Rochelle Wyatt v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCHELLE M. WYATT, DOCKET NUMBER
Appellant, AT-0353-16-0492-X-1
AT-0353-16-0492-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David Champion , Memphis, Tennessee, for the appellant.
Luis O. Rodriguez and Suzanne B. McCabe , Philadelphia, Pennsylvania,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s May 11, 2017 final decision in Wyatt v. U.S. Postal
Service, MSPB Docket No. AT-0353-16-0492-I-1. Wyatt v. U.S. Postal Service,
MSPB Docket No. AT-0353-16-0492-C-1, Compliance File (CF), Tab 1. On
September 25, 2017, the administrative judge issued a compliance initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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finding the agency not in compliance with the Board’s May 11, 2017 final
decision. CF, Tab 10, Compliance Initial Decision (CID). On November 15,
2017, the appellant filed a document that served as both a petition for review of
the compliance initial decision and a response to the agency’s October 30, 2017
statement of compliance in response to the compliance initial decision. Wyatt v.
U.S. Postal Service, MSPB Docket No. AT0353-16-0492-C-1, Compliance
Petition for Review (CPFR) File, Tab 1; Wyatt v. U.S. Postal Service, MSPB
Docket No. AT-0353-16-0492-X-1, Compliance Review File (CRF), Tab 3. On
February 2, 2023, the Board issued a nonprecedential order in which it found the
agency noncompliant on one issue. 2 Wyatt v. U.S. Postal Service, MSPB Docket
No. AT-0353016-0492-X-1, Order (Feb. 2, 2023); CRF, Tab 19. We now JOIN
these matters for processing, and for the reasons discussed below, we find the
agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On April 27, 2016, the appellant filed an appeal with the Board alleging
that the agency had denied her restoration to duty following her recovery from
her November 1, 2014 compensable injury. Wyatt v. U.S. Postal Service, MSPB
Docket No. AT-0353-16-0492-I-1, Initial Appeal File (IAF), Tab 1. On May 11,
2017, the administrative judge issued an initial decision finding that the agency
violated the appellant’s restoration rights. IAF, Tab 35, Initial Decision (ID).
The initial decision ordered the agency to restore the appellant to her former
assignment, effective March 15, 2016. ID at 10. It further ordered the agency to
pay the appellant the appropriate amount of back pay, with interest, to adjust the
appellant’s benefits with appropriate credits and deductions, and to inform the
2
Also on February 2, 2023, in a separate, nonprecedential order in MSPB Docket
No. AT-0353-16-0492-C-1, the Board dismissed the appellant’s petition for review of
the compliance initial decision as untimely filed. Wyatt v. U.S. Postal Service, MSPB
Docket No. AT-0353-16-0492-C-1, Order (Feb. 2, 2023); CPFR File, Tab 9. The
instant nonprecedential Final Order now serves as the Board’s final decision in both
MSPB Docket No. AT-0353-16-0492-C-1 and MSPB Docket No. AT-0353-16-0492-X-
1.
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appellant in writing of all actions taken to comply with the Board’s order. ID
at 11. That initial decision became the final decision of the Board on June 15,
2017, after neither party petitioned the full Board for review. ID at 13.
On June 12, 2017, the appellant, through her designated representative,
filed a petition for enforcement of the Board’s final decision, alleging that the
agency had failed to pay her back pay or benefits. CF, Tab 1. On September 25,
2017, the administrative judge issued a compliance initial decision granting the
petition for enforcement based on the agency’s concession it had not yet paid the
appellant her back pay or benefits. CID. The matter was then referred to the
Board to obtain compliance and docketed under Wyatt v. U.S. Postal Service,
MSPB Docket No. AT-0353-16-0492-X-1. See 5 C.F.R. § 1201.183(b)-(c); CRF,
Tab 2.
Between October 30, 2017, and June 6, 2019, the parties submitted
pleadings regarding the agency’s efforts to reach compliance. The appellant
contended the agency was not in compliance with regard to several aspects of its
back pay calculations, including the appellant’s: (1) night differential pay;
(2) Sunday premium pay; (3) holiday work hours; (4) holiday leave hours;
(5) restored annual leave and sick leave hours; (6) out of schedule premium pay;
(7) Thrift Savings Provision (TSP) regular and TSP Roth deposits; and (8) W-4
tax withholding request. CRF, Tabs 1-3.
On February 2, 2023, the Board issued a nonprecedential order in the
compliance referral matter finding that the agency had reached compliance on all
parts of the back pay calculations except for the appellant’s restored annual leave.
Wyatt, MSPB Docket No. AT-0353-16-0492-X-1, Order, ¶ 17. The Board found
that the agency’s back pay calculations shorted the appellant’s restored annual
leave by two pay periods’ worth of annual leave. Id. The Board thus ordered the
agency to restore to the appellant two additional pay periods of annual leave. Id.On July 5, 2023, the agency submitted an additional pleading. CRF,
Tab 24. In the new pleading, the agency stated that it provided the appellant the
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two additional pay periods’ worth of accrued annual leave, as ordered, and
included evidence demonstrating it had done so. Id. The appellant has not filed a
response to this pleading.
ANALYSIS
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). 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).
The agency’s final outstanding compliance issue was its obligation to
restore two additional pay periods worth of annual leave to the appellant. The
agency’s last submission shows that the agency has done so and has therefore
reached full compliance. CRF, Tab 24 at 4 - 6. Additionally, the appellant has not
challenged the agency’s evidence of compliance.
Accordingly, in light of the agency’s evidence of compliance, the Board
finds the agency in compliance and dismisses the petition for enforcement and the
related petition for review of the compliance initial decision. This is the final
decision of the Merit Systems Protection Board in these compliance proceedings.
Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.
§ 1201.183(c)(1)).
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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 Clerk of the Board.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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
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.
6
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.
(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
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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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.
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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.