Filed: Sep. 21, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM L. OWENS, DOCKET NUMBER Appellant, AT-315H-14-0479-I-1 v. DEPARTMENT OF THE ARMY, DATE: September 21, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Joe L. Brown, Esquire, Savannah, Tennessee, for the appellant. Joree G. Brownlow, Esquire, Cordova, Tennessee, for the appellant. Allen S. Black, Esquire, and Sherry E. Blount, Memphis, Tennessee, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL OR
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM L. OWENS, DOCKET NUMBER Appellant, AT-315H-14-0479-I-1 v. DEPARTMENT OF THE ARMY, DATE: September 21, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Joe L. Brown, Esquire, Savannah, Tennessee, for the appellant. Joree G. Brownlow, Esquire, Cordova, Tennessee, for the appellant. Allen S. Black, Esquire, and Sherry E. Blount, Memphis, Tennessee, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORD..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM L. OWENS, DOCKET NUMBER
Appellant, AT-315H-14-0479-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 21, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joe L. Brown, Esquire, Savannah, Tennessee, for the appellant.
Joree G. Brownlow, Esquire, Cordova, Tennessee, for the appellant.
Allen S. Black, Esquire, and Sherry E. Blount, Memphis, Tennessee, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which:
(1) did not sustain the charge of inability to perform the essential duties of the
marine electrician position; (2) sustained the charge of refusal to accept suitable
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
employment; (3) concluded that the appellant did not prove his affirmative
defense of disability discrimination; (4) found that no penalty was the maximum
reasonable penalty for the sustained misconduct; (5) reversed the removal and
ordered the agency to reinstate the appellant; and (6) awarded interim relief.
Generally, we grant petitions such as this one only when: 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. See 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, and
based on the following points and authorities, 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. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective February 11, 2014, the agency removed the appellant from his
marine electrician position based on two charges: (1) inability to perform the
essential duties of his position; and (2) refusal to accept suitable employment.
Initial Appeal File (IAF), Tab 11, Subtabs 4c-4d. The appellant filed a Board
appeal, and a hearing was held. Hearing Transcript (HT). The administrative
judge issued an initial decision finding that: (1) the agency failed to prove that
the appellant was unable to perform the essential duties of his position; (2) the
agency proved that the appellant refused to accept suitable employment when he
did not accept the agency’s offer of an administrative support assistant position;
3
(3) the appellant failed to establish that the agency discriminated against him on
the basis of his disability; and (4) the maximum penalty for the sustained charge
was no penalty. IAF, Tab 24, Initial Decision (ID). The administrative judge
therefore ordered the agency to cancel the removal action and retroactively
restore the appellant, effective February 11, 2014, and to provide him with
interim relief. ID at 20-21. The agency has filed a petition for review, the
appellant has filed a response, and the agency has filed a reply. Petition for
Review (PFR) File, Tabs 1, 4, 6. 2 The appellant also has filed a petition for
enforcement of interim relief and a request to dismiss the agency’s petition for
review due to noncompliance with the interim relief order, to which the agency
responded. PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 On review, the agency argues that the administrative judge erred by:
(1) awarding back pay for the period that the appellant was not ready, willing,
and able to perform his duties; (2) failing to consider evidence regarding the
inherent dangers of working on barges and the appellant’s inability to perform his
duties due to the heightened risk associated with his exposure to these dangers in
light of his medical condition; and (3) considering reasonable accommodations
because the appellant refused to cooperate with the agency’s attempt to determine
the extent of his physical limitations. PFR File, Tab 1 at 17-22. The agency also
asserts that the administrative judge committed factual errors, including that the
appellant could safely perform the essential functions of his position with an
accommodation and that the accommodations identified by the administrative
judge were inconsistent with the March 2, 2012 “permanent” restrictions, the
2
In his opposition to the agency’s petition for review, the appellant argues that the
agency’s submission was untimely filed. PFR File, Tab 4 at 4-5. The Federal Express
receipt attached to the agency’s submission indicates that the petition for review was
timely filed. PFR File, Tab 1; see 5 C.F.R. § 1201.114(e). To the extent that the Office
of the Clerk of the Board identified a different and later filing date for the petition for
review, PFR File, Tab 2, this error does not warrant a different outcome.
4
May 22, 2013 temporary restrictions, and the September 2013 functional capacity
evaluation. Id. at 23-29. 3 For the following reasons, we find that these
arguments are unavailing.
We deny the appellant’s motion to dismiss the agency’s petition for review for
failure to comply with the interim relief order. 4
¶4 The appellant alleges that the agency did not issue the paperwork required
to put him in a pay status nor did it reinstate any of the pay and benefits of the
marine electrician position. PFR File, Tab 3. He notes that the only Standard
Form 50 submitted by the agency shows that his removal was cancelled. Id. at 4,
6. The appellant avers, among other things, that he was not being paid at the
appropriate hourly rate and that he learned that he owed back premiums for his
health insurance. PFR File, Tab 4 at 15-16. In response, the agency
acknowledges that there were various delays in the agency’s compliance with the
interim relief order, but it explains that these delays were due in part to
complications arising from the appellant’s prior enrollment in Office of Workers’
Compensation Programs (OWCP) and his extended leave without pay status, a
system payment error with the Defense Finance and Accounting Services that
needed to be resolved, and the apparent cancellation of his prior health insurance
by the provider due to nonpayment of premiums after his OWCP wage loss
benefits were terminated. E.g., PFR File, Tab 5, Subtabs 2-3.
¶5 If an agency fails to establish its compliance with the interim relief order,
the Board has discretion to dismiss its petition for review, but the Board need not
do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,
3
Because the appellant chose not to file a petition for review of the initial decision, we
affirm the administrative judge’s conclusions that the agency proved that he refused to
accept suitable employment and that he did not prove his affirmative defense of
disability discrimination. ID at 5-6, 19.
4
The Board will not entertain a motion to enforce an interim relief order. Parbs v. U.S.
Postal Service, 107 M.S.P.R. 559, ¶ 5 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008).
Therefore, we only will consider the appellant’s submission as a motion to dismiss the
petition for review.
5
¶ 11 (2013); see Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-34
(Fed. Cir. 2004). Under the circumstances of this case, we do not exercise our
discretion to dismiss the agency’s petition for review because the agency has
submitted evidence showing that it has substantially complied with the interim
relief order and that its delayed compliance with the initial decision was due to
the complications listed above. PFR File, Tabs 4-5. In particular, the debt for the
outstanding health insurance premiums and the lapse in health insurance coverage
appear to have been due to OWCP’s decision to terminate the appellant’s benefits
after he refused to accept the administrative support assistant position, and we
find that this lapse did not constitute agency noncompliance. See, e.g., Crickard
v. Department of Veterans Affairs, 92 M.S.P.R. 625, ¶ 4 n.2 (2002) (rejecting the
appellant’s request to dismiss the agency’s petition for review for failure to
comply with the interim relief order because, among other things, the apparent
lapse in the appellant’s health insurance coverage was inadvertent and not the
agency’s fault, and the apparent error on the insurance carrier’s part had been
corrected as a result of the agency’s further actions), overruled on other grounds
by Koehler v. Department of the Air Force, 99 M.S.P.R. 82 (2005).
The administrative judge properly concluded that the agency did not prove the
charge of inability to perform the essential duties of the marine electrician
position.
¶6 The agency does not challenge the administrative judge’s conclusion that
the appellant’s position was not subject to medical standards or physical
requirements. ID at 8, 11. Accordingly, for the agency to prevail on the inability
to perform charge, it must prove: (1) a nexus between the employee’s medical
condition and observed deficiencies in his performance or conduct; or (2) a high
probability, given the nature of the work involved, that his condition may result
in injury to himself or others. Fox v. Department of the Army, 120 M.S.P.R. 529,
¶ 25 (2014) (citing Marshall-Carter v. Department of Veterans
Affairs, 94 M.S.P.R. 518, ¶ 10 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005));
6
see Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 5 (2014). In other
words, the agency must establish that the appellant’s medical condition prevented
him from being able to safely and efficiently perform the core duties of his
position. See Fox, 120 M.S.P.R. 529, ¶ 25. In determining if the agency has met
its burden, the Board will consider whether a reasonable accommodation exists
that would enable the appellant to safely and efficiently perform those core
duties. See id. However, for the limited purposes of proving the charge, the
agency is not required to show that it was unable to reasonably accommodate the
appellant by assigning him to a vacant position for which he was qualified;
whether it could do so goes to the affirmative defense of disability discrimination
and the reasonableness of the penalty. Id.
¶7 Regarding the administrative judge’s conclusion that the agency did not
prove a nexus between the appellant’s medical condition and noted deficiencies in
his performance or conduct, the agency argues that the administrative judge
improperly considered accommodations in addressing this issue because of the
appellant's “refusal to cooperate” with the agency’s attempts to determine the
extent of his limitations. PFR File, Tab 1 at 21-22; ID at 14-17. We are not
persuaded that this argument warrants a different outcome. Both the
administrative judge and the agency acknowledged the general rule that an
administrative judge may consider whether a reasonable accommodation exists to
allow the appellant to perform his essential duties, but an exception to this rule
limits such consideration if the appellant refuses to cooperate with the agency.
PFR File, Tab 1 at 21-22; ID at 7 n.2 (citing Brown v. Department of the
Interior, 121 M.S.P.R. 205, ¶ 19 (2014)). We recognize that, in the functional
capacity evaluation (FCE), the evaluator noted the appellant’s lack of consistent
effort. IAF, Tab 6 at 16. However, the agency cited no evidence to show that it
requested that the appellant provide updated or additional medical information
and he refused. Indeed, the appellant testified that he asked for a full release
from his doctor, but he had not yet received one. HT 2 at 94. The agency’s
7
Human Resources Specialist testified that she reviews OWCP files on a periodic
basis and would contact the Department of Labor to obtain updated medical
reports, but, for reasons that are unclear, she did not do so for the appellant. HT
1 at 188-89, 226; see HT at 216 (the Human Resources Specialist explained her
belief that, after the appellant’s temporary restrictions were “lifted,” his
“permanent” restrictions would remain in effect). Because there is no evidence
that the agency requested additional or updated medical documentation, and no
evidence that the appellant refused to comply with this request, we discern no
error with the administrative judge’s consideration of potential accommodations
for the appellant in his assessment of whether the agency proved this charge.
¶8 We also have considered the agency’s contention that the accommodations
identified by the administrative judge were inconsistent with the appellant’s
“permanent” restrictions, the temporary medical restrictions, and the FCE, PFR
File, Tab 1 at 17-23, but we are not persuaded that these arguments warrant a
different outcome. Regarding the agency’s assertion that the administrative judge
failed to consider the FCE and how the FCE relates to the reasonable
accommodation issue, the administrative judge discussed the FCE in the
background section in the initial decision. ID at 4. His failure to specifically
discuss the FCE in his analysis of the accommodation issue does not mean he did
not consider it. See Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). We have considered the FCE, but we find that it has limited relevance to
the accommodation issue. Importantly, the FCE’s purpose was to determine the
appellant’s functional abilities as they related to the essential physical demands
of the administrative support assistant position, not the marine electrician
position. IAF, Tab 6 at 16-27. Moreover, the FCE evaluator noted that the
appellant “demonstrated a consistency of effort at 58.3%,” which suggested that
the appellant “presented with significant observational and evidence[-]based
contradictions resulting in consistency of efforts discrepancies and self-limiting
8
behaviors.” Id. at 16. The OWCP Hearing Representative, who determined that
OWCP properly terminated the appellant’s entitlement to benefits, noted that,
because the FCE report concluded that the appellant did not make a consistent
effort, it “is not probative as to the [appellant’s] work capacity,” and the “weight
of medical evidence rests with” the prior opinion that he could work 8 hours per
day with restrictions. IAF, Tab 11, Subtab 4a at 5. Although the OWCP Hearing
Representative’s determination on the probative value of the FCE is not binding
on the Board, we similarly conclude that the FCE has limited, if any, probative
value regarding the appellant’s ability to perform the essential functions of the
marine electrician position. We therefore discern no error with the administrative
judge’s decision not to rely on the FCE in his discussion of the accommodation
issue.
¶9 Regarding the administrative judge’s allegedly improper exclusion of the
appellant’s temporary restrictions, the May 22, 2013 report itself indicated that
his restrictions only lasted for 3 months, and the agency did not propose the
appellant’s removal until November 5, 2013. IAF, Tab 11, Subtab 4d at 1-3
& Enclosure 3. We agree with the administrative judge that, absent any evidence
that the temporary restrictions extended beyond the 3-month time period indicated
in the report itself, it was improper to consider such evidence in determining
whether the appellant was physically unable to perform the duties of his position.
ID at 11. 5
¶10 We therefore must consider whether the accommodations identified by the
administrative judge are consistent with the March 2, 2012 “permanent”
restrictions, which indicated that the appellant was limited to 6 hours of walking
5
In the initial decision, the administrative judge noted that some of the “permanent”
restrictions are more restrictive than the subsequent, “temporary” restrictions. ID at 11
n.3. Compare IAF, Tab 11, Subtab D, Enclosure 2, with id., Enclosure 3 (the permanent
restrictions limited twisting and bending/stooping to 2 hours but the temporary
restrictions only limited these tasks to 4 hours). In light of our disposition, we need not
reconcile this discrepancy.
9
and standing, 2 hours of twisting, bending/stooping, and climbing, and 2 hours
and 30 pounds of pushing and pulling, that he was unable to squat or kneel, but
that he had no restrictions regarding sitting, reaching, and reaching above his
shoulders. IAF, Tab 11, Subtab 4d, Enclosure 2. The appellant’s doctor also
answered “yes” to a question regarding whether the appellant was “able to work
for 8 hours per day with restrictions.” Id.
¶11 The agency asserts that the administrative judge erroneously found that a
coworker assisting the appellant, the appellant sitting on a chair, bucket, or stool,
and the appellant “lying on his side” were proper accommodations for his
kneeling and lifting restrictions. 6 PFR File, Tab 1 at 24-26; ID at 14-16. The
agency cites to the testimony of witness L.F., who stated that “[s]ometimes”
someone might not be available to help the appellant, and it argues that sitting on
a chair, bucket or stool “increases” the appellant’s bending/stooping activities
beyond the 2-hour restriction identified in the permanent restrictions. PFR File,
Tab 1 at 24-26. Here, too, the administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision. See Marques, 22 M.S.P.R. at 132. Moreover, the agency’s assertions
appear to be speculative, and we are not persuaded that the identified
accommodations would conflict with the permanent restrictions in this manner.
¶12 Regarding the agency’s contention that the administrative judge ignored the
discrepancy between the appellant’s permanent medical restrictions, which stated
that he could work an 8-hour day, and the witness’ testimony that the appellant’s
work schedule often exceeded 8 hours a day for several months, PFR File, Tab 1
at 26-27, we note that the administrative judge mentioned this restriction in the
background section of the initial decision, ID at 3; see Marques, 22 M.S.P.R. at
132. Regarding the agency’s assertion that a coworker assisting the appellant and
6
The agency does not appear to challenge the administrative judge’s conclusion that
kneeling and lifting are the means by which a marine electrician would perform the
essential functions of his position, not the essential functions themselves. ID at 13-14.
10
an alteration of the appellant’s time and attendance requirements would be an
undue burden, PFR File, Tab 1 at 24, 27, the agency does not cite to, and we are
unaware of, any evidence that purports to explain how either of these
accommodations would have been an undue burden on the agency. See Hendricks
v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (finding that the
statements of a party’s representative in a pleading do not constitute evidence). 7
Thus, we are not persuaded that this argument warrants a different outcome. We
therefore discern no basis for disturbing the administrative judge’s finding that
the agency failed to establish a nexus between the appellant’s medical condition
and observed deficiencies in his performance or conduct. ID at 17.
¶13 The agency further contends that the administrative judge failed to consider
evidence regarding the inherent danger of working on barges and the appellant’s
inability to perform his duties due to the heightened risk associated with his
exposure to these dangers in light of his medical condition. PFR File, Tab 1 at
12-21. Contrary to the agency’s assertion, the administrative judge briefly
discussed in the initial decision the inherent dangers of the marine electrician
position. In pertinent part, the administrative judge noted that the proposed
removal did not allege that the appellant was unable to perform his duties due to
the heightened risk associated with his exposure to the inherent dangers of
working on barges in light of his medical condition, and he concluded that the
7
The agency cites generally to the Special Panel decision in Alvara v. Department of
Homeland Security, 121 M.S.P.R. 613 (2014), for the proposition that an alteration of
the time and attendance requirements for the marine electrician position would place an
undue burden on the agency. PFR File, Tab 1 at 27. We disagree with the agency’s
interpretation of the Special Panel decision. Rather, the Special Panel, MSPB Vice
Chairman Wagner dissenting, affirmed the Equal Employment Opportunity
Commission’s determination that the agency did not meet its burden to show that the
appellant’s requested accommodation, a modification of his work schedule, would be an
undue burden because it “merely state[d] in a conclusory manner that an
accommodation would be an undue hardship.” Alvara, 121 M.S.P.R. 613, ¶¶ 13-14, 44.
Similarly, the agency attorney’s assertion of undue burden is conclusory and not
supported by any persuasive evidence.
11
agency could not rely on such evidence in support of its charges. ID at 17 (citing
Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989)). 8 The
administrative judge acknowledged that there was hearing testimony regarding
the inherent dangers of working on barges and the “possibility” that, due to the
appellant’s physical condition, he could be at a higher risk than other employees
concerning such dangers. ID at 17. He further acknowledged the appellant’s
concession that the duties themselves, aside from being performed in a dangerous
environment, also involved some risk. Id. The administrative judge found,
however, that the agency presented no evidence to establish that the appellant’s
medical condition made it highly probable that the manner in which he performed
his duties would result in injury to him or others. Id.
¶14 The agency argues that it gave the appellant notice that it believed he could
not safely perform the essential functions of his position. PFR File, Tab 1 at
13-14. Even if the proposal notice sufficiently alleged that the appellant could
not safely perform the essential functions of the marine electrician position due to
his medical condition, we discern no error with the administrative judge’s
conclusion that the agency did not meet its burden to show a high probability,
given the nature of the work involved, that the appellant’s condition may result in
injury to himself or others.
¶15 Importantly, the administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision. Marques, 22 M.S.P.R. at 132. We have considered the agency’s
assertion that the appellant “had a history of repeated falls due to his knee injury”
8
We have considered the agency’s assertion that the administrative judge improperly
relied on Gottlieb because Gottlieb involved different charges and different facts. PFR
File, Tab 1 at 13. We are not persuaded that these differences warrant a different
outcome because the propositions articulated in Gottlieb that were referenced by the
administrative judge, i.e., that the Board is required to review the agency’s decision on
an adverse action solely on the grounds invoked by the agency and that the Board may
not substitute what it considers to be a more adequate or proper basis, are equally
applicable in this adverse action appeal.
12
and its references to the testimony that the appellant’s physical presence was
required on the Bank Grading Unit or other units, that the locations on which he
must perform his essential duties are inherently dangerous for personnel without
medical restrictions, and that employees with no medical restrictions have fallen
off the unit and have been crushed, drowned, or required emergency rescues.
PFR File, Tab 1 at 15-21. Based on our review of the record, we agree with the
administrative judge that, while possible, there is not a high probability that the
appellant’s medical condition may result in injury to himself or others, given the
nature of the work involved. ID at 17. Compare http://legal-
dictionary.thefreedictionary.com/high+probability (defining a “high probability”
as “almost certainly, favorable prospect, in all likelihood, in most instances, with
a high degree of certainty”), with The American Heritage Dictionary of the
English Language, 1370 (Houghton Mifflin Co. 4th ed. 2000) (defining
“possible” as “[c]apable of happening, existing, or being true without
contradicting proven facts, laws, or circumstances”).
¶16 This case stands in sharp contrast to Clemens, 120 M.S.P.R. 616, ¶ 9, where
the Board found a high probability that Mr. Clemens’ medical condition may
result in injury to others. Mr. Clemens was a Supervisory Public Safety
Dispatcher, and, in this capacity, he was required, among other things, to initiate
“immediate, appropriate, emergency response,” provide “advanced life support,”
such as instructing callers on how to perform cardiopulmonary resuscitation, the
Heimlich maneuver, or emergency childbirth and how to open an airway or
control bleeding, and give instructions “regarding what to do, and what not to do,
prior to the arrival of pre-hospital care providers.” Id., ¶ 8. Mr.
Clemens “suffered a significant loss of speech ability” after a stroke and related
complications, and the agency removed him for physical inability to perform the
essential functions of his position. Id., ¶ 2. The Board found that “significant
verbal communication was an essential function of the appellant’s position,” and
it concluded there was a high probability, given the nature of the work involved,
13
that Mr. Clemens’ medical condition may result in injury to others, and it
sustained the inability to perform charge. Id., ¶¶ 8-9. Here, however,
notwithstanding the inherent dangers of the appellant’s work environment, we do
not view his medical condition as creating a situation in which it is highly
probable that he or others will be injured.
¶17 Because the agency has not persuaded us that the administrative judge erred
in his conclusion that it did not prove the charge of physical inability to perform
the essential functions of the marine electrician position, we affirm the initial
decision in this regard. The agency has not specifically challenged the
administrative judge’s decision not to impose a penalty for the sustained charge
of refusal to accept suitable employment, ID at 18-19, and we affirm this
decision.
We decline to address the agency’s assertion that the appellant was not entitled to
back pay because entitlement to back pay is normally a compliance matter.
¶18 In the initial decision, the administrative judge ordered the agency to cancel
the removal, retroactively restore the appellant effective February 11, 2014, and
pay him the appropriate amount of back pay. ID at 20. The agency argues that
the appellant was not ready, willing, and able to work, and, thus, he was not
entitled to back pay. PFR File, Tab 1 at 7-8 (citing Hodges v. Department of
Justice, 121 M.S.P.R. 337 (2014)).
¶19 The agency correctly notes that a back pay award may not include any
period during which an employee was not ready, willing, and able to perform his
or her duties because of an incapacitating illness or injury. See 5 C.F.R.
§ 550.805(c)(1). In Hodges, 121 M.S.P.R. 337, ¶ 24, the Board noted that
entitlement to back pay is normally a compliance matter, but it decided the issue
of Mr. Hodges’ entitlement to back pay due to the “unique circumstances” of that
case, including that the agency did not learn that Mr. Hodges was able to return to
work without restrictions until his doctor testified at the hearing, at which time
the agency reinstated him. The Board ultimately concluded that Mr. Hodges was
14
not entitled to back pay because he was not ready, willing, and able to work
during the removal period. Id. The agency has not identified any similar “unique
circumstances” in this matter, and, in the absence of current medical
documentation in the record, 9 we believe it is not appropriate to render a decision
on the appellant’s entitlement to back pay at the merits stage. Because this order
constitutes the Board’s final decision in the removal appeal, the parties shall
follow the procedures, described below, regarding calculation and payment of
back pay. If the appellant believes that the agency has not complied with the
Board’s order regarding back pay, he should follow the applicable procedures for
filing a timely petition for enforcement. See 5 C.F.R. § 1201.182.
ORDER
¶20 We ORDER the agency to cancel the removal and to restore the appellant
effective February 11, 2014. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶21 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
9
The agency appears to rely on the appellant’s “permanent” restrictions, which were
nearly 2 years old when his removal was effected, and those restrictions do not account
for his subsequent rotator cuff surgery in March 2013 or any subsequent improvement
in his mobility in this or other areas. IAF, Tab 11, Subtab 4a at 3.
15
¶22 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶23 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶24 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
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
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must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
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Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
