                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROSALIND DAVIS,                                 DOCKET NUMBER
                  Appellant,                         CB-7121-14-0015-V-1

                  v.

     SOCIAL SECURITY                                 DATE: August 21, 2014
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Patricia J. McGowan, Esquire, Baltimore, Maryland, for the appellant.

           Lauren Donner Chait, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a request for review of an arbitration decision,
     which mitigated the appellant’s removal to a time-served suspension. For the
     reasons discussed below, we GRANT the appellant’s request for review under


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     5 U.S.C. § 7121(d) and MODIFY the arbitrator’s decision.           The appellant’s
     removal is MITIGATED to a suspension of 120 days.

                                      BACKGROUND
¶2         Effective January 22, 2013, the agency removed the appellant from her Case
     Intake Technician (CIT) position with the agency’s Office of Disability
     Adjudication and Review in Pittsburgh, Pennsylvania, based on a charge of
     misuse of her official position. Request for Review (RFR) File, Tab 1, Subtabs 2,
     5. In support of the charge, the agency alleged that the appellant assigned three
     disability cases of family members or friends to a particular administrative law
     judge without authorization. Id., Subtab 2 at 1-2. The appellant’s union filed a
     grievance of the removal action, which proceeded to arbitration. RFR File, Tab 4
     at 55-68. After holding a hearing, the arbitrator issued a decision on March 24,
     2014, in which he sustained the charge and found that the appellant failed to
     substantiate her claims of race discrimination and retaliation for protected equal
     employment opportunity (EEO) activity. Id. at 69-104. The arbitrator also found,
     however, that the penalty of removal was “too severe” for the sustained charge
     and awarded the appellant “reinstatement with no back pay from the date of her
     removal on January 22, 2013, until reinstated.” 2 Id. at 104. The arbitrator further
     found that the appellant was not entitled to compensatory damages or attorney
     fees. Id.
¶3         The appellant has requested review of the arbitration decision, alleging that
     the arbitrator erred in mitigating the penalty to a time-served suspension. RFR
     File, Tab 1 at 1, 4-6. The agency has responded in opposition. RFR File, Tab 4
     at 4-12.




     2
       In its response to the appellant’s request for review, the agency states that the
     appellant returned to work at the agency on May 5, 2014. RFR File, Tab 4 at 8 n.5.
     The appellant has not disputed this statement.
                                                                                                 3

                                            ANALYSIS
     The Board has jurisdiction over the appellant’s request for review.

¶4         The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
     § 7121(d) when the subject matter of the grievance is one over which the Board
     has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
     § 2302(b)(1) in connection with the underlying action, and a final decision has
     been issued. Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74,
     ¶ 10 (2013). Each of these conditions has been satisfied in this case. 3 First, the
     appellant’s grievance concerns her removal, a subject matter over which the
     Board has jurisdiction. RFR File, Tab 4 at 55; see 5 U.S.C. § 7512(1). Second,
     the appellant alleged in her grievance and in her request for review that the
     agency’s action was based on race discrimination and was taken in retaliation for
     filing EEO complaints. 4        RFR File, Tab 1 at 1, Tab 4 at 121.             Finally, the
     arbitrator has issued a final decision. RFR File, Tab 4 at 69-104.
     The penalty ordered by the arbitrator is not entitled to deference.

¶5         The scope of the Board’s review of an arbitration decision is narrow; such
     decisions are entitled to a greater degree of deference than initial decisions of the


     3
       We note that t he agency has not contested the Board’s jurisdiction over the appellant’s
     request for review. See RFR File, Tab 4 at 4-12.
     4
       The appellant asserts that she raised a discrimination claim before the arbitrator and
     “does not wish to relinquish any of her claims or defenses for further review.” RFR File,
     Tab 1 at 1. We broadly construe this claim as a challenge to the arbitrator’s finding that the
     appellant failed to prove her discrimination and retaliation claims. See RFR File, Tab 4
     at 102. However, the appellant has not specified how the arbitrator erred as a matter of law
     in interpreting civil service law, rule, or regulation in this regard, and we defer to the
     arbitrator’s findings on this issue and discern no reason to disturb them. See Keller v.
     Department of the Army, 113 M.S.P.R. 557, ¶ 6 (2010) (the Board cannot substitute its
     conclusions for those of the arbitrator absent legal error); Cirella v. Department of the
     Treasury, 108 M.S.P.R. 474, ¶ 15 (a request for review of an arbitration decision must
     contain sufficient specificity to enable the Board to ascertain whether there is a serious
     evidentiary challenge), aff’d, 296 F. App’x 63 (Fed. Cir. 2008); see also RFR File, Tab 2
     (informing the appellant of the required contents for a request for review of an arbitration
     decision as set forth in 5 C.F.R. § 1201.155(d)).
                                                                                        4

     Board’s administrative judges. Keller, 113 M.S.P.R. 557, ¶ 6. Even if the Board
     disagrees with an arbitration decision, the Board cannot substitute its conclusions
     for those of the arbitrator absent legal error. Id. The Board will modify or set
     aside an arbitration decision only if the arbitrator has erred as a matter of law in
     interpreting civil service law, rule, or regulation. Id.
¶6           The deference that is due to an arbitrator’s findings extends to findings
     related to penalty determinations. Fulks v. Department of Defense, 100 M.S.P.R.
     228, ¶ 20 (2005). In making these findings, however, arbitrators are required to
     apply the same rules the Board applies. Id. When the arbitrator does not apply
     those rules, his penalty determination is not entitled to deference, and the Board
     will conduct its own analysis. Id.
¶7           In her request for review, the appellant asserts that the Board should not
     defer to the penalty ordered by the arbitrator because he failed to explain how he
     arrived at the penalty imposed, i.e., a time-served suspension. RFR File, Tab 1
     at 6.    Our reviewing court’s predecessor, the Court of Claims, first addressed
     time-served suspensions in Cuiffo v. United States, 137 F. Supp. 944 (Ct. Cl.
     1955).     There, the court set aside Mr. Cuiffo’s time-served suspension as
     “arbitrary and unfair” because it was “determined by accident, and not by a
     process of logical deliberation and decision.” Id. at 950. Relying on Cuiffo, the
     Board and its reviewing court have held that mitigating a removal to a
     time-served suspension without articulating a basis for the length of the
     suspension is inherently arbitrary, and that the arbitrary penalty is not entitled to
     deference. See, e.g., Greenstreet v. Social Security Administration, 543 F.3d 705,
     707-10 (Fed. Cir. 2008); Fulks v. Department of Defense, 100 M.S.P.R. 228,
     ¶¶ 23, 29 (2005); Belldina v. Department of Justice, 50 M.S.P.R. 497, 501-02
     (1991).
¶8           The appellant in Fulks, who suffered from narcolepsy, was removed from
     his position as an Education Technologist at a high school for sleeping while on
     duty and failing to follow established leave procedures, resulting in his being
                                                                                       5

     absent without leave. Fulks, 100 M.S.P.R. 228, ¶ 2. The arbitrator found that
     Mr. Fulks should be reinstated as of the date of his decision, thereby effectively
     mitigating the removal to a time served suspension of 20 months and 13 days.
     Id., ¶ 22. On review, the Board noted that in Cuiffo, Belldina, and Montalvo v.
     U.S. Postal Service, 50 M.S.P.R. 48, 50-51 (1991), the Court of Claims and the
     Board had found time-served suspensions inappropriate because the penalty in
     those cases was determined by accident, i.e., by reference to the length of time
     taken by the appeal or other administrative review process. Fulks, 100 M.S.P.R.
     228, ¶ 27.    The Board found that the arbitrator’s mitigation of Mr. Fulks’s
     removal to a time-served suspension was not entitled to deference because the
     record “le[ft] no doubt that the unusual length of the suspension to which the
     arbitrator mitigated the appellant’s removal was determined by reference to the
     time that had elapsed since that removal.” Id., ¶¶ 28-29. In particular, the Board
     found that the arbitrator appeared to have relied on his analysis of the factors for
     determining the appropriateness of a penalty set forth in Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 306 (1981), only as a basis for finding that
     Mr. Fulks was entitled to reinstatement in his former position.              Fulks,
     100 M.S.P.R. 228, ¶ 28. The Board found, however, that the arbitrator’s decision
     that mitigation was warranted was entitled to deference, and it mitigated the
     penalty to a 120-day suspension. Id., ¶¶ 29, 31.
¶9        In Greenstreet, the petitioner was terminated from his position as an
     Information Technology Specialist with the Social Security Administration for
     damaging a computer and other office equipment in an apparently isolated
     outburst.    Greenstreet, 543 F.3d at 706.    Mr. Greenstreet conceded that his
     conduct had been improper but argued that termination was too severe a penalty.
     Id. Applying the Douglas factors, the arbitrator found that termination was an
     excessive penalty and ordered Mr. Greenstreet reinstated without back pay,
     thereby effectively mitigating the termination to a time-served suspension. Id.
                                                                                        6

¶10        The Federal Circuit vacated the arbitrator’s imposition of a time-served
      suspension, finding that the length of the suspension was arbitrary because it was
      based solely on time served. Id. at 710. In that regard, the court noted that,
      although the arbitrator conducted an analysis under the Douglas factors, his
      analysis was directed entirely toward whether termination was an appropriate
      penalty, and his opinion contained no findings or analysis concerning the
      appropriate length of Mr. Greenstreet’s suspension.     Id.   The court concluded,
      “[T]he reasoning of Cuiffo, consistent with the holdings of the MSPB, is sound
      and [we] hold that the length of a suspension is arbitrary when it is based solely
      on the suspended employee’s ‘time served’ awaiting decision.” Id. (citing Fulks,
      100 M.S.P.R. at 239).
¶11        In opposition to the appellant’s request for review, the agency asserts that
      the appellant “principally relies” upon Fulks to support her argument that the
      time-served suspension imposed by the arbitrator is not entitled to deference.
      RFR File, Tab 4 at 8. The agency contends that Fulks is distinguishable from the
      present matter for two reasons. First, the agency asserts that, in Fulks there was a
      relationship between the appellant’s illness and his misconduct, whereas the
      appellant in this case “has no excuse of medical issues for her admitted actions,
      her misconduct is not one that could be avoided through medical intervention, and
      there was no external force, such as a medical issue, that would mitigate the
      penalty.” Id. at 8-9. Second, the agency contends that the arbitrator’s analysis of
      the Douglas factors in the present appeal was much more extensive than the
      arbitrator’s analysis of those factors in Fulks. Id. at 10-12. In particular, the
      agency asserts that the arbitrator in Fulks considered only five of the twelve
      Douglas factors; however, in this case, the arbitrator considered all of the
      Douglas factors. Id. at 10.
¶12        We find these arguments unpersuasive. Even assuming arguendo that the
      factual distinctions between Fulks and this case support the agency’s apparent
                                                                                                7

      argument that the appellant should receive a more severe penalty than Mr. Fulks, 5
      those distinctions have no bearing on the issue of whether the arbitrator’s chosen
      penalty of a time-served suspension is arbitrary and, thus, not entitled to
      deference. Moreover, contrary to the agency’s apparent assertion on review, the
      Board in Fulks did not find the penalty of a time-served suspension inappropriate
      because the arbitrator’s analysis of the Douglas factors was inadequate. RFR
      File, Tab 4 at 8-9; see Fulks, 100 M.S.P.R. 228, ¶ 27 (explaining that the Board
      and the Court of Claims had not found time-served suspensions inappropriate
      because of a failure to consider appropriate factors in deciding whether mitigation
      was appropriate). Rather, the Board found that the imposition of a time-served
      suspension was inappropriate because the penalty was “determined by accident”
      insofar as the length of the suspension was determined by reference to the time
      that had elapsed since the appellant’s removal.              Fulks, 100 M.S.P.R. 228,
      ¶¶ 27-29.
¶13         In support of its argument that the time-served suspension at issue in this
      case is not arbitrary, the agency also relies on our reviewing court’s
      nonprecedential decision in Stilley v. Department of Veterans Affairs, 225 F.
      App’x 889, 890 (Fed. Cir. 2007). RFR File, Tab 4 at 9. In that case, an arbitrator
      mitigated Ms. Stilley’s removal penalty to a time-served suspension because she
      had not been permitted to have a union representative present during questioning


      5
        In its response to the appellant’s request for review, the agency states that it “does not
      agree with the arbitrator’s conclusion that the appellant should be returned to her CIT
      position.” RFR File, Tab 4 at 7 n.4. The agency also asserts that an arbitrator should
      disturb the penalty chosen by an agency only when the agency has abused its discretion
      and failed to consider certain factors when evaluating the propriety of a penalty. Id.
      at 8. To the extent that the agency is challenging the arbitrator’s decision to mitigate
      the removal penalty, the Board has held that, under 5 U.S.C. § 7121(d), agencies lack
      an independent right to seek Board review of arbitration decisions. E.g., Pace v.
      Department of the Treasury, 118 M.S.P.R. 542, ¶ 3 n.1 (2012). Thus, although we have
      considered the agency’s opposition to the appellant’s request for review, we otherwise
      lack the authority to review the agency’s apparent allegations of error in the arbitration
      decision. See id.
                                                                                            8

      concerning her misconduct. Stilley, 225 Fed. App’x at 890. On appeal, the panel
      in Stilley rejected Ms. Stilley’s argument that “a ‘time-served’ suspension is an
      inappropriate penalty” and affirmed the arbitrator’s imposition of a time-served
      suspension, relying on the Federal Circuit’s Back Pay Act decisions in Ollett v.
      Department of the Air Force, 253 F.3d 692, 693 (Fed. Cir. 2001), and American
      Federation of Government Employees, Local 2718 v. Department of Justice,
      768 F.2d 348, 350 (Fed. Cir. 1985). 6 Stilley, 225 Fed. App’x at 890.
¶14         In Greenstreet, our reviewing court rejected the agency’s argument that the
      time-served suspension at issue in that case should be upheld pursuant to Stilley.
      Greenstreet, 543 F.3d at 709.      The court found that the agency’s reliance on
      Stilley was not persuasive for various reasons, including the following: unlike
      Mr. Greenstreet, who argued that his suspension was arbitrary in length because it
      was solely based on time served, Ms. Stilley argued that her time-served
      suspension was an inappropriate, i.e., disproportionate, penalty. Id. In addition,
      the court found, because the Stilley panel cited and relied on the court’s Back Pay
      Act decisions in Ollett and American Federation, the panel understood
      Ms. Stilley’s argument to be premised on the Back Pay Act. Id. By contrast, the
      court noted, Mr. Greenstreet’s argument was not based on the Back Pay Act. Id.
¶15         The aforementioned reasons cited by the court in Greenstreet for finding the
      agency’s reliance on Stilley unpersuasive also apply here. As in Greenstreet, the
      appellant in this case argues that her suspension is arbitrary because it was solely
      based on the time served; she does not claim that the time-served suspension is a

      6
         In both Ollett and American Federation, an arbitrator mitigated an employee’s
      termination or removal to a suspension and denied back pay. Ollett, 253 F.3d at 693;
      American Federation, 768 F.2d at 350. On appeal to the Federal Circuit, each of these
      employees claimed that he was entitled to back pay pursuant to 5 U.S.C.
      5596(b)(1)(A)(i) of the Back Pay Act, which provides that an employee who has been
      subjected to an unwarranted and unjustified action is entitled to back pay. See Ollett,
      253 F.3d at 693; American Federation, 768 F.2d at 350. As the court explained in
      Greenstreet, neither of these cases involved an arbitrariness challenge to the length of
      the suspension, and neither case holds that the length of a suspension can be determined
      solely on the basis of “time served.” Greenstreet, 543 F.3d at 709.
                                                                                           9

      disproportionate penalty for her misconduct. RFR File, Tab 1 at 6. Further, the
      appellant’s argument is not based on the Back Pay Act, i.e., she is not contending
      that she is entitled to back pay because she was subjected to an unwarranted
      action. See generally RFR File, Tab 1. Thus, the agency’s argument regarding
      Stilley is unavailing.
¶16         Based on our review of the record, and in light of the precedent discussed
      above, we agree with the appellant that the suspension imposed by the arbitrator
      is arbitrary. The unusual length of the suspension in this case 7 was determined by
      accident as it was based on the length of the arbitration proceedings and the
      amount of time it took the agency to reinstate the appellant to her position
      following those proceedings. See Cuiffo, 137 F. Supp. at 950 (finding that the
      length of a suspension ordered by a grievance review board was arbitrary and
      unfair, in part because it was dependent on the amount of time it took the agency
      to “get around to reinstating” the employee). Accordingly, we do not defer to the
      penalty ordered by the arbitrator.
      We defer to the arbitrator’s judgment to mitigate the appellant’s removal to a
      lengthy suspension.
¶17         We defer, however, to the arbitrator’s conclusion that the evidence
      presented in this case warrants mitigation of the appellant’s removal.              As
      discussed above, the arbitration decision reflects that the arbitrator weighed the
      relevant Douglas factors, including numerous mitigating factors such as the
      appellant’s lengthy service, satisfactory work record, remorse for her actions and
      potential for rehabilitation, and the lack of notoriety of the offense. RFR File,
      Tab 4 at 101-04; see Douglas, 5 M.S.P.R. at 303-08.



      7
        Although both the appellant and the agency identify the length of the appellant’s
      suspension as 390 days, RFR File, Tab 1 at 6, Tab 4 at 7, the record indicates that the
      suspension was actually 466 days, as the appellant was removed on January 22, 2013,
      and returned to work at the agency on May 5, 2014, see RFR File, Tab 1, Subtab 5
      at 12; Tab 4 at 8 n.5.
                                                                                         10

¶18         As the arbitrator found, however, “the offense was a very serious matter
      involving the elements of public trust, honesty, reputation of the agency, and
      conformance to agency policies.”        RFR File, Tab 4 at 102-03.       Further, the
      appellant’s   misconduct     directly   related   to   her   duties,   position,   and
      responsibilities. In addition, the appellant had prior discipline for misuse of a
      government credit card, which also implicated the appellant’s trustworthiness.
      See id. at 43. Under these circumstances, we find that a 120-day suspension is
      the maximum reasonable penalty for the appellant’s misconduct.

                                              ORDER
¶19         We ORDER the agency to cancel the removal and to substitute a 120-day
      suspension, effective January 22, 2013. See Kerr v. National Endowment for the
      Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
      later than 20 days after the date of this decision.
¶20         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶21         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
      took 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).
¶22         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
                                                                                      11

      with the Clerk of the Board 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).
¶23        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.

                      NOTICE TO THE APPELLANT REGARDING
                            YOUR RIGHT TO REQUEST
                           ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set 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 Clerk of the Board.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.
                                                                                   12

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 United States 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.

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 United States
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
                                                                                 13

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. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. 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.
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-50's (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.
