                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SANDRA R. CORUM,                                DOCKET NUMBER
                  Appellant,                         DC-0353-06-0728-C-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 6, 2016
                   Agency.




           Sandra R. Corum, Manassas, Virginia, pro se.

           Jed Charner, Landover, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER 1

¶1         This matter is before the Board on the appellant’s petition for review of the
     compliance initial decision, which found the agency in compliance with the
     Board’s Opinion and Order that ordered the agency to, among other things,
     conduct a job search and consider her for any suitable assignments, and pay her
     back pay, interest, and benefits. For the reasons set forth below, we GRANT the
     appellant’s petition for review. We AFFIRM the compliance initial decision IN
     PART, finding that the agency proved compliance regarding its calculation of

     1
       This Order is nonprecedential. Parties may cite nonprecedential orders, but such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

     annual leave, Thrift Savings Plan (TSP) contributions, holiday pay, and interest.
     We REVERSE the compliance initial decision IN PART, finding that the agency
     failed to consider a similarly situated employee in calculating the appellant’s
     overtime back pay.

                                      BACKGROUND
¶2         In an Opinion and Order issued on July 10, 2012, the Board found that the
     agency   arbitrarily   and   capriciously   denied   the   appellant’s   request   for
     reinstatement after her partial recovery from a compensable injury.        Corum v.
     U.S. Postal Service, 118 M.S.P.R. 288, ¶¶ 19-20 (2012). The Board ordered the
     agency to conduct a job search within the local commuting area retroactive
     to May 11, 2006, and consider the appellant for any suitable assignments. Id.,
     ¶¶ 21-22. Depending on the results of that search, the Board further ordered the
     agency to pay the appellant back pay, interest, and benefits. Id., ¶¶ 21, 23; see
     Tram v. U.S. Postal Service, 120 M.S.P.R. 208, ¶¶ 8‑10 (2013) (declining to find
     that the agency owed an appellant back pay because it established that it
     conducted a retroactive job search but there was no work available within the
     appellant’s medical restrictions).
¶3         Following the Board’s July 10, 2012 decision, the agency offered the
     appellant, and she accepted, a new position assignment effective May 13, 2013.
     Compliance File (CF), Tab 16 at 70.         The agency elected not to conduct a
     retroactive search for work. Id. at 5‑6. Instead, it issued the appellant checks for
     back pay and interest in February and August 2014. CF, Tab 16 at 72-104, 108,
     110-120, Tab 21 at 70-76.
¶4         The appellant filed a petition for enforcement of the Board’s Opinion and
     Order and alleged that the agency failed to provide her all the back pay and
     benefits to which she was entitled and explain its compliance actions. CF, Tab 1
     at 1. The administrative judge ordered the agency to respond in writing to the
     petition for enforcement by showing proof of compliance, or good cause for
                                                                                       3

     noncompliance or partial compliance. CF, Tab 14 at 1. The agency responded
     that it was in compliance for the entire back pay period of May 11, 2006,
     to May 13, 2013. CF, Tab 16 at 9. Specifically, the agency explained that it had
     paid the appellant back pay, interest, and benefits for the time period of June 23,
     2007, to January 11, 2013, and provided supporting evidence. Id. at 6, 72-104,
     108. The agency acknowledged that it had erroneously omitted the time periods
     of May 11, 2006, to June 22, 2007, and January 12 to May 13, 2013, from the
     original checks for back pay and interest that it issued to the appellant in
     February 2014. Id. at 7. However, it explained that it corrected this error with its
     August 2014 back pay and interest checks and provided supporting evidence. CF,
     Tab 16 at 7, 110‑21, Tab 21 at 70‑76. The agency also provided an explanation
     for its overtime calculations. CF, Tab 16 at 7-8, 74-104, 111-20.
¶5        Next, the appellant disputed the agency’s calculations of overtime, annual
     leave, TSP contributions, holiday pay, and interest.          CF, Tab 17 at 3-4.
     Specifically, with regard to overtime, she alleged that the agency failed to
     consider the overtime hours worked by a retired coworker in the same duty
     station during the back pay period. Id. at 4, 9. The agency responded to her
     claims, but did not address whether the alleged comparator worked overtime
     during the back pay period. CF, Tab 21 at 8-14, 29-31. The appellant submitted
     additional evidence and argument. CF, Tabs 23, 25-29.
¶6        In a compliance initial decision, the administrative judge found that the
     agency proved its compliance with the Board’s Opinion and Order and denied the
     petition for enforcement. CF, Tab 30, Compliance Initial Decision (CID) at 1, 8.
     Specifically, she found that the agency provided a clear explanation of its
     overtime calculations supported by understandable documentary evidence. CID
     at 7; CF, Tab 21 at 24, 29-31, 46-61. She found that the agency credited the
     appellant 440 hours of annual leave, which reflected the maximum leave
     carryover amount in the Employee and Labor Relations Manual (ELM). CID at 7;
     CF, Tab 21 at 23, 26-27, 34. The administrative judge found that the appellant
                                                                                       4

     elected not to participate retroactively in TSP during the back pay period. CID
     at 7; CF, Tab 21 at 42. She found that the appellant was paid the hourly holiday
     work rate for five holidays on which at least one of her comparators worked and
     that she was paid holiday leave pay for the remainder of the holidays during the
     back pay period.     CID at 7; CF, Tab 21 at 19, 30, 46-61.            Finally, the
     administrative judge found that the agency paid the appellant interest on her back
     pay in accordance with the ELM. CID at 8; CF, Tab 21 at 63-76.
¶7        The appellant has filed a petition for review in which she challenges only
     the amount of her restored annual leave and the calculation of her overtime back
     pay. Compliance Petition for Review (CPFR) File, Tab 1. 2 She has submitted
     new evidence of her retired coworker’s Time and Attendance reports for part of
     the back pay period to support her claim that the agency failed to consider him as
     a similarly situated employee in calculating her overtime. Id. The agency has
     filed a response. CPFR File, Tab 5. On review, the Board ordered the agency to
     address the appellant’s new evidence regarding her retired coworker. CPFR File,
     Tab 6. The agency responded to the order. CPFR File, Tab 8. The appellant
     replied to the agency’s response. CPFR File, Tab 9.

                                        ANALYSIS
¶8        When the Board finds that an appellant has been the victim of an unjustified
     or unwarranted personnel action, it orders that she be placed, as nearly as
     possible, in the situation she would have been in had the personnel action not
     occurred. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011);
     King v. Department of the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam,
     167 F. App’x 191 (Fed. Cir. 2006).       The agency bears the burden to prove




     2
       The appellant does not challenge the administrative judge’s findings regarding her
     TSP contributions, holiday pay, and interest. CID at 7‑8. We discern no basis to
     disturb these findings.
                                                                                         5

      compliance with the Board’s order by a preponderance of the evidence. 3
      Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions
      of compliance must include a clear explanation of its compliance actions
      supported by documentary evidence.        Vaughan, 116 M.S.P.R. 319, ¶ 5.        The
      appellant may rebut the agency’s evidence of compliance by making specific,
      nonconclusory, and supported assertions of continued noncompliance. Id.

      The agency properly restored the appellant’s annual leave balance.
¶9         As the administrative judge found, the agency restored the maximum annual
      leave carryover amount, 440 hours, to the appellant under ELM §§ 436.2.d and
      512.321. CID at 7; CF, Tab 21 at 23, 26-27, 34. In her petition for review, the
      appellant asserts that she is entitled to an uncapped amount of annual leave.
      CPFR File, Tab 1 at 2.
¶10        Although U.S. Postal Service employees who are eligible for veterans’
      preference are excepted from the maximum carryover amount limitation and may
      be credited uncapped annual leave, the appellant does not claim she is eligible for
      veterans’ preference. See, e.g., Davis v. U.S. Postal Service, 64 M.S.P.R. 652,
      660-61 (1994) (reaffirming the holding that preference-eligible employees of the
      U.S. Postal Service were entitled to the restoration of an unlimited amount of
      annual leave under the Back Pay Act); Hawkins v. U.S. Postal Service,
      56 M.S.P.R. 633, 638-40 (1993) (finding that a preference-eligible employee of
      the U.S. Postal Service was entitled to the restoration of annual leave in excess of
      the maximum carryover limit). Thus, we find that the appellant has failed to
      rebut the agency’s evidence of compliance showing that it restored the maximum
      amount of annual leave to which she was eligible.




      3
       A preponderance of the evidence is the degree of relevant evidence that a reasonable
      person, considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                       6

      The agency failed to consider the appellant’s retired coworker as a similarly
      situated employee in calculating her overtime back pay.
¶11        The administrative judge found that the agency established compliance
      regarding its calculation of the appellant’s overtime back pay. CID at 7; CF,
      Tab 21 at 46-61.      Specifically, she found that the agency calculated the
      appellant’s overtime by averaging the overtime hours of employees with the same
      job title who worked at the same duty station and with similar seniority status.
      CID at 4-5; CF, Tab 21 at 29-30.         The administrative judge relied on the
      declaration of the agency’s Labor Relations Specialist in reaching this conclusion.
      CID at 5-7; CF, Tab 21 at 29-31.
¶12        At the time of the appellant’s retirement based on disability, she held the
      position of Clerk/Special Delivery Messenger at the Falls Church Post Office.
      CF, Tab 25 at 3. The Labor Relations Specialist declared that his search revealed
      one other employee with the same job title at the Falls Church Post Office in
      2006. CF, Tab 21 at 29.      Therefore, for 2006, the agency paid the appellant
      overtime back pay for the same number of hours as this comparator. Id. The
      Labor Relations Specialist further declared that, beginning in 2007, all the
      Clerk/Special Delivery Messengers in the appellant’s employment area became
      domiciled at the Dulles Air Mail facility. Id. at 30. Therefore, for 2007 through
      2013, the agency averaged the overtime hours of the two employees at the Dulles
      facility with the most similar level of seniority to the appellant, using her Enter
      on Duty Date of September 10, 1982. Id.
¶13        The administrative judge found that there was no evidence that the agency
      intentionally omitted the appellant’s proffered comparator, a retired coworker,
      from its overtime calculation.     CID at 6.   She further found that, even if the
      retired coworker was a similarly situated employee, there was no evidence that
      his omission from the agency’s calculation was unreasonable or that his inclusion
      would have yielded a more generous overtime calculation. CID at 6-7.
                                                                                      7

¶14        On review, the appellant submits Time and Attendance reports showing the
      overtime hours worked by her retired coworker at the Falls Church Post Office
      during part of the back pay period. CPFR File, Tab 1. She reasserts the argument
      that the agency erroneously failed to consider the retired coworker as a similarly
      situated employee in calculating her overtime hours under ELM § 436.41.a(1).
      Id. at 1-2. ELM § 436.41.a(1) mandates that the agency calculate an employee’s
      overtime hours “by averaging the number of hours that other employees of the
      office with the same employment status were assigned during the back pay
      period.” CF, Tab 21 at 24.
¶15        The agency argues that the Board should not accept the appellant’s new
      evidence on review. CPFR File, Tab 8 at 4, Tab 5 at 11. The appellant explains
      that she did not submit the evidence below because she had to locate and contact
      her retired coworker, and he had to obtain the Time and Attendance reports from
      the agency. CPFR File, Tab 9 at 1. Although the appellant consistently identified
      her proffered comparator below and requested his records related to overtime
      from the agency, the agency did not specifically explain why he was not a
      similarly situated employee for purposes of calculating overtime back pay or
      provide any of his records. CF, Tabs 3, 17, 23, 25-29.
¶16        The U.S. Court of Appeals for the Federal Circuit remanded a compliance
      appeal in Bernard v. Department of Agriculture, 788 F.3d 1365, 1369‑71 (Fed.
      Cir. 2015), finding that the appellant was effectively denied the opportunity to
      engage in discovery because he had no notice from the Board’s precedent and
      regulations that he could do so in an enforcement proceeding without advanced
      permission from the administrative judge. Following the decision in Bernard, the
      Board amended its regulations by inserting a new provision, 5 C.F.R.
      § 1201.183(a)(9), to make clear that discovery may be undertaken in enforcement
      matters. Rules and Regulations, 80 Fed. Reg. 66,787-01 (Oct. 30, 2015). Here,
      we find that the appellant did not have notice of her right to engage in discovery
      to obtain the Time and Attendance reports from the agency because the
                                                                                          8

      compliance initial decision was issued on November 6, 2015, shortly after the
      effective date of the Board’s new provision. CID at 1. Therefore, we find that
      the Time and Attendance reports provide a basis for review because they
      constitute new evidence that the appellant could not have obtained from the
      agency despite her due diligence when the record closed. 5 C.F.R. § 1201.115(d).
¶17         In its response, the agency acknowledged that the retired coworker held the
      Clerk/Special Delivery Messenger position at the Falls Church Post Office during
      part of the back pay period, from May 11, 2006, to October 25, 2008. CPFR File,
      Tab 8 at 7. The appellant and her retired coworker entered on duty within 3 years
      of each other. 4 Id. at 10, 12; IAF, Tab 21 at 30. Thus, the agency should have
      considered the retired coworker as a similarly situated employee because he had
      the same job title and duty station and similar seniority status as the appellant for
      part of the back pay period.
¶18         The Board will not nullify the method employed by the agency in
      calculating overtime back pay in the absence of a showing that the method was
      unreasonable or unworkable. Rittgers v. Department of the Army, 123 M.S.P.R.
      31, ¶ 13 (2015). Here, although the agency explained its method of calculation, it
      did not address why its method omitted the retired coworker as a result of its
      search for similarly situated employees. CPFR File, Tab 8 at 7. We find that it
      was unreasonable for the agency to omit the retired coworker from its calculation
      of the appellant’s overtime back pay and that the agency must recalculate it by
      including his overtime hours. See, e.g., Rittgers, 123 M.S.P.R. 31, ¶ 16 (finding
      that the agency’s method of calculating the appellant’s overtime back pay was not
      the one most likely to return him to the status quo ante and ordering the agency to
      recalculate it); Brady v. Department of the Navy, 55 M.S.P.R. 693, 697-98 (1992)


      4
       Neither below nor on review has the agency indicated the Enter on Duty Date of the
      comparator previously used to calculate the appellant’s overtime back pay for the 2006
      period that she would have been employed at the Falls Church Post Office but for the
      denial of her restoration request.
                                                                                         9

      (same). Therefore, we reverse the compliance initial decision’s finding that the
      agency established compliance regarding its calculation of overtime. CID at 7.
¶19         Because we have found the agency in noncompliance, the agency is being
      directed to file evidence of compliance with the Clerk of the Board, and the
      appellant will be afforded the opportunity to respond to that evidence.          The
      appellant’s petition for enforcement will be referred to the Board’s Office of
      General Counsel, and, depending on the nature of the submissions, an attorney
      with the Office of General Counsel may contact the parties to further discuss the
      compliance process. The parties are required to cooperate with that individual in
      good faith. Because the purpose of the proceeding is to obtain compliance, when
      appropriate, an Office of General Counsel attorney or paralegal may engage in
      ex parte communications to, among other things, better understand the evidence
      of compliance and any objections to that evidence. Thereafter, the Board will
      issue a final decision fully addressing the appellant’s petition for review of the
      compliance initial decision 5 and setting forth the appellant’s further appeal rights
      and the right to attorney fees, if applicable.

                                             ORDER
¶20         We ORDER the agency to submit to the Clerk of the Board within 60 days
      of the date of this Order satisfactory evidence of compliance. This evidence shall
      adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
      submission of evidence and a narrative statement of compliance. The agency’s
      submission shall demonstrate that it properly calculated the appellant’s overtime
      back pay according to ELM § 436.41.a(1). The agency must serve all parties with
      copies of its submission.
¶21         The agency’s submission should be filed under the new docket number
      assigned to this compliance referral matter, MSPB Docket No. DC-0353-06-

      5
       The subsequent decision may incorporate the analysis and findings set forth in this
      Order.
                                                                                    10

      0728-X-1. All subsequent filings should refer to the compliance referral docket
      number set forth above and should be faxed to (202) 653-7130 or mailed to the
      following address:
                                    Clerk of the Board
                            U.S. Merit Systems Protection Board
                                   1615 M Street, N.W.
                                  Washington, D.C. 20419

      Submissions also may be made by electronic filing at the Board’s e-Appeal site
      (https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
      § 1201.14.
¶22        The appellant may respond to the agency’s evidence of compliance within
      20 days of the date of service of the agency’s submission.              5 C.F.R.
      § 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
      compliance, the Board may assume that she is satisfied with the agency’s actions
      and dismiss the petition for enforcement.
¶23        The agency is reminded that, if it fails to provide adequate evidence of
      compliance, the responsible agency official and the agency’s representative may
      be required to appear before the General Counsel of the Merit Systems Protection
      Board to show cause why the Board should not impose sanctions for the agency’s
      noncompliance in this case. 5 C.F.R. § 1201.183(a). The Board’s authority to
      impose sanctions includes the authority to order that the responsible agency
      official “shall not be entitled to receive payment for service as an employee
      during any period that the order has not been complied with.”           5 U.S.C.
      § 1204(e)(2)(A).
¶24        This Order does not constitute a final order and therefore is not subject to
      judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
                                                                                 11

the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
