Randall Desjardin v. U.S. Postal Service , 2023 MSPB 6 ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2023 MSPB 6Docket No. SF-0353-15-0241-I-1
Randall S. Desjardin,
Appellant,
v.
United States Postal Service,
Agency.
February 22, 2023
Randall S. Desjardin, Grove, Oklahoma, pro se.
Michael R. Tita, Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
granted in part his restoration claim on the merits. The agency has filed a cross
petition for review. For the reasons discussed below, we DENY the petition for
review and GRANT the cross petition for review. We AFFIRM the initial
decision IN PART, AS MODIFIED by this Opinion and Order, REVERSE it IN
PART, and VACATE it IN PART. More specifically, we AFFIRM AS
MODIFIED the administrative judge’s finding that the agency arbitrarily and
capriciously denied the appellant restoration. We REVERSE the administrative
2
judge’s finding that the agency discriminated against the appellant on the basis of
his disability. We VACATE the administrative judge’s order to pay the appellant
back pay for 2 hours per day for the time during which he was denied partial
restoration.
BACKGROUND
¶2 The appellant is employed by the agency as a City Carrier. Initial Appeal
File (IAF), Tab 6, Subtab A at 2. On December 11, 2014, he submitted a written
request to the agency’s local injury compensation manager to return to work
following an absence due to a compensable injury. Id., Subtab B. He included a
Form CA-17 (Duty Status Report) completed by his doctor that listed his medical
restrictions. Id. at 2. He submitted updated paperwork over the following week.
Id. at 4, 6-7, 10, 12.
¶3 On January 7, 2015, the appellant filed this Board appeal challenging the
agency’s failure to restore him to duty. IAF, Tab 1. Around the time the
appellant filed his Board appeal, the agency informed him by letter that it had
unsuccessfully searched for available work within his medical restrictions within
his facility and throughout the local commuting area. IAF, Tab 6, Subtab E.
Although the letter was dated January 5, 2015, it does not appear to have been
sent to the appellant until 8 days later. Id., Subtab F. Additionally, the
appellant’s supervisor conceded in her hearing testimony that in fact a full search
of the local commuting area had not been conducted when the agency sent the
letter. Hearing Compact Disc (HCD) (testimony of S.N.).
¶4 The agency searched the local commuting area on January 15, 2015, based
on restrictions that differed somewhat from those set forth by the appellant’s
doctor. That search resulted in a finding of no work available within the
appellant’s restrictions. IAF, Tab 17 at 31-71. Approximately 2 weeks after he
filed this appeal, the appellant received and accepted a modified limited-duty
assignment casing mail for up to 2 hours per day. Id. at 14. The appellant
3
accepted the modified limited-duty assignment “under protest,” asserting that
there was sufficient work available for him to work a full-time schedule.
Id. at 13-14. He also argued that he could perform his duties as a union steward.
Id.
¶5 Effective March 24, 2015, the appellant accepted a new modified
limited-duty assignment for 8 hours per day. IAF, Tab 42, Subtab BB.
In accepting the offer, the appellant protested that the offer did not specifically
include union steward duties. Id. However, the appellant acknowledged in his
hearing testimony that he was permitted to perform those duties after accepting
the March 24, 2015 limited-duty assignment. HCD (testimony of the appellant).
¶6 After holding a hearing, the administrative judge issued an initial decision
granting the appellant’s request for restoration in part. IAF, Tab 61,
Initial Decision (ID). Specifically, she found that the agency’s initial search for
available work for the appellant was inadequate because it failed to include the
entire local commuting area and was based on incorrect medical restrictions. 1
ID at 7. She further found that the appellant’s partial restoration to duty in
January 2015 was so unreasonable as to amount to an arbitrary and capricious
denial of restoration. ID at 7-8. The administrative judge rejected the appellant’s
argument that the agency was required to assign him to perform union steward
duties as part of its restoration obligation. ID at 9-11. However, she found that
there were at least 2 hours of work available daily within the appellant’s medical
restrictions from the time he submitted his restoration request in December 2014.
ID at 11-13. Accordingly, the administrative judge ordered the agency to pay the
appellant back pay and benefits for 2 hours per day for the period during which
1
The administrative judge determined that the agency had searched for work based on a
restriction of no walking at all, when the appellant’s walking restriction was limited to
walking carrier routes. ID at 7.
4
his request for restoration was denied in its entirety and to conduct a proper
search for available work retroactive to December 12, 2014. ID at 28-29.
¶7 Having found that the Board had jurisdiction over the appellant’s
restoration appeal, the administrative judge then addressed the appellant’s claims
of discrimination, retaliation, and harmful procedural error. She found that the
appellant failed to show that the agency denied him a reasonable accommodation
for his disability because he failed to identify either an accommodation that
would have enabled him to perform the essential functions of his position or a
vacant funded position to which he could have been reassigned. ID at 16-17.
In addressing the appellant’s disparate treatment disability discrimination claim,
the administrative judge applied a mixed-motive analysis and found that the
appellant’s disability was a motivating factor in both the agency’s failure to
immediately restore him for at least 2 hours per day, as well as its failure to
restore him to full-time work. ID at 17-19. The administrative judge found that
the agency proved by clear and convincing evidence that it would have denied the
appellant a full-time limited-duty assignment even in the absence of his
disability, but she also found that the agency failed to meet that burden regarding
the failure to immediately provide 2 hours of work. ID at 19-20.
¶8 The administrative judge also found that the appellant failed to prove that
his sex or prior equal employment opportunity (EEO) activity was a motivating
factor in the agency’s actions. ID at 20-23. She further found that the appellant
failed to show that the agency’s actions constituted retaliation for his
whistleblowing or union activities. ID at 23-27. Finally, the administrative judge
found that the appellant failed to show any harmful error separate from the merits
of his restoration claim. ID at 27-28.
¶9 The appellant has filed a petition for review and the agency has filed a cross
petition for review challenging the initial decision. Petition for Review (PFR)
File, Tabs 1, 9. The appellant argues that the agency’s actions violated the
applicable collective bargaining agreement, the agency’s Employee and Labor
5
Relations Manual, and the National Labor Relations Act by failing to allow him
to perform union duties. PFR File, Tab 1 at 9-12. He also argues that there were
sufficient nonunion duties available to restore him to full-time work.
Id. at 13-17. He argues that his union duties are essential functions of his
position and that the agency’s failure to restore him to perform those duties is
therefore a denial of reasonable accommodation. Id. at 17. The appellant further
argues that he proved his claims of harmful error, sex discrimination, and
retaliation for prior EEO, whistleblowing, and union activities. Id. at 18-21.
Finally, the appellant asserts that he has evidence that was not previously
available. 2 Id. at 21, 25-165. In its cross petition for review, the agency argues
that the administrative judge erred in finding disability discrimination because it
was not required under the Rehabilitation Act to offer the appellant duties that did
not comprise the essential functions of a position. PFR File, Tab 9 at 10-12.
The appellant has responded in opposition to the agency’s cross petition for
review. 3 PFR File, Tab 11.
2
We have reviewed the documents the appellant submitted for the first time on review,
and we find that he has not shown that those documents were unavailable prior to the
close of the record below, despite his due diligence. Therefore, the Board will not
consider them. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). Regarding the sworn statements submitted with the petition for
review, although the statements themselves are dated after the close of the record
below, the appellant has not shown that the information contained in the documents, not
just the documents themselves, were unavailable despite his due diligence.
See Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989); 5 C.F.R.
§ 1201.115(d).
3
We deny the appellant’s objection to the Clerk of the Board’s order granting the
agency an extension of time to file its response to the appellant’s petition for review.
PFR File, Tab 11 at 4.
6
ANALYSIS
To establish jurisdiction over his restoration claim as a partially recovered
employee, the appellant must show that the agency failed to meet its minimum
obligation under 5 C.F.R. § 353.301(d).
¶10 The Federal Employees’ Compensation Act provides, among other things,
that Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. Kingsley v. U.S. Postal
Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has
explicitly granted the Office of Personnel Management (OPM) the authority to
issue regulations governing the obligations of employing agencies in this regard.
5 U.S.C. § 8151(b). Pursuant to this authority, OPM has issued regulations
requiring agencies to make certain efforts toward restoring employees with
compensable injuries to duty, depending on the timing and extent of their
recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal Service, 81 M.S.P.R. 92,
¶ 6 (1999).
¶11 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights
granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range” of their
regular duties, have “recovered sufficiently to return to part-time or light duty or
to another position with less demanding physical requirements.”
Section 353.301(d) requires agencies to “make every effort to restore in the local
commuting area, according to the circumstances in each case, an individual who
has partially recovered from a compensable injury and who is able to return to
limited duty.” This means, “[a]t a minimum,” treating individuals who have
partially recovered from a compensable injury substantially the same as other
disabled 4 individuals under the Rehabilitation Act, as amended. 5 C.F.R.
§ 353.301(d). The Board has interpreted the regulation to require that an agency
4
The regulation anachronistically refers to “handicapped” individuals.
7
must at least search within the local commuting area for vacant positions to which
it can restore a partially recovered employee and to consider her for any such
vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010). 5
¶12 Although 5 U.S.C. § 8151 does not itself provide for an appeal right to the
Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301.
As relevant here, the regulation provides that a partially recovered individual
“may appeal to [the Board] for a determination of whether the agency is acting
arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304(c).
Pursuant to the law and regulations in effect at the time this appeal was filed, to
establish jurisdiction over a restoration appeal as a partially recovered individual,
the appellant must prove the following by preponderant evidence: (1) he was
absent from his position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part-time basis or to return to work in a position
with less demanding physical requirements than those previously required of him;
(3) the agency denied his request for restoration; and (4) the denial was arbitrary
and capricious. 6 Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097, 1104
(Fed. Cir. 2011); Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 (2012),
5
Although the Rehabilitation Act may in some cases require an agency to search
beyond the local commuting area, we have found that, read as a whole,
section 353.301(d) requires only that an agency search within the local commuting area
and that the reference to the Rehabilitation Act means that, in doing so, it must
undertake substantially the same effort that it would exert under that Act when
reassigning a disabled employee within the local commuting area. Sanchez,
114 M.S.P.R. 345, ¶ 18.
6
A preponderance of the evidence is “[t]he 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)
(formerly codified at 5 C.F.R. § 1201.56(c)(2) (2015)).
8
overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13,
¶¶ 20-21. 7
¶13 The jurisdictional standard established by 5 C.F.R. § 353.304(c) “reflects
the limited substantive right enjoyed by partially recovered employees.”
Bledsoe, 659 F.3d at 1103. Whereas employees who fully recover from a
compensable injury within a year have an “unconditional right to restoration
under 5 C.F.R. § 353.301(a) and 5 U.S.C. § 8151(b)(1),” a partially recovered
employee does not have such an unconditional right. Bledsoe, 659 F.3d at 1103.
Rather, the agency only is obliged to “make every effort to restore” a partially
recovered employee “in the local commuting area” and “according to the
circumstances in each case.” Id.; 5 C.F.R. § 353.301(d). The Board appeal right
under 5 C.F.R. § 353.304(c) is likewise conditional: “[b]ecause partially
recovered employees do not have an unconditional right to restoration, they do
not have the right to appeal every denial of restoration.” Bledsoe, 659 F.3d
at 1103 (emphasis in original). Accordingly, the arbitrary and capricious standard
of 5 C.F.R. § 353.304(c) “limits jurisdiction to appeals where the substantive
rights of partially recovered [appellants] under section 353.301(d) are actually
alleged to have been violated.” Id.; cf. Palmer v. Merit Systems Protection
Board, 550 F.3d 1380, 1383 (Fed. Cir. 2008) (holding that a partially recovered
employee alleging improper restoration “may appeal only on the limited grounds
enumerated in [section 353.304(c)]”). In other words, for purposes of the fourth
jurisdictional element, a denial of restoration is “rendered arbitrary and
7
After Bledsoe and Latham were issued, the Board changed its regulations and adopted
a “nonfrivolous allegation” standard for restoration appeals, rather than the
“preponderant evidence” standard set forth in those cases. Kingsley, 123 M.S.P.R. 365,
¶ 10. The new standard applies only in cases filed on or after March 30, 2015, Practices
and Procedures, 80 Fed. Reg. 4,489, 4,496 (Jan. 28, 2015) (codified in pertinent part
at 5 C.F.R. § 1201.57), and is therefore inapplicable to this appeal.
9
capricious by [an agency’s] failure to perform its obligations under 5 C.F.R.
§ 353.301(d).” Bledsoe, 659 F.3d at 1104.
¶14 Under the law in effect at the time this appeal was filed, an appellant who
established these jurisdictional elements automatically prevailed on the merits.
Latham, 117 M.S.P.R. 400, ¶ 10 n.9. In finding that the appellant established
jurisdiction over, and thus the merits of, his restoration claim, the administrative
judge applied the standard set forth in Latham, in which the Board held that when
an agency voluntarily assumes restoration obligations beyond the “minimum”
requirements of 5 C.F.R. § 353.301(d), the agency’s failure to comply with those
agency-specific requirements is arbitrary and capricious for purposes of
establishing Board jurisdiction. ID at 5-6; Latham, 117 M.S.P.R. 400, ¶¶ 13-14.
As the Board in Latham recognized, the U.S. Postal Service’s rules obligate it to
offer modified assignments when the work is available regardless of whether the
duties constitute those of an established position. See Latham, 117 M.S.P.R. 400,
¶ 41. Thus, under existing precedent, the administrative judge properly
considered whether the agency properly searched for and provided available
duties to the appellant. ID at 7-8.
¶15 However, after the initial decision in this appeal was issued, the Board
overruled Latham in Cronin. The Board in Cronin held that, although agencies
may undertake restoration efforts beyond the minimum effort required by OPM
under 5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that
a resulting denial of restoration would be rendered arbitrary and capricious for
purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c).
Cronin, 2022 MSPB 13, ¶ 20. Rather, as explained in Cronin, the issue before
the Board is limited to whether the agency failed to comply with the minimum
requirement of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting
area for vacant positions to which it can restore a partially recovered employee
10
and to consider him for any such vacancies. See Cronin, 2022 MSPB 13, ¶ 20
(citing Sanchez, 114 M.S.P.R. 345, ¶ 12).
¶16 The Board in Cronin further held that, contrary to its prior suggestion in
Latham, claims of prohibited discrimination or reprisal cannot serve as an
“alternative means” of showing that a denial of restoration was arbitrary and
capricious. Id., ¶ 21. The Board in Cronin held that, although an agency’s
failure to comply with section 353.301(d) may well be the result of prohibited
discrimination or reprisal for protected activity, whether that is so is immaterial
to the question of whether a denial of restoration is arbitrary and capricious for
purposes of section 353.304(c). Cronin, 2022 MSPB 13, ¶ 21.
The agency violated its restoration obligation by failing to search throughout the
local commuting area for vacant positions to which it could reassign the
appellant, and the proper remedy is for the agency to conduct such a search
retroactively.
¶17 Under Cronin, the Board’s sole jurisdictional inquiry in an appeal alleging
an arbitrary and capricious denial of restoration to a partially recovered employee
is whether the agency complied with its obligation under 5 C.F.R. § 353.301(d) to
search within the local commuting area for vacant positions to which it can
restore the employee and to consider him for any such vacancies. For restoration
rights purposes, the local commuting area is the geographic area in which an
individual lives and can reasonably be expected to travel back and forth daily to
his usual duty station. Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999).
It includes any population center, or two or more neighboring ones, and the
surrounding localities. Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193 (1997).
The question of what constitutes a local commuting area is one of fact.
Sanchez, 114 M.S.P.R. 345, ¶ 13. The extent of a commuting area is ordinarily
determined by factors such as common practice, the availability and cost of
public transportation or the convenience and adequacy of highways, and the travel
time required to go to and from work. Id.11
¶18 Here, the administrative judge found that the agency’s initial search for
available work in December 2014 was limited to the appellant’s facility and
therefore did not cover the entire local commuting area. ID at 7. Under Cronin,
the agency’s efforts to find work that did not constitute the essential functions of
an established position cannot form the basis of a restoration claim before the
Board. 8 We therefore vacate the administrative judge’s findings that the agency’s
actions in connection with its search for modified duties constituted an arbitrary
and capricious denial of restoration within the Board’s jurisdiction. 9 However, in
light of both the agency’s failure to search beyond a single facility when the
appellant sought to return to work, as well as its use of incorrect restrictions when
searching for work, we find that the agency violated its obligation under 5 C.F.R.
§ 353.301(d) to search the local commuting area for vacant positions to which it
could restore the appellant. See Scott v. U.S. Postal Service, 118 M.S.P.R. 375,
¶ 13 (2012) (finding an arbitrary and capricious denial of restoration when the
agency based its search for work on incorrect restrictions); Urena v. U.S. Postal
Service, 113 M.S.P.R. 6, ¶ 13 (2009) (finding a nonfrivolous allegation of an
arbitrary and capricious denial of restoration when the agency’s search for
available work was limited to a single facility). We therefore find that the agency
violated the appellant’s restoration rights under 5 C.F.R. § 353.301(d) but only to
the extent it failed to conduct a proper search for vacant positions.
8
Consistent with general principles of law, we give Cronin retroactive effect in this
case, which was pending at the time Cronin was decided. Heartland By-Products, Inc.
v. United States, 568 F.3d 1360, 1365 (Fed. Cir. 2009).
9
Although we find the agency’s search in this case was inadequate, we do not mean to
suggest that an agency violates an employee’s restoration rights under 5 C.F.R.
§ 353.301(d) by searching for available duties that do not constitute the essential
functions of an established position. We assume that a properly conducted search for
available duties within an employee’s restrictions also would encompass available
positions with duties that fell within those restrictions. The search in this case was
inadequate because the agency failed to search the entire local commuting area and used
incorrect restrictions.
12
¶19 When, as in this case, the denial of restoration was arbitrary and capricious
for lack of a proper job search, the Board has found that the proper remedy is for
the agency to conduct an appropriate search of the local commuting area
retroactive to the date of the appellant’s request for restoration, and to consider
him for any suitable vacancies. Tram v. U.S. Postal Service, 118 M.S.P.R. 388,
¶ 10 (2012). The remedy of a retroactive job search will be sufficient to correct
the wrongful action and substitute it with a correct one based on an appropriate
search. Id. However, it will not put the appellant in a better position than the one
he was in before the wrongful action because it leaves open the possibility that
the agency still might be unable to find a vacant position. Id. The appellant may
be entitled to back pay only if the agency’s retroactive search uncovers a position
to which it could have restored him. 10 Id. We therefore vacate the administrative
judge’s order requiring the agency to pay the appellant back pay for the period
during which she determined he was entitled to partial restoration.
The Board will continue to adjudicate discrimination and retaliation claims in
connection with denials of restoration over which it has jurisdiction.
¶20 The Board in Cronin declined to address how it should address claims of
discrimination and retaliation in restoration appeals within its jurisdiction.
Cronin, 2022 MSPB 13, ¶ 21 n.12. In Latham, the Board stated that, in
restoration appeals, claims of discrimination and reprisal should be understood as
“independent claims” rather than as “affirmative defenses.” Latham,
117 M.S.P.R. 400, ¶ 58 n.27. The Board indicated that the concept of an
“affirmative defense” fits better in matters such as adverse action appeals when
the agency bears the burden of proof on the merits. 11 Id.10
We agree with the administrative judge that the appellant’s union duties are not
themselves a position to which he could have been reassigned. ID at 9-11.
11
The Board in Latham also noted the possibility that discrimination and reprisal claims
could serve as alternative ways for an appellant to show that the denial of restoration
was arbitrary and capricious. Latham, 117 M.S.P.R. 400, ¶ 58 n.27. However, as we
13
¶21 Despite the Board’s criticism in Latham of the use of the term “affirmative
defense” to describe the adjudication of discrimination and retaliation claims in
restoration appeals, the Board has continued to adjudicate those claims in the
same manner as it did before Latham. See, e.g., Davis v. U.S. Postal Service,
120 M.S.P.R. 122, ¶¶ 15-18 (2013), overruled on other grounds by Cronin,
2022 MSPB 13. We see no reason to alter that approach. Under 5 U.S.C.
§ 7702(a)(1), if an employee “has been affected by an action which [he] may
appeal” to the Board and “alleges that a basis for the action was discrimination
prohibited by” certain enumerated anti-discrimination statutes, the Board is
required to “decide both the issue of discrimination and the appealable action in
accordance with the Board’s appellate procedures.” Thus, once the appellant has
established that the challenged action is within the Board’s jurisdiction, the Board
is required by statute to adjudicate both the action itself and any claim that the
action was based on one of the enumerated categories of prohibited
discrimination.
Findings that the agency committed disability discrimination against injured
employees in the past do not control the outcome of the disability discrimination
issue in this appeal.
¶22 As we noted in Cronin, 2022 MSPB 13, ¶ 22 n.13, the Equal Employment
Opportunity Commission (EEOC) held in a class action appeal that the agency
had discriminated against disabled employees who were injured on duty (IOD)
and assessed under the agency’s National Reassessment Program (NRP) between
May 2006 and July 2011. See Velva B. v. U.S. Postal Service, EEOC Appeal
Nos. 0720160006 & 0720160007, 2017 WL 4466898 (Sept. 25, 2017), request for
reconsideration denied, Request Nos. 0520180094 & 0520180095,
2018 WL 1392289 (Mar. 9, 2018). Specifically, the EEOC found that “officials
explained previously, that aspect of Latham is no longer good law under Cronin.
Supra ¶ 16.
14
involved in the development and deployment of the NRP were motivated by
unlawful considerations of the class members’ disabilities when they subjected
IOD employees to NRP assessments and took follow-up actions to those
assessments under the auspices of the NRP.” Id. at *14-*21. Those “follow-up”
actions included the withdrawal of previously granted modified work assignments
from IOD employees, id. at *26, the creation of a hostile work environment,
id. at *29, subjecting employees to unlawful disability-related medical inquiries,
id. at *33, and disclosing confidential medical information, id. at *38.
¶23 The Board generally defers to the EEOC on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its
support or is so unreasonable that it amounts to a violation of civil service law.
Alvara v. Department of Homeland Security, 116 M.S.P.R. 627, ¶ 8 (2011).
However, we find that the EEOC’s decision in Velva B. does not control the
outcome of the disability discrimination issue in this appeal or any other
restoration appeal within the Board’s jurisdiction.
¶24 First, the EEOC made clear that the matters before it in the class action
were not mixed cases, i.e., they did not involve matters appealable to the Board.
Velva B., 2018 WL 1392289, at *3; see 29 C.F.R. § 1614.302(a). Any restoration
appeal within the Board’s jurisdiction in which disability discrimination is
claimed is, by definition, a mixed-case appeal, 29 C.F.R. § 1614.302(a)(2), and is
therefore distinct from the matters addressed by the EEOC in Velva B.
¶25 Additionally, the Board’s jurisdiction over discrimination claims in mixed
cases is limited to determining whether discrimination was “a basis for the
action” within its jurisdiction. See 5 U.S.C. § 7702(a)(1). The Board’s
jurisdiction to adjudicate a discrimination claim as to one personnel action does
not include jurisdiction over all other actions the appellant alleges to be
discriminatory. See Lethridge v. U.S. Postal Service, 99 M.S.P.R. 675, ¶¶ 8-13
(2005) (rejecting the EEOC’s suggestion that the Board could adjudicate
discrimination claims relating to otherwise nonappealable actions if they are
15
“inextricably intertwined” with or “cannot sensibly be bifurcated” from otherwise
appealable actions). Thus, in the case of an arbitrary and capricious denial of
restoration to a partially recovered employee, the Board can consider only
whether that particular denial of restoration was discriminatory. The Board can
consider agency actions other than the appealable action only to the extent those
other actions are relevant to whether the appealable action itself was
discriminatory. See Deas v. Department of Transportation, 108 M.S.P.R. 637,
¶ 20 (2008) (finding in a suspension appeal that, while the Board could not
adjudicate a claim that the proposal to suspend was discriminatory, it could
consider whether any discrimination in the proposal could be imputed to the
subsequent suspension), overruled on other grounds by Abbott v. U.S. Postal
Service, 121 M.S.P.R. 294, ¶ 10 (2014). Here, the matter over which the Board
has jurisdiction is the agency’s failure to restore the appellant due to its failure to
properly search the local commuting area for vacant positions to which it could
have reassigned him. In adjudicating the appellant’s discrimination claims, the
Board therefore is limited to consideration of that action. Discrimination claims
relating to other agency actions, including any actions relating to limited-duty
assignments that do not constitute the essential functions of an established
position, are matters for the EEOC, rather than the Board.
¶26 Finally, the EEOC’s findings of disability discrimination in Velva B.
involve the development and implementation of the NRP, a program that ended in
2011. Velva B., 2017 WL 4466898, at *6. The events at issue in this appeal took
place more than 3 years after the NRP ended, and there is no indication that the
actions at issue here were affected by the NRP. Thus, the EEOC’s findings as to
the NRP’s development and implementation do not affect our analysis of the
disability discrimination claim in this case.
The appellant did not prove his disability discrimination claims.
¶27 The appellant alleged disability discrimination under both reasonable
accommodation and disparate treatment theories. The Board adjudicates claims
16
of disability discrimination raised in connection with an otherwise appealable
action under the substantive standards of section 501 of the Rehabilitation Act.
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35.
The Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act (ADA), as amended by the Americans with Disabilities Act
Amendments Act of 2008 (ADAAA). Id. Therefore, we apply those standards
here to determine if there has been a Rehabilitation Act violation. Id.In particular, the ADAAA provides that it is illegal for an employer to
“discriminate against a qualified individual on the basis of a disability.”
42 U.S.C. § 12112(a). The Board recently clarified that only an otherwise
qualified individual with a disability is entitled to relief, whether the individual
alleges disability discrimination based on a disparate treatment or reasonable
accommodation theory. Haas v. Department of Homeland Security, 2022 MSPB
36, ¶¶ 28-29. 12
¶28 A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8). Thus, an appellant
can establish that he is a qualified individual with a disability by showing that he
can, with or without accommodation, perform either the essential functions of his
position of record or those of a vacant funded position to which he could be
assigned. See Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 11
(2014).
12
The administrative judge informed the appellant that he was required to show that he
was a qualified individual with a disability to be entitled to protection under the
Rehabilitation Act. IAF, Tab 51 at 5. Thus, although we are applying the Board’s
decisions in Pridgen and Haas, which were issued after the initial decision in this case
and clarified the relevant legal standard, the appellant had adequate notice of that
standard.
17
¶29 The appellant does not allege that he could perform the essential functions
of his City Carrier position with or without accommodation, and the medical
restrictions submitted by his doctor precluded “route walking. . . for the delivery
of mail.” IAF, Tab 6, Subtab B at 7. We therefore find that the appellant did not
establish that he was qualified based on his ability to perform the essential
functions of the position he held. Thus, he would need to identify a vacant
funded position to which he could have been reassigned in order to establish that
he is a qualified individual with a disability. In addressing the appellant’s
reasonable accommodation claim, the administrative judge found that the
appellant failed to meet his burden to show that there was any vacant position he
could perform within his medical restrictions, even with a reasonable
accommodation. ID at 16-17. We agree with the administrative judge’s finding
because the record does not show any existing vacant position to which the
appellant could have been reassigned. 13 We therefore find that the appellant’s
disability discrimination claims under both disparate treatment and reasonable
accommodation theories fail because he has not established that he is a qualified
individual with a disability.
The appellant failed to prove his affirmative defenses of discrimination based on
his sex or retaliation for prior EEO activity.
¶30 As to the appellant’s claims of sex discrimination and retaliation for prior
EEO activity, the administrative judge applied the standard set forth by the Board
in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). Applying that
13
Our finding that the agency failed to conduct a proper search for available positions
within the local commuting area, supra ¶ 18, does not relieve the appellant of his
burden to establish the existence of a position to which he could have been reassigned
in order to establish that he is a qualified individual with a disability. The agency
argued before the administrative judge that the appellant had not identified a position he
could perform within his medical restrictions. IAF, Tab 17 at 10. The appellant
acknowledged that argument and indicated that he had requested information in
discovery regarding the availability of positions he could perform. IAF, Tab 18 at 5.
18
standard, the administrative judge found that the appellant failed to prove by
preponderant evidence that either his sex or prior EEO activity was a motivating
factor in the agency’s actions. ID at 20-23.
¶31 Title VII of the Civil Rights Act of 1964, as amended, requires that actions
“shall be made free from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a). Since the initial decision was issued,
the Board has clarified that an appellant who proves that discrimination under
Title VII was a motivating factor in the contested personnel action may be
entitled to injunctive or other “forward-looking” relief, but to obtain the full
measure of relief, including status quo ante relief, compensatory damages, or
other forms of relief related to the end result of an employment decision, the
appellant must show that discrimination was a “but-for” cause of the action.
Pridgen, 2022 MSPB 31, ¶¶ 20-22. “But-for” causation is a higher burden than
“motivating factor” causation. Id., ¶¶ 21 n.4, 22, 48. Consistent with the
administrative judge’s findings, we conclude that the appellant has not shown that
his sex was a motivating factor in the agency’s failure to properly search the local
commuting area. 14 Because the appellant did not show that his sex was a
motivating factor in the agency’s failure to restore him, he necessarily failed to
meet the more stringent “but-for” standard. Id. Accordingly, he is not entitled to
any relief based on his allegations of sex discrimination.
¶32 Concerning the appellant’s retaliation claims, the record reflects that his
prior EEO activity was based on both Title VII and the ADA. IAF, Tab 20 at 20,
Tab 26 at 4, 28. Claims of retaliation for opposing discrimination in violation of
14
Administrative judges are not required to separate “direct” from “indirect” evidence
and to proceed as if such evidence were subject to different legal standards, or to
require appellants to demonstrate a “convincing mosaic” of discrimination or
retaliation. Pridgen, 2022 MSPB 31, ¶ 24. Although the administrative judge in this
case discussed different types of evidence, we find no material error and the initial
decision reflects that the administrative judge properly considered the record as a
whole. ID at 20-23.
19
Title VII are analyzed under the same framework used for Title VII
discrimination claims, as set forth above. Pridgen, 2022 MSPB 31, ¶ 30. We see
no error in the administrative judge’s findings that the appellant failed to prove
that Title VII retaliation was a motivating factor in the agency’s actions. 15
¶33 To prevail in a claim of retaliation for engaging in activity protected by the
ADA, as amended by the ADAAA, including filing EEO complaints based on
disability discrimination, the appellant must show that retaliation was a “but-for”
cause of the agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 44-47.
The administrative judge, applying the now-obsolete mixed-motive analysis,
found that the appellant failed to show that retaliation was a motivating factor in
the agency’s denial of his restoration rights. ID at 21-22; see Pridgen,
2022 MSPB 31, ¶ 47 (overruling Southerland v. Department of Defense,
119 M.S.P.R. 566 (2013), to the extent it applied a mixed-motive standard to
ADA retaliation claims). Because the appellant did not show that his protected
activity was a motivating factor in the agency’s failure to restore him, he
necessarily failed to meet the more stringent “but-for” standard that applies to his
retaliation claims. See Pridgen, 2022 MSPB 31, ¶¶ 21 n.4, 22, 48. Thus, the
appellant is not entitled to relief for his Title VII or ADA-based retaliation
claims.
The appellant’s claims of harmful procedural error and retaliation for
whistleblowing and union activities are moot.
¶34 Having determined that the appellant is entitled to corrective action on the
merits of his restoration claim, we find that we need not address some of the
appellant’s additional claims. First, because the sole remedy for a finding of
15
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that sex discrimination or
retaliation for engaging in EEO activity protected by Title VII was a “but-for” cause of
the agency’s decision. Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30-33.
20
harmful procedural error is reversal of the agency action, see 5 U.S.C.
§ 7701(c)(2)(A), the appellant already is entitled to all the relief he would obtain
if he were to prevail on that claim. Similarly, because the appellant would not be
entitled to damages even if he were to prevail on his claims of retaliation for
whistleblowing and union activities, those claims are also moot. See Hess v. U.S.
Postal Service, 123 M.S.P.R. 183, ¶ 8 (2016) (dismissing as moot a Postal Service
employee’s claim of whistleblower reprisal because such employees are not
entitled to attorney fees or damages for whistleblower reprisal); Farquhar v.
Department of the Air Force, 82 M.S.P.R. 454, 459, ¶ 11 (1999) (holding that
awards of compensatory damages are not available for claims of reprisal for
having filed a grievance, or any other kind of reprisal that does not implicate
Title VII of the Civil Rights Act of 1964). 16
ORDER
¶35 We ORDER the agency to conduct a proper job search retroactive to
December 11, 2014, and to consider the appellant for any suitable positions
available during that time period consistent with its restoration obligations under
5 C.F.R. § 353.301(d). The agency must complete this action no later than
30 days after the date of this decision.
¶36 In the event the agency’s restorative job search uncovers an available
position to which it could have restored the appellant, we ORDER the agency to
pay the appellant the correct amount of back pay, interest on back pay, and other
benefits under the Back Pay Act and/or Postal Service 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 efforts to calculate the amount of back
pay, interest, and benefits due, and to provide all necessary information the
16
The appellant’s discrimination and EEO reprisal claims are not moot because the
Board is authorized to award compensatory damages in connection with those claims.
Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶¶ 1, 20 (2016).
21
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.
¶37 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).
¶38 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 in 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).
¶39 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.
¶40 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
22
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 (U.S.C.), sections 7701(g), or 1221(g). The regulations
may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If you believe
you meet these requirements, you must file a motion for attorney fees and costs
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion for attorney fees and costs with the office that issued the
initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 17
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
17
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.
23
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
24
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
25
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. 18 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:
18
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.
26
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/
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).
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.