David R. Ellis v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID R. ELLIS, DOCKET NUMBER
Appellant, SF-0752-13-0283-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David R. Ellis, Gresham, Oregon, pro se.
Michael R. Tita, Esquire, Seattle, Washington, 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 initial decision, which
denied his petition for enforcement. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency demoted the appellant from his EAS-17 position for inflating
the mail volume he reported on some of his subordinates’ routes. Ellis v. U.S.
Postal Service, 121 M.S.P.R. 570, ¶ 2 (2014). He filed an appeal with the Board,
and on September 9, 2014, the Board issued a final decision mitigating the
agency’s action. Id., ¶ 1. In its decision, the Board found that the maximum
reasonable penalty was the same type of punishment imposed on a similarly
situated employee, R.L.B., who received a letter of warning, in lieu of a 14-day
suspension, and a geographic reassignment within the local commuting area. Id.,
¶ 16. Accordingly, the Board ordered the agency to reinstate the appellant to his
EAS-17 position effective February 23, 2013, and to substitute a letter of
warning, in lieu of a 14-day suspension, for the reduction in grade. Id., ¶ 17. In a
footnote to the order language, the Board clarified that the agency “may impose a
geographic assignment within the local commuting area, but is not required to.”
Id., ¶ 17 n.7. The Board further ordered the agency to pay the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act. Id.,
¶ 18.
 3
¶3 On December 1, 2013, the appellant filed a petition for enforcement.
Ellis v. U.S. Postal Service, MSPB Docket No. SF-0532-13-0283-C-1,
Compliance File (CF), Tab 1. In his petition, he argued that the agency had
improperly reassigned him to another duty station when it had returned R.L.B. to
her original position, and that his reassignment was inconsistent with an
August 24, 2012 directive issued by Megan J. Brennan, now Postmaster General.
Id. He further argued that the agency failed to properly calculate the back pay
owed and that he is entitled to additional relief including restored leave and
damages resulting from the improper reassignment. Id. After considering the
party’s written submissions, the administrative judge found that the agency had
shown that it had fully complied with the Board’s order. CF, Tab 12, Compliance
Initial Decision. Thus, the administrative judge denied the appellant’s petition
for enforcement. Id.
¶4 On petition for review, the appellant again argues that the agency
improperly reassigned him, that the agency erred in its back pay calculations, and
that he is entitled to restored leave and damages. Petition for Review (PFR) File,
Tab 1. The agency has responded. PFR File, Tab 3.
¶5 Regarding the appellant’s claim that the agency improperly reassigned him,
the Board’s final decision in the underlying appeal explicitly authorized the
agency to impose a geographic reassignment within the local commuting area.
Ellis, 121 M.S.P.R. 570, ¶ 17 n.6; see id., ¶¶ 1, 16. The appellant did not seek
judicial review of that decision, and he is precluded from challenging the
correctness of the Board’s final order in the context of this compliance
proceeding. See Ferry v. Department of the Navy, 32 M.S.P.R. 63, 65 (1986),
aff’d, 846 F.2d 78 (Fed. Cir. 1988).
¶6 On the issue of back pay, the appellant contends that the agency erred in its
calculation because: (1) it did not provide overtime during the back pay
period; (2) it failed to extend the back pay period to the date he was placed on
administrative leave; (3) it applied an incorrect interest rate; and (4) it computed
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interest based on his net pay instead of his gross pay. We agree with the
administrative judge that none of these objections have merit.
¶7 First, the record shows that on February 20, 2013, shortly before the
effective date of his demotion, the appellant submitted a doctor’s note
recommending that his work hours be limited to 8 hours per day and 40 hours per
week. CF, Tab 1, Exhibit (Ex.) J. The appellant contends that these restrictions
are limited to the duties performed by a carrier and do not apply to the
supervisory duties he would have performed during the back pay period had he
not been demoted. However, the letter does not refer to any particular duties, and
the work hour restrictions are without qualification. Id. Because the appellant
was not ready, willing, and able to work overtime during the period at issue, the
agency was not required to include overtime in its back pay calculation. See
Donovan v. U.S. Postal Service, 101 M.S.P.R. 628, ¶ 6, (2006).
¶8 There is also no merit to the appellant’s contention that he should have
received back pay for any work hours missed during the period from November 7,
2012, to February 23, 2013, when he was on administrative leave. The Back Pay
Act authorizes the Board to award back pay only to the extent that an employee
lost pay as a result of an action that the Board, acting within its jurisdiction,
found unjustified or unwarranted. Mattern v. Department of the Treasury,
88 M.S.P.R. 65, ¶ 10 (finding that Congress, in enacting the Back Pay Act,
permitted the Board to award back pay only if an employee lost pay as a result of
an action within the Board’s purview), aff’d, 291 F.3d 1366 (Fed. Cir. 2001). The
wrongful action at issue here is the appellant’s February 23, 2013 demotion. He
did not appeal his preceding placement on administrative leave, and, even if we
had jurisdiction to determine the appropriateness of that action, we have not made
such a determination. Therefore, our authority to award back pay extends only to
the effective date of the demotion. Id., ¶ 11.
¶9 As to the rate of interest, section 436.73 of the Employee and Labor
Relations Manual (ELM) provides that the interest rate for back pay based on a
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Board decision involving a nonpreference-eligible Postal Service employee, like
the appellant, is the Federal Post Judgment Interest Rate as referenced in
28 U.S.C. § 1961. Evans v. U.S. Postal Service, 110 M.S.P.R. 58, ¶ 11 (2008);
CF, Tab 8 at 10-11. Section 1961 provides the interest due shall be calculated
from the date of the entry of the judgment at a rate equal to the weekly average
1-year constant maturity Treasury yield, as published by the Board of Governors
of the Federal Reserve System, for the calendar week preceding the date of
judgment and that the interest shall be compounded annually. 28 U.S.C.
§ 1961(a); Evans, 110 M.S.P.R. 58, ¶ 11. The record reflects that the rate in
effect the week before judgment was entered, on September 9, 2014, was
0.1 percent and that the agency used that rate to calculate the interest due. CF,
Tab 8 at 12-14.
¶10 The agency concedes that at some point during a conference in late
October 2014, the agency representative informed the appellant that interest on
back pay would be calculated at a rate of 3.0 percent. Id. at 6-7 (declaration of
agency representative). However, the record does not support the appellant’s
position that the parties agreed to that figure. Rather, it appears that, in response
to the appellant’s query regarding the amount of interest he would receive, the
agency representative stated in error that the accounting department would
calculate the interest on back pay at the 3.0 percent rate. Id. Subsequently, the
agency representative learned that he was mistaken in his belief that 3.0 percent
was the applicable rate, and he notified the appellant of his error. PFR File,
Tab 1, Ex. E. We therefore find that the parties did not agree to a 3.0 percent
interest rate and that the agency correctly applied a 0.1 percent rate pursuant to
the ELM.
¶11 We also have considered the appellant’s claim that the agency should have
awarded interest on his gross pay. However, we agree with the administrative
judge that the agency properly deducted taxes and retirement contributions before
computing the interest due. See Rivera-Silva v. U.S. Postal Service, 82 M.S.P.R.
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426, ¶ 9 (1999) (noting that the computation of interest is normally based on
adjusted back pay after deductions for taxes and retirement have been made).
¶12 The appellant contends, moreover, that he should be credited with the
annual leave he was “forced” to use for consultation and hearing purposes while
he pursued his Board appeal in lieu of the “personal absence time” available to
supervisory employees. PFR File, Tab 1 at 2; CF, Tab 6 at 9-11. It appears that
the appellant is correct that, under section 519.732 of the ELM, personal absence
time may be approved for up to half a workday. PFR File, Tab 1, Ex. A.
However, he has not shown that he was entitled to personal absence time or
administrative leave for purposes of pursuing his Board appeal. Hence, to the
extent the appellant expended annual leave for that purpose, he is not entitled to
have it restored. See Forrest v. Department of Agriculture, 74 M.S.P.R. 213,
220-23 (1997).
¶13 Finally, as to the appellant’s claim that he should be reimbursed for various
expenses he incurred, such as mileage, mailing fees, penalties for withdrawing his
retirement funds, and lost work opportunities, the Back Pay Act does not
authorize the Board to award these kinds of compensatory or consequential
damages. Cunningham v. Department of Veterans Affairs, 91 M.S.P.R. 523, ¶ 3
(2002).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.