the appellant a letter of
compliance indicating the following: (1) on or about May 27, 2017, the agency
placed the appellant in a Part-Time Flexible (PTF) Sales, Service Distribution
Associate position at the hourly rate of $29.42 with an effective date of
September 30, 2014; (2) the agency calculated her gross back pay to be
$100,918.64 and her adjusted gross back pay after wage offsets to be $29,657.25;
(3) on July 17, 2017, she received a back pay check (after deductions and taxes)
in the amount of $1,440.52; (4) on August 16, 2017, the appellant received the
interest on her back pay in the amount of $1,738.36; and (5) as of August 2017,
the agency restored the appellant’s sick and annual leave. Porter v. U.S. Postal
3
Service, MSPB Docket No. CH-0752-17-0010-C-1, Compliance File (CF), Tab 1
at 14, 16.
On November 13, 2017, the appellant filed a petition for enforcement
alleging that the agency was not in compliance with the Board’s final order
because it did not fully restore her annual leave, improperly deducted a Pay for
Performance (PFP) bonus and union dues from her back pay, failed to correctly
calculate the interest on her back pay, failed to file the proper forms with the
Office of Personnel Management (OPM) to allow her to recover insurance
premiums deducted from her annuity while she was retired, and overcharged her
for insurance premiums from January 2016 through present. Id. at 2. In
response, the agency asserted that it had complied with the Board’s order as
indicated in its October 10, 2017 compliance letter and provided documents
demonstrating its efforts to calculate and provide the appellant the back pay and
benefits to which she was entitled. CF, Tab 3. After the administrative judge
issued a close of record order, the parties submitted closing briefs reiterating their
respective positions. CF, Tabs 6, 8-9. In a compliance initial decision based on
the written record, the administrative judge granted, in part, and denied, in part,
the appellant’s petition for enforcement. CF, Tab 15, Compliance Initial Decision
(CID).
The appellant has filed a petition for review of the compliance initial
decision, asking the Board for review without identifying any particular error by
the administrative judge. Compliance Petition for Review (CPFR) File, Tab 1.
The agency has not responded.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,
4
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order
by a preponderance of the evidence. 2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
As noted above, the administrative judge granted, in part, the appellant’s
petition for enforcement. In particular, he found that the agency was not in
compliance with the Board’s order to the extent that it deducted her 2014 PFP
bonus and union dues from her back pay. CID at 10-13. Although the
administrative judge found that the agency used the proper method to calculate
the interest owed on the appellant’s back pay, he found that the agency did not
pay the proper amount of interest due to its improper deduction of the PFP bonus
and union dues. CID at 14-15. In addition, he observed that, although there was
no dispute as to her placement in the Sales, Service Distribution Associate
position, there was a dispute as to the effective date of her placement in that
position. CID at 3 n.2. Accordingly, he ordered the agency to pay the appellant
the appropriate amount of back pay plus interest consistent with his findings, to
provide her with an explanation of its updated back pay calculations, and to
ensure the correct effective date of her placement in the Sales, Service
Distribution Associate position. CID at 17. The parties have not challenged the
administrative judge’s findings of noncompliance, and we discern no basis to
disturb them.
The administrative judge also denied, in part, the appellant’s petition for
enforcement, finding that she did not rebut the agency’s evidence showing that it
2
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
restored the proper amount of annual leave to her and deducted the correct
amount for health insurance premiums from her back pay. CID at 8-9, 15-17.
Regarding annual leave, he agreed with the agency that the maximum amount of
annual leave that could be restored as a result of corrective action for an
employee like the appellant—i.e., a nonpreference-eligible, Executive and
Administrative Schedule employee—was 560 hours. CID at 8-9 (citing the
Employee and Labor Relations Manual §§ 436.2.d and 512.321). Thus, he found
that the agency demonstrated compliance by showing that, as of September 14,
2017, the appellant had 639 hours of annual leave, which included both the
annual leave restored to her as part of her back pay award as well as the leave she
accrued following her restoration to duty in May 2017. CID at 9; CF, Tab 3
at 41. Although he acknowledged the appellant’s frustration at not receiving all
the annual leave she would have received had she not retired, he concluded that
she failed to rebut the agency’s evidence showing that it restored the maximum
amount of annual leave to which she was entitled. CID at 9. The appellant has
not specifically challenged this finding on review, CPFR File, Tab 1, and we
discern no basis to disturb it.
Regarding the health insurance premiums, the record reflects that the
agency deducted $13,966.02 from the appellant’s back pay award for retroactive
health benefits from October 1, 2014, through June 6, 2017. CID at 15; CF,
Tab 3 at 11-12, 25, Tab 9 at 15. The appellant argued below that the agency
should have deducted health insurance premiums at a lower rate from
January 2016 through the date of her reinstatement because she changed her
health insurance plan with OPM from a family plan to a “Self Plus One” in
January 2016. CF, Tab 8 at 5-6. However, the administrative judge found that
the appellant did not provide any evidence to establish the specific premiums she
paid or when she paid them, and thus he concluded that she failed to rebut the
agency’s evidence of compliance. CID at 16-17. The appellant does not
specifically challenge this finding on review, CPFR File, Tab 1, and we agree
6
with the administrative judge that the appellant has not rebutted the agency’s
evidence that it deducted the appropriate amount of health insurance premiums
from her back pay, CF, Tab 3 at 11-12, 25, Tab 9 at 15. 3
In light of the foregoing, we affirm the administrative judge’s findings in
the compliance initial decision. Outstanding issues of compliance remain with
respect to the agency’s payment of the 2014 PFP bonus and union dues that were
improperly deducted from the appellant’s back pay award, as well as the
calculation of interest owed to the appellant. CID at 9-15, 17. On September 6,
2018, the agency submitted a compliance letter describing its efforts to comply
with the compliance initial decision under Porter v. U.S. Postal Service, MSPB
Docket No. CH-0752-17-0010-X-1, which is currently pending in the Board’s
Office of General Counsel. The appellant’s petition for enforcement will
therefore 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/or any objections
to that evidence. Thereafter, the Board will issue a final decision fully addressing
the appellant’s petition for review of the compliance initial decision and setting
forth her further appeal rights and the right to attorney fees, if applicable.
3
The administrative judge acknowledged that there were outstanding issues regarding
the amount OPM reimbursed the appellant for health insurance premiums deducted from
her annuity while she was retired. CID at 5, 16; CF, Tabs 10, 12-14. However, he
found that any dispute regarding the reimbursement amount paid by OPM to the
appellant was not relevant to the compliance at issue in this appeal and was instead a
dispute between the appellant and OPM. CID at 16. Moreover, he found that the
agency acted with due diligence in working with OPM to ensure the appellant was
appropriately reimbursed. Id. We agree with these findings.
7
ORDER
The appellant may respond to the agency’s September 6, 2018 submission
within 20 days of the date of this Order. 5 C.F.R. § 1201.183(a)(8). If the
appellant does not respond to the agency’s evidence of compliance, the Board
may assume that she is satisfied with the agency’s actions and dismiss the petition
for enforcement. The appellant’s response should be filed in the compliance
referral matter currently pending in the Board’s Office of General Counsel,
MSPB Docket No. CH-0752-17-0010-X-1. All subsequent filings should refer to
MSPB Docket CH-0752-17-0010-X-1 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 MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
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 Office of 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(a).
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).
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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 this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.