Terry Parchman v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY D. PARCHMAN, DOCKET NUMBER
Appellant, SF-0752-18-0669-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 14, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry J. Stein , Esquire, and Rosa M. Koppel , Esquire, Fairfax, Virginia, for
the appellant.
Jennifer Kehe , Esquire, APO, APO/FPO Pacific, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s constructive removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 find that the appellant was not constructively removed based on
misinformation, we AFFIRM the initial decision.
BACKGROUND
The appellant is a retired U.S. Marine Corps major. Initial Appeal File
(IAF), Tab 6 at 34, 75. On February 13, 2016, the agency appointed him to the
excepted service position of Junior Reserve Officer Training Corps (JROTC)
Senior Marine Instructor at Matthew C. Perry High School in Japan. IAF, Tab 6
at 34, Tab 20 at 14. As Senior Marine Instructor, the appellant was responsible
for all aspects of Perry High School’s JROTC program, including classroom
instruction, administrative functions, outreach, and extracurricular activities.
IAF, Tab 6 at 135. He was assisted in his duties by a junior Marine Instructor, a
retired master sergeant. IAF, Tab 4 at 173-74, Tab 6 at 37, 135. The appellant’s
first-level supervisor was the principal of the high school, and his second-level
supervisor was the Marine Corps JROTC Regional Director, stationed in
Quantico, Virginia. IAF, Tab 5 at 16. Around the end of the 2016-2017 school
year, on June 9, 2017, the appellant submitted a letter of resignation, stating that
he was resigning his position effective June 16, 2017, in order to relocate to be
3
with his wife and attend graduate school. IAF, Tab 4 at 105, Tab 6 at 90. The
agency effected the appellant’s resignation accordingly. 2 IAF, Tab 5 at 25.
On October 17, 2017, the appellant filed a formal equal employment
opportunity (EEO) complaint, claiming that his resignation was involuntary
because of intolerable working conditions based on race discrimination and
reprisal for engaging in EEO activity. Id. at 13-15. On May 23, 2018, the agency
issued a final decision finding no discrimination. Id. at 15-23. The appellant
then filed the instant Board appeal, asserting a constructive removal claim based
on intolerable working conditions, and arguing that the agency’s actions were
motivated by race discrimination and retaliation for EEO activity. 3 IAF, Tab 1
at 3, 5. He did not request a hearing. Id. at 2.
After the close of the record, the administrative judge issued an initial
decision finding that the appellant established a constructive removal claim
within the Board’s jurisdiction and reversing the agency’s action. IAF, Tab 21,
Initial Decision (ID) at 1, 6-15, 18. Nevertheless, he found that the appellant
failed to prove his claims of discrimination and retaliation. ID at 15-18.
The agency has filed a petition for review, challenging the administrative
judge’s fact findings and credibility determinations with respect to the
voluntariness of the appellant’s resignation. 4 Petition for Review (PFR) File,
Tab 1. The appellant has filed a response in opposition to the petition for review,
2
The administrative judge found that, at the time of his resignation, the appellant was
an employee with chapter 75 appeal rights under 5 U.S.C. § 7511(a)(1)(B)(1). IAF,
Tab 17 at 1. This finding is supported by the record, IAF, Tab 5 at 25, Tab 20 at 14,
and the agency does not dispute it.
3
There was a question regarding the timeliness of the appeal. IAF, Tab 1 at 3, Tab 7;
see 5 C.F.R. § 1201.154(b). The administrative judge ultimately found that the appeal
was untimely by 1 day, but he waived the filing deadline for good cause shown. IAF,
Tab 21 at 3-6; see 5 C.F.R. § 1201.22(c). The agency has not challenged the
administrative judge’s analysis of this issue, and we see no reason to disturb it.
4
The administrative judge ordered interim relief in this appeal. ID at 19-20. The
agency has certified compliance with the interim relief order as required by 5 C.F.R.
§ 1201.116(a), and the appellant has not challenged the agency’s certification.
4
and the agency has filed a reply to the appellant’s response. PFR File, Tabs 5, 8.
The appellant has also moved for leave to file additional evidence concerning an
EEO complaint filed by the Perry High School assistant principal. PFR File,
Tab 6. The agency opposes the appellant’s motion. PFR File, Tab 9.
ANALYSIS
Employee-initiated actions are presumed to be voluntary, and the Board
lacks jurisdiction over voluntary actions. Polen v. Department of Defense,
72 M.S.P.R. 1, 5 (1996). However, employee-initiated actions that appear
voluntary on their face are not always so, and the Board may have jurisdiction
over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions.
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 7 (2013). All constructive
adverse actions have two things in common: (1) the employee lacked a
meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
deprived the employee of that choice. Assuming that the jurisdictional
requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things
is sufficient to establish Board jurisdiction. Id., ¶ 8.
In this case, the administrative judge found that the appellant’s resignation
was involuntary for two independent reasons, namely the appellant’s assistant
Marine Instructor created intolerable working conditions that the agency refused
to correct, and the principal’s secretary misinformed the appellant that he could
not go on leave without pay (LWOP) to attend graduate school and move in with
his wife. ID at 6-15. Intolerable working conditions and misinformation are two
recognized bases for finding a constructive adverse action. Salazar v.
Department of the Army, 115 M.S.P.R. 296, ¶ 12 (2010); Heining v. General
Services Administration, 68 M.S.P.R. 513, 520 (1995). We address both theories
of the case, beginning with intolerable working conditions.
In his initial decision, the administrative judge found that, throughout the
appellant’s tenure as Senior Marine Instructor, the assistant Marine Instructor
5
rendered his working conditions intolerable, and the agency failed to remedy the
situation despite the appellant’s requests. ID at 7-13. He found that both the
principal and the Regional Director notified the appellant that he would be fired
and not recertified if he and the Marine Instructor could not resolve their
differences without management assistance. Id. After receiving a performance
appraisal that contained a negative remark about his relationship with the Marine
Instructor, the appellant informed the principal of his intent to resign, and he felt
that the principal then hurried him to tender his resignation. ID at 9; IAF, Tab 20
at 83-84. The appellant acknowledged that his resignation letter did not mention
intolerable working conditions, but he stated that this was because his union
representative advised him against it. ID at 9-10. In addition to the appellant’s
account of things, the administrative judge considered declarations and other
statements from the Marine Instructor, the principal, the assistant principal, and
the Regional Director, all of which corroborated the appellant’s account to
varying degrees. ID at 10-12.
Considering the evidence as a whole, the administrative judge found that
the appellant’s working conditions were so difficult that a reasonable person in
his position would have felt compelled to resign. ID at 12. He further found that
the principal failed to address the situation adequately because he sought to
discipline both the Marine Instructor and the appellant even though he failed to
identify anything that the appellant did wrong. ID at 13.
On petition for review, the agency contests the administrative judge’s
analysis on several fronts, beginning with his credibility determinations. PFR
File, Tab 1 at 13-18. We have considered the agency’s arguments, but in light of
the factors set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987), we find insufficient basis to discount any of the material statements
made by the appellant, the assistant principal, or the Regional Director. In any
event, witness credibility is not a major issue in this case. Having reviewed the
appellant’s notes, the witness declarations, and the EEO interview summaries, we
6
find that the factual statements from all of the witnesses are generally consistent
with one another. IAF, Tab 4 at 43-46, 162-85, Tab 6 at 81-90. The most notable
exception is the Marine Instructor, who acknowledged his difficult relationship
with the appellant but downplayed its seriousness and contended that these
difficulties were the appellant’s fault. IAF, Tab 4 at 45, 173-75. However, we
find that the weight of the evidence shows that the Marine Instructor was chiefly,
if not solely, to blame for these problems; all of the other witnesses agreed that
the appellant was supposed to be in charge, but that the Marine Instructor refused
to defer to him and refused to work on making the situation better. 5 Id. at 44-46.
Turning to the agency’s arguments about the merits of the case, it argues
that the principal did, in fact, take steps to address the appellant’s concerns about
his relationship with the Marine Instructor. PFR File, Tab 1 at 18-19, 23. We
agree. The record shows that the principal met with or attempted to meet several
times with the appellant and the Marine Instructor to work on their professional
relationship. IAF, Tab 6 at 85, 88-89. However, the record also shows that these
meetings were ineffective. The first meeting occurred on September 30, 2016,
between the appellant, the principal, the assistant principal, and the Marine
Instructor. Id. at 85. The meeting was tense, but the appellant and the Marine
Instructor had lunch together and talked cooperatively afterwards. Id. This
cooperation did not last, and on January 26, 2017, the principal called another
meeting between himself, the appellant, the Marine Instructor, and a union
representative. Id. at 88. The Marine Instructor failed to appear at the meeting,
and the principal appeared to be “agitated” by this, but there is no indication that
he did anything about it. Id. Instead, he informed the appellant that both his and
the Marine Instructor’s jobs were on the line if they could not figure out how to
get along. Id. The next meeting was scheduled for February 13, 2017, between
the principal, the appellant, the union representative, the Marine Instructor, and
5
The principal opined that the appellant and the Marine Instructor were equally
culpable for their contentious relationship, but he offered no factual basis to support his
opinion. IAF, Tab 4 at 168.
7
the Regional Director. Id. The Marine Instructor again failed to appear, stating
that he desired legal representation. 6 Id. There is no evidence that either the
principal or the Regional Director did anything to address this act of
insubordination. Finally, there was a meeting on March 22, 2017, between the
principal, the assistant principal, the appellant, the Marine Instructor, and a union
representative. Id. at 89. It is not exactly clear what transpired at the meeting,
but the record shows that the appellant and the Marine Instructor got along and
communicated well for at least the next couple of days. Id. The agency attempts
to put a positive spin on this series of meetings, PFR File, Tab 1 at 18-19, but we
find that they highlight the principal’s failure to take decisive action to improve
the appellant’s working conditions.
The agency also faults the administrative judge for considering in his
voluntariness analysis the appellant’s June 15 and 16, 2017 meetings with the
principal concerning his annual performance appraisal because these matters
occurred after the appellant tendered his resignation on June 9, 2017. PFR File,
Tab 1 at 20; ID at 9. We disagree. Although the appellant tendered his
resignation letter on June 9, 2017, he specified that his final day of work would
be June 16, 2017. IAF, Tab 4 at 105. It is well settled that, absent a “valid
reason” such as detrimental reliance by the agency, an employee may withdraw
his resignation at any time up until its effective date. Gibson-Meyers v. Veterans
Administration, 13 M.S.P.R. 363, 364 (1982); 5 C.F.R. § 715.202(b). Therefore,
6
The appellant was covered by a collective bargaining agreement, so it seems likely
that the Marine Instructor was as well. IAF, Tab 5 at 11. Nevertheless, there is no
indication that this meeting was investigatory in nature, and it therefore does not appear
that the Marine Instructor would have been entitled to union representation under
5 U.S.C. § 7114(a)(2)(B). The right of representation arises when a significant purpose
of the interview is to obtain facts to support disciplinary action that is probable or that
is being seriously considered. When a meeting is nothing more than a pure counseling
session and remedial in nature, without the requisite investigatory element, it does not
qualify as an “examination of an employee . . . in connection with an investigation.”
U.S. Department of the Treasury, Internal Revenue Service , 8 FLRA 324, 330 (1982).
Moreover, it appears that there was, in fact, an appropriate union representative present
at the meeting. IAF, Tab 6 at 88.
8
although the appellant tendered his resignation on June 9, he presumably could
have changed his mind had the performance meetings of June 15 and 16 gone
differently. However, these meetings only confirmed to the appellant that the
principal continued to blame him for his problems with the Marine Instructor.
IAF, Tab 20 at 83-84.
Regarding the appellant’s working conditions themselves, the agency
argues that they were not so difficult that a reasonable person in his position
would have felt compelled to resign. PFR File, Tab 1 at 20-23. In this regard, it
argues that the appellant’s relationship with the Marine Instructor had actually
improved by the time of his resignation. It asserts that the last negative
interaction recorded in the appellant’s notes was on January 25, 2017, which was
nearly 5 months before the appellant resigned. PFR File, Tab 1 at 23; IAF, Tab 6
at 88. This is inaccurate. Entries from January 26, February 13, March 15, and
March 20, 2017, reflect further negative interactions with the Marine Instructor.
IAF, Tab 4 at 88. Furthermore, it appears that other ongoing issues continued
throughout the relevant time period unabated. Id. at 45. It does appear that the
appellant’s relationship with the Marine Instructor became less volatile after
January 2017, and we agree with the agency that this might tend to undercut the
appellant’s allegations of involuntary resignation in June. See Miller v.
Department of Defense, 85 M.S.P.R. 310, ¶ 10 (2000) (finding that circumstances
immediately prior to the date of the resignation are most relevant in determining
the issue of voluntariness). Nevertheless, the Board takes a totality of the
circumstances approach to this issue, Lentz v. Merit Systems Protection Board,
876 F.3d 1380, 1384-86 (2017), and under the particular circumstances of this
case, we find it appropriate to consider the fact that the end of the school year
was a more suitable time for the appellant to tender his resignation than at the
height of his contention with the Marine Instructor several months prior, see
Heining, 68 M.S.P.R. at 521 (finding that the issue of whether a resignation was
involuntary depends on the circumstances of each individual case). We will not
9
penalize the appellant for persevering to see through his commitment for the
2016-2017 school year. Moreover, the record shows that immediately prior to his
resignation, the appellant received confirmation from both the principal and the
Regional Director that they would not support him in asserting his leadership role
the following year. IAF, Tab 4 at 46, Tab 6 at 89-90, Tab 20 at 83. Considering
the totality of the circumstances, we find that the timing of the appellant’s
resignation is consistent with his claim of involuntariness.
The agency further argues that the appellant’s working conditions, although
perhaps unpleasant, were not so difficult that a reasonable person in his position
would have felt compelled to resign. It argues that the appellant and the Marine
Instructor had “issues” working with one another, but the incidents cited by the
administrative judge do not constitute intolerable working conditions under an
objective standard. PFR File, Tab 1 at 21; see Staats v U.S. Postal Service,
99 F.3d 1120, 1124 (Fed. Cir. 1996) (“The test for involuntariness is objective.”).
We disagree. The record in this appeal is clear that, as the Senior Marine
Instructor, the appellant was in charge of the Perry High School JROTC program,
and the Marine Instructor was supposed to work for him. IAF, Tab 4 at 43, 46,
143. Although the record is insufficient for us to determine whether the appellant
could be considered the Marine Instructor’s “supervisor” as that term is
commonly used, see generally 5 U.S.C. § 7103(a)(10) (defining the term
“supervisor” for purposes of the Federal Labor Relations Act), it is undisputed
that the appellant was responsible for taking the lead in JROTC matters. IAF,
Tab 4 at 143. But it does not appear that the appellant had any actual authority to
discipline the Marine Instructor; had he any such authority, we have little doubt
that he would have exercised it. Rather, we find that the appellant was in the
untenable position of having to depend on his own superiors, who were entirely
indifferent to the appellant and his leadership responsibilities, to exert the
authority necessary to bring the Marine Instructor into line. Rather than backing
the appellant up in any meaningful way, they sought to discipline him for his
10
“inability to get along” with a subordinate who bucked his authority at every turn.
IAF, Tab 4 at 44, 46, 168.
The Board has long stressed the importance that proper respect and
deference to supervisors has in the Federal workplace:
Insolent disrespect toward supervisors so seriously undermines
the capacity of management to maintain employee efficiency and
discipline that no agency should be expected to exercise
forbearance for such conduct more than once. To expect
management to tolerate appellant’s repeated insolent behavior
would make a mockery of management’s authority and
supervisory responsibility; few other types of misconduct go so
directly to the heart of maintaining the “efficiency of the service.”
Jefferson v. Veterans Administration, 6 M.S.P.R. 348, 352 (1981). Clearly
though, the agency in this case expected the appellant to tolerate the Marine
Instructor’s insolent disrespect and insubordination indefinitely. The appellant
himself was powerless to do anything about it, and the only individuals who
could do anything about it did not want to be bothered, to the point where the
principal threatened to terminate the appellant if he continued seeking help from
him, and the Regional Director recommended that both the appellant and the
Marine Instructor be “let go” and decertified without differentiation. 7 IAF, Tab 4
at 44, 46, Tab 6 at 89. It bears repeating that the agency failed to identify
anything that the appellant did that would warrant discipline. ID at 13. In sum,
the appellant was attempting to manage a JROTC program and maintain a military
bearing and air of authority while being actively undermined in front of the
students, parents, and staff by the Marine Instructor who was supposed to be there
to help him. We do not see how the appellant could possibly be expected to
7
We acknowledge that the appellant may not have sought all potential forms of redress
before resigning. For example, it appears that he could have but declined to file a
grievance. IAF, Tab 5 at 11. However, considering the appellant’s lack of employee
status during most of the period at issue, along with the principal’s threats to fire him if
he did not address his working conditions on his own, we find that it would still not
have been unreasonable for the appellant to conclude that resignation was the only
realistic alternative to his intolerable working conditions. See Heining v. General
Services Administration, 61 M.S.P.R. 539, 554 (1994).
11
perform under these conditions. We find that, this appeal is more akin to Bates v.
Department of Justice, 70 M.S.P.R. 659, 667-71 (2000), in which the Board found
that the appellant’s resignation was involuntary because she was receiving daily
harassment that directly interfered with her ability to do her job.
The agency also argues that the real reason for the appellant’s resignation
was his desire to relocate and be with his wife. PFR File, Tab 1 at 23-24, 26. In
support of its argument, the agency cites various documents from June 2017, in
which the appellant stated that he was resigning to relocate with his wife. PFR
File, Tab 1 at 23-24; IAF, Tab 4 at 105, 111, 147, 151-52. However, this
evidence must be weighed against the appellant’s discussion with the Regional
Director in May 2017, that his working conditions were bad and he was ready to
resign if nothing was done about the Marine Instructor, as well as an email that
the appellant sent to the Regional Director in June 2017, stating that his working
conditions had made continued employment intolerable. IAF, Tab 4 at 46, 184.
The appellant attributes this conflicting evidence to advice that he received not to
end his employment amid a flurry of complaints. IAF, Tab 4 at 163, Tab 16. We
find that the appellant’s explanation is entirely plausible, and that the agency has
not offered a more plausible explanation to resolve this discrepancy. We
therefore credit the appellant’s statement that he resigned due to his working
conditions and not due to his desire to relocate. The fact that an employee makes
plans for the future before resigning his position does not rebut his statements
about the reasons for his resignation. See Bates, 70 M.S.P.R. at 671.
For the reasons discussed above, we agree with the administrative judge
that the appellant proved by preponderant evidence that he lacked a meaningful
choice in his resignation and that it was the agency’s wrongful actions that
deprived him of that choice. See Bean, 120 M.S.P.R. 397, ¶ 8. The appellant’s
working conditions were intolerable, and the agency knew about them but did
nothing to help. See Peoples v. Department of the Navy, 83 M.S.P.R. 216, ¶¶ 7-8
(1999). Worse than that, the agency threatened to separate the appellant from
12
service if he continued to seek help rather than resolve the problem on his own,
which as a practical matter he lacked the authority to do. We therefore agree with
the administrative judge that the appellant was constructively removed as a result
of intolerable working conditions. ID at 6-13.
We disagree, however, with the administrative judge’s alternative finding
that the appellant’s resignation was involuntary due to misinformation. ID
at 13-15. A resignation may be tantamount to a constructive removal if the
agency made misleading statements upon which the employee reasonably relied to
his detriment. Scharf v. Department of the Air Force, 710 F.2d 1572, 1574-75
(Fed. Cir. 1983). In this case, the administrative judge found, and it appears to be
undisputed, that the appellant approached the principal’s secretary to inquire
about the possibility of taking LWOP to accompany his civilian employee spouse
and attend graduate school, but the secretary told him that he was not entitled to
LWOP. ID at 13-14; IAF, Tab 4 at 98, 163. It also appears to be undisputed that
the secretary’s advice was incorrect; Department of Defense Dependents Schools
Regulation 5630.4 specifically provides that extended LWOP may be granted, at
management’s discretion, both for education and for accompanying a Government
employee spouse to a new duty location. ID at 14; IAF, Tab 20 at 77. Finally, it
appears to be undisputed that the appellant would have taken extended LWOP
rather than resign had the secretary not told him that he was ineligible for
LWOP. 8 ID at 14-15.
Nevertheless, the agency argues that the appellant’s reliance on the
secretary’s advice was not reasonable. PFR File, Tab 1 at 25-26. We agree. See
Lovings v. Department of the Army, 28 M.S.P.R. 5, 6 (1984) (finding that the
appellant’s reliance on her supervisor’s advice to accept a demotion and
8
We do not purport to find that the appellant would have been granted LWOP had he
requested it through proper channels. Extended LWOP for the reasons that the
appellant was seeking it is at management’s discretion. IAF, Tab 20 at 77. However,
under the facts of this case, whether management would have granted the appellant’s
request is immaterial to whether the agency constructively removed him through
misleading information.
13
challenge it later was unreasonable under the circumstances). The appellant knew
or should have known that the principal’s secretary was not his supervisor or
manager, and that she was not responsible for acting on his leave requests. A
reasonable person in his position would not have accepted the secretary’s
unsubstantiated opinion as the final word on the matter but would instead have
directed his inquiries to his supervisors or to a human resources official.
The appellant argues on review that, for various reasons, he acted
reasonably by accepting the secretary’s word that he was ineligible for LWOP.
PFR File, Tab 5 at 19-20. We have considered the appellant’s arguments, but we
find no evidence that the principal’s secretary was authorized to act on leave
requests, or that the appellant was prevented from communicating directly with
the principal or some other official who had such authority. The appellant has
moved for leave to submit an agency final decision in the assistant principal’s
EEO case for the purpose of showing that that the principal communicated
through the secretary, particularly with regard to administrative matters. PFR
File, Tab 6. Having reviewed the appellant’s proffer, we deny the motion. Even
assuming that this evidence was previously unavailable despite the appellant’s
due diligence, we find that it would not be material to the outcome of the appeal.
The fact that the principal frequently communicated through his secretary does
not establish that the appellant’s reliance on her mistaken advice was reasonable.
Nevertheless, despite the appellant’s failure to prove constructive removal
based on misinformation, he still proved constructive removal based on
intolerable working conditions. Supra pp. 11-12. This action must be reversed
for lack of due process. See Drummonds v. Department of Veterans Affairs,
58 M.S.P.R. 579, 584-85 (1993). Because the appellant has not challenged the
administrative judge’s analysis of his discrimination and reprisal claims, we will
not revisit them here. See 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely filed petition or cross petition for
review.”).
14
ORDER
We ORDER the agency to cancel the appellant’s resignation and to restore
the appellant effective June 16, 2017. 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.
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.
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).
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).
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
necessary to process payments and adjustments resulting from a Board decision
15
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 OF APPEAL RIGHTS 9
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
9
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.
16
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
17
(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
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 10 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).
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
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.