Lashona Smith v. United States Postal Service ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LASHONA S. SMITH, DOCKET NUMBER
Appellant, CH-0752-20-0550-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 29, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Arthur R. Ehrlich, Esquire, Chicago, Illinois, for the appellant.
Cynthia L. Edwards-Bender, Glen Ellyn, Illinois, for the appellant.
Hannah C. Brothers, Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a November 30, 2021 compliance initial decision, the administrative
judge found the agency in partial noncompliance with the Board’s May 13, 2021
final decision reversing the appellant’s removal and ordering the agency to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
retroactively restore her with back pay and benefits. Smith v. U.S. Postal Service,
MSPB Docket No. CH-0752-20-0550-I-1, Initial Appeal File, Tab 33, Initial
Decision; Smith v. U.S. Postal Service, MSPB Docket No. CH-0752-20-0550-C-1,
Compliance File, Tab 6, Compliance Initial Decision (CID). For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the administrative judge found that the
agency had failed to pay the appellant all back pay owed, with interest, as the
agency’s back pay calculations included an improper deduction of $26,993.00 for
unemployment benefits and excluded time during the back pay period wherein the
appellant made reasonable efforts to find work as required by the agency’s
Employee and Labor Relations Manual (ELM). 2 CID at 4-9. Accordingly, she
granted the appellant’s petition for enforcement and ordered the agency to :
(1) recompute the appellant’s back pay award in accordance with the instructions
provided; (2) pay the appellant all back pay owed; and (3) restore the appellant’s
leave balances with any leave she accrued during the back pay period. CID
at 9-10.
2
As stated in the compliance initial decision:
In the Postal Service, only employees who have veterans preference are
covered by the Back Pay Act. Davis v. U.S. Postal Service, 64 M.S.P.R.
652, 658 (1994). Entitlement to back pay for those who, like the
appellant, lack veterans preference is subject to conditions imposed by the
agency’s Employee and Labor Relations Manual (ELM). Id. at 659-60.
The ELM requires non-preference eligible employees to file a Form 8038
titled, “Employee Statement to Recover Back Pay,” describing their
efforts to seek employment. Where, as here, the back pa y period exceeds
six months, the ELM directs that, excluding the first 45 days after the
effective date of their removal, the employees must have sought work and
must provide documentation they made reasonable efforts to do so while
awaiting the outcome of their Board appeal. CID at 3-4.
3
¶3 The administrative judge 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 11. The compliance initial decision
also informed the parties that they could file a petition for review if they
disagreed with the compliance initial decision. CID at 12-13. Neither party filed
a petition for review and, on January 4, 2022, the agency informed the Board that
it had complied with the compliance initial decision. Smith v. U.S. Postal
Service, MSPB Docket No. CH-0752-20-0550-X-1, Compliance Referral File
(CRF), Tab 1. Accordingly, the appellant’s petition for enforcement has been
referred to the Board for a final decision on issues of compliance. 5 C.F.R.
§ 1201.183(c).
¶4 In its January 4, 2022 compliance submission, the agency indicated that it
had recomputed the appellant’s back pay award in accordance with the
instructions provided and that, pending a review from the agency’s auditor, the
appellant should be receiving a check for all back pay owed within the same week
and should have her leave restored within one to two pay periods. CRF, Tab 1.
As evidence of its compliance, the agency provide d a “Back Pay
Decision/Settlement Worksheet” signed by both the appellant and the agency’s
Back Pay Coordinator, indicating how the agency recomputed the appellant’s
back pay award, id. at 17-28, with copies of the documentation and agency
policies it relied upon also attached, id. at 29-50, 107-47, 156-83. The appellant
did not respond to the agency’s submission.
¶5 By order dated February 25, 2022, the Board ordered the agency to submit a
response, via affidavit and documentary evidence, addressing its comp liance with
the administrative judge’s orders to make final determinations as to whether it
had finally paid the appellant all back pay owed and restored her leave balances
with her entitled leave. CRF, Tab 3 at 3.
¶6 The agency responded to the Board’s order on March 16, 2022. CRF,
Tab 4. The agency averred that it has now paid the appellant all back pay and
4
interest owed, with $5,792.80 in back pay issued to her on August 16, 2021, via
six postal money orders; $35,387.37 in back pay issued to her via a check mailed
to her home address on January 10, 2022; and $1,984.69 in interest issued to her
via a check mailed to her home address on January 13, 2022. CRF, Tab 4 at 6-7.
It further averred that, in pay period 2 of 2022, it restored the appellant’s leave
balances by crediting to her 120 hours of annual leave and 80 hours of sick
leave. 3 Id. As evidence of its compliance, the agency provided copies of the
postal money orders with receipts, id. at 18-21; tracking information for both the
backpay and interest checks, id. at 22-24, 26-28; a copy of the interest check, id.
at 25; and copies of the payroll journals showing the appellant’s credited leave
balances, id. at 29-32. Again, the appellant did not respond to the agency’s
submission.
ANALYSIS
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s asser tions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶8 Here, the agency has demonstrated that it has paid the appellant a total of
$41,180.17 in back pay and $1,984.69 in interest and restored to her 120 hours of
3
The agency indicates that, upon crediting these annual and sick leave hours to the
appellant, her total annual and sick leave balances were offset by her requests to use
leave during the back pay period. CRF, Tab 4 at 7, 30.
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annual leave and 80 hours of sick leave. The appellant has not responded to
either of the agency’s compliance submissions, despite twice being notified of her
opportunity to do so, including having been cautioned that the Board may assume
she is satisfied and dismiss her petition for enforcement if she did not respond.
CRF, Tabs 2-3. Accordingly, we assume that the appellant is satisfied with the
agency’s compliance. See Baumgartner v. Department of Housing & Urban
Development, 111 M.S.P.R. 86, ¶ 9 (2009).
¶9 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction. 5 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).
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:
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.