Eric Watkins v. Tennessee Valley Authority ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WATKINS, DOCKET NUMBER
Appellant, AT-0752-18-0398-X-1
v.
TENNESSEE VALLEY AUTHORITY, DATE: April 26, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eric Watkins, Sequatchie, Tennessee, pro se.
John E. Slater, Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 In a February 7, 2019 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s final decision in the
underlying adverse action appeal and granted the appellant’s petition for
enforcement. Watkins v. Tennessee Valley Authority, MSPB Docket No. AT-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
0752-18-0398-C-1, Compliance File (CF), Tab 4, Compliance Initial Decision
(CID); Watkins v. Tennessee Valley Authority, MSPB Docket No. AT-0752-18-
0398-I-1, Initial Appeal File, Tab 29, Initial Decision (ID). 2 For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In the February 7, 2019 compliance initial decision, the administrative
judge found that the agency failed to establish that it had complied with the
Board’s decision in the underlying appeal, which reversed the appel lant’s
constructive removal and ordered him reinstated with back pay and benefits. CID
at 3. Accordingly, the administrative judge granted the appellant’s petition for
enforcement and ordered the agency to: (1) determine the position to which the
appellant was entitled to be reassigned in accordance with the instructions
contained in the Board’s final decision in the underlying appeal and reassign him
to that position, retroactive to April 12, 2018; and (2) calculate and pay the
appellant the appropriate amount of back pay with interest. CID at 4.
¶3 On February 14, 2019, the agency submitted to the Board a statement and
evidence of compliance pursuant to 5 C.F.R. § 1201.183(a)(6)(i). Watkins v.
Tennessee Valley Authority, MSPB Docket No. AT-0752-18-0398-X-1,
Compliance Referral File (CRF), Tab 1. Therein, the agency stated that it would
reinstate the appellant, retroactively to April 12, 2018, to a Systems Operations
Initial Training Program Specialist (Dispatcher) position within the next 10 days.
CRF, Tab 2 at 5. The agency explained that “Appellant will be placed in a
non-work, pay status—with full pay and benefits—until the start of the training
class, at which time he would be in a work status, with pay and benefits.” Id.2
The September 6, 2018 initial decision became the final decision of the Board in the
underlying appeal on October 11, 2018, after neither party filed an administrative
petition for review. ID at 16.
3
The agency also stated that it would pay the appellant back pay for the period
from April 12, 2018, through January 6, 2019, and attached a spreadsheet
reflecting its calculations that he would be entitled to $63,825 in back pay and
152 hours of restored annual leave for the period from April 16, 2018, through
January 6, 2019. Id. at 5, 8. However, the agency stated, the appellant had to
submit an affidavit or declaration regarding any earnings and disability retirement
payments he received during the back pay period before it could finalize its back
pay calculations and pay him. Id. at 5. The agency stated that it would process
payment of the back pay award within 10 business days of receiving the requested
information. Id. at 6.
¶4 On February 15, 2019, the Board issued an acknowledgement order
informing the appellant that he had the opportunity to respond to any submission
filed by the agency and that, if he did not respond to the agency’s evidence of
compliance, the Board might assume he was satisfied and dismiss his petition for
enforcement. CRF, Tab 2.
¶5 On March 8, 2019, the appellant notified the Board that he had not been
placed in pay status and had not received any back pay. CRF, Tab 3 at 1.
¶6 On April 29, 2019, the Board issued an order directing the agency to submit
a narrative statement and evidence showing that it had fully complied with the
Board’s final decision by retroactively reinstating the appellant and paying him
back pay with interest. CRF, Tab 4 at 2. The Board also directed the agency to
address the appellant’s allegations of noncompliance. Id. The Board again
informed the appellant that he could reply to the agency’s response and that, if he
did not respond, the Board might assume he was satisfied and dismiss his petition
for enforcement. Id.¶7 In a March 10, 2020 submission, the agency stated that it had placed the
appellant in the Dispatcher position retroactive to April 12, 2018—initially in a
non-work, pay status until he was placed in the position to begin performing
duties. CRF, Tab 5 at 4. The agency also stated that it paid the appellant back
4
pay in the amount of $63,825 covering the period from April 12, 2018, to
January 6, 2019, and restored all leave and other benefits to him. Id. at 4-5. The
appellant did not respond to the agency’s March 10, 2020 submission.
ANALYSIS
¶8 When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in
had the wrongful 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 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.¶9 Here, the agency has informed the Board that it has reinstated the appellant
to the Dispatcher position retroactive to April 12, 2018; paid him back pay in the
amount of $63,825; and restored his leave and other benefits. CRF, Tab 5 at 4-5.
As evidence of its compliance, the agency provided only a spreadsheet containing
its back pay calculations, which reflects that it determined the appellant was
entitled to $63,825 in back pay and 152 hours of restored annual leave for the
period from April 16, 2018, through January 6, 2019. Id. at 13. Although the
agency has not provided any evidence showing that it has reinstated the appellant
or paid him interest on the back pay award, the appellant has not responded to the
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 suf ficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
agency’s latest compliance submission, despite being notified of his opportunity
to do so and of the consequences of not responding. Accordingly, we assume he
is satisfied. See Baumgartner v. Department of Housing and Urban Development,
111 M.S.P.R. 86, ¶ 9 (2009).
¶10 In light of the agency’s evidence of compliance and the lack of a response
from the appellant, we find that the agency is now in compliance 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 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
statement of how courts will rule regarding which cases fall wit hin 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.
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.
6
(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
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
7
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
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:
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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
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
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.
9
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.