                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANIEL M. GOLDSMITH,                            DOCKET NUMBER
                   Appellant,                        DC-0752-15-0520-I-1

                  v.

     DEPARTMENT OF                                   DATE: July 22, 2016
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Valerie A. Chastain, Esquire, Washington, D.C., for the appellant.

           Lisa A. Holden, Esquire, and Parisa Naraghi-Arani, Esquire, Washington,
             D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review and the appellant has filed a cross
     petition for review of the initial decision, which mitigated his demotion to a
     45-day suspension. Generally, we grant petitions such as these only when: the
     initial decision contains erroneous findings of material fact; the initial decision is

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     based on an erroneous interpretation of statute or regulation or the erroneous
     application of the law to the facts of the case; the administrative judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that neither party has established any basis under
     section 1201.115 for granting the petition or cross petition for review. Therefore,
     we DENY the petition for review and the cross petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.                 5 C.F.R.
     § 1201.113(b).

                                        BACKGROUND
¶2         The appellant occupied the supervisory K-band position of Manager,
     Building Operations, Maintenance and Safety Division, at the agency’s Federal
     Aviation Administration. The agency demoted him, effective March 22, 2015, to
     the nonsupervisory J-band position of Building Services Lead based on three
     specifications under the charge of Inappropriate Behavior.          Initial Appeal File
     (IAF), Tab 5 at 20-25, 110-14. In the first specification, the agency alleged that,
     on May 8, 2014, the appellant changed the time and attendance (T&A) records of
     his subordinate employee, L.W., to reflect her in an absent without leave
     (AWOL) status for 30 minutes or 1 hour on 10 occasions, knowing that she had
     requested leave for the dates and times at issue and that he had approved the
     leave. 2 In the second specification, the agency alleged that, on May 20, 2014, the

     2
       On the dates in question, L.W. sought sick or annual leave, but her T&A report
     reflected that she worked an additional half hour or hour, even though she did not report
     to work. When the appellant learned of these discrepancies, and after consultation with
     a Human Resources (HR) Specialist, he changed L.W.’s T&A reports to reflect AWOL
                                                                                              3

     appellant proposed to suspend L.W. for 5 days for providing inaccurate
     information    on    Government       records,   AWOL,       and    failure   to   follow
     leave-requesting procedures, knowing that she had in fact requested leave for
     some of the dates and times, that he had approved the leave, and that he had been
     the one who had inputted some of her T&A records. 3                  And, in the third
     specification, the agency alleged that, after it became apparent that the appellant
     previously had not notified his first-line supervisor (who was also the proposing
     and deciding official) that he (the appellant) had input L.W.’s T&A records, he
     failed, during an October 2, 2014 meeting with his supervisor, to take
     responsibility for that omission.        Id. at 111-12.      On appeal, the appellant
     challenged all three specifications, alleged that there was no nexus between the
     charged misconduct and the efficiency of the service, and contended that the
     penalty was not reasonable.       IAF, Tab 1 at 14-23.        He also alleged that the
     agency’s action was based on illegal discrimination on the bases of race and
     gender and that the agency had created a hostile work environment. Id. at 23-24.
     He requested a hearing. Id. at 4.
¶3         Thereafter, the administrative judge issued an initial decision in which she
     sustained specifications 1 and 2. IAF, Tab 24, Initial Decision (ID) at 13-15. She
     did not sustain specification 3, ID at 15-17, but found that the overall charge of
     Inappropriate Behavior was sustained, ID at 17. The administrative judge further
     found that there was a nexus between the sustained misconduct and the efficiency
     of the service. ID at 17. In considering the penalty, she found that discipline was
     appropriate, but that, given certain factors, the maximum reasonable penalty was




     for the additional time on the dates her leave did not cover her shift, but she was out for
     the entire day.
     3
       Because L.W. had not in fact entered her own time, but rather the appellant had
     entered and approved it, he, again, in consultation with the HR Specialist, subsequently
     rescinded the suspension. IAF, Tab 5 at 122-23.
                                                                                           4

     a 45-day suspension, ID at 17-20, and she therefore mitigated the penalty, 4
     ID at 1, 24.
¶4         The agency has filed a petition for review, PFR File, Tab 1, to which the
     appellant has responded, PFR File, Tab 3. He has also filed a cross petition for
     review, id., to which the agency has responded, PFR File, Tab 5.

                                          ANALYSIS
     The administrative judge properly sustained specifications 1 and 2.
¶5         In his cross petition for review, the appellant argues that the administrative
     judge erred in sustaining specifications 1 and 2. PFR File, Tab 3 at 7-18. As
     noted in the first specification, the agency charged that the appellant changed
     L.W.’s T&A records to reflect her in an AWOL status for 30 minutes to an hour
     on 10 occasions, knowing that she had requested leave for the dates and times at
     issue and that he had approved the leave. And, in the second specification, the
     agency charged that the appellant proposed to suspend L.W. for 5 days in
     connection with her status, knowing that she had in fact requested leave for some
     of the dates and times, that he had approved it, and that he had been the one who
     had inputted some of her T&A records. IAF, Tab 5 at 21-25, 111-12.
¶6         Because these two specifications are based on the same underlying facts,
     the administrative judge considered them together, ID at 13, finding both
     sustained, ID at 13-15. She was not persuaded by the appellant’s attempts to
     absolve himself of responsibility for his actions by blaming the Human Resources
     (HR) Specialist, finding the appellant, as the manager, was responsible. ID at 13.
     The administrative judge also acknowledged the significance of the Board’s




     4
       The administrative judge considered, but found that the appellant failed to establish,
     his allegations of a hostile work environment or discrimination. ID at 21-23. The
     appellant has not, on review, challenged the administrative judge’s findings regarding
     his affirmative defenses, and we discern no basis upon which to disturb them.
                                                                                          5

     decision in Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987), 5 to her
     findings. ID at 14 n.1. She credited the testimony of the Program Manager of the
     agency’s T&A system over the appellant’s testimony regarding the intricacies of
     the system. The administrative judge found that the appellant “appeared to be
     attempting to deflect responsibility” and clearly did not understand how the
     system worked, and she found “inherently improbable” his version of a
     conversation he had with the Program Manager who, he alleged, acknowledged
     that the system had malfunctioned. ID at 14. The administrative judge further
     found that, as a manager, the appellant was responsible for figuring out the
     problem with L.W.’s leave, before charging her AWOL and proposing her
     suspension. ID at 14-15.
¶7         The appellant argues that, when he charged L.W. with AWOL and proposed
     her suspension, he did not know that she was not at fault for incorrect information
     entered on her T&A records. 6 PFR File, Tab 3 at 7-10. Based on the appellant’s
     arguments on review, we discern no reason to reweigh the evidence or substitute
     our assessment of the record evidence for that of the administrative judge.
     Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
     to disturb the administrative judge’s findings when she considered the evidence
     as a whole, drew appropriate references, and made reasoned conclusions);

     5
       To resolve credibility issues, an administrative judge must identify the factual
     questions in dispute, summarize the evidence on each disputed question, state which
     version she believes, and explain in detail why she found the chosen version more
     credible, considering such factors as: (1) the witness’s opportunity and capacity to
     observe the event or act in question; (2) the witness’s character; (3) any prior
     inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
     contradiction of the witness’s version of events by other evidence or its consistency
     with other evidence; (6) the inherent improbability of the witness’s version of events;
     and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
     6
       The agency’s T&A system used the start and stop times to determine the amount of
     leave taken, but it automatically added a 30-minute lunch break, IAF, Tab 5 at 49-91,
     and therefore the start and stop times did not match L.W.’s scheduled start and stop
     times. The result was that she received pay for time not worked and that she was not
     charged the correct amount of leave for her absences.
                                                                                       6

     Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
     (1987); see Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002)
     (holding that the Board may overturn credibility determinations only when it has
     “sufficiently sound” reasons for doing so). The appellant’s mere disagreement
     with the administrative judge’s findings and credibility determinations does not
     warrant full review of the record by the Board.          Gager v. Department of
     Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).
¶8        The appellant next argues that the agency presented no evidence that he
     falsified L.W.’s AWOL charge or her proposed suspension.          PFR File, Tab 3
     at 10-13. However, the agency did not charge the appellant with falsification.
     Rather, the agency charged him with specific acts of misconduct under the
     general charge of Inappropriate Behavior. Therefore, the agency was not required
     to prove any of the elements of falsification.      Cf. Canada v. Department of
     Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010) (explaining that a charge of
     “conduct unbecoming,” much like a charge of “improper conduct,” has no
     specific elements of proof; it is established by proving that the employee
     committed the acts alleged in support of the broad label). Similarly, the appellant
     contends that the agency produced no evidence that, by his actions, he acted to
     defraud, deceive, or mislead the agency. PFR File, Tab 3 at 13-17. Again, none
     of those elements was a part of the agency’s general charge, and therefore the
     agency was not required to prove them. Cf. Canada, 113 M.S.P.R. 509, ¶ 9.

     The administrative judge properly did not sustain specification 3.
¶9        In its petition for review, the agency argues that the administrative judge
     erred in not sustaining specification 3.   PFR File, Tab 1 at 8.     As noted, the
     agency alleged in this specification that, prior to the October 2, 2014 meeting, the
     appellant had failed to disclose to his supervisor that he had input L.W.’s T&A
     records, and that, when questioned at the meeting as to why he had not shared the
     information, he said that he had not been asked and that the matter had not come
     up. The agency also alleged that the appellant attempted to deflect responsibility
                                                                                        7

      onto the HR Specialist. IAF, Tab 5 at 112.        The administrative judge found,
      however, that L.W.’s records clearly showed that the appellant entered and
      approved her T&A, id. at 47-56, 65, 77-91, that it did not constitute Inappropriate
      Behavior for him not to reveal information that he had no reason to believe was
      unknown, ID at 16, and that he did not, in fact, withhold any information, ID
      at 16-17. Although arguing that the appellant failed to disclose his involvement,
      PFR File, Tab 1 at 8, 12, the agency does not specifically dispute the
      administrative judge’s findings or otherwise show that the appellant’s behavior in
      this regard was inappropriate. Id. Therefore, we find that the agency has failed
      to show that the administrative judge erred in not sustaining specification 3.
      The administrative judge properly found nexus.
¶10        The appellant argues in his cross petition for review that the administrative
      judge erred in finding that a nexus exists between the sustained charge and the
      efficiency of the service. PFR File, Tab 3 at 21-22. The appellant contends that
      the agency failed to show that the sustained misconduct adversely affected his job
      performance because, during the performance cycle that encompassed the time
      period in question, he was rated as having satisfactorily achieved his performance
      expectations, which included “Leading People” and “Building Relationships.”
      Id.; IAF, Tab 1 at 120. Notwithstanding, as the administrative judge properly
      found, the Board has found that there is a sufficient nexus between an employee’s
      conduct and the efficiency of the service where, as here, the conduct occurred on
      agency premises and while the appellant was on duty. ID at 17; see, e.g., Miles v.
      Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006).

      The administrative judge properly mitigated the penalty to a 45-day suspension.
¶11        The agency argues on review that the administrative judge erred in
      mitigating the penalty, PFR File, Tab 1 at 9-12, improperly substituting her
      judgment regarding the reasonableness of the penalty for that of the agency,
      id. at 9. When all of an agency’s charges are sustained, as occurred here, the
      Board may mitigate the agency’s original penalty to the maximum reasonable
                                                                                           8

      penalty when it finds the agency’s original penalty too severe.          Lachance v.
      Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).          The Board will defer to an
      agency’s penalty determination unless the penalty exceeds the range of allowable
      punishment specified by statute or regulation or the penalty is “so harsh and
      unconscionably disproportionate to the offense that it amounts to an abuse of
      discretion.” Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 9 (quoting Parker
      v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987)), aff’d, 208 F. App’x
      868 (Fed. Cir. 2006)).     Thus, mitigation is appropriate only when the agency
      failed to weigh the relevant factors 7 or the agency’s judgment clearly exceeded
      the limits of reasonableness.      Douglas v. Veterans Administration, 5 M.S.P.R.
      280, 306 (1981).
¶12        The administrative judge found that the deciding official provided a
      thorough Douglas analysis and that he considered the appellant’s supervisory
      role, his taking an action 8 against a subordinate employee for providing
      inaccurate information on her T&A records, knowing that he had provided the
      information, and his refusal to accept responsibility for his actions.             The
      administrative judge also found that these factors caused the deciding official to
      lose confidence in the appellant as a supervisor, and to consider that,
      notwithstanding mitigating factors including the appellant’s years of satisfactory,
      discipline-free service, the only appropriate discipline was to remove him from
      supervision.   ID at 19.    While the administrative judge shared many of the
      deciding   official’s   concerns    regarding   the   appellant’s   refusal   to   take
      responsibility for his actions, she found that he likely would not have proceeded
      against L.W. without the involvement of the HR Specialist who encouraged him


      7
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
      relevant to the penalty determination in adverse action cases.
      8
        As noted, the appellant placed L.W. on AWOL and proposed to suspend her, but
      subsequently rescinded the proposal.
                                                                                        9

      to examine L.W.’s leave records and advised him of the steps to take to charge
      her AWOL and propose her suspension. The administrative judge was troubled
      by the appellant’s refusal to acknowledge that L.W.’s error in making her leave
      requests was clearly a mistake and not an effort to cheat the system, and by his
      lack of remorse. However, she noted the appellant’s 30-year unblemished service
      record of satisfactory performance and the fact that the maximum penalty
      provided by the agency’s Table of Penalties for the sustained charge of
      Inappropriate Conduct is a 30-day suspension. She concluded that enhancing the
      maximum penalty based on the appellant’s supervisory status and his lack of
      remorse and hence his ability to be rehabilitated rendered a 45-day suspension the
      maximum reasonable penalty. ID at 19-20.
¶13         The agency argues that the administrative judge did not find that the penalty
      in this case is too severe. PFR File, Tab 1 at 11. Although it is true that she did
      not specifically make such a statement, she did find that the appellant likely
      would not have proceeded against L.W. without the involvement of the HR
      Specialist. While the administrative judge did not find that this factor absolved
      the appellant of responsibility, she reasoned that it did provide an explanation and
      context. ID at 19-20. We therefore consider that the administrative judge found
      that the agency failed to weigh this relevant factor.
¶14         Similarly, the administrative judge noted that the agency’s Table of
      Penalties provides a maximum penalty of a 30-day suspension for the sustained
      charge of Inappropriate Behavior. ID at 20; IAF, Tab 5 at 174. A demotion,
      which is imposed without time limitation, is a harsher penalty than a suspension
      and thus may be considered to exceed the range of allowable punishment
      specified by the agency for the sustained charge. While the agency argues that
      mitigating the penalty to a suspension does not address its concerns with the
      appellant’s errors in supervisory judgment, PFR File, Tab 1 at 12, the agency
      chose the offense with which to charge the appellant, and its Table of Penalties
                                                                                            10

      does not provide that demotion is a penalty for the chosen charge. 9 We find,
      therefore, that the agency has failed to show that the administrative judge erred in
      mitigating the penalty of a demotion to a 45-day suspension. 10             See Ray v.
      Department of the Army, 97 M.S.P.R. 101, ¶ 61 (2004), (finding that when all of
      the agency’s charges are sustained, but some of the underlying specifications are
      not sustained, the agency’s penalty determination is entitled to deference;
      however, an agency’s failure to sustain all of its supporting specifications may
      require, or contribute to, a finding that the agency’s penalty is not reasonable),
      aff’d, 176 F. App’x 110 (Fed. Cir. 2006).
¶15         The appellant argues in his cross petition for review that the administrative
      judge erred “when she added a negligence basis to the Agency’s penalty.”
      PFR File, Tab 3 at 17-18.       The appellant refers to the administrative judge’s
      statement that, while the agency “did not charge the appellant with making an
      error in initially approving [her] leave and incorrectly approving the T&A data,”
      that “does not mean the appellant was not responsible for figuring out what went
      wrong before changing [L.W.’s] status and proposing an action against her.” Id.;
      ID at 14-15.    We do not agree that the administrative judge thereby added a
      negligence requirement to the agency’s penalty. Rather, she was clarifying that,



      9
        The agency only submitted 2 pages of what appears to be a 12-page document. IAF,
      Tab 5 at 173-74. We are unable to discern whether there may be other penalties for
      other offenses listed that bear on an employee’s role as a supervisor. Notwithstanding,
      the agency is bound by the charge it brought. Gonzalez v. Department of Homeland
      Security, 114 M.S.P.R. 318, ¶ 7 (2010).
      10
         The agency argues that this case is similar to Young v. U.S. Postal Service,
      MSPB Docket No. CH-0752-13-2103-B-1, Final Order (Oct. 29, 2015), wherein the
      Board upheld the reduction in grade and pay of an employee who improperly recorded
      and adjusted a subordinate employee’s time in the agency’s system, resulting in his
      being paid for hours he was not present at work. PFR File, Tab 1 at 10. While there
      are some similarities in the two cases, there are also differences. However, the Young
      decision is a Final Order which has no precedential value, and the Board and its
      administrative judges are not required to follow or distinguish such Orders in any future
      decisions. 5 C.F.R. § 1201.117(c)(2).
                                                                                         11

      as L.W.’s supervisor, the appellant bore the ultimate responsibility for his actions
      in charging her AWOL and proposing her suspension.
¶16        The appellant contends that the administrative judge erred by not mitigating
      the penalty even further. PFR File, Tab 3 at 22-26. The appellant challenges the
      administrative judge’s finding that he failed to take responsibility for his actions
      and did not show remorse or the ability to be rehabilitated.               ID at 20.
      Specifically, the appellant points out that, when his supervisor requested that he
      take T&A training in October 2014, he did so, and that, during a meeting in
      September 2014, the supervisor noted that the appellant stated that he was sorry
      about the situation. PFR File, Tab 3 at 25; IAF, Tab 1 at 129, Tab 5 at 119. Even
      if we consider that these factors weigh in the appellant’s favor, the most
      important factor in assessing a penalty is the nature and seriousness of the
      misconduct    and   its   relation   to   the   employee’s   duties,   position,   and
      responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010).
      The deciding official indicated that he had lost confidence in the appellant based
      on his inappropriate behavior, particularly towards a subordinate employee. IAF,
      Tab 5 at 23. We have agreed with the administrative judge that the specifications
      that relate to that behavior, specifications 1 and 2, are sustained. In addition,
      agencies are entitled to hold supervisors like the appellant to a higher standard
      than nonsupervisors because they occupy positions of trust and responsibility.
      Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 31 (2005), aff’d,
      180 F. App’x 951 (Fed. Cir. 2006). The deciding official considered this factor
      as well. IAF, Tab 5 at 23. We therefore agree with the administrative judge’s
      reasoning and find that the appellant’s status as a supervisor constitutes a
      sufficient reason to enhance the penalty of a 30-day suspension provided for in
      the Table of Penalties, and that, under the circumstances, a 45-day suspension is
      the maximum reasonable penalty in this case.
                                                                                      12

                                            ORDER
¶17         We ORDER the agency to cancel the demotion, effective March 22, 2015,
      and substitute a 45-day suspension. 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.
¶18         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.
¶19         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).
¶20         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 on 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).
¶21         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
                                                                                 13

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 office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                                                                                14

                           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 U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
                                                                           15

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       Jennifer Everling
                                       Acting 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.
