Opinion

Rochelle Wyatt v. United States Postal Service

Court
Merit Systems Protection Board
Filed
Mar 8, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROCHELLE M. WYATT, DOCKET NUMBER

Appellant, AT-0353-16-0492-X-1

AT-0353-16-0492-C-1

v.

UNITED STATES POSTAL SERVICE, DATE: March 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Champion , Memphis, Tennessee, for the appellant.

Luis O. Rodriguez and Suzanne B. McCabe , Philadelphia, Pennsylvania,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

This compliance proceeding was initiated by the appellant’s petition for

enforcement of the Board’s May 11, 2017 final decision in Wyatt v. U.S. Postal

Service, MSPB Docket No. AT-0353-16-0492-I-1. Wyatt v. U.S. Postal Service,

MSPB Docket No. AT-0353-16-0492-C-1, Compliance File (CF), Tab 1. On

September 25, 2017, the administrative judge issued a compliance initial decision

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

finding the agency not in compliance with the Board’s May 11, 2017 final

decision. CF, Tab 10, Compliance Initial Decision (CID). On November 15,

2017, the appellant filed a document that served as both a petition for review of

the compliance initial decision and a response to the agency’s October 30, 2017

statement of compliance in response to the compliance initial decision. Wyatt v.

U.S. Postal Service, MSPB Docket No. AT0353-16-0492-C-1, Compliance

Petition for Review (CPFR) File, Tab 1; Wyatt v. U.S. Postal Service, MSPB

Docket No. AT-0353-16-0492-X-1, Compliance Review File (CRF), Tab 3. On

February 2, 2023, the Board issued a nonprecedential order in which it found the

agency noncompliant on one issue. 2 Wyatt v. U.S. Postal Service, MSPB Docket

No. AT-0353016-0492-X-1, Order (Feb. 2, 2023); CRF, Tab 19. We now JOIN

these matters for processing, and for the reasons discussed below, we find the

agency in compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On April 27, 2016, the appellant filed an appeal with the Board alleging

that the agency had denied her restoration to duty following her recovery from

her November 1, 2014 compensable injury. Wyatt v. U.S. Postal Service, MSPB

Docket No. AT-0353-16-0492-I-1, Initial Appeal File (IAF), Tab 1. On May 11,

2017, the administrative judge issued an initial decision finding that the agency

violated the appellant’s restoration rights. IAF, Tab 35, Initial Decision (ID).

The initial decision ordered the agency to restore the appellant to her former

assignment, effective March 15, 2016. ID at 10. It further ordered the agency to

pay the appellant the appropriate amount of back pay, with interest, to adjust the

appellant’s benefits with appropriate credits and deductions, and to inform the

2

Also on February 2, 2023, in a separate, nonprecedential order in MSPB Docket

No. AT-0353-16-0492-C-1, the Board dismissed the appellant’s petition for review of

the compliance initial decision as untimely filed. Wyatt v. U.S. Postal Service, MSPB

Docket No. AT-0353-16-0492-C-1, Order (Feb. 2, 2023); CPFR File, Tab 9. The

instant nonprecedential Final Order now serves as the Board’s final decision in both

MSPB Docket No. AT-0353-16-0492-C-1 and MSPB Docket No. AT-0353-16-0492-X-

1.

3

appellant in writing of all actions taken to comply with the Board’s order. ID

at 11. That initial decision became the final decision of the Board on June 15,

2017, after neither party petitioned the full Board for review. ID at 13.

On June 12, 2017, the appellant, through her designated representative,

filed a petition for enforcement of the Board’s final decision, alleging that the

agency had failed to pay her back pay or benefits. CF, Tab 1. On September 25,

2017, the administrative judge issued a compliance initial decision granting the

petition for enforcement based on the agency’s concession it had not yet paid the

appellant her back pay or benefits. CID. The matter was then referred to the

Board to obtain compliance and docketed under Wyatt v. U.S. Postal Service,

MSPB Docket No. AT-0353-16-0492-X-1. See 5 C.F.R. § 1201.183(b)-(c); CRF,

Tab 2.

Between October 30, 2017, and June 6, 2019, the parties submitted

pleadings regarding the agency’s efforts to reach compliance. The appellant

contended the agency was not in compliance with regard to several aspects of its

back pay calculations, including the appellant’s: (1) night differential pay;

(2) Sunday premium pay; (3) holiday work hours; (4) holiday leave hours;

(5) restored annual leave and sick leave hours; (6) out of schedule premium pay;

(7) Thrift Savings Provision (TSP) regular and TSP Roth deposits; and (8) W-4

tax withholding request. CRF, Tabs 1-3.

On February 2, 2023, the Board issued a nonprecedential order in the

compliance referral matter finding that the agency had reached compliance on all

parts of the back pay calculations except for the appellant’s restored annual leave.

Wyatt, MSPB Docket No. AT-0353-16-0492-X-1, Order, ¶ 17. The Board found

that the agency’s back pay calculations shorted the appellant’s restored annual

leave by two pay periods’ worth of annual leave. Id. The Board thus ordered the

agency to restore to the appellant two additional pay periods of annual leave. Id.

On July 5, 2023, the agency submitted an additional pleading. CRF,

Tab 24. In the new pleading, the agency stated that it provided the appellant the

4

two additional pay periods’ worth of accrued annual leave, as ordered, and

included evidence demonstrating it had done so. Id. The appellant has not filed a

response to this pleading.

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. 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). 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 agency’s final outstanding compliance issue was its obligation to

restore two additional pay periods worth of annual leave to the appellant. The

agency’s last submission shows that the agency has done so and has therefore

reached full compliance. CRF, Tab 24 at 4 - 6. Additionally, the appellant has not

challenged the agency’s evidence of compliance.

Accordingly, in light of the agency’s evidence of compliance, the Board

finds the agency in compliance and dismisses the petition for enforcement and the

related petition for review of the compliance initial decision. This is the final

decision of the Merit Systems Protection Board in these compliance proceedings.

Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.

§ 1201.183(c)(1)).

5

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 Clerk of the Board.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

3

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.

6

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

7

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

8

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. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

4

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.

9

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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