Freda Body v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDA T. BODY, DOCKET NUMBER
Appellant, AT-0714-18-0141-X-1
v.
DEPARTMENT OF VETERANS DATE: May 18, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Freda T. Body, Birmingham, Alabama, pro se.
Michael Rhodes, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 On June 17, 2019, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in partial noncompliance with the April 4, 2018 initial decision, which reversed
the appellant’s removal and ordered her reinstated with back pay and benefits.
Body v. Department of Veterans Affairs, MSPB Docket No. AT-0714-18-0141-C-
1, Compliance File (CF), Tab 9, Compliance Initial Decision (CID); Body v.
Department of Veterans Affairs, MSPB Docket No. AT-0714-18-0141-I-1, Initial
Appeal File (IAF), Tab 17, Initial Decision (ID). For the reasons discussed
below, we now find the agency in compliance and DISMISS the appellant’s
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 Effective November 17, 2017, the agency removed the appellant from her
position. IAF, Tab 7 at 13-14. The appellant timely appealed her removal to the
Board. IAF, Tab 1. In an April 4, 2018 initial decision, the administrative judge
reversed the removal and ordered the agency to retroactively restore the appellant
to her position and to pay her all appropriate back pay and benefits. ID at 23.
Because neither party filed a petition for review by May 9, 2018, the initial
decision became the final decision of the Board. ID at 25; see 5 C.F.R.
§ 1201.113.
¶3 On March 21, 2019, the appellant filed a petition for enforcement of the
initial decision, arguing that the agency had not paid her interest on the back pay
award. 3 CF, Tab 1. The agency responded that it was in full compliance with the
initial decision and provided evidence showing that the appellant had received
3
The administrative judge construed the appellant’s March 21, 2019 submission as both
a petition for enforcement and as a claim for compensatory and consequential damages .
CID at 2. The claim for compensatory and consequential damages was docketed and
adjudicated separately under MSPB Docket No. AT-0714-18-0141-P-1.
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back pay for 1,080 hours in the gross amount of $23,371.20. CF, Tab 7 at 4, 6.
In response, the appellant reiterated that the agency had not paid her interest on
the back pay award, explaining that the gross amount paid by the agency of
$23,371.20 was equivalent to 1,080 hours at her hourly rate of $21.64. CF, Tab 8
at 3-6.
¶4 In the June 17, 2019 compliance initial decision, the administrative judge
found that the agency was in noncompliance with the initial decision to the extent
that it had failed to pay the appellant interest on her back pay award. CID at 3.
Accordingly, he granted the appellant’s petition for enforcement and ordered the
agency to pay the appellant the appropriate amount of interest on the back pay
award consistent with 5 U.S.C. § 5596(b)(2)(B) and to provide a narrative
explanation of its calculation of the interest payment, along with supporting
documentation to the appellant. CID at 3-4. He informed the agency that, if it
decided to take the ordered actions, it must submit to the Clerk of the Board a
narrative statement and evidence establishing compliance. CID at 4. The
administrative judge further informed the agency that, if it decided not to take all
of the ordered actions, it must file a petition for review of the compliance initial
decision. CID at 4-5. Neither party filed any submission with the Clerk of the
Board within the time limit set forth in 5 C.F.R. § 1201.114, and the appellant’s
petition for enforcement was referred to the Board for a final decision on issues
of compliance pursuant to 5 C.F.R. § 1201.183(b)-(c). Body v. Department of
Veterans Affairs, MSPB Docket No. AT-0714-18-0141-X-1, Compliance Referral
File (CRF), Tab 1.
¶5 On July 26, 2019, the Clerk of the Board ordered the agency to submit
evidence showing that it had complied with all of the action s identified in the
compliance initial decision and reminded the agency that a failure to comply with
a final Board decision may result in the imposition of sanctions against the
responsible agency official pursuant to 5 U.S.C. § 1204(e)(2)(A). CRF, Tab 1
at 3. The agency did not respond. Accordingly, by order dated November 25,
4
2019, the Clerk of the Board again directed the agency to submit the evidence of
compliance required by the compliance initial decision. CRF, Tab 2. Both the
July 26 and November 25, 2019 orders informed the appellant that she could
respond to the agency’s compliance submissions and that, if she did not do so, the
Board may assume that she was satisfied and dismiss her petition for
enforcement. CRF, Tab 1 at 4, Tab 2 at 3.
¶6 In a December 9, 2019 response to the Clerk of the Board’s order, the
agency identified the official charged with complying with the Board’s order and
provided evidence reflecting that it had determined that the appellant was entitled
to interest on the gross back pay award in the amount of $471.75. CRF, Tab 3.
In a December 30, 2019 submission, the appellant stated that she had now
received the back pay award at the correct rate of pay plus interest and benefits
but that she had not yet received the overtime pay she would have received had
she not been removed. CRF, Tab 4 at 3-4. On February 4, 2020, the agency
responded with evidence showing that, on January 15, 2020, it paid the appellant
$431.56, which the agency representative described as “the amount in dispute.”
CRF, Tab 5. The appellant did not respond to the agency’s February 4, 2020
submission.
ANALYSIS
¶7 When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); 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
5
by a preponderance of the evidence. 4 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.¶8 As described above, in the compliance initial decision, the administrative
judge found that the agency failed to establish that it had complied with its
obligation to pay the appellant interest on the back pay award. CID. The parties’
submissions show that the agency has now complied with this obligation. CRF,
Tabs 3-4. In addition, the agency has represented that it has paid the appellant
the appropriate amount of overtime back pay, and the appellant has not further
challenged the agency’s compliance with its obligation to restore her to the status
quo ante. Accordingly, the Board assumes she is satisfied with the agency’s
compliance on the interest issue. See Baumgartner v. Department of Housing and
Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).
¶9 Although the appellant now appears to be disputing whether the agency
properly computed any overtime payment due to her as part of her back pay, she
did not make this challenge before the administrative judge, nor did she file a
timely petition for review of the administrative judge’s determination that the
back pay award was accurate but for the interest payment. CRF, Tab 1, CF,
Tabs 1, 8. We therefore will not consider this contention.
¶10 In light of the foregoing, we find that the agency is now in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit
4
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIGHTS 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 limi t for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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.
7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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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 petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jur isdiction 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.
10
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 b y 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.