Deborah A Perlick v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH A. PERLICK, DOCKET NUMBER
Appellant, NY-1221-19-0052-X-1
v.
DEPARTMENT OF VETERANS DATE: August 2, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert B. Stulberg , Esquire, New York City, New York, for the appellant.
Mark E Frassinelli , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
This case is before the Board pursuant to a January 12, 2022 compliance
initial decision in which the administrative judge found the agency in partial
noncompliance with the Board’s final decision in the underlying appeal. Perlick
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
v. Department of Veterans Affairs, MSPB Docket No. NY-1221-19-0052-C-1,
Compliance File, Tab 6, Compliance Initial Decision (CID); Perlick v.
Department of Veterans Affairs, MSPB Docket No. NY-1221- 19-0052-W-2,
Appeal File, Tab 18, Initial Decision (ID). For the reasons stated below, we find
the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On January 12, 2022, the administrative judge issued a compliance initial
decision finding the agency in partial noncompliance with the Board’s December
23, 2020 final decision in the underlying appeal. CID. The administrative judge
held that the agency had failed to pay the appellant all the back pay and interest
to which she was entitled; had not adjusted the appellant’s benefits with
appropriate credits and deductions in accordance with the Office of Personnel
Management’s regulations; and had not informed the appellant in writing of all
the actions the agency had taken to comply with the Board’s order and the date on
which the agency believed it had fully complied. Id. at 3-4. Specifically, the
administrative judge found that while the agency had paid the appellant
$48,716.66, representing back pay for the period between November 3, 2017, and
June 6, 2018, it still owed the appellant back pay from June 7, 2018, through
March 31, 2020. See id. at 2 n.2, 3-5; ID at 16.
The administrative judge ordered the agency to “[p]ay appellant . . . for the
appropriate amount of back pay, with interest, through March 31, 2020, minus . . .
[]$48,716.66[,] and to adjust her benefits with appropriate credits and deductions
(among these a credit of $11,359.44 in Thrift Savings Plan deductions and
$1,668.72 in health insurance for the back pay period).” Id. at 5. The
administrative judge further ordered the agency to “[i]nform appellant in writing
of all actions taken to comply with the Board’s Order and the date on which it
believes it has fully complied.” Id.3
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the compliance actions required by the decision,
it must submit to the Office of the Clerk of the Board, within the time limit for
filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had
taken the actions identified in the compliance initial decision, along with
evidence establishing that it had taken those actions. CID at 5-6; 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
February 16, 2022, the date on which the findings of noncompliance would
become final unless a petition for review was filed. CID at 6-7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for
review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance.
On February 17, 2022, the Office of the Clerk of the Board issued an
acknowledgment order in the instant proceeding advising the parties that the
petition for enforcement had been referred to the Board for a final decision and
ordering the agency to submit evidence of compliance within 15 calendar days.
Perlick v. Department of Veterans Affairs , MSPB Docket No. NY-1221-19-0052-
X-1, Compliance Referral File (CRF), Tab 1 at 3. On March 2, 2022, the agency
filed its response, asserting that it had taken certain personnel actions to
effectuate the back pay payment to the appellant, although the appellant had not
yet received the back pay, and submitting documentation of those personnel
actions and a remedy ticket for the Defense Finance and Accounting Service
(DFAS) requesting DFAS process the back pay payment. CRF, Tab 2. The
agency argued that it had fully complied with the Board’s Order. Id. at 4-5.
On March 22, 2022, the appellant responded to the agency’s statement of
compliance and alleged that she had not received the payments she was owed,
4
other than a check for $1,668.72, to compensate her for improper health insurance
deductions. CRF, Tab 3 at 2. The appellant further noted that the agency still
had not provided a detailed narrative explaining how its evidence of compliance
satisfied the requirements of the compliance initial decision. Id. at 15-16.
On June 21, 2022, the Clerk of the Board issued an order directing the
agency to respond to the appellant’s challenges to its compliance submission.
CRF, Tab 4 at 5. The Clerk further directed the agency to “identify, by name and
address, the agency official charged with complying with the Board’s order and
provide evidence that it has informed such official in writing of the potential
sanction for noncompliance . . . even if the agency asserts that it has fully
complied with the Board’s order.” Id.On June 30, 2022, the agency responded to the June 21, 2022 Order. In its
response, the agency stated that on May 9, 2022, the agency received notice of
certified delivery to the appellant of a check in the amount of $174,302.28. CRF,
Tab 5 at 5, 81-82. The agency also re-submitted the same summary of personnel
actions, SF-50s, and DFAS remedy ticket it attached to its March 2022 filing.
See id. at 9-40.
On July 20, 2022, the appellant submitted a reply, noting that she had
received the certified check in the amount of $174,302.28, but contending that the
agency still had not provided her with a detailed, clear explanation of the
calculations of the amounts due. CRF, Tab 6 at 7, 9-10. Instead, the agency had
provided the appellant Excel spreadsheets from DFAS that appeared to state the
amounts due to her, but without an explanation of the codes and abbreviations
used in the spreadsheets. Id. at 9-10. The appellant further argued that the
agency had not carried its burden of proving compliance due to its failure to
explain its calculations and had failed to identify the agency official charged with
compliance. Id. at 10. The appellant requested an award of monetary sanctions
and leave to file a claim for attorney fees and costs. Id. at 11.
5
On September 27, 2022, the Board issued an order finding the agency
noncompliant and directing it to:
(1) clearly set forth the gross amount due the appellant and show
how that amount was determined; (2) clearly set forth the amount
and reason for all deductions, reductions, and offsets from the gross
amount due the appellant; (3) clearly set forth the source and amount
of all checks or electronic payments already received by the
appellant and provide evidence that such checks or electronic
payments were received; and (4) clearly set forth the amount of
interest due the appellant and how that amount was calculated. The
agency must also clearly set forth its calculations relating to the
appellant’s sick and annual leave balances, her Thrift Savings Plan
account (including both the appellant’s and the agency’s
contributions), and any other benefits of employment the appellant
should have received but for the agency’s unwarranted personnel
action.
CRF, Tab 7 at 8. The Board also directed the agency to provide “a narrative
explanation of its calculations . . . [and] an explanation of all codes and
abbreviations used.” Id.On October 17, 2022, the agency filed its response to the Board’s order,
submitting several attachments, including a statement from E.J., a supervisor at
DFAS, describing the back pay calculations; a “detailed narrative of retro back
pay” from A.M., a payroll supervisor from the agency, which explained the
contents of the back pay settlement spreadsheets, including annual leave lump
sum calculations; a DFAS Back Pay Audit, which included interest calculations;
summaries of payment; and an October 17, 2022 email from the agency to
appellant’s counsel detailing the actions it had taken to comply. CRF, Tab 9, at
8-78.
The appellant replied on October 27, 2022, arguing that the agency was
still not in compliance, asserting that the agency had failed to adequately explain
the appellant’s sick and annual leave balances and its interest calculations, and
had not provided adequate evidence that its back pay payments were received.
CRF, Tab 10 at 4-5.
6
On January 31, 2024, the agency submitted additional evidence of
compliance, which consisted of tables calculating the appellant’s sick and annual
leave balances. CRF, Tab 11 at 4-13.
On January 31, 2024, the appellant filed a response noting that the agency’s
submission was unsworn, that the 2020 annual leave calculation in the agency’s
January 31, 2024 submission was less by five hours than the original leave
calculation in its October 17, 2022 submission, and that the agency did not
address the appellant’s previous contentions in its October 27, 2022 response.
CRF, Tab 13 at 10.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
In this case, the compliance initial decision ordered the agency to pay the
appellant the correct amount of back pay and interest on the back pay, and to
adjust her benefits with appropriate credits and deductions. CID at 5. In its
October 17, 2022 submission, the agency submitted a DFAS Audit, which
consisted of spreadsheets documenting the amount of back pay owed to the
appellant for each year from 2017-2020; the DFAS Summary of Payment, which
set forth the amount of back pay and deductions in each back pay installments;
Back Pay Computation Summary Reports for two back pay installments, which
detailed the interest rate and total accrued interest for each pay period; a
spreadsheet setting out deductions per pay period; and narrative explanations of
7
the DFAS Back Pay Audit from E.J., of DFAS, and from A.M., the Payroll
Supervisor at the James J. Peter Bronx VA Medical Center. CRF, Tab 9.
In her October 27, 2022 response, the appellant argued that the agency had
not:
provided information concerning how it derived the inputs used to
generate those [interest calculator] tables, including the following
inputs: (i) the applicable interest rates; (ii) the number of days in
each pay period; (iii) the number of days between the end of a pay
period and when paychecks are issued; (iv) when the first day of the
pay period was for each period during which back pay was payable;
and (v) the day on which back pay ceased accruing interest.
CRF, Tab 10 at 5. However, the number of days in a pay period, the number of
days between the end of the pay period and when paychecks are issued, and the
date of the first day of each pay period are standard numbers, and, in addition, the
information in the spreadsheets provided by the agency is consistent with the
information regarding pay periods provided in the Back Pay Computation
Summary Report. CRF, Tab 9 at 18-42. With respect to the applicable interest
rates, the Back Pay Act provides for interest to be paid at the overpayment rate in
the Internal Revenue Code. 5 U.S.C. § 5596(b)(2)(B); 26 U.S.C. § 6621(a)(1). 2
The Office of Personnel Management publishes these rates on its website. A
comparison of the rates used by the agency and those on OPM’s website
demonstrates that the interest rates used were correct. Moreover, interest accrual
ends at a time selected by the agency that is no more than 30 days before the date
of the back pay interest payment. 5 C.F.R. § 550.806(a)(2). In each back pay
installment, the agency correctly ended the interest rate accrual less than 30 days
before the date of the payments. CRF, Tab 9 at 21, 22, 32. Accordingly, we find
the agency in compliance on this point.
The appellant also contended that the VA did not satisfactorily provide
evidence regarding the source and amount of checks received by the appellant or
2
The overpayment rate consists of the Federal short-term rate plus 3 percentage points.
26 U.S.C. § 6621(a)(1).
8
demonstrating that she received any payments. CRF, Tab 10 at 5. However, the
appellant conceded that she had received payments from DFAS of the amounts set
forth in the agency’s submissions. Id. at 5, n.1. Moreover, agency counsel
provided a sworn declaration stating that the agency had received a certification
from UPS that the $174,302.28 installment of back pay and interest had been
delivered to the appellant’s address. CRF, Tab 5 at 81. Accordingly, we find the
agency in compliance regarding this issue.
The appellant argued in her most recent filing that the agency did not
sufficiently explain the calculations of her leave, and that the agency’s
calculations of her annual leave in the last two filings were inconsistent. CRF,
Tab 13 at 9-10. The agency, however, provided leave audits, which broke down
appellant’s leave into hours accrued per pay period for each year. CRF, Tab 11 at
2-13. Moreover, according to the agency’s October 17, 2022 filing, the appellant
accrued 41 hours of annual leave in 2020. CRF, Tab 9 at 44. In the agency’s
January 31, 2024 filing, the 2020 Annual Leave Table states that the appellant
accrued 35 hours of leave in 2020. CRF, Tab 11 at 13. We note that the
appellant was paid for 41 hours of annual leave in 2020, CRF, Tab 9 at 44, and if
the agency erred in its 2020 annual leave calculation, its error favored the
appellant by $311.25. As any error by the agency is in the appellant’s favor, we
find the agency in compliance on this point.
Finally, regarding the appellant’s request for sanctions, we deny the
request. The Board’s sanction authority is limited to the sanctions necessary to
obtain compliance with a Board order. Mercado v. Office of Personnel
Management, 115 M.S.P.R. 65. ¶ 8 (2010) (stating that the Board’s ability to
award sanctions is a means to enforce compliance, and once compliance has been
demonstrated, it would be inappropriate to impose sanctions). Because the
agency has complied with the Board’s orders, we are without authority to impose
sanctions in this matter.
9
ORDER
For the reasons discussed above, we find the agency in compliance and
DISMISS the petition for enforcement. The appellant’s motion for leave to file
attorney’s fees is denied, but the appellant may now file a motion for attorney’s
fees and costs as set forth below and in accordance with 5 C.F.R. § 1208.203.
This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO
REQUEST ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
10
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).
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.
11
(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:
12
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. 4 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).
4
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.
13
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.
14
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.