Annette Davis v. Department of the Interior ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNETTE DAVIS, DOCKET NUMBER
Appellant, AT-0752-09-0860-X-1
AT-0752-09-0860-C-2
v.
DEPARTMENT OF THE INTERIOR, DATE: February 28, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adam J. Conti , Esquire, Atlanta, Georgia, for the appellant.
Kevin D. Mack , Esquire, Sacramento, California, for the agency.
Pernell Telfort , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
In a January 13, 2023 order, the Board affirmed the administrative judge’s
compliance initial decision finding the agency in noncompliance with the Board’s
August 15, 2014 Final Order reversing the appellant’s removal and ordering her
restored to duty, with back pay and appropriate benefits. Davis v. Department of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Interior, MSPB Docket No. AT-0752-09-0860-C-2, Order (Jan. 13, 2023)
(C-2 Order); Compliance Petition for Review (CPFR) File, Tab 5; Davis v.
Department of the Interior, MSPB Docket No. AT-0752-09-0860-E-1, Final
Order (Aug. 15, 2014) (E-1 Final Order). For the reasons discussed below, we
now find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On August 15, 2014, the Board issued a nonprecedential final order
concurring in and adopting a decision of the Equal Employment Opportunity
Commission (EEOC) that had found the agency removed the appellant in
retaliation for her prior equal employment opportunity (EEO) activity. E-1 Final
Order at 6. The Board ordered the agency, in pertinent part, to restore the
appellant to duty and to pay her appropriate back pay, with interest, and benefits. 2
Id. at 6-7.
On May 15, 2017, the appellant filed a petition for enforcement regarding
her restoration and benefits. 3 Davis v. Department of the Interior, MSPB Docket
No. AT-0752-09-0860-C-2, Compliance File (CF), Tab 1. She acknowledged that
the agency restored her to duty, paid her the correct amount of back pay, and
properly restored the annual and sick leave she would have accrued during the
approximately 5-year back pay period. Id. at 4-5. However, she asserted that the
agency had improperly caused her to forfeit 416 hours of restored annual leave by
2
The Board also forwarded the appellant’s compensatory damages claim to an MSPB
regional office for separate adjudication. E-1 Final Order at 6. On February 18, 2015,
the administrative judge found in the appellant’s favor on her compensatory damages
claim and ordered the agency to pay her $20,000. Davis v. Department of the Interior,
MSPB Docket No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision at 6.
The EEOC concurred in that decision on November 22, 2019. Davis v. Department of
the Interior, MSPB Docket No. AT-0752-09-0860-P-1, Damages Petition for Review
File, Tab 3. The compensatory damages award is not relevant to the compliance issues
currently before the Board.
3
The appellant had filed a previous petition for enforcement, which she then withdrew.
Davis v. Department of the Interior, MSPB Docket No. AT-0752-09-0860-C-1,
Compliance File, Tab 3, Compliance Initial Decision. The first petition for enforcement
is not relevant to the instant proceedings.
3
failing to place it in a separate accounting system and failing to permit her to use
it over an extended period of time. Id. On July 10, 2017, the administrative
judge issued a compliance initial decision granting the petition for enforcement
and directing the agency to restore the 416 hours of erroneously forfeited annual
leave, place it in a separate account reserved for hours restored pursuant to
5 C.F.R. § 550.805(g), and permit her to schedule and use leave by the end of the
leave year in progress 4 years after the date on which the separate leave account
was established. CF, Tab 8, Compliance Initial Decision (CID) at 6-7.
The agency filed a petition for review of the compliance initial decision,
which the Board denied on January 13, 2023, as untimely filed. In this Order, the
Board directed the agency to comply with the instructions in the compliance
initial decision, explained above. C-2 Order at 4-5.
In response, on March 30 and August 29, 2023, the agency submitted
pleadings acknowledging its obligations with respect to the 416 hours but stating
that it could not restore the leave because the appellant had resigned from the
agency on September 10, 2021. Davis v. Department of the Interior, MSPB
Docket No. AT-0752-09-0860-X-1, Compliance Referral File (CRF), Tab 7
at 4, 6. 4 The agency instead paid the appellant a lump sum of $11,448.03 for the
leave, which it explained was the appellant’s hourly wage as of November 2021,
multiplied by the number of annual leave hours, and less taxes and applicable
deductions. CRF, Tab 7 at 5, Tab 10 at 6.
The appellant did not contest that payment is appropriate under the
circumstances or that the agency had paid her this amount, nor did she contest the
various deductions. However, she objected that the agency’s response to the
January 13, 2023 order was filed 1 day late, after the date the agency itself had
requested an extension of time. CRF, Tab 6 at 4-5. More substantively, she
4
In their pleadings, the agency and the appellant both give this date variously as
September 10, 2021, and September 10, 2022, but the documentation supplied by the
agency makes plain that the correct year is 2021. CRF, Tab 7 at 6-7. We therefore find
that both parties’ occasional references to 2022 are typographical errors.
4
contended the agency was obligated to calculate the value of the 416 hours of
leave using the 2023 hourly wage for the position she had occupied, although she
had resigned nearly 2 years earlier. CRF, Tab 8 at 8-9, Tab 11 at 5. She also
asserted that the agency was required to pay her interest on the annual leave
amount, which she believes should be calculated beginning January 2017, when
the agency erroneously required her to forfeit the leave. CRF, Tab 8 at 10. As
explained below, the appellant’s calculations would provide her with a windfall
rather than restore her to the status quo ante (which is the only relief available in
a meritorious petition for enforcement), and we therefore reject them.
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. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. 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 Appropriate Hourly Rate
The agency stated that it calculated the lump sum for the erroneously
withheld 416 annual leave hours using the hourly rate for the appellant’s position
as of November 24, 2021. CRF, Tab 10 at 6. The agency explained that it
arrived at this date by following an Office of Personnel Management (OPM)
regulation requiring the agency to project the unused leave from the first workday
after separation, and counting all subsequent workdays and holidays until the
5
leave was exhausted, and to pay out the leave using the hourly rate in effect as of
this exhaustion date. Id.; see 5 C.F.R. § 550.1204(a) (“A lump-sum payment
must equal the pay an employee would have received had he or she remained in
the Federal service until the expiration of the accumulated and accrued annual
leave to the employee’s credit.”). The appellant separated from the agency on
September 10, 2021. According to the agency’s calculations, projecting the leave
forward from that date resulted in exhaustion of the leave on November 23, 2021.
The agency therefore used the rate of pay for the appellant’s position as of
November 24, 2021. CRF, Tab 10 at 6.
As explained above, the appellant did not contest the agency’s calculations
or deductions related to the lump sum payment for the 416 annual leave hours,
except that she contended that the agency should have used the hourly rate for her
position as of the date the payment was made, March 7, 2023. CRF, Tab 11 at 5.
She did not counter the agency’s citation of the OPM regulation governing leave
lump-sum payments, 5 C.F.R. § 550.1204(a); instead, she argued that the
agency’s “illegal act” depriving her of the opportunity to use the leave during her
employment justifies “equitable relief” of granting her the present value of the
leave. CRF, Tab 11 at 5-6. She also contended that the agency’s selection of the
hourly rate was “arbitrary.” Id. at 5.
We disagree. The agency did not act arbitrarily: it properly followed OPM
regulation and correctly calculated the lump sum value of the appellant’s leave as
if it had been paid out as of her actual separation. In contrast, the appellant’s
requested calculation would improperly grant her a windfall. Rittgers v.
Department of the Army, 123 M.S.P.R. 31, ¶ 13 (2015) (stating that appellant in a
petition for enforcement is entitled to be restored to the status quo ante, but not to
receive a windfall). The appellant’s repeated exhortations to award her
“equitable” or extra relief go beyond the scope of these compliance proceedings.
As the appellant recognizes, see CRF, Tab 11 at 6, the purpose of this proceeding
is to return the parties to the status quo ante—here, to place the appellant in the
6
same position she would have been in had the agency all along fully complied
with the relief granted in the Board’s original August 15, 2014 Final Order. Had
the agency never erroneously withheld the leave, the appellant might have used it
prior to her separation in September 2021. If she had not fully used it, the agency
would have paid it out as of her separation. That is precisely what the agency has
now done. No more is required. Indeed, no more is permitted. See Rittgers,
123 M.S.P.R. 31, ¶ 13.
Interest on the Lump Sum
We likewise reject the appellant’s arguments regarding interest on the
annual leave lump sum payment. The appellant argued that equitable
considerations require that: (1) she be paid interest on the lump sum payment;
and (2) such interest should be calculated starting from January 2017, when the
agency wrongfully deprived her of the use of her leave. CRF, Tab 8 at 10. As
the agency correctly noted, however, CRF, Tab 10 at 7, the Back Pay Act and its
implementing regulations—which govern the remedies awarded in this
proceeding—specify that interest is to be paid on back pay, but not on lump-sum
payments for annual leave. 5 U.S.C. § 5596(b)(2)(A) (specifying that interest is
available for back pay but not for lump -sum annual leave payments); 5 C.F.R.
§ 550.803 (same). Although, as the appellant pointed out, CRF, Tab 11 at 6-7,
two of the three cases cited by the agency on this issue did not arise out of MSPB
proceedings and are not binding on the Board, the statute and implementing
regulations themselves expressly counter the appellant’s position. Moreover, the
third case cited by the agency, a short nonprecedential decision of the Federal
Circuit arising out of an MSPB appeal, recognizes this statutory prohibition.
DeOcampo v. Department of the Army, 551 F. App’x 1000, 1003 (Fed. Cir. 2015)
(nonprecedential). We therefore find that the agency properly did not pay interest
on the lump-sum annual leave payment.
7
The Appellant’s Remaining Contentions
The appellant also complained that the agency’s original response in this
compliance referral matter was filed 1 day late, and therefore should not be
considered; that the agency’s generally non-cooperative, “arrogan[t],” and
“cavalier” conduct throughout every iteration of the appellant’s proceedings
should count against it; that the agency’s noncompliance with the Board’s orders
amounts to “theft” of her annual leave; and that the discrimination claim in
appellant’s underlying case authorizes the Board to craft a broader equitable
remedy under Title VII. CRF, Tab 8 at 6-7, Tab 11 at 8-11. Again, we must
disagree.
As to the first contention, we recognize the agency’s explanation that its
motion for an extension contained a typographical error as to the date it sought,
CRF, Tab 7 at 4, and excuse the lateness on that ground; and in any event, we
required more information from both parties before rendering the instant decision.
As for the remaining contentions, we recognize that this has been an
unfortunately protracted process, due in no small part to the Board’s 5 -year lack
of quorum, which prevented us from quickly ruling on the agency’s August 2017
petition for review of the compliance initial decision. However, the length of
time taken to reach full compliance does not justify expanding the appellant’s
remedy beyond that specified in the Board’s original decision and reaffirmed in
the January 2023 Order governing the present proceeding. Nor may we, in this
proceeding, heed the appellant’s urging to craft an equitable remedy under the
auspices of Title VII. The only issue in this appeal is compliance with the
Board’s prior orders setting the appropriate remedy—not relitigation of that
remedy or of the underlying discrimination claim. See King v. Reid, 59 F.3d
1215, 1219 (Fed. Cir. 1995); Choroszy v. Department of Homeland Security,
MSPB Docket No. PH-315H-16-0458-I-1, Final Order, ¶ 15 (Apr. 27, 2022)
(nonprecedential). The appellant correctly filed a separate proceeding seeking
compensatory damages for the agency’s discrimination against her, and in that
8
appeal was awarded $20,000. Davis v. Department of the Interior, MSPB Docket
No. AT-0752-09-0860-P-1, Damages File, Tab 9, Initial Decision. The remedy in
the instant proceeding is governed by civil service laws, and the agency has now
met its obligation under the civil service laws.
Accordingly, we find the agency in compliance and dismiss the petition for
enforcement. 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 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 5
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
5
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.
9
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).
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
10
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
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
11
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 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. 6 The court of appeals must receive your
6
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.
12
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
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.