                              UNITED STATES OF AMERICA
                           MERIT SYSTEMS PROTECTION BOARD


     JERRY J. PINKNEY,                               DOCKET NUMBER
                    Appellant,                       SF-0752-15-0060-I-1

                    v.

     DEPARTMENT OF THE NAVY,                         DATE: April 22, 2016
                 Agency.




           Jerry J. Pinkney, Barstow, California, pro se.

           Loren L. Baker, Esquire, Barstow, California, for the agency.


                                            BEFORE

                                Susan Tsui Grundmann, Chairman
                                   Mark A. Robbins, Member


                                            ORDER
¶1         The appellant and the agency have filed petitions for review of the initial
     decision, which reversed the appellant’s removal and found that he proved his
     affirmative defense of whistleblower reprisal but not his claim of retaliation for
     engaging in equal employment opportunity activity.         The two Board members
     cannot agree on the disposition of the petition for review. Therefore, the initial
     decision now becomes the final decision of the Merit Systems Protection Board in
     this appeal.        Title 5 of the Code of Federal Regulations, section 1200.3(b)
     (5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the
     Board in any other case. * 5 C.F.R. § 1200.3(d).


     *
      The appellant argues on review that, after the administrative judge issued her initial
     decision, the agency constructively removed him by preventing him from entering the
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¶2         Based on the initial decision, which now becomes the final decision of the
     Board, the parties’ obligations are set out below:
¶3         The agency must cancel the removal and retroactively restore the appellant
     effective September 23, 2014.           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.
¶4         The agency must 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. The
     appellant must 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, the
     agency must pay the appellant the undisputed amount no later than 60 calendar
     days after the date of this decision.
¶5         The agency must 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).
¶6         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



     agency’s Marine Corps Logistics Base-Barstow, California, despite his repeated efforts
     to report for duty. Petition for Review File, Tab 6 at 4-5 n.2. In support of this claim,
     the appellant asserts that he has been on enforced leave without pay for more than
     14 days. Id. We find it appropriate to forward this claim to the Western Regional
     Office for docketing as a constructive removal or suspension appeal.
                                                                                   3

     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).
¶7        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 must 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 CONSEQUENTIAL OR COMPENSATORY DAMAGES
           You may be entitled to be paid by the agency for your consequential
     damages, including medical costs incurred, travel expenses, and any other
     reasonable and foreseeable consequential damages. To be paid, you must meet
     the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
     be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
           In addition, the Whistleblower Protection Enhancement Act of 2012
     authorized the award of compensatory damages including interest, reasonable
     expert witness fees, and costs. 5 U.S.C. § 1214(g)(2).
           If you believe you meet these requirements, you must file a motion for
     consequential damages and/or compensatory damages WITHIN 60 CALENDAR
     DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
     office that issued the initial decision on your appeal.

                                NOTICE TO THE PARTIES
           A copy of the decision will then be referred to the Special Counsel “to
     investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
     the determination that “there is reason to believe that a current employee may
                                                                                4

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D). 5 U.S.C. § 1221(f)(3).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of the final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.

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

Other Claims: Judicial Review
        If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.          The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
        If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).      You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
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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, and 11.          Additional
information about other 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.
      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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
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                                                     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.
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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.
