Opinion

Annette Davis v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Feb 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANNETTE DAVIS, DOCKET NUMBER

Appellant, AT-0752-09-0860-X-1

AT-0752-09-0860-C-2

DEPARTMENT OF THE INTERIOR, DATE: February 28, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam J. Conti , Esquire, Atlanta, Georgia, for the appellant.

Kevin D. Mack , Esquire, Sacramento, California, for the agency.

Pernell Telfort , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

In a January 13, 2023 order, the Board affirmed the administrative judge’s

compliance initial decision finding the agency in noncompliance with the Board’s

August 15, 2014 Final Order reversing the appellant’s removal and ordering her

restored to duty, with back pay and appropriate benefits. Davis v. Department of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the Interior, MSPB Docket No. AT-0752-09-0860-C-2, Order (Jan. 13, 2023)

(C-2 Order); Compliance Petition for Review (CPFR) File, Tab 5; Davis v.

Department of the Interior, MSPB Docket No. AT-0752-09-0860-E-1, Final

Order (Aug. 15, 2014) (E-1 Final Order). For the reasons discussed below, we

now find the agency in compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On August 15, 2014, the Board issued a nonprecedential final order

concurring in and adopting a decision of the Equal Employment Opportunity

Commission (EEOC) that had found the agency removed the appellant in

retaliation for her prior equal employment opportunity (EEO) activity. E-1 Final

Order at 6. The Board ordered the agency, in pertinent part, to restore the

appellant to duty and to pay her appropriate back pay, with interest, and benefits. 2

Id. at 6-7.

On May 15, 2017, the appellant filed a petition for enforcement regarding

her restoration and benefits. 3 Davis v. Department of the Interior, MSPB Docket

No. AT-0752-09-0860-C-2, Compliance File (CF), Tab 1. She acknowledged that

the agency restored her to duty, paid her the correct amount of back pay, and

properly restored the annual and sick leave she would have accrued during the

approximately 5-year back pay period. Id. at 4-5. However, she asserted that the

agency had improperly caused her to forfeit 416 hours of restored annual leave by

The Board also forwarded the appellant’s compensatory damages claim to an MSPB

regional office for separate adjudication. E-1 Final Order at 6. On February 18, 2015,

the administrative judge found in the appellant’s favor on her compensatory damages

claim and ordered the agency to pay her $20,000. Davis v. Department of the Interior,

MSPB Docket No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision at 6.

The EEOC concurred in that decision on November 22, 2019. Davis v. Department of

the Interior, MSPB Docket No. AT-0752-09-0860-P-1, Damages Petition for Review

File, Tab 3. The compensatory damages award is not relevant to the compliance issues

currently before the Board.

The appellant had filed a previous petition for enforcement, which she then withdrew.

Davis v. Department of the Interior, MSPB Docket No. AT-0752-09-0860-C-1,

Compliance File, Tab 3, Compliance Initial Decision. The first petition for enforcement

is not relevant to the instant proceedings.

failing to place it in a separate accounting system and failing to permit her to use

it over an extended period of time. Id. On July 10, 2017, the administrative

judge issued a compliance initial decision granting the petition for enforcement

and directing the agency to restore the 416 hours of erroneously forfeited annual

leave, place it in a separate account reserved for hours restored pursuant to

5 C.F.R. § 550.805(g), and permit her to schedule and use leave by the end of the

leave year in progress 4 years after the date on which the separate leave account

was established. CF, Tab 8, Compliance Initial Decision (CID) at 6-7.

The agency filed a petition for review of the compliance initial decision,

which the Board denied on January 13, 2023, as untimely filed. In this Order, the

Board directed the agency to comply with the instructions in the compliance

initial decision, explained above. C-2 Order at 4-5.

In response, on March 30 and August 29, 2023, the agency submitted

pleadings acknowledging its obligations with respect to the 416 hours but stating

that it could not restore the leave because the appellant had resigned from the

agency on September 10, 2021. Davis v. Department of the Interior, MSPB

Docket No. AT-0752-09-0860-X-1, Compliance Referral File (CRF), Tab 7

at 4, 6. 4 The agency instead paid the appellant a lump sum of $11,448.03 for the

leave, which it explained was the appellant’s hourly wage as of November 2021,

multiplied by the number of annual leave hours, and less taxes and applicable

deductions. CRF, Tab 7 at 5, Tab 10 at 6.

The appellant did not contest that payment is appropriate under the

circumstances or that the agency had paid her this amount, nor did she contest the

various deductions. However, she objected that the agency’s response to the

January 13, 2023 order was filed 1 day late, after the date the agency itself had

requested an extension of time. CRF, Tab 6 at 4-5. More substantively, she

In their pleadings, the agency and the appellant both give this date variously as

September 10, 2021, and September 10, 2022, but the documentation supplied by the

agency makes plain that the correct year is 2021. CRF, Tab 7 at 6-7. We therefore find

that both parties’ occasional references to 2022 are typographical errors.

contended the agency was obligated to calculate the value of the 416 hours of

leave using the 2023 hourly wage for the position she had occupied, although she

had resigned nearly 2 years earlier. CRF, Tab 8 at 8-9, Tab 11 at 5. She also

asserted that the agency was required to pay her interest on the annual leave

amount, which she believes should be calculated beginning January 2017, when

the agency erroneously required her to forfeit the leave. CRF, Tab 8 at 10. As

explained below, the appellant’s calculations would provide her with a windfall

rather than restore her to the status quo ante (which is the only relief available in

a meritorious petition for enforcement), and we therefore reject them.

ANALYSIS

When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation she

would have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance

must include a clear explanation of its compliance actions supported by

documentary evidence. Id. The appellant may rebut the agency’s evidence of

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

continued noncompliance.” Brown v. Office of Personnel Management,

113 M.S.P.R. 325, ¶ 5 (2010).

The Appropriate Hourly Rate

The agency stated that it calculated the lump sum for the erroneously

withheld 416 annual leave hours using the hourly rate for the appellant’s position

as of November 24, 2021. CRF, Tab 10 at 6. The agency explained that it

arrived at this date by following an Office of Personnel Management (OPM)

regulation requiring the agency to project the unused leave from the first workday

after separation, and counting all subsequent workdays and holidays until the

leave was exhausted, and to pay out the leave using the hourly rate in effect as of

this exhaustion date. Id.; see 5 C.F.R. § 550.1204(a) (“A lump-sum payment

must equal the pay an employee would have received had he or she remained in

the Federal service until the expiration of the accumulated and accrued annual

leave to the employee’s credit.”). The appellant separated from the agency on

September 10, 2021. According to the agency’s calculations, projecting the leave

forward from that date resulted in exhaustion of the leave on November 23, 2021.

The agency therefore used the rate of pay for the appellant’s position as of

November 24, 2021. CRF, Tab 10 at 6.

As explained above, the appellant did not contest the agency’s calculations

or deductions related to the lump sum payment for the 416 annual leave hours,

except that she contended that the agency should have used the hourly rate for her

position as of the date the payment was made, March 7, 2023. CRF, Tab 11 at 5.

She did not counter the agency’s citation of the OPM regulation governing leave

lump-sum payments, 5 C.F.R. § 550.1204(a); instead, she argued that the

agency’s “illegal act” depriving her of the opportunity to use the leave during her

employment justifies “equitable relief” of granting her the present value of the

leave. CRF, Tab 11 at 5-6. She also contended that the agency’s selection of the

hourly rate was “arbitrary.” Id. at 5.

We disagree. The agency did not act arbitrarily: it properly followed OPM

regulation and correctly calculated the lump sum value of the appellant’s leave as

if it had been paid out as of her actual separation. In contrast, the appellant’s

requested calculation would improperly grant her a windfall. Rittgers v.

Department of the Army, 123 M.S.P.R. 31, ¶ 13 (2015) (stating that appellant in a

petition for enforcement is entitled to be restored to the status quo ante, but not to

receive a windfall). The appellant’s repeated exhortations to award her

“equitable” or extra relief go beyond the scope of these compliance proceedings.

As the appellant recognizes, see CRF, Tab 11 at 6, the purpose of this proceeding

is to return the parties to the status quo ante—here, to place the appellant in the

same position she would have been in had the agency all along fully complied

with the relief granted in the Board’s original August 15, 2014 Final Order. Had

the agency never erroneously withheld the leave, the appellant might have used it

prior to her separation in September 2021. If she had not fully used it, the agency

would have paid it out as of her separation. That is precisely what the agency has

now done. No more is required. Indeed, no more is permitted. See Rittgers,

123 M.S.P.R. 31, ¶ 13.

Interest on the Lump Sum

We likewise reject the appellant’s arguments regarding interest on the

annual leave lump sum payment. The appellant argued that equitable

considerations require that: (1) she be paid interest on the lump sum payment;

and (2) such interest should be calculated starting from January 2017, when the

agency wrongfully deprived her of the use of her leave. CRF, Tab 8 at 10. As

the agency correctly noted, however, CRF, Tab 10 at 7, the Back Pay Act and its

implementing regulations—which govern the remedies awarded in this

proceeding—specify that interest is to be paid on back pay, but not on lump-sum

payments for annual leave. 5 U.S.C. § 5596(b)(2)(A) (specifying that interest is

available for back pay but not for lump -sum annual leave payments); 5 C.F.R.

§ 550.803 (same). Although, as the appellant pointed out, CRF, Tab 11 at 6-7,

two of the three cases cited by the agency on this issue did not arise out of MSPB

proceedings and are not binding on the Board, the statute and implementing

regulations themselves expressly counter the appellant’s position. Moreover, the

third case cited by the agency, a short nonprecedential decision of the Federal

Circuit arising out of an MSPB appeal, recognizes this statutory prohibition.

DeOcampo v. Department of the Army, 551 F. App’x 1000, 1003 (Fed. Cir. 2015)

(nonprecedential). We therefore find that the agency properly did not pay interest

on the lump-sum annual leave payment.

The Appellant’s Remaining Contentions

The appellant also complained that the agency’s original response in this

compliance referral matter was filed 1 day late, and therefore should not be

considered; that the agency’s generally non-cooperative, “arrogan[t],” and

“cavalier” conduct throughout every iteration of the appellant’s proceedings

should count against it; that the agency’s noncompliance with the Board’s orders

amounts to “theft” of her annual leave; and that the discrimination claim in

appellant’s underlying case authorizes the Board to craft a broader equitable

remedy under Title VII. CRF, Tab 8 at 6-7, Tab 11 at 8-11. Again, we must

disagree.

As to the first contention, we recognize the agency’s explanation that its

motion for an extension contained a typographical error as to the date it sought,

CRF, Tab 7 at 4, and excuse the lateness on that ground; and in any event, we

required more information from both parties before rendering the instant decision.

As for the remaining contentions, we recognize that this has been an

unfortunately protracted process, due in no small part to the Board’s 5 -year lack

of quorum, which prevented us from quickly ruling on the agency’s August 2017

petition for review of the compliance initial decision. However, the length of

time taken to reach full compliance does not justify expanding the appellant’s

remedy beyond that specified in the Board’s original decision and reaffirmed in

the January 2023 Order governing the present proceeding. Nor may we, in this

proceeding, heed the appellant’s urging to craft an equitable remedy under the

auspices of Title VII. The only issue in this appeal is compliance with the

Board’s prior orders setting the appropriate remedy—not relitigation of that

remedy or of the underlying discrimination claim. See King v. Reid, 59 F.3d

1215, 1219 (Fed. Cir. 1995); Choroszy v. Department of Homeland Security,

MSPB Docket No. PH-315H-16-0458-I-1, Final Order, ¶ 15 (Apr. 27, 2022)

(nonprecedential). The appellant correctly filed a separate proceeding seeking

compensatory damages for the agency’s discrimination against her, and in that

appeal was awarded $20,000. Davis v. Department of the Interior, MSPB Docket

No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision. The remedy in

the instant proceeding is governed by civil service laws, and the agency has now

met its obligation under the civil service laws.

Accordingly, we find the agency in compliance and dismiss the petition for

enforcement. This is the final decision of the Merit Systems Protection Board in

this compliance proceeding. Title 5 of the Code of Federal Regulations,

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

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 5

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

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.

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.

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

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 any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

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.

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