Filed: Sep. 06, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SANDRA R. CORUM, DOCKET NUMBER Appellant, DC-0353-06-0728-C-1 v. UNITED STATES POSTAL SERVICE, DATE: September 6, 2016 Agency. Sandra R. Corum, Manassas, Virginia, pro se. Jed Charner, Landover, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member ORDER 1 ¶1 This matter is before the Board on the appellant’s petition for review of the compliance initial decision, which found the agency in compliance with t
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SANDRA R. CORUM, DOCKET NUMBER Appellant, DC-0353-06-0728-C-1 v. UNITED STATES POSTAL SERVICE, DATE: September 6, 2016 Agency. Sandra R. Corum, Manassas, Virginia, pro se. Jed Charner, Landover, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member ORDER 1 ¶1 This matter is before the Board on the appellant’s petition for review of the compliance initial decision, which found the agency in compliance with th..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA R. CORUM, DOCKET NUMBER
Appellant, DC-0353-06-0728-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 6, 2016
Agency.
Sandra R. Corum, Manassas, Virginia, pro se.
Jed Charner, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER 1
¶1 This matter is before the Board on the appellant’s petition for review of the
compliance initial decision, which found the agency in compliance with the
Board’s Opinion and Order that ordered the agency to, among other things,
conduct a job search and consider her for any suitable assignments, and pay her
back pay, interest, and benefits. For the reasons set forth below, we GRANT the
appellant’s petition for review. We AFFIRM the compliance initial decision IN
PART, finding that the agency proved compliance regarding its calculation of
1
This Order is nonprecedential. Parties may cite nonprecedential orders, but such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
annual leave, Thrift Savings Plan (TSP) contributions, holiday pay, and interest.
We REVERSE the compliance initial decision IN PART, finding that the agency
failed to consider a similarly situated employee in calculating the appellant’s
overtime back pay.
BACKGROUND
¶2 In an Opinion and Order issued on July 10, 2012, the Board found that the
agency arbitrarily and capriciously denied the appellant’s request for
reinstatement after her partial recovery from a compensable injury. Corum v.
U.S. Postal Service, 118 M.S.P.R. 288, ¶¶ 19-20 (2012). The Board ordered the
agency to conduct a job search within the local commuting area retroactive
to May 11, 2006, and consider the appellant for any suitable assignments. Id.,
¶¶ 21-22. Depending on the results of that search, the Board further ordered the
agency to pay the appellant back pay, interest, and benefits. Id., ¶¶ 21, 23; see
Tram v. U.S. Postal Service, 120 M.S.P.R. 208, ¶¶ 8‑10 (2013) (declining to find
that the agency owed an appellant back pay because it established that it
conducted a retroactive job search but there was no work available within the
appellant’s medical restrictions).
¶3 Following the Board’s July 10, 2012 decision, the agency offered the
appellant, and she accepted, a new position assignment effective May 13, 2013.
Compliance File (CF), Tab 16 at 70. The agency elected not to conduct a
retroactive search for work. Id. at 5‑6. Instead, it issued the appellant checks for
back pay and interest in February and August 2014. CF, Tab 16 at 72-104, 108,
110-120, Tab 21 at 70-76.
¶4 The appellant filed a petition for enforcement of the Board’s Opinion and
Order and alleged that the agency failed to provide her all the back pay and
benefits to which she was entitled and explain its compliance actions. CF, Tab 1
at 1. The administrative judge ordered the agency to respond in writing to the
petition for enforcement by showing proof of compliance, or good cause for
3
noncompliance or partial compliance. CF, Tab 14 at 1. The agency responded
that it was in compliance for the entire back pay period of May 11, 2006,
to May 13, 2013. CF, Tab 16 at 9. Specifically, the agency explained that it had
paid the appellant back pay, interest, and benefits for the time period of June 23,
2007, to January 11, 2013, and provided supporting evidence. Id. at 6, 72-104,
108. The agency acknowledged that it had erroneously omitted the time periods
of May 11, 2006, to June 22, 2007, and January 12 to May 13, 2013, from the
original checks for back pay and interest that it issued to the appellant in
February 2014. Id. at 7. However, it explained that it corrected this error with its
August 2014 back pay and interest checks and provided supporting evidence. CF,
Tab 16 at 7, 110‑21, Tab 21 at 70‑76. The agency also provided an explanation
for its overtime calculations. CF, Tab 16 at 7-8, 74-104, 111-20.
¶5 Next, the appellant disputed the agency’s calculations of overtime, annual
leave, TSP contributions, holiday pay, and interest. CF, Tab 17 at 3-4.
Specifically, with regard to overtime, she alleged that the agency failed to
consider the overtime hours worked by a retired coworker in the same duty
station during the back pay period. Id. at 4, 9. The agency responded to her
claims, but did not address whether the alleged comparator worked overtime
during the back pay period. CF, Tab 21 at 8-14, 29-31. The appellant submitted
additional evidence and argument. CF, Tabs 23, 25-29.
¶6 In a compliance initial decision, the administrative judge found that the
agency proved its compliance with the Board’s Opinion and Order and denied the
petition for enforcement. CF, Tab 30, Compliance Initial Decision (CID) at 1, 8.
Specifically, she found that the agency provided a clear explanation of its
overtime calculations supported by understandable documentary evidence. CID
at 7; CF, Tab 21 at 24, 29-31, 46-61. She found that the agency credited the
appellant 440 hours of annual leave, which reflected the maximum leave
carryover amount in the Employee and Labor Relations Manual (ELM). CID at 7;
CF, Tab 21 at 23, 26-27, 34. The administrative judge found that the appellant
4
elected not to participate retroactively in TSP during the back pay period. CID
at 7; CF, Tab 21 at 42. She found that the appellant was paid the hourly holiday
work rate for five holidays on which at least one of her comparators worked and
that she was paid holiday leave pay for the remainder of the holidays during the
back pay period. CID at 7; CF, Tab 21 at 19, 30, 46-61. Finally, the
administrative judge found that the agency paid the appellant interest on her back
pay in accordance with the ELM. CID at 8; CF, Tab 21 at 63-76.
¶7 The appellant has filed a petition for review in which she challenges only
the amount of her restored annual leave and the calculation of her overtime back
pay. Compliance Petition for Review (CPFR) File, Tab 1. 2 She has submitted
new evidence of her retired coworker’s Time and Attendance reports for part of
the back pay period to support her claim that the agency failed to consider him as
a similarly situated employee in calculating her overtime. Id. The agency has
filed a response. CPFR File, Tab 5. On review, the Board ordered the agency to
address the appellant’s new evidence regarding her retired coworker. CPFR File,
Tab 6. The agency responded to the order. CPFR File, Tab 8. The appellant
replied to the agency’s response. CPFR File, Tab 9.
ANALYSIS
¶8 When the Board finds that an appellant has been the victim of an unjustified
or unwarranted personnel action, it orders that she be placed, as nearly as
possible, in the situation she would have been in had the personnel action not
occurred. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011);
King v. Department of the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam,
167 F. App’x 191 (Fed. Cir. 2006). The agency bears the burden to prove
2
The appellant does not challenge the administrative judge’s findings regarding her
TSP contributions, holiday pay, and interest. CID at 7‑8. We discern no basis to
disturb these findings.
5
compliance with the Board’s order by a preponderance of the evidence. 3
Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions
of compliance must include a clear explanation of its compliance actions
supported by documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5. The
appellant may rebut the agency’s evidence of compliance by making specific,
nonconclusory, and supported assertions of continued noncompliance. Id.
The agency properly restored the appellant’s annual leave balance.
¶9 As the administrative judge found, the agency restored the maximum annual
leave carryover amount, 440 hours, to the appellant under ELM §§ 436.2.d and
512.321. CID at 7; CF, Tab 21 at 23, 26-27, 34. In her petition for review, the
appellant asserts that she is entitled to an uncapped amount of annual leave.
CPFR File, Tab 1 at 2.
¶10 Although U.S. Postal Service employees who are eligible for veterans’
preference are excepted from the maximum carryover amount limitation and may
be credited uncapped annual leave, the appellant does not claim she is eligible for
veterans’ preference. See, e.g., Davis v. U.S. Postal Service, 64 M.S.P.R. 652,
660-61 (1994) (reaffirming the holding that preference-eligible employees of the
U.S. Postal Service were entitled to the restoration of an unlimited amount of
annual leave under the Back Pay Act); Hawkins v. U.S. Postal Service,
56 M.S.P.R. 633, 638-40 (1993) (finding that a preference-eligible employee of
the U.S. Postal Service was entitled to the restoration of annual leave in excess of
the maximum carryover limit). Thus, we find that the appellant has failed to
rebut the agency’s evidence of compliance showing that it restored the maximum
amount of annual leave to which she was eligible.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
The agency failed to consider the appellant’s retired coworker as a similarly
situated employee in calculating her overtime back pay.
¶11 The administrative judge found that the agency established compliance
regarding its calculation of the appellant’s overtime back pay. CID at 7; CF,
Tab 21 at 46-61. Specifically, she found that the agency calculated the
appellant’s overtime by averaging the overtime hours of employees with the same
job title who worked at the same duty station and with similar seniority status.
CID at 4-5; CF, Tab 21 at 29-30. The administrative judge relied on the
declaration of the agency’s Labor Relations Specialist in reaching this conclusion.
CID at 5-7; CF, Tab 21 at 29-31.
¶12 At the time of the appellant’s retirement based on disability, she held the
position of Clerk/Special Delivery Messenger at the Falls Church Post Office.
CF, Tab 25 at 3. The Labor Relations Specialist declared that his search revealed
one other employee with the same job title at the Falls Church Post Office in
2006. CF, Tab 21 at 29. Therefore, for 2006, the agency paid the appellant
overtime back pay for the same number of hours as this comparator. Id. The
Labor Relations Specialist further declared that, beginning in 2007, all the
Clerk/Special Delivery Messengers in the appellant’s employment area became
domiciled at the Dulles Air Mail facility. Id. at 30. Therefore, for 2007 through
2013, the agency averaged the overtime hours of the two employees at the Dulles
facility with the most similar level of seniority to the appellant, using her Enter
on Duty Date of September 10, 1982. Id.
¶13 The administrative judge found that there was no evidence that the agency
intentionally omitted the appellant’s proffered comparator, a retired coworker,
from its overtime calculation. CID at 6. She further found that, even if the
retired coworker was a similarly situated employee, there was no evidence that
his omission from the agency’s calculation was unreasonable or that his inclusion
would have yielded a more generous overtime calculation. CID at 6-7.
7
¶14 On review, the appellant submits Time and Attendance reports showing the
overtime hours worked by her retired coworker at the Falls Church Post Office
during part of the back pay period. CPFR File, Tab 1. She reasserts the argument
that the agency erroneously failed to consider the retired coworker as a similarly
situated employee in calculating her overtime hours under ELM § 436.41.a(1).
Id. at 1-2. ELM § 436.41.a(1) mandates that the agency calculate an employee’s
overtime hours “by averaging the number of hours that other employees of the
office with the same employment status were assigned during the back pay
period.” CF, Tab 21 at 24.
¶15 The agency argues that the Board should not accept the appellant’s new
evidence on review. CPFR File, Tab 8 at 4, Tab 5 at 11. The appellant explains
that she did not submit the evidence below because she had to locate and contact
her retired coworker, and he had to obtain the Time and Attendance reports from
the agency. CPFR File, Tab 9 at 1. Although the appellant consistently identified
her proffered comparator below and requested his records related to overtime
from the agency, the agency did not specifically explain why he was not a
similarly situated employee for purposes of calculating overtime back pay or
provide any of his records. CF, Tabs 3, 17, 23, 25-29.
¶16 The U.S. Court of Appeals for the Federal Circuit remanded a compliance
appeal in Bernard v. Department of Agriculture, 788 F.3d 1365, 1369‑71 (Fed.
Cir. 2015), finding that the appellant was effectively denied the opportunity to
engage in discovery because he had no notice from the Board’s precedent and
regulations that he could do so in an enforcement proceeding without advanced
permission from the administrative judge. Following the decision in Bernard, the
Board amended its regulations by inserting a new provision, 5 C.F.R.
§ 1201.183(a)(9), to make clear that discovery may be undertaken in enforcement
matters. Rules and Regulations, 80 Fed. Reg. 66,787-01 (Oct. 30, 2015). Here,
we find that the appellant did not have notice of her right to engage in discovery
to obtain the Time and Attendance reports from the agency because the
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compliance initial decision was issued on November 6, 2015, shortly after the
effective date of the Board’s new provision. CID at 1. Therefore, we find that
the Time and Attendance reports provide a basis for review because they
constitute new evidence that the appellant could not have obtained from the
agency despite her due diligence when the record closed. 5 C.F.R. § 1201.115(d).
¶17 In its response, the agency acknowledged that the retired coworker held the
Clerk/Special Delivery Messenger position at the Falls Church Post Office during
part of the back pay period, from May 11, 2006, to October 25, 2008. CPFR File,
Tab 8 at 7. The appellant and her retired coworker entered on duty within 3 years
of each other. 4 Id. at 10, 12; IAF, Tab 21 at 30. Thus, the agency should have
considered the retired coworker as a similarly situated employee because he had
the same job title and duty station and similar seniority status as the appellant for
part of the back pay period.
¶18 The Board will not nullify the method employed by the agency in
calculating overtime back pay in the absence of a showing that the method was
unreasonable or unworkable. Rittgers v. Department of the Army, 123 M.S.P.R.
31, ¶ 13 (2015). Here, although the agency explained its method of calculation, it
did not address why its method omitted the retired coworker as a result of its
search for similarly situated employees. CPFR File, Tab 8 at 7. We find that it
was unreasonable for the agency to omit the retired coworker from its calculation
of the appellant’s overtime back pay and that the agency must recalculate it by
including his overtime hours. See, e.g., Rittgers, 123 M.S.P.R. 31, ¶ 16 (finding
that the agency’s method of calculating the appellant’s overtime back pay was not
the one most likely to return him to the status quo ante and ordering the agency to
recalculate it); Brady v. Department of the Navy, 55 M.S.P.R. 693, 697-98 (1992)
4
Neither below nor on review has the agency indicated the Enter on Duty Date of the
comparator previously used to calculate the appellant’s overtime back pay for the 2006
period that she would have been employed at the Falls Church Post Office but for the
denial of her restoration request.
9
(same). Therefore, we reverse the compliance initial decision’s finding that the
agency established compliance regarding its calculation of overtime. CID at 7.
¶19 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in
ex parte communications to, among other things, better understand the evidence
of compliance and any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the appellant’s petition for review of the
compliance initial decision 5 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
¶20 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it properly calculated the appellant’s overtime
back pay according to ELM § 436.41.a(1). The agency must serve all parties with
copies of its submission.
¶21 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. DC-0353-06-
5
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
10
0728-X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653-7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions also may be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
¶22 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶23 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(a). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶24 This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
11
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
