William Coy v. Department of the Treasury ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM COY, DOCKET NUMBER
Appellant, DC-0752-18-0528-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: July 5, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Alexis N. Tsotakos, Esquire, and Christopher H. Bonk, Esquire, Silver
Spring, Maryland, for the appellant.
Christopher Sterbenz, Gabriel A. Hindin, and Michael Morelli,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal
on due process grounds and concluded that the appellant did not prove any of his
reprisal claims. For the reasons discussed below, we DENY the petition for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
review and the cross petition for review. We AFFIRM the administrative judge’s
decision to reverse the removal on due process grounds. We further MODIFY the
administrative judge’s analysis of the appellant’s claim of reprisal for
whistleblowing disclosures and protected activity (filing Office of Special
Counsel (OSC) complaints), still finding that the appellant did not prove these
claims. We VACATE the administrative judge’s analysis of the appellant’s
claims of reprisal for prior equal employment opportunity (EEO) activity and for
filing an appeal pursuant to the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), and we REMAND these claims to
the Washington Regional Office for notice and further adjudication in accordance
with this Remand Order. We also DENY the appellant’s petition to enforce the
administrative judge’s interim relief order.
BACKGROUND
¶2 The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 38, Initial Decision (ID). The
appellant filed a USERRA appeal in which he asserted that his starting salary as a
Supervisory Human Capital Specialist (Director of Compensation and Benefits),
should have been increased because of his status as a military veteran. ID at 3;
Coy v. Department of the Treasury, MSPB Docket No. DC-4324-17-0272-I-1.
During the appellant’s sworn deposition in the USERRA appeal, the agency
learned that he used his status as an agency employee to acce ss agency electronic
systems to misappropriate confidential employee data, which he emailed to his
home computer and used to prosecute lawsuits against the agency. ID at 3 -4.
The administrative judge dismissed the USERRA appeal as withdrawn in
May 2017. ID at 4. However, the agency determined that the appellant’s
admission of such misconduct had formed the factual basis for a removal action,
and it removed him on a single charge of misuse of Government property
supported by three specifications. ID at 3-4.
3
¶3 The appellant filed a Board appeal and raised claims of a due process
violation, harmful procedural error, and reprisal for prior EEO activity, for his
OSC complaints, and for his prior USERRA appeal. ID at 4; IAF, Tab 1. He
subsequently withdrew his hearing request. ID at 1-2; IAF, Tabs 29-30. In the
initial decision, the administrative judge reversed the removal action on due
process grounds. ID at 4-13. In particular, the administrative judge noted that
the deciding official, in her deposition, identified numerous facts regarding the
appellant’s alleged performance deficiencies that she considered in the penalty
analysis that were not specifically articulated in the proposal notice or decision
letter. ID at 9-13. The administrative judge determined in the alternative that the
appellant proved his claim of harmful procedural error. ID at 13. The
administrative judge further found that the appellant did not prove any of his
reprisal claims. ID at 13-18. The administrative judge ordered the agency to
cancel the removal action and retroactively restore the appellant, effective
April 13, 2018, and pay him the appropriate amount of back pay with interest and
other adjustments. ID at 19. The administrative judge also ordered the agency to
provide interim relief if either party filed a petition for review. ID at 20.
¶4 The agency has filed a petition for review, and the appellant has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. The appellant has filed a
cross petition for review, to which the agency has filed a response. PFR File,
Tabs 3, 7. The appellant has also filed a petition to enforce the interim relief
order, the agency has responded to this petition, and the appellant has replied.
PFR File, Tabs 5-6, 8-10.
¶5 While this matter was pending on review, the agency removed the appellant
based on the same misuse of Government property charge and specifications,
effective December 28, 2019, and a different administrative judge sustained this
second removal action. Coy v. Department of the Treasury, MSPB Docket
No. DC-0752-20-0325-I-1, Initial Decision (Apr. 15, 2021). The U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) found that the second removal
4
action was permissible while the first removal action was still pen ding before the
Board because the second removal action cured the procedural deficiency of the
first removal action and did not “evade” the first decision, and it upheld the
removal. Coy v. Department of the Treasury, 43 F.4th 1334, 1337-40 (Fed. Cir.
2022).
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s decision to reverse the removal on due
process grounds.
¶6 In the initial decision, the administrative judge made the following findings:
(1) the deciding official’s consideration of the appellant’s subordinates’ concerns
about his management style and/or competence and the deciding official’s own
concerns about his performance deficiencies were not raised in either the proposal
or decision letters; (2) the appellant never had a chance to respond to or address
these considerations before the removal was effected; (3) these considerations
were not cumulative; and (4) they were the type of information likely to result in
pressure on the deciding official to rule in a particular manner. ID at 9 -12. The
administrative judge therefore concluded that the deciding official’s consideration
of such information without notice to the appellant violated his due process
rights. ID at 4-13. She also determined in the alternative that the deciding
official’s consideration of such evidence amounted to harmful procedural error.
ID at 13.
¶7 In its petition for review, the agency argues that the administrative judge
erred when she determined that the deciding official violated the appellant’s due
process rights when she considered his job performance in setting the penalty, the
appellant knew that the deciding official would consider his job performance
because the proposing official told him so, and the administrative judge
incorrectly applied the rule on ex parte communications. PFR File, Tab 1 at 6 -7.
The agency also contends that the administrative judge’s harmful procedural er ror
analysis was erroneous. Id. at 7-8.
5
¶8 The U.S. Court of Appeals for the Federal Circuit has held that, “[t]he
introduction of new and material information by means of ex parte
communications to the deciding official undermines the public employee ’s
constitutional due process guarantee of notice (both of the charges and of the
employer’s evidence) and the opportunity to respond.” Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Not every ex parte
communication is a procedural defect so substantial and so likely to cause
prejudice that it undermines the due process guarantee and entitles the claimant to
an entirely new administrative proceeding; rather, only ex parte communications
that introduce new and material information to the deciding official will violate
the due process guarantee of notice. Id. The Board will consider the following
factors, among others, to determine whether an ex parte contact is constitutionally
impermissible: (1) whether the ex parte communication merely introduces
“cumulative” information or new information; (2) whether the employee knew of
the error and had a chance to respond to it; and (3) whether the ex parte
communications were of the type likely to result in undue pressure upon the
deciding official to rule in a particular manner. Id. at 1377. Ultimately, the
inquiry of the Board is whether the ex parte communication is so substantial and
so likely to cause prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such circumstances. Id. The Board
has held that this analysis applies to penalty considerations. Wilson v.
Department of Homeland Security, 120 M.S.P.R. 686, ¶ 9 (2014), aff’d,
595 F. App’x 995 (Fed. Cir. 2015). For the following reasons, we agree with the
administrative judge that the agency violated the appellant’s due process rights.
¶9 In the proposal notice, the proposing official advised the appellant that she
considered his job performance, among other things. IAF, Tab 5 at 83. In the
decision letter, the deciding official noted that she considered the appellant’s
“lack of any prior disciplinary record,” “[his] record of job performance,” and
“[his] 15 years of Federal service.” Id. at 15. However, during her deposition,
6
the deciding official testified that she considered that his “direct reports were all
very, very upset,” “had significant concerns about [him],” and “many felt very
demoralized by him, not supported, no engagement on actually understanding the
programs and . . . what our processes are.” IAF, Tab 32 at 311 -12 (deposition
testimony of the deciding official).
¶10 We have considered the agency’s contention that the appellant had notice
that his job performance would be considered. We agree that the appellant did
have general notice that his job performance would be considered, and he stated
in his response to the notice of proposed removal that he had a “sterling” 15 -year
record of Federal service and noted that his supervisors across “multiple
agencies . . . unanimously elected to rate him at the highest performance level
available.” IAF, Tab 5 at 50. However, there is little, if any, evidence that the
appellant had any meaningful knowledge of any of the subordinates’ stated
concerns or that the agency would rely on such concerns in its decision. Notably,
it is undisputed that the appellant did not have an annual performance appraisal
due to his short tenure at the agency. IAF, Tab 32 at 315 (deposition testimony of
the deciding official), 492 (sworn declaration of the appellant). Moreover, in his
declaration, made under penalty of perjury, the appellant stated that his midyear
evaluation was “meets performance standards,” 2 at no point did the proposing
official (who was also his first-line supervisor) or the deciding official ever tell
him that they had any concerns about his performance, and the first t ime he
became aware of performance concerns was after he reviewed the deciding
official’s deposition. IAF, Tab 32 at 492.
¶11 We have considered the proposing official’s deposition testimony that she
held “at least four” meetings between February 2017 and Apr il or May 2017 with
the appellant and the two subordinate managers who complained about him, and
2
According to the appellant, the two rating options for the midyear review were
something to the effect of “meets performance standards” and “does not meet
performance standards at this time.” IAF, Tab 32 at 492.
7
she suggested that the appellant retain an executive coach. IAF, Tab 32
at 134-35, 139-40 (deposition testimony of the proposing official). However, the
agency presented no documentary evidence or written communications that would
advise the appellant that the agency had any significant concerns about his
performance. 3 Therefore, we are not persuaded that the appellant had sufficient
notice that any such concerns would be considered in this removal action.
Indeed, the Board has found that a deciding official’s similar consideration of
performance-related information not specified in the decision letter constituted a
due process violation. See, e.g., Howard v. Department of the Air Force,
118 M.S.P.R. 106, ¶ 6 (2012) (finding that a deciding official’s consideration of
ex parte information regarding the appellant’s audit production numbers being
lower than the agency’s individual production goal for a single year and his
general poor performance was not cumulative because it concerned specific
information of alleged performance deficiencies); Silberman v. Department of
Labor, 116 M.S.P.R. 501, ¶ 12 (2011) (explaining that ex parte communications
are plainly material when the deciding official has admitted that the information
influenced her penalty determination).
¶12 Accordingly, we affirm the administrative judge’s decision to reverse the
removal on due process grounds. We need not reach the issue of whether the
3
In its petition for review, the agency includes an unsigned, undated document, entitled
“Notes on [the appellant],” which appears to have been written by the proposing official
and which appears to document a summary of meetings that purp ortedly occurred
between managers, the proposing official, and the appellant about his competency and
management style. PFR File, Tab 1 at 32-33. The agency indicates that it provided
such evidence to the appellant during discovery. Id. at 21-22 & n.65. Under 5 C.F.R.
§ 1201.115, the Board will not generally consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). We are not persuaded that this unsigned and undated
document, in the absence of any corresponding contextual information, warra nts any
further consideration.
8
agency also committed harmful procedural error. 4 Alford v. Department of
Defense, 118 M.S.P.R. 556, ¶ 7 & n.4 (2012); Silberman, 116 M.S.P.R. 501,
¶ 4 n.3.
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s claim of reprisal for filing OSC complaints, but a different
outcome is not warranted.
¶13 In his cross petition for review, the appellant reiterates that his
December 2016 OSC complaint was protected by 5 U.S.C. § 2302(b)(8)(B) and
his November 30, 2017 OSC Complaint, which he filed after the agency proposed
his removal, was protected by section 2302(b)(9)(C). PFR Fil e, Tab 3 at 23; IAF,
Tab 32 at 531-42. The administrative judge gave the appellant proper notice of
his burden to prove this claim of reprisal, and the record is fully developed on
these issues; therefore, it is appropriate to address these arguments on review.
Based on our review of the record, as explained below, we affirm the
administrative judge’s finding that the December 2016 OSC complaint was not
protected by 5 U.S.C. § 2302(b)(8)(B). 5 We modify the initial decision to
alternatively consider whether the appellant’s December 2016 OSC complaint is
protected by 5 U.S.C. § 2302(b)(9)(C) 6 and to evaluate his claim regarding his
4
In addition, because we are reversing the agency’s action on due process grounds we
need not determine whether the agency proved the charge or make other merits
findings, as those issues are not material.
5
Section 2302(b)(8)(B) makes it a prohibited personnel practice “to t ake or fail to take,
or threaten to take or fail to take, a personnel action with respect to any employee or
applicant for employment because of any disclosure to the Special Counsel, or to the
Inspector General of an agency or another employee designated by the head of the
agency to receive such disclosures, of information which the employee or applicant
reasonably believes evidences . . . any violation (other than a violation of this section)
of any law, rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety .”
6
Section 2302(b)(9)(C) makes it a prohibited personnel practice “to take or fail to take,
or threaten to take or fail to take, any personnel action against any employee or
applicant for employment because of . . . cooperating with or disclosing information to
the Inspector General (or any other component responsible for internal investigation or
9
November 30, 2017 OSC complaint. For the following reasons, a different
outcome is not warranted.
December 2016 OSC Complaint
¶14 The administrative judge determined that the appellant’s December 2016
OSC complaint, in which he alleged that the agency violated the Equal Pay Act
and its own internal processes in its salary-setting decisions, did not constitute a
whistleblowing disclosure under 5 U.S.C. § 2302(b)(8)(B). ID at 14-18; IAF,
Tab 32 at 531-42. She noted that the agency’s failure to set his pay consistent
with salary-setting policy decisions is not a claim that the agency violated a law,
rule, or regulation. ID at 18. Additionally, she concluded that he did not
reasonably believe that the agency violated the Equal Pay Act because his salary
was set at a rate less than his peers in the private sector and that his allega tions
were conclusory. Id. She found in the alternative that, even if the appellant
satisfied his prima facie burden, the agency proved by clear and convincing
evidence that it would have removed him in the absence of any protected
disclosure. ID at 14-18.
¶15 We discern no error with the administrative judge’s evaluation of the
December 2016 OSC complaint pursuant to 5 U.S.C. § 2302(b)(8)(B). Notably,
the Equal Pay Act, found at 29 U.S.C. § 206(d)(1),expressly prohibits wage
discrimination between employees on the basis of sex. The appellant’s contention
that his pay was set at a rate lower than “national and local rates paid by
employers in the private sector,” IAF, Tab 32 at 533, does not demonstrate that
he had a reasonable belief that he was disclosing a violation of the Equal Pay Act.
The appellant’s petition for review does not persuade us that the administrative
judge erred in her findings regarding this claim.
review) of an agency, or the Special Counsel, in accordance with applicable provisions
of law.”
10
¶16 Although not raised by the appellant below or on review, IAF, Tab 32 at 34;
PFR File, Tab 3 at 23, we have considered whether the appellant’s December
2016 OSC complaint could constitute activity protected by 5 U.S.C.
§ 2302(b)(9)(C), which states that it is a prohibited personnel practice to, among
other things, take a personnel action against any employee because of “disclosing
information to . . . the Special Counsel, in accordance with applicable provisions
of law.” In contrast to the provision at subsection 2302(b)(8)(B), which requires
proof of a disclosure to OSC of a reasonable belief of any violation of any law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health of safety to be
protected, section 2302(b)(9)(C) imposes no requirements on the content of the
appellant’s communications with OSC, see, e.g., Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 62 (finding that section
2302(b)(9)(C) covers employee disclosures to OSC regardless of content). We
conclude that the appellant’s December 2016 OSC complaint is protected by
5 U.S.C. § 2302(b)(9)(C).
¶17 We next consider whether the protected activity was a contributing factor in
the removal action. One way of proving that an appellant's prior protected
activity was a contributing factor in a personnel action is the
“knowledge/timing” test. See Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 22 (2013). Under this test, an appellant can establish that
his prior protected activity was a contributing factor in the challenged action by
showing that the deciding official knew of the protected activity and took the
personnel action within a period of time such that a reasonable person could
conclude that the protected activity was a contributing factor in the action. Id.;
See also Alarid v. Department of Army, 122 M.S.P.R. 600, ¶ 13 (2015).
¶18 The appellant asserted below and on review that OSC contacted the agency
as part of its investigation into his December 2016 complaint, and he speculated
that the proposing and deciding officials had knowledge of this complaint. IAF,
11
Tab 32 at 490; PFR File, Tab 3 at 24. He does not cite to, and we are not aware
of, any evidence that the proposing or deciding officials had any actual
knowledge of the December 2016 OSC complaint; his speculatio n on this issue
does not constitute preponderant evidence in this regard.
¶19 However, an appellant may show that his protected activity was a
contributing factor by proving that the official taking the action had constructive
knowledge of the whistleblowing disclosure or activity, even if the official lacked
actual knowledge. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014).
An appellant may establish constructive knowledge by demonstrating that an
individual with actual knowledge of the disclosure or activity influenced the
official accused of taking the retaliatory action. Id.¶20 The Board’s electronic records reflect that the appellant filed an individual
right of action (IRA) appeal in which he specifically identified his
December 2016 OSC complaint as the relevant disclosure, and the appeal was
dismissed for lack of jurisdiction in February 2017. Coy v. Department of the
Treasury, MSPB Docket No. DC-1221-17-0278-W-1, Initial Decision (Feb. 9,
2017). The agency was represented by counsel in the IRA appeal, the proposing
official testified in her deposition that she “worked with the legal office to put
[the September 20, 2017 notice of proposed removal] together,” and the deciding
official likewise testified in her deposition that she worked with the “attorneys”
regarding questions about the notice of proposed removal and the process of
drafting the decision to remove the appellant. IAF, Tab 32 at 93 (deposition
testimony of the proposing official), 264-65, 333 (deposition testimony of the
deciding official). In fact, the deciding official testified in her deposition that the
“attorneys . . . do a first version” of the decision letter, which she then edited. Id.
at 297 (deposition testimony of the deciding official). Based on this evidence, we
find for the purposes of our analysis that, through the agency’s counsel, the
proposing and deciding officials had constructive knowledge of the December
2016 OSC complaint. See, e.g., Cahill v. Merit Systems Protection Board,
12
821 F.3d 1370, 1374 (Fed. Cir. 2016) (stating that “when read with an eye on
likely inferences appropriate to the context, Mr. Cahill’s allegations are
sufficiently specific and plausible to constitute nonfrivolous assertions that at
least one, and perhaps three, of the officials charged with the personnel actions at
issue attended the March 2012 meeting or at least knew what Mr. Cahill disclosed
there.”); Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007)
(finding that the appellant nonfrivolously alleged that his disclosure was a
contributing factor in the agency’s decision to remove him based on his claim that
the agency decision makers either knew of the disclosure via the C hief of Staff or
were influenced by the Chief of Staff who knew of the disclosure). 7
¶21 Having found that the knowledge element is satisfied, we now turn to the
timing element of the knowledge/timing test. The record reflects that the agency
proposed the appellant’s removal on September 20, 2017, and his removal was
effected on April 13, 2018. IAF, Tab 5 at 14, 82. The Board has held that a
personnel action taken within approximately 1 to 2 years of the appellant’s
disclosures satisfies the knowledge/timing test. Mastrullo v. Department of
Labor, 123 M.S.P.R. 110, ¶ 21 (2015). Accordingly, we conclude that the
appellant has satisfied the knowledge/timing test, and therefore he has met his
burden to show that his protected activity was a contributing factor in his
removal.
¶22 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board will consider the following factors: the strength of
the agency’s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
7
Although Cahill and Jessup were individual right of action appeals, and the issue was
whether the appellant had made nonfrivolous allegations of Board jurisdiction, we find
that the principles articulated therein are equally applicable under the circumstances of
this matter.
13
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
¶23 As explained below, the agency’s evidence in support of its action is
generally strong. The misuse of Government property charge requires proof of
unauthorized use. Diaz v. Department of the Army, 56 M.S.P.R. 415, 420 (1993).
The agency’s charge included three specifications alleging that, on March 16,
2017, during a sworn deposition, the appellant stated in pertinent part that he
(1) accessed and downloaded personnel data from an Office of the Comptroller
for Currency (OCC) system to include, among other things, names, titles, band
levels, social security numbers, and service computation dates for 94 employe es
“for [his] own personal use and without authorization”; (2) accessed and
downloaded 80 pages of OCC new hire salary justification rollup information
“for [his] own personal use and without authorization”; and (3) emailed the
information described in specifications 1 and 2 to his personal email account and
stored the information on his personal computer at home, and he was not
authorized to remove OCC personnel information from the OCC, transmit such
information outside of OCC’s networks, or store OCC per sonnel information on
his personal computer. ID at 3; IAF, Tab 5 at 82. The administrative judge did
not specifically evaluate whether the agency proved the specifications and charge
by preponderant evidence; however, in the context of evaluating the app ellant’s
affirmative defenses, the administrative judge stated that she would have
sustained the charge and supporting specifications absent her findings on the due
process and harmful procedural error issues. ID at 15-16.
¶24 In his cross petition for review, the appellant makes the following
arguments: (1) he was authorized to access personnel data and new hire salary
justification rollup information; (2) he did not email the data described in
specifications 1 and 2 to his personal email address or store that information on
his personal computer; and (3) his good-faith attempts to comply with the
14
agency’s discovery demands cannot sustain the agency’s charge. PFR File, Tab 3
at 11-18.
¶25 In his response to the agency’s discovery requests in the USERRA appea l,
the appellant referenced as support for his claim an “OCC New Hire Salary
Justification Excel Export” and a “Salary listing for all OCC employees who[] are
in occupational series 0201, regardless of band level,” and he included as
attachments “OCC New Hire Salary Justification Rollup from Sharepoint.pdf”
and “OCC HC Employee Listing 20170214.pdf.” IAF, Tab 32 at 499 -500, Tab 33
at 150-231, Tab 35 at 72-74. In his deposition in that matter, the appellant was
questioned at length about these documents. IAF, Tab 5 at 124-36 (deposition
testimony of the appellant). In pertinent part, the appellant explained that he had
created the OCC New Hire Salary Justification Excel spreadsheet by “playing
around in the [new hire salary justification SharePoint site,] ” “export[ing] all of
the information into an Excel worksheet,” and adding additional columns of
information, such as “recommended base salary including Geo[sic] pay,” and
“percent increase.” Id. at 124-25 (deposition testimony of the appellant).
Regarding the salary listing chart, the appellant testified that it was a list of all
employees in the agency in the 0201 Human Resources Management
Occupational Series, and the data itself came from the National Finance Center
Reporting Center, which is a database that is accessible to certain Human Capital
employees. Id. at 126-27 (deposition testimony of the appellant).
¶26 Neither party disputes that the appellant was authorized to access and
review generally the personnel data in question as part of his duties. Rather, the
ultimate question presented in specifications one and two is whether the
appellant’s compilation and use of such personnel data for litigation against the
agency was authorized. 8
8
We reject the appellant’s contention that specifications 1 and 2 were “limited to
whether or not Appellant was authorized to access certain data.” PFR File, Tab 3 at 13.
15
¶27 Importantly, the agency’s Appropriate Use of OCC Infor mation Technology
(IT) Manual specifically stated that “[a]uthorized purposes are those for which
OCC IT resources are issued (e.g., job-related tasks) or those functions authorized
in accordance with law or regulation.” 9 IAF, Tab 33 at 136. We have considered,
as described in the attachment to this Manual, that the agency “has a longstanding
practice of allowing employees limited use of government IT equipment . . . for
personal, nongovernmental purposes during non-work time.” Id. at 143. The
agency provided several examples of authorized limited personal use of OCC IT,
including such minor tasks as using a calculator or spreadsheet for personal
finances, composing or printing a résumé or job application, exchanging emails
with friends or family, making internet purchases on a personal charge card, and
checking websites for information on personal interests, weather, job vacancies,
news, or sporting events. Id. The agency also provided examples of unauthorized
personal use, which include using OCC IT to gain unauthorized access to OCC
and other information systems, and creating, downloading, viewing, or storing
sexually explicit, threatening, or harassing material. Id.¶28 The appellant’s decision to compile and use the personnel data as described
above to support his litigation against the agency was not a job-related task nor
was it authorized in accordance with any law or regulation. Moreover, the
appellant’s compilation and use of such information for litigation purposes
against the agency does not align with the authorized limited personal uses
described above. Finally, we have considered the appellant’s argument that his
reference to and production of these documents constituted a good -faith attempt
to comply with the agency’s discovery demands, PFR File, Tab 3 at 17-18, but we
are not persuaded that a different outcome is warranted. The appellant has not
cited, and we are unaware of, any exception to the agency’s authorized use policy
9
The appellant does not contend that he was unaware of this policy or any other
relevant policies.
16
involving discovery requests in an ongoing litigation matter. Fo r these reasons,
we find the evidence in support of specifications 1 and 2 to be strong.
¶29 We now turn to specification 3, which alleged that the appellant testified in
his deposition that he emailed the information described in specifications 1 and 2
to his personal email account and stored the information on his personal computer
at home, but he was not authorized to remove OCC personnel information from
the OCC, transmit such information outside of OCC’s networks, or store OCC
personnel information on his personal computer. IAF, Tab 5 at 82.
¶30 The appellant testified in his March 16, 2017 deposition that he submitted
his response to the agency’s discovery requests, which included the
aforementioned documents, to the agency by email. Id. at 134 (deposition
testimony of the appellant). The appellant explained that he originally sent his
discovery responses to the agency from his “personal email address,” but because
the agency attorney did not receive it, he forwarded the documents to the agency
attorney from his “OCC email [address].” Id. (deposition testimony of the
appellant); IAF, Tab 32 at 499-500. The appellant admitted that he was “at
home” when he sent the documents to the agency attorney from his OCC email
address. IAF, Tab 5 at 134 (deposition testimony of the appellant). The appellant
further testified that the electronic version of the files in question were on his
OCC computer and his home computer. Id. at 135 (deposition testimony of the
appellant). The appellant was asked about how the do cuments ended up on his
home computer, and he answered, “I believe I emailed them to myself.” Id.(deposition testimony of the appellant). Upon further questioning, he indicated
that he “[did not] remember how [he] sent them to [him]self,” but he “believ e[d]
[he] emailed them . . . because [he] [did not] have a thumb drive.” Id. at 136(deposition testimony of the appellant). The appellant further testified that he
“[did not] recall” if he emailed the documents from his OCC email address. Id.(deposition testimony of the appellant). When asked if he emailed any other OCC
documents to his home email address, he acknowledged that he emailed his
17
résumé, but he stated that he did not “believe [that he] emailed any OCC
documents to [him]self.” Id. (deposition testimony of the appellant).
¶31 More than 7 months after his deposition, in his response to the notice of
proposed removal in this matter, the appellant submitted an October 19, 2017
declaration made under penalty of perjury in which he stated that, aft er the
deposition, he “reviewed [his] recently sent email traffic and was unable to locate
any instance of [him] emailing the OCC documents and information referenced in
[the] Notice of Proposed Removal[] to [himself] to either [his] home computer or
[his] personal email address.” 10 IAF, Tab 5 at 54. In sum, the appellant’s
deposition testimony regarding how he obtained and where he stored the
documentation in question is not consistent with his subsequent declaration made
under penalty of perjury. 11
¶32 Even if there was some question as to the accuracy of the appellant’s
original deposition testimony, there is preponderant evidence that the appellant
removed OCC personnel information and transmitted OCC personnel information
10
During the pendency of this removal appeal, the appellant submitted a second
declaration made under penalty of perjury, on March 14, 2019. IAF, Tab 32 at 490-93.
In this second declaration, the appellant largely reiterated the statements m ade in the
first declaration. Id. With respect to the strength of the agency’s evidence, however,
the Board considers the weight of the evidence as it existed before the agency when it
acted. Social Security Administration v. Carr, 78 M.S.P.R. 313, 335 (1998), aff’d,
185 F.3d 1318 (Fed. Cir. 1999). Moreover, to the extent relevant facts are developed on
appeal to the Board that the agency had no prior reason to know, such facts would not
undercut the agency’s otherwise sufficiently clear and convincing evidence that, at the
time of the action, its decision would have been the same in the absence of
whistleblowing. See Yunus v. Department of Veterans Affiars, 84 M.S.P.R. 78, 82, 84,
85 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001). Accordingly, while we consider the
appellant’s first declaration, which was submitted before the agency issued the decision
to remove the appellant, we find that the second declaration is not relevant to our
determination of the strength of the evidence.
11
The appellant declared under penalty of perjury that he was not given an opportunity
to review his deposition testimony, IAF, Tab 5 at 53, and he argues on review that he
was unable to correct or clarify any of his deposition testimony, PFR File, Tab 3
at 15-17. There appears to be some support in the record for this contention. IAF,
Tab 32 at 624. Although we have considered the appellant’s declaration and argument
on review, it does not warrant a different outcome.
18
outside of OCC’s networks. The agency points out that the appellant’s March 15,
2017 email, which he sent to agency counsel from his OCC work account, had
embedded within it a March 14, 2017 email from his personal email account that
included as PDF attachments the documents described in specifications 1 and 2.
IAF, Tab 35 at 52-53. The appellant’s claim in his declaration that he was unable
to locate a personal email in which he sent these documents to himself is not
credible in light of the appellant’s deposition testimony, which was cl oser in time
to the events at issue, and this unrebutted documentary evidence. Accordingly,
we find that it is more likely than not that the appellant removed OCC personnel
information and transmitted the information outside OCC’s networks as charged
by the agency. Thus, we find that specification 3 was also supported by strong
evidence. 12
¶33 In sum, we find that the agency was in possession of strong evidence that
the appellant committed the conduct underlying the charge of misuse of
Government property. 13 In addition, we find that the misconduct was very
12
However, the agency did not clearly show that the appellant stored OCC personnel
information on his personal computer, and the appellant’s statements on this issue are
inconsistent. Thus, the agency’s evidence regarding the portion of specification 3 that
charged the appellant with storing OCC personnel information on his home computer
was relatively weak. IAF, Tab 5 at 82. Nonetheless, overall, the agency’s evidence in
support of this specification was solid. Cf. Taylor v. Department of the Army,
107 M.S.P.R. 638, ¶ 17 & n* (finding no error in sustaining a specification when the
agency proved the essence of the specification); Brown v. U.S. Coast Guard,
10 M.S.P.R. 573, 578 (1982) (sustaining specification 4B because the agency proved by
preponderant evidence the essence of this specification).
13
Specification 3 contained the same allegations in the first and second removal
actions, and the Federal Circuit upheld the administrative judge’s decision to sustain
specification 3 in the second removal action in its entirety. Regardless of whether the
elements of collateral estoppel are met, we decline to apply that doctrine in these
circumstances. See Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988)
(stating that it would not be error to decline to apply collateral estoppel even when its
requirements are met); Hay v. U.S. Postal Service, 103 M.S.P.R. 167, ¶ 9 (2006)
(explaining that the Board may refrain from applying collateral estoppel, even when the
requirements have been met, if its application would result in injustice or compromise
public policy); Tanner v. U.S. Postal Service, 94 M.S.P.R. 417, ¶ 15 (2003) (noting that
19
serious, particularly considering the appellant’s position as Director of
Compensation and Benefits, his access to confidential personnel data, and his
awareness of agency policies regarding the authorized use of such data. ID
at 14-17. Thus, this Carr factor strongly favors the agency.
¶34 Regarding the second Carr factor, the administrative judge found “no
evidence” of a retaliatory motive by any of the managers involved in this action.
ID at 15. We modify the initial decision because, even if the proposing and
deciding officials had no actual knowledge of the OSC complaint in question,
there can still be some motive to retaliate because the appellant’s disclosure
reflects poorly on the agency. See, e.g., Whitmore v. Department of Labor,
680 F.3d 1353, 1370 (Fed. Cir. 2012) (“Those responsible for the agency’s
performance overall may well be motivated to retaliate even if they are not
directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
managers and employees.”). Thus, this factor slightly favors the appellant.
¶35 Regarding the third Carr factor, the deciding official testified in her
deposition that she could not recall any cases involving similar unauthorized
access of OCC information. IAF, Tab 32 at 324 (deposition testimon y of the
deciding official). The record does not contain any other evidence showing
agency treatment of employees who are not whistleblowers but who are otherwise
similarly situated to the appellant.
¶36 The Federal Circuit has stated that Carr “imposes no affirmative burden on
the agency to produce evidence for each of the three factors.” Rickel v.
Department of the Navy, 31 F.4th 1358, 1365 (Fed. Cir. 2022); see also Staley v.
Department of Veterans Affairs, No. 2020-2127, 2021 WL 2965007, at *2 (Fed.
Cir. July 15, 2021) (per curiam). It has further held that “the absence of any
considerations of public economy and private repose that underlie the doctrine of
collateral estoppel must be balanced against the competing interest of fundamental
fairness and due process).
20
evidence relating to Carr factor three can effectively remove that factor from the
analysis,” but that the failure to produce such evidence if it exists “may be at the
agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore, 680 F.3d at 1374-75. Under the circumstances here, in which the
agency addressed this issue but had no evidence to present, we find that this
factor is largely neutral.
¶37 After balancing all of the evidence bearing on the appellant’s claim that the
action was taken in retaliation for her protected activity, we conclude that the
agency has proven by clear and convincing evidence that it would have removed
the appellant absent his December 2016 OSC complaint.
November 30, 2017 OSC Complaint
¶38 The appellant’s November 30, 2017 OSC complaint involved allegations
that the proposed removal was taken in retaliation for his earlier OSC complaint
and his prior USERRA Board appeal. IAF, Tab 1 at 18 -38, Tab 32 at 543-44.
The administrative judge did not specifically address this complain t in the initial
decision. We do so now. For the reasons explained above, we conclude that the
appellant’s November 30, 2017 OSC complaint is also protected by 5 U.S.C.
§ 2302(b)(9)(C). Further, in his supplemental response to the notice of proposed
removal, the appellant specifically advised the deciding official that he filed the
OSC complaint and that the OSC investigation was ongoing, IAF, Tab 5 at 19,
and OSC separately asked the agency’s Enterprise Governance Operations office
to stay the removal pending an investigation, IAF, Tab 32 at 543 -44. The
removal was effected on April 13, 2018, IAF, Tab 5 at 14, which satisfies the
timing element, Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615,
¶ 13, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). As a result, we find that the
appellant has satisfied his burden to prove contributing factor.
¶39 We also find that the agency proved by clear and convincing evidence that
it would have removed the appellant absent his protected activity. As discussed
above, the first Carr factor strongly favors the agency. Our analysis of the
21
second Carr factor, the existence and strength of the motive to retaliate, more
strongly favors the appellant with respect to the November 30, 2017 OSC
complaint because the deciding official was named in the complaint, she knew
about it, and the appellant’s disclosure reflects poorly on her and the agency.
Whitmore, 680 F.3d at 1370. Our analysis of the third Carr factor remains the
same. On balance, however, we conclude that the agency established by clear and
convincing evidence that it would have taken the removal action absent this OSC
complaint.
We remand the appeal for further adjudication of the appellant’s claims of
retaliation for his prior EEO activity and for his prior USERRA appeal.
¶40 In his cross petition for review, the appellant asserts that the administrative
judge erred in finding that the agency did not retaliate against him for his
USERRA appeal, for his OSC complaints, or for his prior EEO activity (alleging
discrimination and retaliation based on disability, veteran status, race, and col or).
PFR File, Tab 3 at 4, 20-26.
¶41 In the initial decision, the administrative judge identified the following
standard to evaluate these claims: the appellant has to prove by preponderant
evidence that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and the protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action; if the appellant meets
this burden, the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected activity. ID at 13-14 (citing Fellhoelter v. Department of Agriculture,
568 F.3d 965 (Fed. Cir. 2009), and Webb v. Department of the Interior,
122 M.S.P.R. 248 (2015)). Notably, however, Fellhoelter and Webb involved
claims of retaliation for whistleblowing disclosures, not retaliation for filing a
USERRA appeal or for prior EEO activity. In fact, the standard identified by the
administrative judge, by its very language, does not include the appellant’s claims
22
of reprisal for filing a USERRA Board appeal 14 or for his prior EEO activity
because neither of them implicate 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
Below, in the order and summary of prehearing conference, the administrative
judge noted that the appellant raised claims of reprisal for his prior USERRA
appeal and for prior EEO activity, but she did not identify any standard for the
former and she utilized an outdated standard for the latter. IAF, Tab 31 at 2-4.
Accordingly, because the administrative judge did not give the appellant proper
notice of his burden to prove these claims, we remand them to the administrative
judge for notice and adjudication.
¶42 We provide the administrative judge and the parties with guidance on
remand for analyzing these claims. Below and in his cross petition for review,
the appellant relied on a standard applied to claims arising under 5 U.S.C.
§ 2302(b)(9)(A)(ii), which makes it a prohibited personnel practice to “take . . .
any personnel action against an employee . . . because of the exercise of any
appeal . . . granted by any law, rule, or regulation . . . other than with regard to
remedying a violation of [section 2302(b)(8)].” IAF, Tab 32 at 29 -33; PFR File,
Tab 3 at 20-23. The appellant has cited to Mattison v. Department of Veterans
Affairs, 123 M.S.P.R. 492, ¶ 8 (2016), for the proposition that to prevail on an
affirmative defense pursuant to 5 U.S.C. § 2302(b)(9)(A)(ii), he must show that
(1) he engaged in protected activity, (2) the accused official knew of the activity,
(3) the adverse action under review could have been retaliation under the
circumstances, and (4) there was a genuine nexus between th e alleged retaliation
and the adverse action. IAF, Tab 32 at 29-30; see PFR File, Tab 3 at 20-23
(analyzing these elements).
14
By the appellant’s own admission, his prior USERRA appeal does not involve
whistleblowing activity. PFR File, Tab 3 at 20-23 (stating that his appeal is protected
by 5 U.S.C. § 2302(b)(9)(A)(ii)).
23
¶43 However, we find that the appellant’s reliance on this standard is
misplaced. 15 In Brasch v. Department of Transportation, 101 M.S.P.R. 145, ¶ 6
(2006), the Board explicitly found that the four-prong test set out above is
inapplicable to claims of retaliation for prior USERRA Board appeals. Instead,
the Board found that the USERRA standard for retaliation claims is set forth in
38 U.S.C. § 4311(b), (c)(2). Id. Consistent with this precedent, on remand, the
administrative judge shall provide the parties with proper notice of the USERRA
provisions for claims of retaliation. 16 Pursuant to 38 U.S.C. § 4311(b), an
employer “may not discriminate against or take any adverse employment action
against any person because such person . . . has taken an action to enforce a
protection afforded any person under this chapter.” If an appellant engages in
protected activity described in section 4311(b), an agency violates this section if
the appellant’s protected activity “is a motivating factor in the employer’s action,
unless the employer can prove that the action would have been taken in the
absence of such person’s [protected activity].” Burroughs v. Department of the
Army, 120 M.S.P.R. 392, ¶ 7 (2013) (citing 38 U.S.C. § 4311(c)(2)).
¶44 Regarding the appellant’s claim of reprisal for prior EEO activity, the
record reflects that this activity involved allegations of reprisal and
15
Importantly, Mattison does not involve a claim of retaliation for a prior USERRA
appeal; rather, it involves Information Security Office and Freedom of Information A ct
appeals. Mattison, 123 M.S.P.R. 492, ¶¶ 7-8.
16
In discussing his affirmative defenses, the appellant noted that he also alleged
discrimination based on “veteran status.” IAF, Tab 32 at 36. Although unclear, we
have considered whether the appellant intended to make a separate USERRA
discrimination claim. Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 16 (2009).
The appellant should clarify on remand whether he intended to raise a USERRA
discrimination claim in this matter, and the administrat ive judge should, if necessary,
provide proper notice of the appellant’s burden to prove such a claim. See, e.g.,
Sheehan v. Department of the Navy, 240 F.3d 1009, 1013-15 (Fed. Cir. 2001) (finding
that, in USERRA actions, an individual must initially show by preponderant evidence
that the individual’s military status was at least a motivating or substantial factor in the
agency action, upon which the agency must prove, also by preponderant evidence, that
the action would have been taken for a valid reason despite the protected status).
24
discrimination based on disability, race, and color. IAF, Tab 32 at 36, 504 -24.
The Board’s analysis of these claims is governed by Pridgen, 2022 MSPB 31,
¶¶ 45-47, which was issued after the initial decision in this matter. On remand,
the administrative judge should provide notice of the parties’ burdens or proof as
to these defenses as set out in Pridgen.
¶45 After the administrative judge provides proper notice of the appellant’s
burdens, she may reopen the record to take evidence only related to these claims.
She should issue a new initial decision that incorporates our findings herein and
her analysis and conclusion regarding these reprisal claims.
We deny the appellant’s petition to enforce interim relief.
¶46 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered by the administrative judge, a petition for review
filed by the agency must be accompanied by a certification that the agency has
complied with the interim relief order, either by providing the interim relief
ordered, or by making a determination that returning the appellant to the place of
employment would cause undue disruption to the work environment. Elder v.
Department of the Air Force, 124 M.S.P.R. 12, ¶ 18 (2016); 5 C.F.R.
§ 1201.116(a). In its petition for review, the agency states that it complied with
the interim relief order, it includes some documentation showing its efforts to
comply with that order, and it advises that the appellant’s presence in the
workplace presented an undue disruption. PFR File, Tab 1 at 26 -30. In the
petition to enforce interim relief, however, the appellant asserts that the agency
did not pay him dating back to September 11, 2019, the date that the initial
decision was issued; rather, he was only paid from October 13 to 26, 2019. PFR
File, Tab 5 at 4-7. In its response, the agency acknowledges that there were some
processing delays associated with the payment, and it provides an ex planation and
timeline for when benefits were restored. PFR File, Tab 6 at 5, 8 -14, 16. In his
reply brief, the appellant argues that the agency did not comply with 5 C.F.R.
§ 1201.183(a)(1). PFR File, Tab 8.
25
¶47 The appellant’s petition for enforcement is denied because the Board’s
regulations do not allow for a petition for enforcement of an interim relief order.
Elder, 124 M.S.P.R. 12, ¶ 20. We may instead consider the appellant’s pleading
as a challenge to the agency’s certification of compliance. Id.; 5 C.F.R.
§ 1201.116(b). However, because we are affirming the administrative judge’s
decision to reverse the removal on due process grounds, the appellant is receiving
a final Board order on the merits in his favor, and the remanded issues have no
effect on the appellant’s entitlement to appropriate relief in this regard, the
agency’s compliance with the interim relief order is now a moot issue. Elder,
124 M.S.P.R. 12, ¶ 20; Cowart v. U.S. Postal Service, 117 M.S.P.R. 572, ¶¶ 6-7
& n.* (2012). To the extent that there remain any issues of agency
noncompliance with this final decision, the appellant may file a petition for
enforcement in accordance with the instructions provided below.
ORDER
¶48 For the reasons discussed above, we affirm the administrative judge’s
decision to reverse the removal on due process grounds. We also affirm as
modified herein her decision that the appellant did not prove his claim of reprisal
for his OSC complaints. We remand the appeal to the Washington Reg ional
Office for proper notice of his burden to prove his claims of reprisal for his prior
USERRA appeal and for prior EEO activity, for reopening of the record limited to
evidence relating to these claims only, and for further adjudication in accordance
with this Remand Order.
¶49 Because we have reversed the appellant’s removal, despite the fact that the
claims of reprisal for his prior USERRA appeal and for his prior EEO activity
must be remanded for further adjudication, we ORDER the agency to cancel the
removal and retroactively restore the appellant, effective April 13, 2018. See
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
26
agency must complete this action no later than 20 days after the date of this
decision.
¶50 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. Because the court upheld the second removal action against the
appellant, which became effective on December 28, 2019, Coy, 43 F.4th at 1340,
the appellant’s entitlement to back pay and other benefits mu st end no later than
December 28, 2019. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carr y out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶51 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶52 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcem ent
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
27
¶53 For agencies whose payroll is administered by eith er the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60–day period set forth above.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment,
Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504-255-4630.