Opinion

Trevor McCardle v. Equal Employment Opportunity Commission

Court: Merit Systems Protection Board
Filed: May 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

back pay generally encompasses the compensation an employee would have received but for the employer’s violation of law

How later courts described this case

back pay generally encompasses the compensation an employee would have received but for the employer’s violation of law
Title VII judgments for back pay are “wages” as defined under the Internal Revenue Code

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TREVOR MCCARDLE, DOCKET NUMBER

Appellant, SF-0752-15-0230-X-1

EQUAL EMPLOYMENT DATE: May 13, 2024

OPPORTUNITY COMMISSION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Cori M. Cohen , Esquire, and Stephanie M. Herrera , Esquire, Silver Spring,

Maryland, for the appellant.

Holly V. Franson , Esquire, Denver, Colorado, for the appellant.

Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Yolanda Acuna , South Gate, California, for the appellant.

Anabia Hasan , Esquire, Alexandra Schwartzman , and Natasja D. H. Handy ,

Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

This case is before the Board pursuant to the May 24, 2023 compliance

initial decision of the administrative judge, which found the agency not in

compliance with the Board’s January 6, 2023 nonprecedential Final Order.

McCardle v. Equal Employment Opportunity Commission , MSPB Docket No.

SF-0752-15-0230-C-1, Compliance File (CF), Tab 8, Compliance Initial Decision

(CID); McCardle v. Equal Employment Opportunity Commission , MSPB Docket

No. SF-0752-15-0230-I-1, Final Order (Jan. 6, 2023) (Final Order). For the

reasons set forth below, we find the agency in compliance and DISMISS the

petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On January 2, 2015, the appellant appealed his indefinite suspension.

McCardle v. Equal Employment Opportunity Commission , MSPB Docket No.

SF-0752-15-0230-I-1, Initial Appeal File (IAF), Tab 1. On December 28, 2015,

the administrative judge cancelled the appellant’s suspension and ordered that he

be retroactively restored to his position and paid the appropriate amount of back

pay, but found that the appellant failed to prevail on his affirmative defenses of

reprisal for whistleblowing and Equal Employment Opportunity activities, as well

as his claim that his Fourth Amendment rights were violated. IAF, Tab 74, Initial

Decision at 11, 18-19.

The agency filed a petition for review, and the appellant filed a

cross-petition for review. McCardle v. Equal Employment Opportunity

Commission, MSPB Docket No. SF-0752-15-0230-I-1, Petition for Review File,

Tabs 3, 15. On January 6, 2023, the Board issued its Final Order, ordering the

agency to rescind the indefinite suspension, restore the appellant effective

December 8, 2014, and pay the appellant the appropriate amount of back pay,

interest on the back pay, and other benefits. Final Order at 23. The Board also

took official notice that the appellant had passed away on August 4, 2019, and his

counsel had untimely moved to substitute his current wife, Yolanda Acuna, as his

“sole beneficiary.” Id. at 1, n.1. The Board further held that though the motion

for substitution was untimely, “we find it appropriate to continue with the

processing of [the] appeal. Both Ms. Acuna and Mr. McCardle will be referred to

as ‘the appellant.’” Id.

On April 14, 2023, the substitute party appellant filed a petition for

enforcement, contending that the agency had not yet fulfilled the Board’s order to

pay her the appropriate amount of back pay and interest. CF, Tab 1. On

April 20, 2023, the agency filed a “request for guidance re backpay,” explaining

that, although Ms. Acuna was now a substituted party, in 2010, the appellant had

signed a Standard Form 1152 (SF-1152), entitled “Designation of

Beneficiary-Unpaid Compensation of Deceased Civilian Employee,” which

designated his then-wife, Monica McCardle (now Monica Gaya), as his

beneficiary. CF, Tab 3 at 21. The agency requested “guidance from the Board as

to how to properly direct payment to the Appellant’s estate.” Id. at 6. On the

same day, the administrative judge issued an opinion denying the agency’s

request for guidance, because “the Board is prohibited from issuing advisory

opinions.” CF, Tab 4 at 1.

On May 24, 2023, the administrative judge issued a compliance initial

decision, holding that the agency “failed to meet its burden of proving it has

complied with the Board’s final order to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits for the indefinite suspension

period at issue that was effective December 28, 2014.” CID at 11. 2

The compliance initial decision informed the agency that, if it decided to take the

actions required by the decision, it must submit to the Clerk of the Board, within the

time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that

it has taken the actions identified in the compliance initial decision, along with

evidence establishing that it has taken those actions. CID at 11-12; see 5 C.F.R.

§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they

could file a petition for review if they disagreed with the compliance initial decision.

CID at 12-13; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned

for review of the compliance initial decision.

On June 6, 2023, the agency submitted a “Response Demonstrating

Compliance With Board’s May 24, 2023 Order.” McCardle v. Equal Employment

Opportunity Commission, MSPB Docket No. SF-0752-15-0230-X-1, Compliance

Referral File (CRF), Tab 1. The agency provided evidence that it had issued the

ordered back pay in the amount of $74,003.11 to the appellant’s designated

beneficiary, Ms. Gaya. Id. at 5, 17-26. The agency also attached correspondence

from the Office of Personnel Management to the agency stating that 5 U.S.C.

§ 5582 and 5 C.F.R. § 178.204 require the agency to pay the money due the

appellant to the designated beneficiary. Id. at 7. Following the agency’s

submission, the Office of the Clerk of the Board issued an Acknowledgement

Order notifying the parties that a new docket number had been assigned

(reflecting the referral of the matter to the Board for a final compliance

determination) and notifying the substitute appellant of her right to respond to the

agency’s submission within 20 days. CRF, Tab 2 at 1-2.

On June 14, 2023, Ms. Acuna submitted her “Response to

Acknowledgement Order.” CRF, Tab 3. In her response, Ms. Acuna contends

that the agency has not complied with the Board’s Final Order because it issued

the back pay to the wrong person. Id. at 5-6. She argues the appellant’s SF-1152

form does not govern the payment of back pay because back pay is not governed

by 5 U.S.C. § 5582, but instead by 5 U.S.C. § 5596 (“Back pay due to unjustified

personnel action”). Id.

On June 27, 2023, the agency submitted a reply to appellant’s response,

arguing that the SF-1152 was in full force and effect unless the appellant

expressly revoked it in writing, transferred to another agency, or was reemployed

by the same or another federal agency or department, none of which had occurred.

CRF, Tab 5 at 5.

On June 28, 2023, Ms. Acuna filed an “Appellant's Objection and Reply to

Agency's June 27, 2023 Response” contending that “a retirement specialist” she

had consulted stated that the SF-1152 “has nothing to do with backpay for an

MSPB case” but instead “is used to ‘clean up’ all incidentals of pay due as a

result of a government employee’s death.” CRF, Tab 6 at 4-5.

ANALYSIS

The agency bears the burden of proving that it has complied with a Board

order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).

The agency is required to produce relevant, material, and credible evidence of

compliance in the form of documentation or affidavits. Spates v. U.S. Postal

Service, 70 M.S.P.R. 438, 443 (1996). 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).

Here, the agency’s outstanding compliance issue was to pay the appropriate

amount of back pay and interest on the back pay. CID at 11. The agency has

submitted a narrative statement, supported by evidence, explaining that it has

provided the designated beneficiary with all back pay and benefits owed. CRF,

Tab 1 at 17-26. Neither party has contested the agency’s calculations or its

evidence that the resulting payment was issued. The only question remaining is

whether Monica Gaya, the designated beneficiary on the apparently valid

SF-1152 form signed by the appellant, is the appropriate recipient of the back pay

and benefits. We hold that she is.

5 U.S.C. § 5582(b) and 5 C.F.R. § 178.204 provide an order of precedence

for “money due an employee at the time of his death.” The first in the order of

preference is “the beneficiary or beneficiaries designated by the employee in a

writing received in the employing agency before his death.” Here, the appellant’s

SF-1152 Designation of Beneficiary form, which states that it applies to “unpaid

compensation due and payable after [the employee’s] death,” designated

Ms. Gaya as his beneficiary.

Ms. Acuna does not contest that the beneficiary form designated Ms. Gaya,

but argues that although the form is otherwise valid, it should not control,

because back pay is not “unpaid compensation,” but “represents money owed to

[the appellant] which has nothing to do with his death or money earned just prior

to his death.” CRF, Tab 3, at 5-6. We find, however, that back pay is “unpaid

compensation,” and thus falls within the definition of “money due” to the

appellant at the time of his death under 5 U.S.C. § 5581(2) and 5 C.F.R.

§ 178.202(b). See Bario v. Department of Justice, 9 M.S.P.R. 170, 173 (1981)

(“Under 5 U.S.C. §§ 5583(a) and 5596, any back pay that might be owed to the

appellant as the result of this appeal would be payable to the appellant’s widow,

since the appellant apparently never designated another beneficiary”); cf. Equal

Employment Opportunity Commission v. Baltimore County , 904 F.3d 330, 332 n.3

(4th Cir. 2018) (back pay generally encompasses the compensation an employee

would have received but for the employer’s violation of law); Noel v. New York

State Office of Mental Health Central New York Psychiatric Center , 697 F.3d

209, 213 (2d Cir. 2012) (Title VII judgments for back pay are “wages” as defined

under the Internal Revenue Code). Accordingly, we hold that the agency properly

paid the back pay amount to the appellant’s designated beneficiary, Ms. Gaya,

and not to Ms. Acuna.

For the reasons discussed above, 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 out 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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE OF APPEAL RIGHTS 3

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

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).

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.

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. 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).

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