Jennifer J. Chen v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER J. CHEN, DOCKET NUMBER
Appellant, SF-0353-13-0150-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James L. Wright, Sacramento, California, for the appellant.
Deborah C. Winslow, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement of the Board’s initial decision
that ordered her restoration. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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, and based on the following points and
authorities, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the compliance initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On December 19, 2012, the appellant filed an appeal challenging the
agency’s alleged denial of her restoration rights following a compensable injury.
Chen v. U.S. Postal Service, MSPB Docket No. SF-0353-13-0150-I-1, Initial
Appeal File (IAF), Tab 1 at 3. Prior to the Board’s issuance of an initial decision,
the appellant retired on February 14, 2013. Compliance File (CF), Tab 10 at 7,
20. The appeal was dismissed without prejudice and later redocketed. IAF,
Tab 20, Initial Decision at 1-2. On April 10, 2014, the administrative judge
issued an initial decision finding that the agency had violated the appellant’s right
to restoration as a partially recovered employee. Chen v. U.S. Postal Service,
MSPB Docket No. SF-0353-13-0150-I-2, Appeal File (I-2 AF), Tab 17, Initial
Decision (ID) at 5‑7. In the initial decision and subsequent Erratum Order, the
administrative judge ordered the agency to restore the appellant to a position
within her medical restrictions, for the period from October 20, 2011, through
3
April 3, 2012, with back pay, interest, and benefits. 2 ID at 12; I-2 AF, Tab 20.
The initial decision became final when neither party petitioned for review. ID
at 13; see 5 C.F.R. § 1201.113.
¶3 The appellant filed a petition for enforcement of the initial decision and
Erratum Order. CF, Tab 1 at 1. In her petition, the appellant alleged that the
agency failed to comply with the initial decision because it had not provided a
written explanation of its compliance actions and had not given her any back pay.
Id. The agency responded to the petition for enforcement by submitting a
declaration and documentation from an Accounting Service Center Supervisor,
which explained the agency’s compliance efforts. CF, Tab 10.
¶4 In a compliance initial decision, the administrative judge found that the
agency proved compliance with the Board’s initial decision and denied the
petition for enforcement. CF, Tab 19, Compliance Initial Decision (CID) at 1, 3. 3
Specifically, he found that the agency’s submissions regarding compliance were
explicit, thorough, and well supported. CID at 2. He further noted that the Board
does not have the authority to award the appellant additional compensation for tax
liabilities resulting from a taxable distribution from her Thrift Savings Plan (TSP)
account. CID at 3.
¶5 The appellant has filed a petition for review. Compliance Petition for
Review (CPFR) File, Tab 1. The agency has filed a response. CPFR File, Tab 3.
The Board has ordered the agency to file evidence regarding the amount of sick
leave the appellant used during the back pay period, CPFR File, Tab 4, and the
agency has replied to that order, CPFR File, Tab 6.
2
The administrative judge found, and the parties do not dispute, that the appellant was
unable to work in any capacity after April 3, 2012. ID at 5 & n.1; IAF, Tab 1 at 4.
3
The administrative judge made a typographical error in stating that the back pay
period was from October 20, 2012, through April 3, 2013, instead of from October 20,
2011, through April 3, 2012. CID at 1.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 When the Board finds that an appellant has been the victim of an unjustified
or unwarranted personnel action, it orders that the appellant be placed, as nearly
as possible, in the situation she would have been in had the personnel action not
occurred. King v. Department of the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d
per curiam, 167 F. App’x 191 (Fed. Cir. 2006). The agency bears the burden to
prove compliance with the Board’s 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. Id.
The agency has demonstrated compliance regarding the appellant’s TSP account.
¶7 In her petition for review, the appellant makes several arguments regarding
her TSP account. She first argues that the agency must show that it informed the
TSP record keeper of her back pay award and that it requested the computation of
interest so that the TSP could make the correct calculations and “compound
[them] on a monthly basis.” CPFR File, Tab 1 at 4, 7. She further contends that
the agency must show that it complied with regulations concerning lost earnings
pursuant to 5 C.F.R. parts 1605 and 1609. 4 Id. at 7. Although it is unclear, we
interpret her arguments to be that she was not fully compensated for lost earnings
on her makeup TSP contributions.
¶8 The regulations implementing the Back Pay Act require that an agency
correct errors affecting an employee’s TSP account consistent with the
regulations prescribed by the Federal Retirement Thrift Investment Board
(FRTIB). Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 16 (2012)
(citing 5 C.F.R. § 550.805(h)). As explained in the FRTIB’s regulations, makeup
4
We do not address the appellant’s argument regarding 5 C.F.R. part 1609, a part which
does not exist, and we are unable to ascertain if another part was intended.
5
contributions are contributions that should have been deducted from an
employee’s basic pay or contributed by the agency on an earlier date, but
were not deducted or contributed. 5 C.F.R. § 1605.1. Breakage is “the loss
incurred or gain realized on makeup . . . contributions.” Id. Calculating breakage
is a function of the TSP, not a function of the employing agency. See 5 C.F.R.
§ 1605.2(a) (stating that “[t]he TSP will calculate breakage on late contributions
[and] makeup agency contributions”). Thus, the agency cannot change the
breakage calculated for the appellant’s makeup contributions. 5
¶9 Here, the agency has submitted evidence that it satisfied its obligation
under 5 C.F.R. § 1605.13(c)(1) by forwarding its TSP adjustments to the TSP
record keeper. The Accounting Supervisor’s declaration states that the agency
forwarded the TSP adjustments to Serco, which the Supervisor identifies as “the
agency responsible for calculating breakage.” CPFR File, Tab 3 at 10. Further,
the agency submitted below a detailed history of the appellant’s breakage in her
TSP payments and an explanation of how the TSP calculates breakage. CF,
Tab 13. On review, the appellant does not specify how the breakage calculations
were erroneous. The appellant’s remedy for errors in the breakage calculations is
5
We find that the three Board cases cited by the appellant do not support her argument
that the agency improperly implemented her TSP relief. CPFR File, Tab 1 at 4-5; see
Giove v. Office of Personnel Management, 106 M.S.P.R. 53 (2007); Shobert v.
Department of the Air Force, 90 M.S.P.R. 262 (2001); and McKinley v. Department of
the Interior, 73 M.S.P.R. 569 (1997). The relevant issue in Giove, 106 M.S.P.R. 53,
¶ 8, was whether or not the Board had jurisdiction over the appellant’s TSP claims,
whereas here, the administrative judge already found that the Board has jurisdiction
over the appellant’s TSP claims and addressed the merits of them. CID. The appellant
appears to cite McKinley, 73 M.S.P.R. at 571‑72, to argue that the agency is required to
calculate and forward makeup contributions to the TSP. CPFR File, Tab 1 at 4.
However, as discussed below, she has not presented any evidence to refute the agency’s
evidence that it did so. CF, Tab 10 at 10, Tabs 13, 18; CPFR File, Tab 3 at 10. Finally,
we note that FRTIB regulations have changed since Shobert, 90 M.S.P.R. 262, ¶ 11,
was issued, and an agency is no longer required to request a computation of interest and
lost earning from FRTIB, as argued by the appellant. Bills v. Department of the
Air Force, 122 M.S.P.R. 367, ¶ 9 n.2 (2015); see CPFR File, Tab 1 at 7. Instead, the
current regulation governing an employing agency’s correction of TSP errors after a
back pay award is 5 C.F.R. § 1605.13, which we analyze below.
6
found in the procedures in 5 C.F.R. part 1605, subpart C. See 5 C.F.R. § 1605.22.
These procedures do not provide authority for our review and, in light of our
limited jurisdiction and our finding that the agency took all required actions, we
cannot review TSP’s breakage calculations. See Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (finding that the Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction
by law, rule, or regulation).
¶10 Next, the appellant argues that the agency should reimburse her the amount
of her defaulted TSP loan. CPFR File, Tab 1 at 6. However, because she already
received a distribution of her TSP loan, reimbursement would place her in a better
position than she would have been in had the wrongful personnel action not
occurred. Id. at 27. The applicable regulations do not require an agency to
restore funds withdrawn by the appellant. Rittgers v. Department of the
Army, 123 M.S.P.R. 31, ¶ 10 (2015); see 5 C.F.R. § 1605.13(d) (discussing when
a participant may restore withdrawn funds pursuant to a back pay award).
¶11 The appellant, moreover, claims that the agency must compensate her for
the taxes and penalties she incurred after she was unable to make loan payments
during the back pay period, resulting in a taxable distribution of her TSP loan.
CPFR File, Tab 1 at 6, 26-27. However, the Board has found that it lacks the
authority to make an award of damages for taxes and other consequences of an
agency action without the specific statutory authority to do so, which is lacking
here. Crazy Thunder ‑ Collier v. Department of the Interior, 115 M.S.P.R. 82,
¶ 15 (2010); see Harris v. Department of Agriculture, 53 M.S.P.R. 78, 82 (1992)
(finding that the Board lacks the authority to order any remedy for the tax
consequences of a back pay award), aff’d per curiam, 988 F.2d 130 (Fed. Cir.
1993) (Table).
¶12 For these reasons, we find that the administrative judge correctly
determined that the agency demonstrated compliance regarding the appellant’s
TSP account.
7
The agency properly restored the appellant’s annual leave balance.
¶13 The appellant contends that she is entitled to a recredit of 111.66 hours of
annual leave under section 512.91 of the agency’s Employee and Labor Relations
Manual (ELM). CPFR File, Tab 1 at 2-3. The declaration of the Accounting
Supervisor states that, as a bargaining unit employee, the maximum amount of
annual leave that the appellant could carry over from year to year was 440 hours
under ELM section 512.321. CPFR File, Tab 3 at 8-9, 30-31. The declaration
further explains and refers to the agency’s evidence showing that the appellant
was paid for a balance of 408 annual leave hours upon her retirement. Id. at 9,
33. The declaration asserts that, because the agency had already paid the
appellant 408 hours of annual leave when she retired, it could restore only
32 hours of annual leave. Id. at 9. The agency’s evidence shows that the
appellant was paid for 32 hours of annual leave as part of her back pay award. Id.
at 19, 21.
¶14 Although U.S. Postal Service employees who are eligible for veterans’
preference are excepted from the maximum carryover amount limitation and
may be credited uncapped annual leave, the appellant does not claim she is
eligible for veterans’ preference. IAF, Tab 1 at 2; U.S. Postal Service, Employee
and Labor Relations Manual 36, § 436.1 (Sept. 2013), available at http://about.
usps.com/manuals/elm/elmarch.htm; see Davis v. U.S. Postal
Service, 64 M.S.P.R. 652, 660‑61 (1994) (reaffirming the holding that
preference-eligible employees of the U.S. Postal Service were entitled to the
restoration of an unlimited amount of annual leave under the Back Pay Act); see,
e.g., Hawkins v. U.S. Postal Service, 56 M.S.P.R. 633, 638‑40 (1993) (finding
that a preference‑eligible employee of the U.S. Postal Service was entitled to the
restoration of annual leave in excess of the maximum carryover limit). The
appellant’s reliance on ELM section 512.9, outlining the agency’s policy on
recrediting annual leave, is misplaced. CPFR File, Tab 1 at 3. This provision
8
does not affect the agency’s maximum carryover amount limitation under
section 512.321. Id. at 10; CPFR File, Tab 3 at 30-31. Thus, we find that the
appellant has failed to rebut the agency’s evidence of compliance showing that it
restored the maximum amount of annual leave to which she was eligible.
The agency properly restored the appellant’s sick leave balance.
¶15 The appellant asserts that she should have been paid for the 72 hours of sick
leave that she used during the back pay period. CPFR File, Tab 1 at 2, 14, 19‑21.
The Accounting Supervisor’s declaration states that the agency credited the
appellant’s sick leave balance at retirement with 64 hours of restored sick leave
and 40 hours of earned sick leave. CPFR File, Tab 3 at 9-10. The declaration
further maintains that, when the appellant retired, her unused sick leave balance
was forwarded to the Office of Personnel Management for retirement
calculations. Id. at 10. In response to the Board’s Show Cause Order, CPFR File,
Tab 4, the agency has submitted further documentation that establishes the
appellant used 64 hours of sick leave during the back pay period instead of
72 hours, as she contends, CPFR File, Tab 6 at 7-11, 13-15. The additional
8 hours claimed by the appellant was, in fact, holiday pay. Id. at 7, 13. The
appellant has not responded to the agency’s new evidence, which we find shows
that the agency restored the proper amount of sick leave.
¶16 Accordingly, we conclude that the appellant has not provided a reason to
disturb the administrative judge’s compliance initial decision denying her petition
for enforcement.
9
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 6
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
6
The administrative judge failed to inform the appellant of her mixed-case right to
appeal from the compliance initial decision on her discrimination claims to the Equal
Employment Opportunity Commission and/or the U.S. District Court. This was error,
but it does not constitute reversible error, because we notify the appellant of her
mixed-case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186-87 (1988).
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Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.