                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MARLO WILLIAMS,                                 DOCKET NUMBER
                 Appellant,                          AT-0752-13-0127-C-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: May 8, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Carl R. Hudson, Atlanta, Georgia, for the appellant.

           Janelle M. Sherlock, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the compliance initial
     decision, which denied her petition for enforcement of a settlement agreement
     that resolved her removal appeal. Generally, we grant petitions such as this one
     only when: the initial decision contains erroneous findings of material fact; the
     initial decision is based on an erroneous interpretation of statute or regulation or

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the compliance initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                     BACKGROUND
¶2        Effective August 18, 2012, the agency removed the appellant from her
     position of Stamp Distribution Clerk. See Williams v. U.S. Postal Service, MSPB
     Docket No. AT-0752-13-0127-I-1, Initial Appeal File (IAF), Tab 8, Part 4 at 3-7.
     She subsequently filed a Board appeal challenging her removal.        IAF, Tab 1.
     During the appeal process, the parties entered into a settlement agreement that
     resolved the appellant’s Board appeal. See IAF, Tab 13. Under the terms of the
     settlement agreement, the agency agreed, among other things, to cancel the
     appellant’s removal, reinstate her to her former position, and provide her with
     back pay for the period of time from the issuance of the notice of proposed
     removal on June 8, 2012, until her return to work on February 11, 2013. Id. at
     5-6. The administrative judge issued an initial decision dismissing the appeal as
     settled and entering the settlement agreement into the record for enforcement
     purposes. IAF, Tab 14, Initial Decision (ID) at 1-2. The administrative judge
     found that the settlement agreement was lawful on its face and freely entered into
     by the parties in a matter over which the Board has jurisdiction, and that the
                                                                                           3

     parties understood its terms. ID at 1-2. The initial decision became final when
     neither party petitioned for review. See ID at 2-3; see also 5 C.F.R. § 1201.113.
¶3         The appellant filed a petition for enforcement alleging that the agency
     failed to comply with the settlement agreement. Williams v. U.S. Postal Service,
     MSPB Docket No. AT-0752-13-0127-C-1, Compliance File (CF), Tabs 1-3, 5.
     The agency responded, asserting that it had complied with the settlement
     agreement and attaching documentation indicating that it had provided her back
     pay. CF, Tab 7. The agency also stated that the processing of the appellant’s
     back pay was delayed because she refused to sign the Postal Service (PS) Form
     8039, Back Pay Decision/Settlement Worksheet, and failed to explain why she
     disputed the agency’s calculations.      CF, Tab 6.     The appellant replied to the
     agency’s response, restating her argument that the agency miscalculated her back
     pay and providing documentation in support of her argument. CF, Tab 8. In a
     compliance initial decision, the administrative judge found that the agency
     complied with the settlement agreement and denied the appellant’s petition for
     enforcement. CF, Tab 9, Compliance Initial Decision (CID) at 1, 5.
¶4         The appellant has filed a petition for review of the compliance initial
     decision. Williams v. U.S. Postal Service, MSPB Docket No. AT-0752-13-0127-
     C-1, Compliance Petition for Review (CPFR) File, Tabs 1-2.            The agency has
     filed a response in opposition. 2 CPFR File, Tab 6.




     2
       The agency’s response to the petition for review was filed 3 days late. See CPFR File,
     Tabs 5-6. The appellant has not replied to the agency’s response or contested it as
     untimely. Although the Board sets time lim its for agencies to submit evidence of
     compliance, additional submissions may be accepted beyond the time limits if the
     circumstances warrant, such as when the evidence is new and material. See Gevaert v.
     Department of the Navy, 74 M.S.P.R. 303, 306 (1997). Thus, we will consider the
     agency’s evidence of compliance because it directly rebuts the appellant’s claims on
     review.
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                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        In her petition for review, the appellant contends that the administrative
     judge erred in denying her petition for enforcement because the agency allegedly
     breached the settlement agreement by failing to provide her with the appropriate
     amount of back pay. CPFR File, Tab 1 at 4. The Board has the authority to
     enforce a settlement agreement that has been entered into the record in the same
     manner as any final Board decision or order.        Vance v. Department of the
     Interior, 114 M.S.P.R. 679, ¶ 6 (2010). A settlement agreement is a contract, and
     the Board will therefore adjudicate a petition to enforce a settlement agreement in
     accordance with contract law. Id. Where, as here, an appellant files a petition for
     enforcement of a settlement agreement over which the Board has enforcement
     authority, the agency must produce relevant, material, and credible evidence of its
     compliance with the agreement. Id. However, the ultimate burden of proof is on
     the appellant, as the party seeking enforcement, to show that the agency failed to
     fulfill the terms of an agreement. Id.
¶6        The appellant alleges that the agency erroneously charged her with 24 hours
     of leave without pay (LWOP) from July 11, 2012, through July 13, 2012. CPFR
     File, Tab 1 at 4; see CF, Tab 8 at 39. The agency submitted a declaration from its
     Acting Manager of Financial Programs Compliance admitting that the agency
     charged the appellant with 24 hours of LWOP from July 11, 2012, through July
     13, 2012, but also stating that the agency converted the disputed 24 hours of
     LWOP to paid administrative leave in pay period 17 of 2012. CPFR File, Tab 6
     at 6-7. Moreover, the agency’s pay journal for pay period 17 of 2012 reflects that
     the agency adjusted pay period 15 of 2012 by subtracting 24 hours of LWOP
     (payroll code 60), subtracting 16 hours of other paid leave (payroll code 86), and
     adding 40 hours of other paid leave (payroll code 86). Id. at 10; see IAF, Tab 8,
     Part 3 at 62 (payroll codes chart). The Supervisor of the Payroll Department’s
     declaration signed under penalty of perjury and the PS Form 8039 both support
     the agency’s position that the appellant was paid administrative leave from
                                                                                       5

     July 11, 2012, though July 13, 2012. CF, Tab 7 at 9-11, Tab 8 at 10. Based on
     the agency’s evidence, we find that the agency properly converted the disputed
     24 hours of LWOP to administrative leave.
¶7           The appellant further alleges that the agency failed to pay her overtime for
     pay periods 15 through 18 of 2012. CPFR File, Tab 1 at 4. The agency noted in
     the PS Form 8039 that the appellant was not entitled to back pay for pay periods
     “2012-13-2 thru 2012-18-1” because she received administrative leave for these
     pay periods.      CF, Tab 8 at 10.      Moreover, the Supervisor of the Payroll
     Department’s declaration states that the agency paid the appellant administrative
     leave for pay periods 13 through 18 of 2012, from June 8, 2012, through
     August 17, 2012.      CF, Tab 7 at 9-11; see CPFR File, Tab 2 at 4 (pay period
     calendar for 2012). The declaration is supported by the agency’s pay journals for
     pay periods 15 through 17 of 2012, which establish that the appellant was paid
     administrative leave (payroll code 86) for these pay periods. CPFR File, Tab 6 at
     8-10; see IAF, Tab 8, Part 3 at 62 (payroll codes chart).         Additionally, the
     agency’s back pay report shows that the appellant was paid 3.06 hours of
     overtime for week 2 of pay period 18 of 2012. CF, Tab 7 at 13. Therefore, we
     find that the agency paid the appellant administrative leave instead of back pay
     for pay periods 15 through week 1 of pay period 18 in 2012 and paid her back pay
     for week 2 of pay period 18 of 2012, including overtime.
¶8           Finally, the appellant argues that the agency did not provide documentation
     showing that it paid her administrative leave for pay periods 13 through 18 of
     2012.     CPFR File, Tab 1 at 4.     The Supervisor of the Payroll Department’s
     declaration stating that the agency paid the appellant administrative leave for pay
     periods 13 through 18 of 2012, from June 8, 2012, through August 17, 2012,
     establishes that the appellant was compensated for these dates. See CF, Tab 7 at
     9-11; see also CPFR File, Tab 2 at 4 (pay period calendar for 2012).
                                                                                            6

¶9         For these reasons, we agree with the administrative judge that the agency
     complied with the settlement agreement and find that the appellant has failed to
     provide a reason to disturb the compliance initial decision. 3

                      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 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


     3
       The appellant asserts that she did not cause the back pay processing delay because she
     tried to express her disagreements with the PS Form 8039 to the agency, but the Labor
     Relations Specialist allegedly did not return her telephone calls. CPFR File, Tab 1 at 4;
     see CID at 3. She also argues that the administrative judge erred by stating an incorrect
     date for a corresponding pay period. CPFR File, Tab 1 at 4; see CID at 4. Even
     assuming that these disputed findings of fact are erroneous, we find that they are
     immaterial to the outcome of this matter and, thus, we decline to address them further.
     5 C.F.R. § 1201.115(a).
                                                                                    7

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
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. § 2000e-5(f) and
29 U.S.C. § 794a.




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