Filed: Dec. 20, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARY A. ABBOTT, DOCKET NUMBER Appellant, DC-0752-12-0366-B-1 v. UNITED STATES POSTAL SERVICE, DATE: December 20, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant . Jasmin A. Dabney, Landover, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision,
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARY A. ABBOTT, DOCKET NUMBER Appellant, DC-0752-12-0366-B-1 v. UNITED STATES POSTAL SERVICE, DATE: December 20, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant . Jasmin A. Dabney, Landover, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY A. ABBOTT, DOCKET NUMBER
Appellant, DC-0752-12-0366-B-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Allison E. Eddy, Esquire, Virginia Beach, Virginia, for the appellant .
Jasmin A. Dabney, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which affirmed the agency’s suspension action. For the reasons discussed below,
we GRANT the appellant’s petition for review and VACATE the remand initial
decision insofar as it sustained the appellant’s placement on enforced leave, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
we REVERSE the agency’s suspension action. We AFFIRM the administrative
judge’s finding that the appellant failed to prove disability discrimination .
BACKGROUND
¶2 The following facts, as set forth in the initial decision, are undisputed. The
appellant held the position of EAS-17 Supervisor, Customer Services, at the
agency’s Denbigh Postal Station in Newport News, Virginia. Initial Appeal File
(IAF), Tab 43, Initial Decision (ID) at 2. On December 30, 2011, following an
extended absence, she submitted a request to return to work in a light-duty
assignment, 2 as well as a light-duty medical certification from her physician,
Dr. R.B., indicating her medical restrictions. IAF, Tab 8 at 68, 70. The
Officer-in-Charge denied the appellant’s request because there was no work
available within her medical restrictions. Id. at 70.
¶3 On January 6, 2012, the agency proposed placing the appellant on enforced
leave because of the lack of available work within her medical restrictions, and
provided her with an opportunity to reply. ID at 2; IAF, Tab 8 at 57, 61. On
January 21, 2012, the agency’s District Reasonable Accommodation Committee
(DRAC) contacted the appellant, seeking additional documentation to determine
whether accommodation of her medical restrictions was appropriate. IAF, Tab 8
at 50.
¶4 On January 24, 2012, the appellant faxed the proposing and deciding
officials a letter from Dr. R.B. dated January 23, 2012. IAF, Tab 8 at 27, 34-35,
Tab 25 at 102-05. Dr. R.B. stated that he was clarifying the appellant’s work
restrictions. IAF, Tab 25 at 105. The appellant and her attorney met with the
proposing and deciding officials on January 26, 2012, regarding the enforced
2
While the appellant’s light-duty request is dated December 29, 2011, it was submitted
to the agency on December 30, 2011, along with a light-duty certificate dated
December 30, 2011. IAF, Tab 8 at 64-66.
3
leave action. The agency issued a final decision effecting the enforced leave
action on February 8, 2012. ID at 2; IAF, Tab 8 at 17-18.
¶5 Following the agency’s decision, the appellant submitted additional medical
documentation to the DRAC on April 30, 2012, indicating that she is able to
perform her essential duties within an 8-hour work day, alternating between
sitting, standing, and walking, and that she could work minimal overtime. IAF,
Tab 25 at 135-43. The Office of Personnel Management subsequently granted the
appellant’s application for disability retirement, effective June 4, 2012. IAF, Tab
27 at 38.
¶6 The appellant filed the instant appeal, alleging that her placement on
enforced leave was a constructive suspension. IAF, Tab 1. After a jurisdictional
hearing, the administrative judge dismissed the appeal for lack of jurisdiction,
finding that the appellant failed to establish that the agency’s action constituted a
constructive suspension. ID at 10. The administrative judge also determined
that, absent an otherwise appealable action, the Board lacked jurisdiction to
consider the appellant’s affirmative defenses. Id. On review, the Board reversed
the initial decision, finding that the agency’s placing the appellant on enforced
leave for more than 14 days constituted an appealable suspension within the
Board’s jurisdiction, and remanded the appeal for adjudication on the merits.
Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 10-11 (2014).
¶7 On remand, the administrative judge found that the agency proved that the
appellant was unable to perform the essential functions of her job due to her
medical restrictions. Remand File (RF), Tab 10, Remand Initial Decision (RID)
at 6-13. Thus, the administrative judge sustained the agency’s charge. RID
at 13. The administrative judge further found that the appellant failed to
establish her affirmative defenses of disability discrimination, denial of due
process, or harmful error. RID at 21, 30. After finding nexus, the administrative
judge determined that the appellant’s suspension was warranted. RID at 32.
4
¶8 The appellant has filed a petition for review of the remand initial decision.
Remand Petition for Review (RPFR) File, Tab 1. She argues that the
administrative judge erred in sustaining the agency’s action and denying her
reasonable accommodation claim. Id. at 19-31. The agency has responded to the
petition for review. RPFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 Placing an employee in enforced leave status for more than 14 days
constitutes an appealable suspension within the Board’s jurisdiction. Abbott,
121 M.S.P.R. 294, ¶ 10; see 5 U.S.C. §§ 7512(2), 7513(d), 7701(a). To sustain
such suspensions, the agency must prove by preponderant evidence that the
charged conduct occurred, that a nexus exists between the conduct and the
efficiency of the service, and that the penalty is reasonable. Pope v. U.S. Postal
Service, 114 F.3d 1144, 1147 (Fed. Cir. 1997); Abbott, 121 M.S.P.R. 294, ¶ 10;
Norrington v. Department of the Air Force, 83 M.S.P.R. 23, ¶ 8 (1999). 3
¶10 Here, the agency’s notice proposing the appellant’s placemen t on enforced
leave asserted that her medical restrictions prevented her from performing the
essential functions of her position of Supervisor, Customer Services. The notice
relied on the December 30, 2011 light-duty medical certification from the
appellant’s doctor. IAF, Tab 8 at 61. In pertinent part, the proposal notice cited
to the appellant’s inability to stoop, squat, twist, or bend repeatedly; her
limitation of lifting or carrying up to 20 pounds for 2 hours; and her limitation of
walking, standing, sitting, and climbing for 2 hours each. Id. The proposal
notice also advised the appellant that she would remain on enforced leave until
3
The appellant continues to reassert her argument that the enforced leave was an
invalid indefinite suspension under Gonzalez v. Department of Homeland Security,
114 M.S.P.R. 318, ¶ 13 (2010). Specifically, she argues that the agency’s action
does not fall within any of the three acceptable reasons for an indefinite suspension.
RPFR File, Tab 1 at 23-24. In light of our disposition here, we find it unnecessary to
reach this issue.
5
she submitted satisfactory documentation indicating that she was able to perform
the essential functions of her assigned position. Id.
¶11 The position description for Supervisor, Customer Services, identifies the
“Functional Purpose” of the position as: “Supervises a group of employees in
the delivery, collection, and distribution of mail, and in window service activities
within a post office, station or branch, or detached unit,” but does not identify
any specific time requirements to perform each function. Id. at 74-75. However,
the essential duties and responsibilities for the position as identified in the
“essential functions worksheet” used by the DRAC 4 are as follows:
1. Measure Mail – requires walking to the mail area, rearranging and
lifting mail to determine accurate volume count, may require
reaching above the shoulder. Frequency: 2-3 hours a day, 6-8 times
a day, or as needed.
2. Assign Employees – requires walking to determine the need for
help or to relocate employees where needed to complete necessary
tasks. Frequency: 4-6 hours a day.
3. Use Computer – requires input of data for reports and
assignments, type letters, reports and other information. Frequency:
3-5 hours a day.
4. Respond to Customer Inquiries – answer phone, respond to
inquiries, review files, compile information and customer contact.
Frequency: 2-6 times daily.
5. Identifies Type of Mail in Containers – requires the supervisor to
put their hands on the mail to determine the type of mail in container
to insure it is processed timely and properly color coded. Frequency:
2-4 times daily
6. Street Supervision – Supervisor walks or rides with an employee.
May require walking 2-4 hours for several miles or riding and
walking for 2-6 hours, while writing or inputting data in hand held
instrument. Frequency: 1-3 times weekly.
4
The hearing testimony reflects that this worksheet was used solely by the DRAC and
not by the agency in the enforced leave action. Hearing Transcript (HT) at 447-50
(testimony of the Labor Relations Specialist). Further, this document was never
provided to the appellant during her employment with the agency, and the appellant
received it for the first time with the agency’s prehearing submission. Id.
6
7. Deliver Late Arriving Mail to Employees on the street – may
require supervisor to go on street to deliver late mail of 1 st class,
priority mail, or deliver express mail. Requires walking and/or
driving. Frequency: 2-3 hours daily.
8. Window Services – requires standing and walking 2-4 hours to
operate two finance, one retail, and one window counter, interacting
with customers and processing purchases of items and services.
Frequency: Daily
9. Regular attendance – Able to work greater than 8 hours, 6 days a
week as necessary and rotating schedules (shifts and/or
non-scheduled days). Frequency: up to 10 hours/day; 6 days/week
10. Ability to take corrective, constructive feedback from
management. Able to cope with dynamic conditions, must be able to
accept directions from management. Frequency: up to 10 hours/day;
6 days/week
IAF, Tab 27 at 39-41 (punctuation and grammar as in the original). 5
¶12 As stated above, the burden is on the agency to prove by preponderant
evidence that the appellant was unable to perform the essential functions of her
job due to medical restrictions. See Savage v. Department of the Army,
122 M.S.P.R. 612, ¶ 34 (2015) (reflecting that an agency removing an employee
for medical inability to perform her duties was required to prove the charge by
preponderant evidence). The proposal notice itself does not identify which
essential functions of the appellant’s assigned position that she is medicall y
restricted from performing. IAF, Tab 8 at 74-75. The proposing official
testified that she recommended denying the appellant’s light -duty request
because the medical restrictions of 2 hours each on walking, standing, and sitting
limited the appellant to a total of 6 hours of work per day. Hearing Transcript
(HT) at 86-88 (testimony of the proposing official). The appellant occupied a
5
As set forth, the minimum time to accomplish the daily functions exceeds 11 hours.
However, the hearing testimony reflects that overtime was rare because the deciding
official had ordered supervisors not to work overtime unless it had been authorized.
IAF, Tab 25 at 107; HT at 130 (testimony of the proposing official), HT at 310-11
(testimony of the appellant). Thus, it appears that the specific duties and the amount of
time spent on those duties vary daily.
7
full-time position that required her to work an 8-hour day, 5 days a week. IAF,
Tab 8 at 22, Tab 27 at 37.
¶13 The proposing official testified that the appellant could not perform her
essential duties in a 6-hour workday because of the various duties she would
encounter on a daily basis. HT at 156 (testimony of the proposing official).
When specifically asked what part of the appellant’s duties required her to walk
more than 2 hours at a time, the proposing official stated “dealing with
customers, dealing with employees . . . it all depends on what we entail during
the day.” HT at 99. The proposing official also testified that sitting is minimal,
but she admitted that the appellant had duties that are performed while seated,
such as writing reports, timekeeping, and counting stock. HT at 102-03. She
stated further that her “whole reason” for proposing the suspension was that she
could not ensure that the appellant would not go over her restrictions while
working. HT at 124-25. She testified that she told the deciding official that “as
far as I can see there is no way that I can utilize Ms. Abbott to be a supervisor at
my station, being that she can only work 2 hours, 2 hours, 2 hours; I can’t ensure
that she would be safe.” HT at 139. Additionally, the proposing official
testified that she never received any medical documentation from the appellant
demonstrating that she could work for more than 6 hours. HT at 91.
¶14 Similarly, the deciding official testified that he based his decision on the
appellant’s 2-hour restrictions for walking, standing, and sitting, and he
determined that, given her medical restrictions, the appellant would not have
been able to complete her full 8-hour day of work. 6 HT at 362-63, 365. When
the deciding official was specifically questioned as to whether the appellant
6
The deciding official testified that he based his enforced leave decision on his
determination that the appellant could not work a full 8-hour day. HT at 365-66.
However, when specifically asked what duties the appellant could not perform, he also
stated that the appellant was medically restricted from working because “she couldn’t
work in excess of eight hours.” HT at 359, 366.
8
would be able to assist if an incident occurred with a carrier out for delivery at
the end of her workday, he stated that the appellant may not be able to respond
because she already had stood and walked for 2 hours each and “according to her
limitations, she couldn’t twist or . . . bend. She couldn’t stoop. She couldn’t
climb.” HT at 370-71.
¶15 Likewise, the acting Officer-in-Charge testified that she disapproved the
appellant’s light-duty request because the appellant could not work a full shift,
given that she could “only walk two hours, stand two hours, and sit two hours .”
HT at 216-18, 222. Additionally, the agency Labor Relations Specialist testified
that she had been Chairperson of the DRAC for approximately 10 years, and that,
in her opinion, the appellant could not perform her full duties under the
restriction of 2 hours of standing, 2 hours of sitting, and 2 hours of walking
because “it’s an 8 hour position.” HT at 450-51. Thus, the testimonial and
documentary evidence reflect that the agency suspended the appellant based on
its conclusion that she could not work an 8-hour day. IAF, Tab 8 at 68.
¶16 However, while all four agency officials testified that the appellant’s
December 30, 2011 medical certification restricted her to 2 hours each of
walking, standing, and sitting, they did not address the remaining limitations on
the appellant’s medical form, including 2 hours of climbing steps or ladders. 7
IAF, Tab 8 at 61, 68. When added to the other restrictions, it appears that the
appellant could work 8 hours per day. In fact, as set forth above, the deciding
official even testified that the appellant “could not climb,” contrary to the
explicit 2-hour climbing limitation on the medical certification. HT at 371.
Further, the December 30, 2011 medical certification also specifically stated that
the appellant could not work overtime, which was not considered by the agency
7
The appellant’s medical certification also indicated that she could lift or carry up to
20 pounds for 2 hours and reach or work above the shoulder for 2 hours. IAF, Tab 8
at 61.
9
officials in determining whether the appellant’s medical restrictions precluded
her from working an 8-hour day. IAF, Tab 8 at 68.
¶17 Moreover, it is undisputed that on January 24, 2012, after the agency issued
the proposal notice but prior to issuing the decision letter, the proposing and
deciding officials were faxed Dr. R.B.’s January 23, 2012 letter, intended to
“clarify” the appellant’s work restrictions. IAF, Tab 8 at 27, 34-35, Tab 25
at 102-04. Dr. R.B. certified that the appellant could work in a supervisory
position with “certain accommodations including frequent work breaks, rest from
prolonged standing and walking, no route inspections esp[ecially] in inclement
weather, and no work overtime.” IAF, Tab 8 at 27. He further wrote that the
appellant “can still perform certain tasks such as lifting/carrying no [more than]
20 lbs, walking, standing, climbing steps or ladders and sitting over a regular
8-hour workday, not to exceed 2 hours per each individual activity.” Id. at 33
(emphasis added). This statement is consistent with the December 30, 2011
medical certification, which reflected that the appellant could not work overtime,
implying that she was not medically restricted from working an 8-hour day.
¶18 On January 26, 2012, the agency, the appellant’s attorney, and the appellant
met to discuss her medical restrictions. The proposing and deciding officials
testified that they discussed the appellant’s 6-hour workday limitation during the
meeting; however, the administrative judge found their testimony not credible.
IAF, Tab 41; RID at 25-26. She found that it was more likely than not that the
agency did not advise the appellant that it was relying on the perceived 6-hour
workday limitation. RID at 25-26. Thus, the administrative judge found that the
appellant did not have the opportunity to respond to this concern. Id. Because
the administrative judge based this finding on her observation of the demeanor of
the witnesses while testifying at the hearing and the evidentiary record, we see
no basis upon which to overturn it. See Haebe v. Department of Justice,
288 F.3d 1288, 1302 (Fed. Cir. 2002) (finding that the Board may overturn
10
credibility determinations that are implicitly or explicitly based on demeanor
only when it has “sufficiently sound” reasons for doing so).
¶19 Thus, while all the agency officials testified that they concluded that the
appellant was medically restricted from working an 8-hour day, they disregarded
information from Dr. R.B. to the contrary. They also failed to clarify at the
January 26, 2012 meeting whether the appellant was, in fact, limited to 6 hours
of work per day. Accordingly, because the agency did not prove by
preponderant evidence that the appellant could only work a 6 -hour day, we find
that the agency failed to prove the charge. Therefore, we reverse the agency’s
suspension action.
¶20 In addition, the appellant reasserts her argument that she was denied
reasonable accommodation for a disability. 8 RPFR File, Tab 1 at 24-28. We
affirm the administrative judge’s determination that the appellant failed to
establish her affirmative defense of disability discrimination. 9 As the
administrative judge correctly found, even though the appellant may have been
able to prove that she was a qualified individual with a disability and that there
were reasonable accommodations available, her disability discrimination claim
still fails. The record reflects that both parties were engaged in the interactive
process up until the time the agency received notification that the appellant
would start receiving disability retirement benefits and that a ccommodation
would no longer be needed. See, e.g., Clemens v. Department of the Army,
8
The appellant’s remaining arguments on review challenge the administrative judge’s
determination that she failed to establish that the agency violated her right to due
process and committed harmful error. However, in light of the Board’s determination
that the agency did not prove its charge, a finding of either due process error or harmful
procedural error would not entitle the appellant to any additional relief. We therefore
need not address these arguments.
9
The appellant has not challenged the administrative judge’s determination that she
failed to prove that she was subjected to disparate treatment. RPFR, Tab 1.
Nevertheless, we have reviewed the administrative judge’s determination on this issue
and find no basis to disturb it.
11
120 M.S.P.R. 616, ¶ 17 (2014) (finding that an agency’s failure to engage in the
interactive process, standing alone, does not violate the Rehabilitation Act;
rather, the appellant must show that the omission resulted in a failure to provide
reasonable accommodation).
¶21 Specifically, after the appellant received instructions from the DRAC on
January 24, 2012, she completed and returned the requested documents on
January 27, and the DRAC received those documents on January 30. HT
at 326-28 (testimony of the appellant). The appellant testified that, after
additional contact with the DRAC in March, she submitted all of her additional
medical documentation within the 14-day timeframe allotted by the DRAC. HT
at 328-29 (testimony of the appellant). The DRAC chairperson testified that a
telephonic meeting between the DRAC and the appellant was held on May 22,
2012; however, because the DRAC received notification that the appellant would
begin receiving disability retirement benefits on June 4, 2012, the DRAC never
sent the appellant the formal letter addressing her accommodation request. HT
at 446, 454 (testimony of the DRAC chairperson). Based on the hearing
testimony, we agree with the administrative judge that the agency sufficiently
demonstrated that the parties engaged in the interactive process in an attempt to
find accommodations within the appellant’s medical restrictions. Thus, we find
no basis upon which to disturb the administrative judge’s findings regarding the
appellant’s discrimination claim.
¶22 Accordingly, although we reverse the agency’s suspension action, we affirm
the administrative judge’s denial of the appellant’s disability discrimination
claim.
ORDER
¶23 We ORDER the agency to cancel the suspension action. 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.
12
¶24 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay A ct and/or
Postal Service Regulations, as appropriate, 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.
¶25 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).
¶26 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).
¶27 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 resultin g 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.
13
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 U.S. 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 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). 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
14
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 yo ur representative. If you choose to
file, be very careful to file on time.
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 U.S. 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: ______________________________
Jennifer Everling
Acting 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 i ncludes:
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, sever ance
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.
