Silas Burgess v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SILAS BURGESS, III, DOCKET NUMBER
Appellant, NY-0752-17-0068-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: November 9, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cassanova Hambrick, Clarkton, North Carolina, for the appellant.
Leslie L. Rowe, Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On May 15, 2017, the administrative judge issued a compli ance initial
decision finding the agency in noncompliance with a settlement agreement that
resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service, MSPB
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Docket No. NY-0752-17-0068-C-1, Tab 11, Compliance Initial Decision (CID).
For the reasons discussed below, we now find the agency in compliance,
DISMISS the petition for enforcement, and DENY the appellant’s request for
compensatory and consequential damages.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On March 29, 2017, the parties entered into a settlement agreement that
resolved the appellant’s removal appeal. Burgess v. U.S. Postal Service, MSPB
Docket No. NY-0752-17-0068-I-1, Initial Appeal File (IAF), Tab 22. In a
March 30, 2017 initial decision, the administrative judge dismissed the removal
appeal as settled and entered the parties’ settlement agreement into the record for
enforcement purposes. IAF, Tab 23, Initial Decision (ID).
¶3 The appellant subsequently petitioned for enforcement of the settlement
agreement, and on May 15, 2017, the administrative judge issued a compliance
initial decision finding the agency in noncompliance with the settlement
agreement. CID at 1, 3-5. The administrative judge found that the agency failed
to comply with a settlement agreement term requiring it to reinstate the appellant,
effective April 1, 2017, to “his [Postal Service] Form 50 Assignment that was
effectuated on August 27, 2011 at the FDR Parcel Post Annex with a schedule of
10:00 PM to 6:30 AM with Tuesday/Wednesday rest days.” C ID at 3-4; IAF,
Tab 22 at 5. The administrative judge found that, although the agency reinstated
the appellant, it failed to provide him with the work schedule and rest days
required by the settlement agreement. CID at 2-4. She further found that the
agency failed to comply with a term in the settlement agreement requiring it to
provide the appellant with back pay. 2 CID at 4; IAF, Tab 22 at 5. The
administrative judge ordered the agency to provide the appellant with back pay
2
The settlement agreement did not require the agency to pay interest on the back pay,
and accordingly, interest on the back pay is not at issue in this compliance matter. IAF,
Tab 22 at 5.
3
and to assign him to a Supervisor, Customer Services (SCS) position at the FDR
Parcel Post Annex with the work schedule and rest days required by the
settlement agreement within 20 days of the issuance of the compliance initial
decision. CID at 5.
¶4 On July 10, 2017, the agency submitted a response to the compliance initial
decision. Burgess v. U.S. Postal Service, MSPB Docket No. NY-0752-17-0068-
X-1, Compliance Referral File (CRF), Tab 4. The agency submitted evidence
that, on July 7, 2017, it provided the appellant with $6,249.17 in back pay, and
also submitted supporting documentation pertaining to the calculation of that
back pay. Id. at 7-16. In addition, the agency submitted the appellant’s time and
attendance records, which reflected that, on June 14, 2017, the agency change d
the appellant’s schedule to place him in a position with a start time of 10:00 p.m.
and an end time of 6:30 a.m., with rest days of Tuesdays and Wednesdays. Id.
at 18-23. However, the specific position that the agency placed the appellant in
was not apparent from those time and attendance records. Id.¶5 The appellant submitted two pleadings in reply to the agency’s response to
the compliance initial decision. CRF, Tabs 6-7. He did not dispute that the
agency provided him with back pay or contest the agency’s calculation of that
back pay. CRF, Tab 6 at 3, Tab 7 at 3. However, he generally asserted that the
agency failed to assign him to the position required by the settlement agreement,
although he did not set forth any specific factual allegations to support this claim.
CRF, Tab 6 at 3, Tab 7 at 3.
¶6 On September 15, 2017, the Board issued an order directing the appellant to
explain the basis for his contention that the agency failed to place him in the
position required by the settlement agreement and to submit any evidence that he
relied on in support of that contention. CRF, Tab 8 at 3. In response, the
appellant submitted a pleading in which he asserted that, instead of placing him in
the position required by the settlement agreement, the agency placed him “on an
automation machine (ADUS Machine) that is a part of a pilot program that the
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USPS has worked on for over three years that is domiciled at FDR Station.”
CRF, Tab 9 at 4.
¶7 On May 22, 2018, the Board issued an order directing the agency to submit
additional evidence regarding whether it reinstated the appellant to the position
required by the settlement agreement. CRF, Tab 12 at 3 -4. In response, on
June 1, 2018, the agency submitted the declaration of the Customer Services
Manager for the agency’s FDR Station, which encompasses the FDR Parcel Post
Annex. CRF, Tab 13 at 6-7. The Customer Services Manager declared under
penalty of perjury that, as of June 14, 2017, the agency reinstated the appellant to
the same position that he held on August 27, 2011, which was an SCS position at
the FDR Parcel Post Annex with a start time of 10:00 p.m. and an end time of
6:30 a.m., with rest days of Tuesdays and Wednesdays. Id. at 6. The Customer
Services Manager further explained that the agency bega n using the ADUS
machine on or about November 2014 and that supervising the ADUS machine had
become a part of the duties of an SCS at the FDR Parcel Post Annex since that
time. 3 Id. at 6-7.
¶8 In a June 19, 2018 reply to the agency’s response, the appella nt generally
asserted that the agency failed to place him in the same “work assignment” that
he held in August 2011, but he contended that he did not intend to seek further
relief and requested that the Board dismiss his petition for enforcement. CRF,
Tab 14 at 3.
3
Neither the agency nor the appellant provided the Board with an explanation of what
the acronym “ADUS” refers to, or what agency function the ADUS machine performs.
CRF, Tab 9 at 4, Tab 13 at 6-7. However, according to various U.S. Postal Service
websites and blogs, the abbreviation appears to refer to “Automated Delivery Unit
Sorters,” which are machines whose purpose is to try to expand package sorting
capabilities. See, e.g., U.S. Postal Service, Office of Inspector General, Audit Report,
Report No. 20-095-R21, Automated Delivery Unit Sorter Cost Savings (Oct. 1, 2020),
https://www.uspsoig.gov/sites/default/files/document-library-files/2021/20-095-
R21.pdf.
5
¶9 The Board will enforce a settlement agreement that has been entered into
the record in the same manner as a final Board decision or order. Burke v.
Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 8 (2014). When an
appellant alleges noncompliance with a settlement agreement, an agency must
produce relevant material evidence of its compliance with the agreement or show
that there was good cause for noncompliance. Id. The ultimate burden, however,
remains with the appellant to prove breach by a preponderance of the evidence.
Id.¶10 Here, the agency submitted evidence that it provided the appellant with the
back pay required by the settlement agreement, and he does not dispute that the
agency provided him with the correct amount of back pay. CRF, Tab 4 at 7-16.
The agency also submitted evidence that it reinstated the appellant to the position
and with the work schedule and rest days required by the settlement agreement.
CRF, Tab 4 at 18-23, Tab 13 at 6-7. We find the appellant’s allegations that the
agency failed to reinstate him to the correct position to be insufficient to
overcome the agency’s evidence of compliance with the settlement agreement.
The settlement agreement did not prohibit the agency from requiring the appellant
to perform additional duties that had been added to his SCS position since
August 27, 2011. IAF, Tab 22 at 5. In any event, the appellant—apparently
agreeing with the agency regarding the changing nature of the agency’s
operations—has requested that his petition for enforcement be dismissed. CRF,
Tab 14 at 3.
¶11 The appellant also has requested that the Board award him compensatory
and consequential damages for the agency’s breach of the settlement agreement.
CRF, Tab 3 at 3, Tab 7 at 3, 7-8. The Board lacks authority to award damages for
breach of a settlement agreement, and the agency is now in compliance with the
settlement agreement. See Principe v. U.S. Postal Service, 101 M.S.P.R. 626, ¶ 3
(2006) (finding that the Board lacks authority to award damages for the br each of
a settlement agreement). To the extent that the appellant requests that the Board
6
sanction the agency for its delay in complying with the settlement agreement, the
Board lacks authority to impose sanctions once compliance has been obtained.
Bruton v. Department of Veterans Affairs, 112 M.S.P.R. 313, ¶ 14 (2009).
¶12 Accordingly, for these reasons, we find that the agency is now in
compliance with the settlement agreement and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 5 The court of appeals must receive your
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.