Stephanie L. Stewart v. Department of Agriculture ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE L. STEWART, DOCKET NUMBER
Appellant, DA-0351-11-0307-X-1
v.
DEPARTMENT OF AGRICULTURE, DATE: August 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Terrence J. Johns, New Orleans, Louisiana, for the appellant.
Sandy S. Francois and Thomas E. Dunn, New Orleans, Louisiana, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On October 3, 2012, the administrative judge issued a recommended
decision that the Board find, under the Board’s regulations in effect at that time,
the agency in non-compliance with the administrative judge’s March 13, 2012
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision that became the Board’s final decision on April 17, 2012. MSPB
Docket No. DA-0351-11-0307-I-1, Initial Decision (ID) (Mar. 13, 2012). The
Board had reversed the agency’s action demoting the appellant from her position
as a Contract Representative, GS-096207, pursuant to a reduction in force. The
Board ordered the agency to reassess the appellant’s qualifications for the
positions of Program Analyst, GS-0343; Civilian Pay Technician, GS-0544; and
Financial Management Assistant, GS-0503, at or below the GS-07 level. If the
appellant was found qualified for one of these positions, the agency was ordered
to cancel the appellant’s demotion and place her in one of those positions, or a
position of like grade, pay, tenure, and commuting area. The Board also ordered
the agency to pay the appellant the appropriate amount of back pay, with interest,
and to adjust her benefits with the appropriate credits and deductions. ID.
¶2 The administrative judge found that the agency had not met its burden to
demonstrate compliance with the Board’s order. MSPB Docket No.
DA-0351-11-0307-C-1, Compliance Initial Decision (CID) (Oct. 3, 2012). The
administrative judge therefore ordered the agency to provide documentation
establishing that it had canceled the appellant’s demotion, returned her to an
appropriate position, and issued the appellant a check for the appropriate amount
of back pay, with interest, and adjusted her benefits with the appropriate credits
and deductions. CID. The matter was referred to the Board for consideration. 2
See 5 C.F.R. § 1201.183 (Jan. 1, 2012).
¶3 The agency has produced evidence establishing that it placed the appellant
in the position of Financial Management Assistant, GS-0503, at the GS-07 Step
10 level, located in the Office of the Chief Financial Officer, effective December
4, 2011. MSPB Docket No. DA-0351-11-0307-X-1, Compliance Referral File
2
Except as otherwise noted in this decision, we have applied the Board’s regulations
that became effective November 13, 2012. We note, however, that the petition for
enforcement in this case was filed before that date. The revisions to 5 C.F.R.
§ 1201.183 do not affect our consideration of the merits of this compliance proceeding.
3
(CRF), Tab 9. The agency also produced evidence that it has paid the appellant
for the back pay lost between January 2008 and her reinstatement in December
2011. CRF, Tab 14. The agency has detailed its calculation of interest on the
back pay award, using the appropriate daily interest rates. See CRF, Tab 18 at
6-10. The information submitted by the agency indicates that a total of $7,348.80
in gross back pay and $909.77 in interest was paid to the appellant. CRF, Tab 18
at 11.
¶4 In response to the agency’s submissions, the appellant argued that she
should have been placed in a GS-0343-07/09/11 ladder position due to her
qualifications. CRF, Tab 15. The appellant also argued that the agency’s back
pay calculations are not in the correct format. CRF, Tabs 15, 19.
¶5 We find that the agency has complied with the Board’s order by placing the
appellant in the position of Financial Management Assistant, GS-07. Contrary to
the appellant’s argument, the Board’s Order did not require that she be placed in a
GS-0343-07/09/11 career ladder position. Rather, the Board’s Order required
only that her qualifications be evaluated, and, if the qualifications were sufficient,
that she be placed in a GS-07 level position. Notably, one of the three
appropriate positions identified in the Board’s Order was the position of Financial
Management Assistant, GS-0503-07, the position in which the appellant was
placed. IAF, Tab 31 at 25.
¶6 We also find that the agency has established compliance with the back pay
requirement of the Board’s Order. The agency has submitted documentation
showing the daily compounding of interest on the back pay award. CRF, Tab 18.
As the appellant has not made any specific allegation regarding what alternative
format she believes this information should have been in, we reject the
appellant’s argument that the agency has not complied with this aspect of the
Board’s Order. See CRF, Tab 19.
¶7 We therefore find the agency in compliance and DISMISS the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
4
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
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 review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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
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Title 5 of the United States 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 United
States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.