Kenneth Holmes v. Department of Transportation ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH HOLMES, DOCKET NUMBER
Appellant, SF-0752-22-0425-I-1
v.
DEPARTMENT OF DATE: January 22, 2024
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sara L. Bloom , Esquire, Anchorage, Alaska, for the appellant.
Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which reversed the agency’s
removal action. Generally, we grant petitions such as these 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that neither party has established any basis under
section 1201.115 for granting the petition or cross petition for review. Therefore,
we DENY the petition for review, and cross petition for review and AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as an FV-0802-H Engineering Technician (802
ET) for the Federal Aviation Administration’s Engineering Services group at the
Infrastructure Construction and Installation Center in Anchorage, Alaska. Initial
Appeal File (IAF), Tab 1 at 8-9. From 2011 until 2018, the appellant mostly
performed Contracting Officer Representative (COR) duties, which is project
coordinator work that involves monitoring Federal contractors performing
installation and construction at various worksites. IAF, Tab 10 at 75; Hearing
Transcript, Day 2 (HT-2) at 120, 125 (testimony of the appellant). In 2018,
however, the agency was attempting to replace a navigational aid on Adak Island
and the appellant’s second-level supervisor, S.H., wanted to send the appellant
and other members of his small work unit to help with construction work that
would have involved repetitive heavy lifting and hand-mixing concrete. IAF,
Tab 9 at 64-65; HT-2 at 80-81 (testimony of W.G.). The appellant indicated that
he could not do this sort of work due to his age and the fact that the Department
of Veterans Affairs has rated him as 60% disabled, and subsequently submitted a
reasonable accommodation request in October 2018 to his then-supervisor, W.G.,
3
requesting that the agency accommodate his service-related disabilities by not
assigning him installation, construction, and manual labor tasks involving
prolonged sitting, standing, twisting, bending, lifting above the shoulder line,
lifting greater than 30 pounds, or lifting awkward or bulky items. IAF, Tab 10
at 11, 16, 21-22; HT-2 at 127-28 (testimony of the appellant). As part of his
request, the appellant explained that he believed that all duties outside of COR
work were marginal functions of his position and that he was only limited to not
performing “the more physically demanding, labor-intensive tasks.” IAF, Tab 10
at 22.
W.G. subsequently initiated the interactive process, asked the appellant to
submit medical information, and convened an advisory Reasonable
Accommodation Team (ReAct). Id. at 11-12, 294; Hearing Transcript, Day 1
(HT-1) at 35 (testimony of S.H.). The appellant submitted letters from two
medical providers from November 2018 stating that his medical conditions
include a right knee meniscus tear, bilateral rotator cuff tears, elbow tears, and a
traumatic injury to his neck and upper back, but that he could still perform COR
duties. IAF, Tab 10 at 15, 18-19. In March 2019, W.G. notified the appellant
that he was still evaluating the appellant’s request but was concerned that limiting
the appellant to COR duties would leave essential functions, such as installation
and construction duties, undone. Id. at 24. W.G. temporarily assigned the
appellant to various light duty projects primarily at the “Complex,” a warehouse
facility that Engineering Services uses to store items and build out projects. Id.In September 2019, the appellant submitted a note from his medical provider, Dr.
B.G., that restricted him from lifting greater than 20 pounds, continued overhead
work with arms and shoulders, and repeated bending and twisting at the waist for
30 days after suffering a back injury. Id. at 27. The appellant’s then first-level
supervisor, F.C., was confused as to whether the appellant was being returned to
full duty and if he needed to continue the interactive process and, in January
2020, the appellant submitted a letter from Dr. B.G. clarifying his various
4
restrictions and stating that the appellant was able to successfully perform nearly
all tasks assigned to him “precluding installation and construction.” Id. at 28-33,
44.
On April 6, 2020, after suggestion by the ReAct team, the appellant’s
then-acting manager, M.R., compiled a list of physical duties that he stated were
essential functions of the 802 ET position and, in order to better evaluate what
duties the appellant could perform, asked the appellant to have his doctor identify
the tasks that he could successfully perform given his current physical
limitations. Id. at 47-54. The list broke the physical duties of the appellant’s
position into 15 categories with almost 80 subtasks. Id. at 48-52. Dr. B.G.
replied to the agency’s request the next day, annotating each task as one that the
appellant could accomplish, could accomplish with accommodations, one that was
not recommended, and one that was prohibited, indicating that the appellant could
perform 17 of the subtasks without accommodation and approximately
32 subtasks with accommodation. Id. Dr. B.G. added that while many of the
tasks would exacerbate the appellant’s underlying conditions, many could have
accommodations including frequent rests, appropriate assisting devices, or other
people on the same jobsites. Id. at 45. On April 17, 2022, M.R. responded,
stating that it was “clear” that the appellant was unable to perform the essential
functions of his position, primarily installation and construction duties, “without
presenting a danger” to himself and asking the appellant whether this was an
accurate conclusion to draw from his medical information. Id. at 60. The
appellant did not directly respond to this question. Id. at 62, 66-68; HT-1 at 214
(testimony of M.R.).
In June 2020, M.R. notified the appellant that he had determined that the
appellant could not be reasonably accommodated in his current position involving
primarily installation and construction duties and that he would next consider job
reassignment. IAF, Tab 10 at 61-65. On August 25, 2020, the agency offered the
appellant an FG-0343-11 Step 10 position as a Management and Program Analyst
5
in Fort Worth, Texas, which he declined. IAF, Tab 42 at 40-42. On September 2,
2020, M.R. issued the appellant a notice of proposed removal for “inability to
perform the essential functions of your position because of your medical
condition.” IAF, Tab 10 at 5-10. While the appellant’s reply was under
consideration, the agency approached him about a Logistics Management
Specialist position in Anchorage that would have allowed him to continue
working in the capacity he had been working in the Complex, but the appellant
declined to update his resume for the position and human resources did not
qualify him based on his current resume. HT-1 at 41-43 (testimony of S.H.). On
November 18, 2020, the agency issued a decision letter sustaining the charge and
removing the appellant effective December 22, 2020. IAF, Tab 6 at 14-18. The
appellant retired effective December 22, 2020. 2 IAF, Tab 9 at 128-29.
The appellant subsequently filed a complaint of discrimination with the
Equal Employment Opportunity Commission (EEOC) alleging constructive
discharge, and in June 2022, the EEOC directed him to file a complaint with the
Board. IAF, Tab 7 at 8, 12. The appellant thereafter filed the instant Board
appeal. IAF, Tab 1. The administrative judge found that the Board had
jurisdiction over the agency’s removal decision under 5 U.S.C. § 7701(j) and that
the appellant’s appeal was timely. 3 IAF, Tab 11. After holding the requested
hearing, the administrative judge issued an initial decision reversing the agency’s
removal action and ordering the agency to retroactively restore the appellant
effective December 22, 2020. 4 IAF, Tab 60, Initial Decision (ID) at 47. The
2
The agency purposely set the effective date so that the appellant could retire prior to
the removal, but if he did not retire, the removal would go into effect. HT-1 at 219-21
(testimony of M.R.).
3
Under 5 U.S.C. § 7701(j), an appellant who retires after receiving the agency’s
decision to remove him, but on or before the scheduled effective date of his removal,
may still appeal his removal to the Board. Mays v. Department of Transportation,
27 F.3d 1577, 1578-81 (Fed. Cir. 1994).
4
The appellant indicated at the hearing, and on petition for review, that although he
retired, his circumstances changed, and he would like to return to work for the FAA.
HT-2 at 186-87 (testimony of the appellant); Petition for Review (PFR) File, Tab 3
6
administrative judge first concluded that the agency did not prove its charge. ID
at 15-40. In this regard, the administrative judge found that the agency’s April 6,
2020 list of duties overstated and did not establish the precise essential functions
of the 802 ET position. ID at 16-29. He determined that the essential functions
of the 802 ET position involve being able to perform a “critical mass” of the tasks
identified in the April 6, 2020 list, including enough tasks in the installation and
construction categories, as well as some COR work and some work in the
Complex. ID at 16-29. The administrative judge concluded that the appellant is
medically able to perform COR and Complex work, and that he is also able to
perform some installation and construction work with accommodations, and thus
that the agency did not establish the charge. ID at 29-40. The administrative
judge also found that the appellant proved his affirmative defense of disability
discrimination based on a denial of a reasonable accommodation. ID at 40-41.
However, the administrative judge concluded that the appellant did not establish
his claim of retaliation for making a reasonable accommodation request or his
claim of disparate treatment disability discrimination, as he did not establish that
his disability was a motivating factor in the removal decision. ID at 42-47.
The agency has filed a petition for review, arguing that the administrative
judge erred in finding that it did not prove the charge and that the appellant
established his affirmative defense of disability discrimination based on a denial
of a reasonable accommodation. Petition for Review (PFR) File, Tab 1. The
appellant filed a response and a cross petition for review in which he largely
disputes the administrative judge’s finding that he did not establish retaliation for
making a reasonable accommodation request. PFR File, Tab 3. The agency filed
a reply and a response to the appellant’s cross petition for review. PFR File,
Tab 5.
at 15-16.
7
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the agency did not prove the charge.
Where, as here, the appellant does not occupy a position with medical
standards or physical requirements or subject to medical evaluation programs, in
order to establish a charge of medical inability to perform, the agency must prove
a nexus between the employee’s medical condition and observed deficiencies in
his performance or conduct, or a high probability, given the nature of the work
involved, that his condition may result in injury to himself or others. Fox v.
Department of the Army, 120 M.S.P.R. 529, ¶ 25 (2014); see Haas v. Department
of Homeland Security, 2022 MSPB 36, ¶¶ 10-15 (recognizing this standard and
comparing it with the differing standard that applies in the context of an
employee’s removal from a position with medical standards based solely on their
medical history). The Board has otherwise described this standard as requiring
that the agency establish that the appellant’s medical condition prevents him from
being able to safely and efficiently perform the core duties of his position. Haas,
2022 MSPB 36, ¶¶ 15, 20. In determining whether an agency has met this
burden, the Board will consider whether a reasonable accommodation, short of
reassignment, exists that would enable the appellant to safely and efficiently
perform his core duties. Id., ¶ 25.
The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the Americans with Disabilities
Act (ADA), as amended by the Americans With Disabilities Act Amendments Act
of 2008 (ADAAA), i.e., the fundamental job duties of the position, not including
marginal functions. Id., ¶ 21 (citing Clemens v. Department of the Army,
120 M.S.P.R. 616, ¶ 6 (2014); 29 C.F.R. § 1630.2(n)(1)). Evidence of whether a
particular function is essential includes, among other things, the employer’s
judgment as to which functions are essential, written position descriptions, the
amount of time spent performing the function, the consequences of not requiring
8
the incumbent to perform the function, and the work experience of past and
current incumbents in the job. 29 C.F.R. § 1630.2(n)(3).
Below, the appellant maintained that the essential functions of the 802 ET
position were limited to COR work, while the agency maintained that the
essential functions of the position were the various tasks on its April 6, 2020 list,
including significant installation and construction work. See IAF, Tab 21 at 4;
HT-2 at 208 (agency closing statement). In the initial decision, the administrative
judge found that the position was not limited to COR work. ID at 22. He
discussed several written position descriptions and found that each indicated that,
at the least, the 802 ET position could involve some installation and construction
work. ID at 18-23. He also credited the testimony of multiple past and present
incumbents of the position who explained that while the duties of an 802 ET from
2011 to 2018 mostly involved COR/project manager work, the agency prefers to
have its ETs perform work in-house and that installation and construction work
was a central part of the job before 2011 and after 2018. ID at 21-22.
However, while the administrative judge found that the appellant
understated the essential functions of the 802 ET position, he also found that the
agency’s April 6, 2020 list overstated the essential functions. ID at 25. As noted
above, the agency’s list broke down what it alleged are the essential functions of
the position into 15 general essential functions, including: (1) rack and
equipment installation; (2) cable pulling; (3) conduit installation; (4) electrical
energized work; (5) grounding and bonding; (6) loading and unloading aircraft;
(7) ladders and elevated platforms; (8) general mechanical/carpentry work;
(9) electrical grounding work; (10) general housekeeping and maintenance work;
(11) general physical COR work; (12) ES Complex; (13) overhead heater
installation; (14) site demolition; and (15) install of SWS system. IAF, Tab 10
at 48-52. It further broke down these general functions into approximately
80 subtasks, including, for example, “hammer drilling 15 lbs., bent over less than
5 min at a time, but repetitive throughout the day,” “installing and terminating
9
wires and or cables,” “lifting 50 lb coolers repetitively,” “standing on ladders to
install electrical components and conduits minutes to hours,” and “rebuilding
walls and stairs.” Id. The agency compiled the list by surveying tasks completed
by ETs across different groups in Alaska over the past 2 years and then labeling
every task an essential function. ID at 27; HT-1 at 210-212, 246 (testimony of
M.R.).
Although this list is exhaustive, the administrative judge found that it does
not accurately describe the essential functions of the appellant’s 802 ET position
because it does not focus on the work of the appellant’s specific 802 ET unit, it
does not distinguish between essential and marginal functions, and because the
written position descriptions for the 802 ET position do not support essential
functions as extensive and detailed as these. ID at 26-27. Further, the
administrative judge explained that M.R. testified that he could accommodate an
individual who could only perform part of the list, and the current manager of the
appellant’s old work unit, R.N., testified that an ET must be able to do some of
these tasks, but not all, that projects vary, and he tries to utilize the skills of his
employees accordingly. ID at 27; HT-1 at 244-45 (testimony of M.R.); HT-2
at 31-32 (testimony of R.N.). The administrative judge thus concluded, based on
this testimony and his review of the evidence relating to the other factors set forth
at 29 C.F.R. § 1630.2(n)(3), that the essential functions of the position include
being able to perform a “critical mass” of the tasks identified in the April 6, 2020
list, including some tasks in the installation and construction categories, such that
the 802 ET position is not fundamentally altered by putting the employee on
permanent light duty or by limiting the individual to so few installation and
construction tasks that he is unable to contribute to the core of the work unit. ID
at 25-29. The administrative judge indicated that the essential functions involve
some COR work, some work at the Complex, and some installation and
construction work. See ID at 33-40.
10
We discern no reason to disturb the administrative judge’s thoroughly
analyzed and reasoned finding. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility). On review, the agency
argues that the administrative judge improperly placed an “inordinate burden” on
it to establish the precise essential functions of the position and that “the only
reasonable conclusion is that the essential functions of the 802 ET position . . .
are installation and construction duties in general.” PFR File, Tab 1 at 20 (citing
Clemens, 120 M.S.P.R. 616, ¶ 8 (defining the essential function of the position as
“significant verbal communication” instead of the underlying tasks identified in
the position description)). However, we do not find the administrative judge’s
conclusion that an 802 ET must be able to perform some installation and
construction tasks identified in the April 6, 2020 list necessarily inconsistent with
the contention that an 802 ET must be able to perform installation and
construction duties in general. The administrative judge correctly recognized that
an employee must be able to perform enough installation and construction tasks
to contribute to the work unit. ID at 29.
The agency also argues throughout its petition that the administrative judge
crafted a “modified” 802 ET position by finding that the essential functions of the
position include some COR work, some work at the Complex, and some
installation and construction work. See PFR File, Tab 1 at 13, 26. The agency
emphasizes that the record shows that the 802 ET position involves mostly
installation and construction duties, and that COR work and work at the Complex
are now performed by employees in a different job series. Id. at 26. Although we
appreciate the agency’s point, the agency also continually maintained throughout
this case that the essential functions of the 802 ET position are the tasks
identified in its April 6, 2020 list, which include “[g]eneral physical COR work”
11
and work at the “ES Complex.” 5 IAF, Tab 10 at 48, 50-51. The agency based its
charge on the appellant’s inability to perform these functions of his position.
IAF, Tab 6 at 14-16. As previously stated, the administrative judge repeatedly
acknowledged that the 802 ET position primarily involves installation and
construction duties. See ID at 22-23, 28. The administrative judge also found
that incumbents periodically work in the Complex and may do COR work. ID at
28; see also HT-1 at 44 (testimony of S.H.). Thus, the agency’s argument
provides no reason for disturbing the initial decision. Moreover, we agree with
the administrative judge’s conclusion and above characterization that the essential
functions, or core duties, of the 802 ET position on the record before us include
being able to perform a “critical mass” of the tasks identified in the April 6, 2020
list. See Clemens, 120 M.S.P.R. 616, ¶ 6.
The administrative judge also subsequently determined that the appellant
was medically able to perform work in the Complex, COR work, and some
installation and construction work, both with and without accommodations, thus
leading to the conclusion that the agency did not establish that the appellant’s
medical condition prevented him from being able to safely and efficiently
perform the core duties of his position. ID at 29-40. The administrative judge
reviewed the various medical evidence noted above, including a January 2020
5
On review, the agency states that the April 6, 2020 list was “perhaps inarticulately
worded by referring to the duties as ‘essential functions,’” when the purpose of the list
was to help the appellant “develop an accommodation request that could be found
reasonable and effective.” PFR File, Tab 1 at 19. But the agency’s statement is
inconsistent with its position throughout the entirety of this case and, most importantly,
its removal letter, which specifically referred to the tasks listed in the April 6, 2020
letter as essential functions. See IAF, Tab 6 at 14-16. Further, the agency states that
the list was developed to fully understand how the appellant’s restrictions affected his
ability to perform all of the essential functions of his position and that if he “could
perform enough of the subtasks, for example, he could be deemed able to perform that
job category despite not being able to complete them all, and thus could be deemed
capable of performing installation and construction in general.” PFR File, Tab 1 at 19.
This reasoning is consistent with the administrative judge’s analysis and conclusion that
the essential functions of the position include being able to perform a “critical mass” of
the tasks identified in the April 6, 2020 list.
12
letter from Dr. B.G. setting forth the appellant’s most recent particular
restrictions that stated that “[i]n order to maintain his current level of functioning
and health[, the appellant] should not be tasked with prolonged sitting, standing,
twisting, bending, lifting above shoulder line or lifting greater than 30 lbs,
hoisting[,] pulling[,] stooping and squatting.” IAF, Tab 10 at 44. With respect to
the appellant’s ability to perform installation and construction work, the
administrative judge found that the appellant’s restrictions ruled out some work,
but that the agency did not establish that all installation and construction work
has physical requirements that are beyond the appellant’s limitations, because it
did not establish whether any particular subtasks on the April 6, 2020 list are, in
and of themselves, essential. ID at 36-37. Based on Dr. B.G.’s annotations of the
April 6, 2020 list of alleged essential functions, which also constitutes medical
evidence, the administrative judge found that although there were five categories
where the appellant likely could not perform the subtasks in question (conduit
installation, loading and unloading aircraft, overhead heater installation, site
demolition, and installation of SWS system), he could perform each of the
subtasks with accommodations in four categories (cable pulling, electrical
energized work, grounding and bonding, and general housekeeping and
maintenance work) and most of the subtasks in the four remaining
construction-based categories (rack and equipment installation, ladders and
elevated platforms, general mechanical/carpentry work, and electrical grounding
work). ID at 37; see also IAF, Tab 10 at 48-52. The administrative judge found
that the appellant could perform the above tasks with reasonable accommodations
including taking breaks as needed, using assistance devices, and job modification,
since ETs work in crews with varying assignments, which he found consistent
with testimony from M.R. and R.N. about how work is done. ID at 38; see also
IAF, Tab 10 at 45.
On review, the agency argues that the administrative judge improperly
considered the medical evidence in this case. PFR File, Tab 1 at 14-17.
13
Specifically, the agency claims that the administrative judge wrongly gave “little
weight” to medical opinions that recommended that the appellant “avoid
installation and construction tasks” and relied on medical documentation that the
appellant submitted to support his request to perform solely COR duties when
installation and construction work is far more strenuous. Id. at 14-15. We
disagree. In reaching his conclusion, the administrative judge properly weighed
the medical evidence. ID at 29-38; see Brown v. Department of the Interior,
121 M.S.P.R. 205, ¶ 11 (2014) (recognizing that, in assessing the probative
weight of medical opinions, the Board considers whether the opinion was based
on a medical examination and provided a reasoned explanation for its findings as
distinct from mere conclusory assertions, the qualifications of the expert
rendering the opinion, and the extent and duration of the expert’s familiarity with
the treatment of the appellant), overruled on other grounds by Haas, 2022 MSPB
36.
Although the administrative judge gave little weight to medical opinions
that simply stated that the appellant should avoid installation and construction
work, he properly reasoned that some of these opinions lack appropriate
specificity and, because installation and construction work varies, whether the
appellant can perform it depends on the particular requirements. ID at 31.
Neither of the opinions that the agency points to indicate an understanding of
what installation and construction work actually entails. See PFR File, Tab 1
at 15; IAF, Tab 10 at 37, 44; Brown, 121 M.S.P.R. 205, ¶ 11. Further, although
the administrative judge discussed medical documentation that stated that the
appellant could continue to work as a COR, which we acknowledge is less
physically strenuous than installation and construction duties, the administrative
judge correctly went on to analyze whether the particular restrictions within those
documents prevented the appellant from performing installation and construction
duties. See ID at 31-32, 36-38. We understand the agency’s concern that it
cannot “simply ignore” medical recommendations that put it on notice of the
14
appellant’s physical limitations; however, the agency’s arguments on the whole
also largely ignore the fact that Dr. B.G.’s response to its April 6, 2020 list
explicitly indicates that the appellant can perform some installation and
construction work. PFR File, Tab 1 at 15.
The agency also disputes the fact that the administrative judge credited the
appellant’s estimation of his physical condition and testimony that he is not as
“limited” as it may appear, instead claiming that the appellant appears to be
downplaying the severity of his condition. PFR File, Tab 1 at 16. However, the
Board has regularly held that it will not disturb an administrative judge’s findings
when he considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility. See Broughton v. Department
of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). Further, the
administrative judge made credibility determinations based on his observation of
each witness’s demeanor at the hearing, and we decline to disturb those findings
on review. See ID at 14 (citing Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987) (identifying the factors that an administrative judge must
consider in making credibility determinations)); Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (concluding that the Board generally must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so).
Throughout its petition for review, the agency also argues that the appellant
did not identify specific reasonable and effective accommodations that would
enable him to perform installation and construction duties. See PFR File, Tab 1
at 22-23. In the initial decision, the administrative judge discussed that Dr. B.G.
suggested in his response to the agency’s April 6, 2020 list that, for those tasks
the appellant needed an accommodation, the appellant could take frequent rests,
use assistive devices, and use the assistance of other people on the jobsite. ID at
15
37; IAF, Tab 10 at 45. Although the agency claims that “assistive devices” is
vague, the appellant did in fact testify at the hearing that this could include a
dolly, a forklift, or a puller of some sort. HT-2 at 155 (testimony of the
appellant). The administrative judge also found that job modification is a viable
accommodation because ETs work in crews with varying assignments. ID at 38.
We note that the Board has held that an agency is not required to modify or
eliminate duties that are an essential function of the position. Johnson v. U.S.
Postal Service, 120 M.S.P.R. 87, ¶ 10 (2013). Here, however, as the
administrative judge found, R.N. testified that projects vary, that he tries to
utilize the skills of his employees accordingly, and that if an employee cannot do
a particular type of task, the agency can and does assign it to others. ID at 27;
HT-2 at 31-32 (testimony of R.N.). The agency has not persuaded us to disturb
this conclusion. Moreover, the agency has not established that the administrative
judge erred in concluding that it did not meet its burden in proving its charge.
We agree with the administrative judge’s conclusions as to the appellant’s
affirmative defenses.
Below, the appellant presented a disability discrimination claim based on
the theory of a failure to accommodate. IAF, Tab 21 at 6, Tab 43 at 2-3. The
Board adjudicates claims of disability discrimination raised in connection with an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act, which has incorporated the standards of the ADA as amended
by the ADAAA. Haas, 2022 MSPB 36, ¶ 28. Under the relevant provisions, it is
illegal for an employer to “discriminate against a qualified individual on the basis
of disability.” Id.; 42 U.S.C. § 12112(a). To prove disability discrimination
based on a failure to accommodate, an employee must show that (1) he is an
individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a
qualified individual with a disability as defined by 29 C.F.R. § 1630.2(m); and
(3) the agency failed to provide a reasonable accommodation. Miller v.
Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014). A qualified individual
16
with a disability is one who can “perform the essential functions of the . . .
position that such individual holds or desires” with or without accommodation.
Haas, 2022 MSPB 36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m).
An agency is required to provide reasonable accommodation to an otherwise
qualified individual with a disability, unless the agency can show that doing so
would cause an undue hardship on its business operations. 42 U.S.C. § 12112(b)
(5); Haas, 2022 MSPB 36, ¶ 28; Clemens, 120 M.S.P.R. 616, ¶ 10. Once an
employee informs the agency that he requires an accommodation, the agency must
engage in an interactive process to determine an appropriate accommodation.
Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 18 (2013).
“The appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the individual
with a disability.” 29 C.F.R. part 1630, appendix, § 1630.9.
In the initial decision, the administrative judge concluded that the appellant
proved his claim of disability discrimination based on a denial of a reasonable
accommodation because the administrative judge found that the appellant is able
to perform the essential functions of the 802 ET position as established in this
appeal, and thus that he is a qualified individual with a disability, because the
agency did not provide the appellant with an accommodation as it erroneously
determined he could not perform the essential functions of the position, and
because the agency did not show that the accommodations in question would
create an undue hardship. ID at 41. On review, the agency does not dispute that
the appellant is an individual with a disability but argues that the administrative
judge erred in finding that the appellant is a qualified individual with a disability,
or that he can perform the essential functions of the 802 ET position with or
without accommodations. PFR File, Tab 1 at 17-21. However, as discussed
above, we agree with the administrative judge’s analysis as to the essential
functions of the 802 ET position and that the appellant can perform many of those
functions both with and without accommodations.
17
The agency also argues that the administrative judge disregarded the fact
that the appellant did not properly engage in the interactive process in this case.
PFR File, Tab 1 at 21-24. Courts have generally required both parties to engage
in the interactive process in good faith. See Rehling v. City of Chicago, 207 F.3d
1009, 1015-16 (7th Cir. 2000); Collins v. U.S. Postal Service, 100 M.S.P.R. 332,
¶ 11 (2005). Here, we do not agree that the appellant failed to engage in the
interactive process in good faith. The appellant promptly provided the agency
with additional medical information on the nature of his disability on multiple
occasions and he indicated his belief as to the essential functions of his position,
although maybe misguided, and his interest in finding a reasonable
accommodation. To this end, he told W.G. that he could do installation and
construction work with an accommodation. IAF, Tab 10 at 21-22. Further, the
appellant’s physician, Dr. B.G., immediately responded to the agency’s April 6,
2020 request to better understand the appellant’s physical limitations, reviewing
more than 80 alleged essential functions to determine whether each individual
task was something that the appellant could perform. Id. at 45-52.
Although the agency contends that the appellant did not offer any
indication as to what accommodations he might need to perform the specific
duties in the April 6, 2020 list, including installation and construction duties, Dr.
B.G. specifically stated that the accommodations could include frequent rests,
appropriate assisting devices, and other people on the same jobsite. Id. at 45.
While, as discussed above, the agency insists “appropriate assisting devices” is
vague, the appellant testified that this could include a dolly, a forklift, or a puller
of some sort, but that it would be project and task specific. HT-2 at 155
(testimony of the appellant). We do not find these suggested accommodations
unreasonable. We do agree with the agency that the appellant made matters more
difficult in this case by not directly responding to M.R.’s conclusion that, based
on Dr. B.G.’s annotations, it was “clear” that the appellant was unable to perform
the essential functions as detailed in the April 6, 2020 list and thus that M.R.
18
would start the reassignment process. See PFR File, Tab 1 at 21-22; IAF, Tab 10
at 60. However, M.R.’s response ignored the fact that Dr. B.G. indicated that the
appellant could perform many of the alleged essential functions and that he
provided proposed reasonable accommodations. Continuing the interactive
process would have been the opportunity to explore the proposed reasonable
accommodations further. The agency claims on review that the purpose of the
April 6, 2020 list was to identify the types of things the appellant could do and to
find an accommodation, and that is exactly what the appellant’s response from
Dr. B.G. does. See PFR File, Tab 1 at 19. Consequently, the agency’s arguments
have not persuaded us that the administrative judge erred in finding that the
appellant proved his claim of disability discrimination based on failure to provide
a reasonable accommodation.
Below, the appellant also alleged that the agency retaliated against him for
requesting a reasonable accommodation and that it engaged in disparate treatment
disability discrimination. IAF, Tab 43 at 2-3; ID at 40. With regard to the first
claim, the appellant argued that his second-level supervisor, S.H., and his
first-level supervisors, F.C. and then M.R., made his job difficult and wanted to
get rid of him after he refused to go to Adak Island and after he asked for
accommodation. ID at 42-45. The administrative judge found that the appellant
failed to prove this claim because all three witnesses testified that neither S.H.
nor F.C. were involved in the decision making regarding the appellant’s removal,
the appellant did not establish that S.H. influenced M.R. at all in issuing the
decision, and there was no direct evidence, comparator evidence, or any other
indications in the record that M.R. expressed hostility towards the appellant’s
reasonable accommodation request. ID at 43-45. The administrative judge
explained that although M.R.’s April 6, 2020 list was “over-inclusive” and “made
it almost certain that the appellant could not perform what the agency deemed the
essential functions,” he found M.R.’s approach genuinely erroneous and not an
effort to retaliate against the appellant for requesting a reasonable
19
accommodation. ID at 45. In his cross petition for review, the appellant largely
reargues his version of the facts leading to the removal decision, disputes the
testimony of several witnesses and the administrative judge’s credibility
determinations, and reargues that S.H. was involved in his removal. PFR File,
Tab 3 at 19-27. However, merely rearguing factual issues raised and properly
resolved by the administrative judge below does not establish a basis for review.
Broughton, 33 M.S.P.R. at 359 (1987); see also Haebe, 288 F.3d at 1301.
In his cross petition, the appellant also briefly discusses his claim of
disparate treatment disability discrimination. PFR File, Tab 3 at 27. He asserts
that “[o]thers not in his protected class” were assigned duties that did not involve
intensive labor; specifically, J.W. and M.L. Id. However, the administrative
judge discussed J.W. and found that although J.W. spent some time developing
software for the agency, he is now doing installation and construction work and is
thus not a good comparator and does not support the appellant’s claim. ID at 46.
With regard to the appellant’s claim as to M.L., we decline to consider this
argument that the appellant submits for the first time on review because he has
not shown that it is based on new and material evidence not previously available
despite his due diligence. See Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980).
The agency’s remaining arguments provide no basis for disturbing the initial
decision.
On review, the agency also contends that even if the Board disagrees with
its above arguments, the Board should reverse the initial decision and reopen the
proceedings. PFR File, Tab 1 at 24-27. In this regard, the agency first argues
that the administrative judge erred in finding that the appellant is medically
capable of performing the essential functions of the 802 ET position without
allowing testimony from its Regional Flight Surgeon, Dr. M.D. Id. at 25. The
agency explains that it did not call Dr. M.D. as an expert witness as to its
determination that the appellant was medically unable to perform the essential
20
functions of his position because the appellant stated throughout this case that he
was only challenging the agency’s determination that the essential functions of
the 802 ET position include more than COR duties and not its determination that
he was medically unable to perform the tasks it identified as essential functions,
including installation and construction duties. Id. at 11, 13, 24-25; see also IAF,
Tabs 19, 20. The agency alleges that the only discussion of accommodations that
would allow the appellant to perform installation and construction duties resulted
from the administrative judge’s own questioning. Id. at 13, 25. We find the
agency’s assertions unavailing. Although the appellant apparently indicated that
he did not plan to challenge the agency’s determination that he was medically
unable to perform the functions it identified in its April 6, 2020 list, it was the
agency’s burden to prove its charge and whether the appellant’s medical
condition prevents him from being able to safely and efficiently perform the core
duties of his position. See Haas, 2022 MSPB 36, ¶¶ 15, 20. Additionally, while
the agency seems to take issue with the administrative judge’s questioning of the
witnesses, the Board’s regulations provide an administrative judge with wide
discretion to regulate the course of a hearing. 5 C.F.R. § 1201.41(b)(6).
Furthermore, as discussed above, the appellant addressed the issue of what
accommodations would allow him to perform installation and construction work
during the interactive process.
Similarly, the agency also contends that the administrative judge erred in
finding that the “modified” installation and construction position constitutes a
full-time position and effective accommodation without the testimony of the 802
ET manager, R.N. PFR File, Tab 1 at 26. The agency asserts that because the
appellant “did not raise as a potential accommodation the modified position the
AJ ultimately crafted,” it did not elicit testimony from R.N. as to whether a
position that consisted of COR work, Complex work, and some installation and
construction tasks could “even constitute a full-time position” or whether this
would warrant sending the appellant to construction projects. Id. However, as
21
explained above, we disagree with the agency’s characterization of the initial
decision as creating a “modified” position. The agency’s April 6, 2020 list,
which it argued constitutes the essential functions of the 802 ET position and on
which it based its charge, includes installation and construction work, COR work,
and work at the Complex. Despite this, the administrative judge properly
recognized that the position involves mostly installation and construction work.
Whether an individual can perform COR and Complex work is part of the
analysis as to whether they can perform the essential functions of the 802 ET
position. The agency also claims that the initial decision “effectively requires” it
to reinstate the appellant to a “newly-crafted position not currently performed by
any other 802 ET” and, as a practical matter, means that the agency would likely
have to reinstate him to a permanent position at the Complex, which he
previously rejected. PFR File, Tab 1 at 26. But again, the agency’s argument
ignores the fact that the administrative judge recognized that 802 ETs mostly
perform installation and construction work and that the administrative judge
found that the appellant can perform some of this work with accommodations.
The initial decision does not require the agency to effectively reinstate the
appellant to the Complex. Therefore, the agency’s assertions are unpersuasive.
Accordingly, we affirm the initial decision.
ORDER
We ORDER the agency to CANCEL the removal and to retroactively
restore the appellant effective December 22, 2020. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
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
22
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
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
23
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 6
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
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
24
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
25
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
26
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. 7 The court of appeals must receive your petition for
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
27
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back
pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the
following checklist to ensure a request for payment of back pay is complete. Missing
documentation may substantially delay the processing of a back pay award. More information
may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid
by vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the
ticket comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no
authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave
payment they may have received. The payroll office must collect the debt from the back pay
award. The annual leave will be restored to the employee. Annual leave that exceeds the
annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR
§ 550.805(g).
2
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.