Pamela Longmire v. Nuclear Regulatory Commission ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA LONGMIRE, DOCKET NUMBER
Appellant, DC-0752-20-0460-I-2
v.
NUCLEAR REGULATORY DATE: August 25, 2023
COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Karen J. Malachi and Peggy Jones Golden, Atlanta, Georgia, for the
appellant.
Cathy Scott, Washington, D.C., for the agency.
Garett Dane Henderson and Vinh Hoang, Rockville, Maryland, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s removal decision and granted the appellant’s affirmative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
defenses of disability discrimination based on a failure to accommodate and
harmful procedural error. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify and supplement the administrative judge’s findings regarding the
appellant’s affirmative defenses, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a Project Manager with the agency’s Office
of Nuclear Material Safety and Safeguards. See Longmire v. Nuclear Regulatory
Commission, MSPB Docket No. DC-0752-20-0460-I-1, Initial Appeal File (IAF),
Tab 1 at 1, Tab 7 at 24. By a letter dated January 8, 2020, the agency proposed
the appellant’s removal based on a charge of absence without leave (AWOL),
supported by 33 specifications covering the period from November 12, 2019,
through January 2, 2020. IAF, Tab 1 at 6-10. The appellant provided a written
response to the proposal with supporting documentation. IAF, Tab 7 at 45-62.
After considering the appellant’s response, the deciding official issued a decision
that sustained the AWOL charge and all 33 specifications, removing the appellant
from her position, effective February 21, 2020. IAF, Tab 1 at 17 -22.
3
¶3 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
at 2. She raised affirmative defenses of discrimination on the bas es of disability,
age, and race, and alleged that the agency committed a prohibited personnel
practice and engaged in harmful procedural error by removing her. Id. at 3.
After holding the first 2 days of the requested hearing, the appeal was dismissed
without prejudice to refiling. IAF, Tab 55; see IAF, Tabs 50, 52. The appeal was
subsequently refiled, see Longmire v. Nuclear Regulatory Commission, MSPB
Docket No. DC-0752-20-0460-I-2, Appeal File (I-2 AF), Tab 1, and after a third
hearing day the administrative judge issued an initial decision reversing the
removal action. I-2 AF, Tab 4, Initial Decision (ID). He concluded that the
agency discriminated against the appellant based on a failure to accommodate her
disability when it removed her, and so the agency action could not be sustained.
ID at 3-19; see I-2 AF, Tab 3. The administrative judge also determined that the
agency committed harmful error in the application of its procedures by failing to
comply with its Management Directive and the collective bargaining agreement
(CBA) when it denied the appellant reasonable accommodation. ID at 21-23.
Finally, the administrative judge determined that the appellant failed to prove her
affirmative defenses of disparate treatment disability discrimination and
discrimination based on sex and race. ID at 19-21. Because the agency
committed harmful procedural error and engaged in disability discrimination
based on its failure to accommodate the appellant when it removed her, the
administrative judge reversed the removal action. ID at 1, 23.
¶4 The agency timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The appellant has filed a response in opposition to the petition for
review, and the agency has filed a reply. PFR File, Tabs 3, 5.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge did not err in concluding that the agency discriminated
against the appellant based on its failure to accommodate her disability.
¶5 The administrative judge reversed the removal, finding that it was based on
the agency’s failure to accommodate the appellant’s disability. ID at 3. On
review, the agency argues that the administrative judge incorrectly concluded that
the appellant proved this affirmative defense. PFR File, Tab 1 at 12-18, 23-31.
Specifically, the agency argues that the administrative judge erred by:
(1) neglecting to address how the agency’s failure to accommodate the appellant’s
disability caused the charged misconduct; (2) determining that it failed to engage
in the interactive process; (3) finding that the appellant was a qualified individual
with a disability; and, (4) concluding that the appellant’s request for full-time
telework 2 did not constitute an undue hardship on the agency. Id. at 12-18, 23-31.
Applicable legal standard
¶6 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act, which has incorporated the standards of the
2
The parties refer to the appellant’s request to work from home as a request for
full-time telework, and Article 7 of the CBA, which governs telework, includes a
provision that explicitly covers “Full-Time Telework.” IAF, Tab 24 at 42-43. We note
that the terms “telework” and “remote work” are distinct work arrangements, and are
often improperly used interchangeably. U.S. Office of Personnel Management, 2021
Guide to Telework and Remote Work in the Federal Government at 11 (hereafter “OPM
Guide to Telework and Remote Work in the Federal Government”), available at
https://www.opm.gov/telework/documents-for-telework/2021-guide-to-telework-and-
remote-work.pdf. In practice, telework “is a work arrangement that allows employees
to have regularly scheduled days on which they telework and regularly scheduled days
when they work in their agency worksite.” Id. By contrast, remote work “is an
alternative work arrangement that involves an employee performing their official duties
at an approved alternative worksite away from an agency worksite, without regularly
returning to the agency worksite during each pay period.” Id. at 53. Here, although the
appellant’s request to work from her home full-time appears to fall within the definition
of remote work in the OPM Guide to Telework and Remote Work in the Federal
Government, because the parties considered the appellant’s request as a request for
“full-time telework” under the CBA we will refer to it as telework in this order.
5
Americans with Disabilities Act (ADA) as amended. Haas v. Department of
Homeland Security, 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is
illegal for an employer to “discriminate against a qualified individual on the basis
of disability.” Id.; 42 U.S.C. § 12112(a). A qualified individual with a disability
is one who can “perform the essential functions of the . . . position that such
individual holds or desires” with or without accommodation. Haas, 2022 MSPB
36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m). An agency is
required to provide reasonable accommodation to an otherwise qualified
individual with a disability, unless the agency can show that doing so would
cause an undue hardship on its business operations. 42 U.S.C. § 12112(b)(5);
Haas, 2022 MSPB 36, ¶ 28; Clemens v. Department of the Army, 120 M.S.P.R.
616, ¶ 10 (2014). Reasonable accommodation includes modifications to the
manner in which a position is customarily performed in order to enable a
qualified individual with a disability to perform the essential job functions, or
reassigning the employee to a vacant position whose duties the employee can
perform. Clemens, 120 M.S.P.R. 616, ¶ 10.
¶7 In the initial decision, the administrative judge determined the following:
(1) the appellant was an individual with a disability based on her asthma, chronic
rhinosinusitis, and allergy exacerbation conditions, which substantial ly limit her
ability to breathe; (2) she was a qualified individual with a disability because she
could safely and efficiently perform the essential functions of her position; (3) the
decision to remove her was based on her disability insofar as the agency failed to
engage in the reasonable accommodation interactive process or otherwise attempt
to accommodate her before removing her; and (4) accommodating the appellant
by permitting her to telework would not have caused the agency undue hardship.
ID at 4-19. On review, the agency has not disputed the administrative judge’s
finding that the appellant is an individual with a disability, so we need not
address that finding. We turn now to consider each of the remaining findings.
6
We agree with the administrative judge’s finding that the appellant
was a qualified individual with a disability.
¶8 As previously noted, a qualified individual with a disability is a person who
can perform the essential functions of her position with or without
accommodation. 42 U.S.C. § 12111(8). The Board has indicated that the core
duties of a position are synonymous with the essential functions of a position
under the ADA, as amended, i.e., the fundamental job duties of the position, not
including marginal functions. Haas, 2022 MSPB 36, ¶ 21; Clemens,
120 M.S.P.R. 616, ¶ 6; 29 C.F.R. § 1630.2(n)(1). A job duty may be considered
essential for a number of reasons, including, among other things, because the
reason the position exists is to perform that function, because of the limited
number of employees available among whom the performance of that job function
can be distributed, or because the function is highly specialized so that the
incumbent is hired for his or her expertise or ability to perform the particular
function. Haas, 2022 MSPB 36, ¶ 21; Clemens, 120 M.S.P.R. 616, ¶ 6. In
determining whether a particular function is “essential,” the Board will c onsider a
number of factors, such as the employer’s judgment as to which functions are
essential, written position descriptions, the amount of time spent performing the
function, and the consequences of not requiring the incumbent to perform the
function. Clemens, 120 M.S.P.R. 616, ¶ 6.
¶9 On review, the agency argues that the administrative judge failed to give
adequate deference to agency management’s assessment of the appellant’s
essential job duties, citing precedent from the Equal Employment Opportunity
Commission (EEOC) and Federal appellate courts concerning the substantial
deference given to employers to determine an employee’s essential job duties.
PFR File, Tab 1 at 23-25. The agency also argues that the administrative judge
inappropriately credited the appellant’s testimony concerning her job duties and
failed to acknowledge testimony by comparator employees that the frequency
with which certain job duties are performed varies among the different agency
7
branches. Id. at 26-27. Finally, the agency argues that because there has not
been an assessment of the appellant’s medical status and limitations since
September 2018, it is impossible to determine whether she can perform the
essential functions of her position. PFR File, Tab 1 at 22 -30.
¶10 To the extent the agency is challenging the administrative judge’s decision
to credit the appellant’s testimony concerning the nature of her job duties over
that of her former first-line supervisor, the Board has regularly held that it will
not disturb an administrative judge’s findings when he considered the evidence as
a whole, drew appropriate inferences, and made reason ed conclusions on issues of
credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997);
Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359
(1987). Here, the administrative judge made credibility determinations based on
his observation of each witness’s demeanor at the hearing, and we decline to
disturb those findings on review. See ID at 16-17, n.1 (citing Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987) (identifying the factors
that an administrative judge must consider in making credibility determinations ));
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(concluding that the Board generally must give deference to an administrativ e
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing and may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so).
¶11 Regarding the agency’s specific argument that the administrative judge
failed to consider the testimony of the purported comparators concerning the role
public meetings played in the appellant’s branch, the administrative judge did
identify and discuss testimony from each of the comparators regarding the role
public meetings played in their respective branches. ID at 18-19 (citing Aug. 19,
2020 Hearing Transcript (HT 2) at 190-92, 216, 229-31, (testimony of purported
comparators); I-2 AF, Oct. 23, 2020 Hearing Transcript (HT 3) at 225-26
8
(testimony of purported comparator)). The administrative judge’s decision not to
specifically discuss the testimony from the comparators—none of whom were
assigned to the appellant’s branch—concerning the frequency of public meetings
in the appellant’s branch, does not mean that he did not consider that testimony
and is not a basis for overturning his well-reasoned findings on review. See
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,
¶ 25 (2016) (concluding that the administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-24; Marques v. Department of Health and Human Services, 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶12 Regarding the agency’s assertion that, based on existing EEOC and Federal
appellate court precedent, the administrative judge failed to give adequate
deference to its determination about which of the appellant’s duties were
essential, we disagree. Although the decision cited by the agency held that the
inquiry into the essential functions of an employee’s job should not “second guess
the employer or [] require the employer to lower company standards,” the court
also held that the deference granted to agencies is “not absolute,” and that the
agency’s assessment is one of several factors to be considered in determining
which of the employee’s job functions are essential. PFR File, Tab 1 at 24-25;
Vargas v. DeJoy, 980 F.3d 1184, 1188 (7th Cir. 2020); see Elledge v. Lowe’s
Home Centers, LLC, 979 F.3d 1004, 1009 (4th Cir. 2020) (noting that an
employer’s assessment of an employee’s job duties is entitled to “considerable
deference” from the courts, but also acknowledging that the ADA states that other
factors are also relevant to the question, and that the court’s assessment must
“consult the full range of evidence bearing on the employer’s judgement. . .”);
29 C.F.R. § 1630.2(n)(3) (identifying additional factors to be considered in
determining whether a job duty is “essential,” including whether the position
9
exists to perform the function, whether a limited number of e mployees can
perform the function, and whether the function is highly specialized).
¶13 Based on the appellant’s testimony describing her regular job duties and the
frequency with which she performed them, as well as a review of the appellant’s
position description, the administrative judge determined that the appellant could
perform the essential functions of her position while teleworking. ID at 14-15;
Hearing Compact Disc (HCD) 3 at 138-40 (testimony of appellant); IAF, Tab 26
at 4. He highlighted testimony from the appellant stating that she had not
performed the two contested job functions since 2012 and 2016 respectively, as
well as testimony from the appellant’s former first-line supervisor that did not
indicate that the appellant had any issues completing her job duties while
teleworking. ID at 15-17; see IAF, Aug. 18, 2020 Hearing Transcript (HT 1)
(testimony of appellant’s former first-line supervisor); HT 3 at 123-28 (testimony
of appellant). Contrasting that testimony, the administrative judge cited
testimony from the appellant’s first-line supervisor acknowledging that he was
not aware whether the appellant had ever performed either of the challenged job
functions, and testimony from the agency reasonable accommodation coordinator
(RAC) acknowledging that the essential functions analysis considers the actual
duties the employee performs, not just the generic duties described in an
employee’s position description. ID at 17; HT 1 at 116-17, 125-26 (testimony of
appellant’s first-line supervisor; HT 3 at 61-63). In the absence of “sufficiently
sound” reasons for doing so, we discern no basis upon which to disturb the
administrative judge’s credibility determinations in this regard or to reweigh the
evidence or substitute our assessment of the record evidence for his. Haebe,
288 F.3d at 1302.
¶14 Finally, we find no merit in the agency’s argument that because the
assessment of the appellant’s limitations provided by Federal Occupational
Health (FOH) was sparse or outdated, it was not possible to assess whether she
10
could perform the essential functions of her position. 3 PFR File, Tab 1 at 28-30.
Because we ultimately agree with the administrative judge’s finding that the
agency’s failure to adequately engage in the interactive process is what caused
the failure to accommodate the appellant’s disability, see infra ¶¶ 15-24, to
whatever extent the agency now asserts that it was hindered in its ability to
adequately assess the appellant’s medical limitations, it was the agency’s own
actions that caused the hindrance. Accordingly, we conclude that the
administrative judge properly considered the relevant factors based on the entire
record. We agree that the appellant was a qualified individual with a disability
because she could perform the essential functions of her position with or without
accommodation.
The administrative judge’s finding that the agency failed to
adequately engage in the interactive process is supported by the
record.
¶15 The agency also challenges the administrative judge’s finding that it failed
to engage in the interactive process by failing to properly process the appellant’s
requests for telework. PFR File, Tab 1 at 13-17. Specifically, the agency argues
that it made repeated efforts to engage in the interactive process and ins tead it
was the appellant who failed to engage in the interactive process in good faith.
3
To the extent the agency suggests, for the first time on review, that the appellant’s
traumatic brain injury (TBI) diagnosis affected her ability to complete her job functions
and that an assessment of her limitations is necessary in light of her TBI condition, the
agency did not raise this argument below and we need not consider it on review. PFR
File, Tab 1 at 28-30. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016)
(noting that the Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence); Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980) (same); 5 C.F.R. § 1201.115(d). Additionally,
the record reflects that the agency RAC closed the appellant’s request for reasonable
accommodation in connection with her TBI claim after the appellant failed to provide
supporting medical documentation, and the administrative judge did not rely on the
appellant’s TBI condition as a part of his finding that the agency failed to accommodate
the appellant’s disability. HT 2 at 45-46 (testimony of agency RAC); IAF, Tab 22
at 23-32; see ID at 6, 9-13.
11
Id. As the administrative judge observed, once an employee informs the agency
that she requires an accommodation, the agency must engage in an interactive
process to determine an appropriate accommodation. Kirkland v. Department of
Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013); see Paris v. Department of the
Treasury, 104 M.S.P.R. 331, ¶ 17 (2006) (finding an employee need only let her
employer know in general terms that she needs accommodation for a medical
condition). A request for reasonable accommodation is the first step in the
informal, interactive process between the individual and the employer. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act (EEOC Enforcement Guidance),
Question 5, Notice No. 915.002 (Oct. 17, 2002), available
at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada. “The appropriate reasonable
accommodation is best determined through a flexible, interactive process that
involves both the employer and the individual with a disability. ” 29 C.F.R. part
1630, appendix, § 1630.9. Additionally, courts have generally required both
parties to engage in this process in good faith. See Rehling v. City of Chicago,
207 F.3d 1009, 1015-16 (7th Cir. 2000); Collins v. U.S. Postal Service,
100 M.S.P.R. 332, ¶ 11 (2005). Nevertheless, the failure to engage in the
interactive process alone does not violate the Rehabilitation Act; rather the
appellant must show that this omission resulted in failure to provide reasonable
accommodation. Clemens, 120 M.S.P.R. 616, ¶ 17.
¶16 In the initial decision, the administrative judge relied on testimony from the
agency’s RAC, who testified at length concerning the agency’s reasonable
accommodation process. ID at 10-11 (citing HT 2) (testimony of agency RAC)).
The agency RAC testified that, pursuant to the agency’s reasonable
accommodation policy, the agency should begin processing an employee’s request
for accommodation no later than 5 days after the request is initiated, and the
requesting employee’s supervisor must discuss the request with a Human
12
Resources (HR) representative. The RAC testified that she did not process any
reasonable accommodation requests for the appellant during the period from
September 24, 2019, through January 30, 2020. ID at 10-11. Observing that the
appellant requested full-time telework on several occasions in 2019, including on
September 24, 2019, October 8, 2019, November 6, 2019, and December 30,
2019, the administrative judge concluded that the none of the requests were
forwarded to the RAC as required under the reasonable accommodation policy .
¶17 On review, the agency argues that it engaged in the interactive process in
good faith. It points to the fact that the appellant was provided with an enclosed
office and an air purifier in October 2017, and cites an October 18, 2019 email
from the appellant’s first-line supervisor, asking the appellant whether her current
accommodations were adequate and requesting that she provide approp riate
medical documentation to support her absences. PFR File, Tab 1 at 13-15; see
IAF, Tab 23 at 43-44. The agency notes that the appellant failed to provide the
requested medical documentation when asked and otherwise failed to provide
evidence demonstrating that her prior accommodation of an enclosed office with
an air purifier was not an effective accommodation. PFR File, Tab 1 at 15 -17.
The agency also argues that the administrative judge incorrectly stated that the
appellant’s first-line supervisor proposed her removal 1 week after he received
her accommodation request, noting that the email cited by the administrative
judge had not been addressed to the supervisor. Id. at 16; see ID at 11-12.
¶18 As an initial matter, there is no merit to the agency’s claim that the
administrative judge failed to address that the appellant had been provided an
accommodation for her respiratory condition that was “deemed to be effective by
FOH and the [a]ppellant’s treating physicians,” or alternatively, that there was no
medical evidence demonstrating that the existing accommodation was ineffective .
PFR File, Tab 1 at 14, 16-17. The administrative judge specifically addressed
these claims below, concluding that the identified accommodation, the in-office
air purifier, was “clearly ineffective” based on the “overwhelming evidence” the
13
appellant provided demonstrating that she was unable to work in her office, even
with the offered accommodation. ID at 17. The administrative judge made this
determination based on his review of the evidence as a whole and his observation
of the demeanor of the witnesses testifying at the hearing, and we decline to
disturb those findings on review. See ID at 16-17, n.1 (citing Hillen, 35 M.S.P.R.
at 458); Haebe, 288 F.3d at 1301.
¶19 Additionally, although the document the agency cites from the FOH
physician noted that the in-office purifier “would be a medically reasonable way”
of accommodating the appellant, he also observed that the appellant needed to be
in an “extremely clean office environment” to work effectively and that telework
as an accommodation “would likely be effective as well.” IAF, Tab 22 at 17. In
a later correspondence to the agency RAC regarding the continuing severity and
pervasiveness of the appellant’s condition, the FOH physician noted that the
appellant’s condition was “quite severe” and that if she continued to comp lain of
symptoms even when working in a private office with an air purifier, “she should
be allowed to continue to telework.” Id. at 65. The appellant also provided
additional medical documentation to agency officials dated August 2018 through
January 2020, clearly indicating that her existing accommodations were not
working and that she should not return to the office. IAF, Tab 7 at 50-56; HCD 3
at 36-38 (testimony of the appellant).
¶20 We also find no reason to disturb the administrative judge’s finding that the
agency failed to properly engage in the interactive process. ID at 9-13. The
administrative judge based his determination on the RAC’s failure to process any
of the appellant’s requests between September 24, 2019, and January 30, 2020, as
requests for reasonable accommodation, as well as the first-line supervisor
proposing the appellant’s removal without giving the agency’s telework
14
coordinator adequate time to review the telework request denial. 4 ID at 12.
Similarly, we are not persuaded by the agency’s argument that the appellant’s
first-line supervisor’s request for medical documentation and the appellant’s
failure to provide the requested information constituted clear examples of the
agency’s good faith effort to engage in the interactive process and appellant’s
failure to engage in the interactive process in good faith. PFR File, Tab 1
at 14-15. As the agency RAC testified, after the interactive process was
triggered, it was the RAC’s responsibility to coordinate with the appellant
regarding the request, including requesting any necessary supporting medical
documentation, so the appellant’s failure to provide medical documentation to her
supervisor does not undermine the administrative judge’s finding that the agency
failed to properly engage in the interactive process. 5 PFR File, Tab 1 at 15-16; ID
at 12; HT 2 at 88-89 (testimony of agency RAC).
¶21 Finally, the agency disputes the administrative judge’s finding that the
appellant’s supervisor issued the removal proposal “one week after he received
the [a]ppellant’s [December 30, 2019] request for accommodation.” We agree
with the agency that there is no evidence in the record indicating that the
appellant’s first-line supervisor ever received the December 30, 2019 email, as
the email was not addressed to the supervisor and there is no testimony in the
4
As noted supra footnote 2, the CBA includes a provision governing requests for
“full-time telework” that appears to be applicable to the appellant’s requests to work
from home. IAF, Tab 24 at 42-43 (Article 7.10). Under Article 7.3.5 of the CBA, if an
employee requests a telework arrangement in order to enable her to perform the full
range of her official duties, such a request is a request for reasonable accommodation
that must be submitted to the agency RAC. IAF, Tab 24 at 38. Here, management
officials did not follow this provision, and this failure appears to have caused the
RAC’s failure to engage in the interactive process.
5
Although not addressed in the initial decision, the agency’s reasonable
accommodation procedures specify that the agency must provide an interim
accommodation to allow the employee to perform some or all of the essential fu nctions
of her position while the accommodation request is under consideration, which the
agency also failed to do. IAF, Tab 24 at 145.
15
record concerning him having received it. PFR File, Tab 1 at 16; HT 1 at 163-64
(testimony of appellant’s first-line supervisor). Nevertheless, there is no dispute
that the supervisor became aware of the appellant’s request approximately
2 weeks later, and that the supervisor still failed to provide the information
necessary for the telework coordinator to act on the appellant’s reconsideration
request prior to the removal decision. ID at 11-12; IAF, Tab 25 at 36-44; HT 1
at 163-65. Further, the agency has not disputed the administrative judge’s finding
that agency officials, including the appellant’s first-line supervisor, failed to
properly act on the appellant’s other requests for accommodation during the
period from September 24, 2019, through January 30, 2020. ID at 10-12.
¶22 Accordingly, we find no error in the administrative judge’s determination
that the agency failed to adequately engage in the interactive process by failing to
process any of the appellant’s repeated requests for telework as requests for
reasonable accommodation, and that this failure resulted in the failure to provide
the appellant with reasonable accommodation. ID at 9-13; see Clemens,
120 M.S.P.R. 616, ¶ 17.
The administrative judge did not err by concluding that
accommodating the appellant would not cause the agency undue
hardship.
¶23 The agency also argues that the administrative judge erred by concluding
that accommodating the appellant would not cause the agency undue hardship.
PFR File, Tab 1 at 30-31; see ID at 17-19. Specifically, the agency argues that,
because the appellant failed to engage in the interactive process, the agency was
unable to complete an individualized assessment of appellant’s needs and
restrictions that would serve as the basis for determining an appropriate
accommodation. PFR File, Tab 1 at 30-31.
¶24 As the administrative judge noted, after the appellant requested and was
denied permanent telework through the agency’s ordinary telework policy, the
appellant requested reconsideration of that decision through the telework
16
coordinator on December 30, 2019, noting that her disability prevented her from
working in the office and that her pulmonologist recommended that she telework
indefinitely. IAF, Tab 25 at 29; see ID at 10-11. As a part of the reconsideration
process, the telework coordinator sent a set of questions to both the appellant and
her first-line supervisor concerning the nature of the appellant’s job duties. IAF,
Tab 25 at 33-43; HCD 2 at 154-55 (testimony of agency telework coordinator).
After reviewing the first set of responses from each party, the telework
coordinator sent a follow-up set of questions to the appellant’s supervisor. IAF,
Tab 25 at 40; HCD 2 at 156-59 (testimony of agency telework coordinator). The
appellant’s supervisor did not respond to the follow-up set of questions before the
appellant’s removal was effectuated on February 21, 2020, and so the telework
coordinator was unable to act on the appellant’s reconsideration request prior to
her removal. IAF, Tab 25 at 44-45, 55; HT 2 at 157-58, 177-78 (testimony of
agency telework coordinator).
¶25 In those follow-up questions, the telework coordinator sought clarification
about factors that would have aided the agency in determining whether the
appellant’s requested accommodation would cause the agency an undue hardship,
including the frequency with which the appellant completed the job duties her
supervisor determined were not portable, and potential alternative
accommodations. IAF, Tab 25 at 40; HT 2 at 168-75, 177-79 (testimony of
agency telework coordinator) (noting that questions sent to the appellant’s
supervisor were intended to assist the agency in determining whether and to what
extent the appellant’s full-time telework request would cause an undue burden on
the agency, and to what extent the appellant’s non -portable duties could be
redistributed within the branch without causing disruption to the agency’s
operations).
¶26 The agency bears the burden of production to show that a reasonable
accommodation would impose an undue hardship on the agency. Henry v.
Department of Veterans Affairs, 100 M.S.P.R. 124, ¶ 15 (2005). Because the
17
appellant’s supervisor never provided responses to these follow -up questions and
failed to properly process the appellant’s other requests for reasonable
accommodation, to whatever extent the agency was hindered in its ability to
assess the potential hardship that accommodating the appellant would have had on
the agency’s operations, it was a problem of the agency’s own creation.
Accordingly, we agree with the administrative judge’s finding that the ag ency
failed to show that accommodating the appellant’s disability would impose an
undue hardship on the agency’s operations. Smith v. U.S. Postal Service,
113 M.S.P.R. 1, ¶ 8 (2009) (concluding that the agency failed to meet its burden
of proving that accommodating the appellant would impose an undue hardship) ;
29 C.F.R. § 1630.9(a); see ID at 13, 17-19.
The appellant established that the agency’s action was based on the agency’s
failure to accommodate her disability.
¶27 The agency asserts that the administrative judge treated the appellant’s
disability discrimination claim as the central question in the case, rather than as
an affirmative defense, and “unless the agency’s actions regarding her
accommodation were the cause of her misconduct ,” the agency’s actions should
not excuse it. PFR File, Tab 1 at 12. The agency posits that the appellant was
absent from duty on the days at issue in the AWOL charge, she ignored inquiries
to request leave or otherwise communicate with management, and t he initial
decision failed to address how the agency’s purported failure to provide the
appellant telework as an accommodation excuses her misconduct. Id. at 13.
¶28 An appellant alleging disability discrimination based on a failure to
accommodate must show that the action appealed was “based on” her disability.
Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013). As
noted above, the AWOL charge upon which the agency based its removal action
was supported by 33 specifications covering the period from November 12, 2019,
through January 2, 2020, and the appellant has submitted evidence showing that
existing accommodations had been ineffective and she was unable to physically
18
work in the office during that period due to her disability. Further, the appellant
requested full-time telework on several occasions in 2019, including on
September 24, 2019, October 8, 2019, November 6, 2019, and December 30,
2019, and we have found that the agency failed to respond to these requests as
required by the interactive process. Considering these findings, as well as the
determination that the appellant was able to perform the essential functions of her
position with the accommodation of telework, we find no merit in the agency’s
argument that its failure to accommodate the appellant did not cause the charged
misconduct. To the contrary, we find that the agency’s failure to provide the
appellant with a reasonable accommodation did cause her absences during the
period at issue, and we therefore conclude that the appellant has met her burden
to show that the removal action was based on her disability.
Conclusion
¶29 For the foregoing reasons, we agree with the administrative judge’s
conclusion that the agency discriminated against the appellant based on its failure
to accommodate her disability, and thus the removal decision cannot be sustained.
We affirm the administrative judge’s findings regarding the appellant’s disparate
treatment disability discrimination, race discrimination, and sex discrimination
claims.
¶30 After the initial decision was issued, the Board issued an Opinion and Order
clarifying the standard and methods of proof for disparate treatment
discrimination claims arising under both Title VII and the Rehabilitation Act.
Pridgen, 2022 MSPB 31, ¶¶ 19-25, 35, 40. Having reviewed the relevant portions
of the initial decision, we find that the administrative judge’s analysis was
consistent with Pridgen. ID at 19-21. Because the appellant does not contest the
administrative judge’s findings on her disparate treatment claims, we affirm these
findings on review.
19
To the extent that the appellant previously raised affirmative defenses of reprisal
for requesting reasonable accommodation and discrimination based on age, she
effectively abandoned those claims.
¶31 In her response to the administrative judge’s affirmative defense order, the
appellant identified her affirmative defenses as including, among other things, an
allegation that she was “retaliated against as a result of her disability and request
for accommodation.” IAF, Tab 17 at 8 (emphasis added). This could reasonably
be interpreted as a claim of reprisal for requesting reasonable accommodation.
Nevertheless, the administrative judge did not include this as an issue for
adjudication in the prehearing conference summary nor did he render findings on
this claim in the initial decision. IAF, Tab 31 at 2-3; ID at 3-23.
¶32 Aside from this single apparent reference to reprisal for requesting
reasonable accommodation in her affirmative defense order response, the
appellant, who was represented by an attorney, did not raise this claim in any of
the other pleadings in the record below and did not object to the administrative
judge’s failure to include this as an issue to be determined at hearing, nor does
she identify it on review. PFR File, Tab 3. Applying the relevant factors, we
find that to the extent the appellant previously attempted to raise this affirmative
defense, she effectively abandoned it. See Thurman v. U.S. Postal Service,
2022 MSPB 21, ¶¶ 17-18 (identifying a nonexhaustive list of factors the Board
should consider in assessing whether a previously-raised affirmative defense
claim was abandoned or waived, including the following, among others: (1) the
degree to which the appellant continued to pursue her affirmative defense in the
proceedings below after initially raising it; (2) whether the appellant objected to a
summary of the issues to be decided that failed to include the potential
affirmative defense when she was specifically afforded an opportunity to object
and the consequences of her failure were made clear; (3) whether the appellant
raised her affirmative defense or the administrative judge ’s processing of the
20
affirmative defense claim in her petition for review; and (4) whether the appellant
was represented during the course of her appeal).
¶33 Finally, as previously noted, the appellant also identified discrimination
based on age as one of her affirmative defenses in her initial appeal. IAF, Tab 1
at 3. Although the administrative judge acknowledged that the appellant raised
this claim in her initial appeal, he did not address it in the initial decision. See ID
at 2. After identifying this claim on her initial appeal form, the appellant, who
obtained legal representation soon after filing her appeal, see IAF, Tab 14 at 4,
failed to identify the age discrimination claim in her response to the
administrative judge’s affirmative defense order, see IAF, Tab 17. She also did
not file an objection to the administrative judge’s order summarizing the issues to
be decided in the appeal, to the exclusion of all others, which did not include this
claim. See IAF, Tab 31. Nor did she identify it in any of her prehearing
submissions, see IAF, Tabs 29, 33-38, or address it during the hearing, 6 see IAF,
Tabs 50, 52; I-2 AF, Tab 3. Additionally, she did not raise the administrative
judge’s failure to adjudicate this affirmative defense claim in her response to the
agency’s petition for review. See PFR File, Tab 3. Accordingly, we conclude
that to the extent the appellant attempted to raise an affirmative defense of
discrimination based on age, she effectively abandoned that claim. See Thurman,
2022 MSPB 21, ¶¶ 17-18. 7
6
During testimony from one of the appellant’s purported comparators, the agency
objected to a question concerning the comparator employee’s date of birth and the
administrative judge questioned the relevance of the testimony, asking “[t]his is not an
age discrimination case, is it?”, in response to which the appellant’s attorney agreed to
withdraw the question, supporting our conclusion that this claim was abandoned. See
HT 2 at 182-83 (testimony of appellant’s comparator).
7
An appellant’s harmful procedural error claim is moot when, as here, she is already
entitled to all of the relief she would obtain if she were to prevail on that claim.
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 34. Accordingly, we need not
address the agency’s assertions in its petition for review that the administrative judge
erred in finding that the agency committed harmful procedural errors.
21
ORDER
¶34 We ORDER the agency to CANCEL the removal and to retroactively
restore the appellant and to restore the appellant effective February 21, 2020. See
Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of this
decision.
¶35 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. 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 carry 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.
¶36 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 of the actions it has
taken 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).
¶37 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 enforcement
with the office that issued the initial decision on 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).
¶38 For agencies whose payroll is administered by either 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
22
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.
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 forth 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 TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental ang uish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office t hat
issued the initial decision on your appeal.
23
NOTICE OF APPEAL RIGHTS 8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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).
8
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.
24
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
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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
25
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 secur ity. 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 deliver y 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
26
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. 9 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
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
9
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.
27
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.
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).
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.