                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MICHELLE GARCIA,                               DOCKET NUMBER
                  Appellant,                        NY-1221-14-0194-W-1

                  v.

     GENERAL SERVICES                               DATE: July 12, 2016
       ADMINISTRATION,
                  Agency.



           Jesse Rose, Astoria, New York, for the appellant.
           Nicole Ludwig, Esquire, New York, New York, for the agency.


                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member


                                          ORDER
¶1        The agency has filed a petition for review of the initial decision, which
     granted the appellant’s request for corrective action upon a finding of
     whistleblower reprisal. 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).
¶2        Based on the initial decision, which now becomes the final decision of the
     Board, the parties’ obligations are set out below:
                                                                                      2

¶3         The agency must noncompetitively convert the appellant’s appointment—
     retroactive to January 28, 2014—to the competitive service position to which she
     would have been assigned under 5 C.F.R. § 362.204 had Mr. H. made the
     conversion at that time.
¶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
     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
                                                                                3

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
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 review of the final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
                                                                                   4

                            United States Court of Appeals
                                for the Federal Circuit
                              717 Madison Place, N.W.
                               Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order.        See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel    practices   under   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 review of the final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. 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 chose to
file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      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.
Additional        information       is       available       at     the       court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
                                                                                5

for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at    http://www.mspb.gov/probono for       information    regarding     pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The 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:                           ______________________________
                                         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.
