                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL PACE,                                   DOCKET NUMBER
                         Appellant,                  CH-0432-14-0335-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: June 11, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Stephen T. Fieweger, Esquire, Moline, Illinois, for the appellant.

           Karen Barrows, Rock Island, Illinois, 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 initial decision, which
     sustained his removal and found that he had not established his affirmative
     defenses. For the reasons discussed below, we GRANT the appellant’s petition
     for review and REVERSE the initial decision as to the penalty of removal. The
     appellant’s removal is NOT SUSTAINED. We AFFIRM AS MODIFIED by this

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Order the initial decision as to its finding that the appellant failed to establish his
     affirmative defenses.

                                       BACKGROUND
¶2         The appellant, a safety intern, was placed on a Performance Improvement
     Plan (PIP). Initial Appeal File (IAF), Tab 7, Subtab 4 at 4-24 of 98. 2 After the
     PIP concluded, the appellant’s performance in the critical element of mission
     support continued to be evaluated as “Fails” and he received an overall
     “Unsuccessful” rating on his final performance evaluation. Id. at 92-95 of 102.
     The appellant therefore was removed from his position for unsuccessful
     performance. Id. at 10-20 of 136.
¶3         The appellant appealed his removal to the Board.           IAF, Tab 1.      After
     holding a hearing, the administrative judge sustained the removal, finding that:
     the PIP memorandum provided objective milestones that the appellant needed to
     reach before he was deemed “Fully Successful”; there was sufficient evidence to
     demonstrate that the appellant failed to meet the mission support objective; and
     there was substantial evidence to sustain his removal.          IAF, Tab 14, Initial
     Decision (ID) at 7-10. The administrative judge also found that the appellant
     failed to establish his affirmative defenses of harmful procedural error and
     disability discrimination in the form of failure to accommodate and disparate
     treatment. ID at 11-17. The appellant has filed a timely petition for review.
     Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
     File, Tab 3.




     2
      The agency filed Subtab 4 of Tab 7 in three separate submissions consisting of 98,
     102, and 136 pages, respectively. Throughout this decision, we cite to both the specific
     page number and the last page number of the particular submission in Subtab 4 to which
     we are referring.
                                                                                       3

                     DISCUSSION OF ARGUMENTS ON REVIEW
     Validity and Communication of Performance Standards
¶4        In a performance-based action under chapter 43, an agency must establish
     by substantial evidence 3 that: (1) the Office of Personnel Management approved
     its performance appraisal system; (2) the agency communicated to the appellant
     the performance standards and critical elements of his position; (3) the
     appellant’s performance standards are valid under 5 U.S.C. § 4302(b)(1); (4) the
     agency warned the appellant of the inadequacies of his performance during the
     appraisal period and gave him a reasonable opportunity to improve; and (5) the
     appellant’s performance remained unacceptable in at least one critical element.
     White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013).
     Performance standards are not valid unless they set forth a minimum level of
     performance that an employee must achieve to avoid a performance-based action.
     Henderson v. National Aeronautics & Space Administration, 116 M.S.P.R. 96, ¶ 9
     (2011). Under certain performance appraisal systems, performance of a critical
     element may fall between “Fully Successful” and “Unacceptable.”           5 C.F.R.
     §§ 430.207(c), 430.208(d). However, under such systems, only the lowest rating
     level of “Unacceptable” (or its equivalent) will support an agency action under
     chapter 43. See Van Prichard v. Department of Defense, 117 M.S.P.R. 88, ¶ 14
     (2011), aff’d, 484 F. App’x 489 (Fed. Cir. 2012).
¶5        We find that the agency failed to show by substantial evidence that the
     appellant’s performance standards were valid and that he was notified of the
     standard for performing at the minimum acceptable level to avoid a
     performance-based action.    The agency’s Total Army Performance Evaluation
     System, under which the appellant was evaluated, provides for a four-tiered
     system for    measuring each individual objective with the standards of

     3
       Substantial evidence is the “degree of relevant evidence that a reasonable person,
     considering the record as a whole, might accept as adequate to support a conclusion,
     even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p).
                                                                                      4

     “Excellence,” “Success,” “Needs Improvement,” and “Fails.” Army Regulation
     690-400, Chapter 4302, 1-5.g. (1998). An “Unsuccessful” rating is assigned for
     an employee who receives a rating of “Fails” in one or more objective, regardless
     of the ratings assigned to other objectives.        Id., 1-5.i.   The appellant’s
     performance objectives are written at one level and do not provide for varying
     levels of performance. IAF, Tab 7, Subtab 4 at 67-68 of 98. Thus, the agency
     stated in its narrative response that these standards are written at the “Fully
     Successful” level.    Id., Subtab 1 at 18; see id., Subtab 4 at 26 of 98, PIP
     (performance standards are written at the “Fully Successful” level). We therefore
     find that the standards are invalid.
¶6         Although, to be valid, performance standards must set forth the minimum
     level required to avoid a performance-based action, an agency may cure invalid
     performance standards by communicating sufficient information regarding
     performance requirements at the beginning of, and even during, a PIP.
     Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18. We find that the agency failed to cure its
     defective standards because it did not communicate to the appellant that he only
     needed to improve to the “Needs Improvement” level and it did not sufficiently
     describe how he could improve his performance to avoid a performance-based
     action.
¶7         Prior to the PIP, the appellant received an intern midpoint performance
     report. IAF, Tab 7, Subtab 4 at 58-63 of 98. In this report, the proposing official
     provided examples of the appellant’s performance, described what was deficient,
     and explained what he expected for the appellant to perform successfully as
     measured by the objectives. Id. at 59-60 of 98. The report did not describe what
     was required to receive a “Needs Improvement” rating. Id. at 60 of 98. Instead,
     it stated that the appellant needed “to improve performance to avoid an
     unsuccessful rating for each of [his] performance objectives” and then described
     what the proposing official expected of the appellant to successfully perform. Id.
     Nowhere does the report indicate that the appellant may perform at the “Needs
                                                                                       5

     Improvement” level to avoid an “Unsuccessful” rating, nor does it describe the
     “Needs Improvement” level of performance. Therefore, we find that the report
     does not cure the defective performance standards. See Henderson, 116 M.S.P.R.
     96, ¶¶ 20-21 (the agency failed to cure its invalid written performance standards
     because it did not communicate valid performance standards to the appellant
     during the initial performance period).
¶8        The appellant subsequently was placed on a PIP. IAF, Tab 7, Subtab 4 at
     26-55 of 98.    In its PIP notice, the agency stated, “An acceptable level of
     performance is that which meets your performance requirements at the successful
     level . . . .” Id. at 26 of 98. It also noted that performance standards are written
     at the “Fully Successful” level. Id. The agency stated that the appellant was
     failing two performance objectives/critical elements:        mission support and
     organizational support. Id. at 29 of 98. The PIP notice included the language of
     the performance standard concerning mission support. Id. at 29-30 of 98. The
     PIP notice very specifically detailed instances where the appellant had not
     properly performed as to the mission support objective and explained how he
     could successfully perform in those situations. Id. at 29-45 of 98. The notice
     also generally outlined how the appellant could perform more successfully during
     the PIP, including, under the mission support objective, having no more than one
     instance where the Occupational Safety and Health Administration (OSHA) 300
     log is not updated monthly by the established date and/or not updated within 4
     working days of a reportable accident. Id. at 51-53 of 98. The appellant also was
     required to meet five expectations in the mission support objective with three or
     fewer cumulative errors. Id. at 51 of 98. These expectations included meeting
     suspense dates. Id. at 52.
¶9        It is clear from the PIP notice that the agency did not notify the appellant of
     the performance level required for a “Needs Improvement” rating. First, the PIP
     notice clearly states that it is written at the “Success” level as opposed to any
     lower level. Id. at 26 of 98. Additionally, many of the standards in the PIP are
                                                                                        6

      clearly on the same level as the appellant’s performance standards, which were
      written at the “Success” level. For example, under the mission support objective,
      the appellant’s performance standards for a 1-year performance period state that
      he must maintain the OSHA 300 log accurately and within 4 working days of
      occurrence with no more than two instances where the log is not maintained
      accurately or within 4 working days. Id. at 67 of 98. In the PIP, which lasted for
      3 months, the appellant was expected to perform the same task with no more than
      one instance where the log is not maintained accurately or within 4 working days.
      Id. at 53 of 98. The PIP was for 3 months whereas the appellant’s performance
      standards were written for a year. The agency adapted the performance standard
      to the shorter time period and rounded to the nearest whole number of one
      instance. We fail to see how this required level of performance along with the
      same timeframe of 4 working days for maintaining the OSHA log differs
      materially from the “Success” level outlined in the appellant’s performance
      standards.
¶10        The memorandum subsequent to the PIP further demonstrates that the
      agency did not notify the appellant during the PIP of the requirements for a
      “Needs Improvement” performance level and instead notified him of the
      requirements for a “Success” rating. See id. at 4-24 of 98. The proposing official
      stated that the appellant had raised his performance in the organizational support
      objective to the “Needs Improvement” level, but failed to raise the mission
      support objective above the “Fails” level.       Id. at 5 of 98.    Regarding the
      appellant’s “Fails” rating for the mission support objective, the proposing official
      described several tasks that he assigned to the appellant and the errors he
      committed concerning those tasks.       Id. at 11-22 of 98.      For instance, the
      memorandum detailed an instance where the appellant completed an assignment
      with multiple technical errors, missed the established date for completing the
      assignment, and required excessive assistance. Id. at 11-13 of 98. The proposing
      official stated that successful performance in the critical element of mission
                                                                                      7

      support required no more than three errors in the appellant’s assigned duties, but
      that, based upon the cited examples, the appellant had more than three errors. Id.
      at 22-23 of 98. The appellant also had not met suspense dates. Id. at 22 of 98.
      The proposing official stated that the appellant was given numerous opportunities
      to perform at the “Fully Successful” level, but he instead demonstrated
      unacceptable performance. Id. at 23 of 98. As a result, he was assigned a “Fails”
      performance rating. Id.
¶11        The memorandum makes no mention of the standards for the “Needs
      Improvement” performance level. Id. at 11-12 of 98. As a specific example, the
      appellant’s performance standards for the mission support objective stated, “No
      more than 10 times during the rating period is the task/project not completed on
      time . . . and/or returned because results/recommendations are based on faulty
      conclusions and/or because it was not fully coordinated prior to submission.” Id.
      at 94 of 102. The memorandum is silent on the prorated number of times during
      the PIP that the appellant would have been permitted to untimely complete
      assignments as described above to perform at the “Needs Improvement” level.
      Consequently, we find that the memorandum subsequent to the PIP also failed to
      demonstrate that the agency cured its defective performance standards.        See
      Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18.
¶12        The proposing official’s testimony further supports our finding that the
      appellant was not notified of valid performance standards. The proposing official
      testified that he originally gave the appellant a memorandum detailing what he
      would need to do to become fully successful. Hearing Compact Disc (HCD). The
      proposing official testified that it was his understanding, based upon his
      conversations with employees from human resources, that a PIP was an
      opportunity for the appellant to demonstrate that he could perform at the “Fully
      Successful” level. HCD. Based upon our consideration of the evidence, we find
      that the agency improperly failed to communicate to the appellant what he needed
                                                                                             8

      to do to avoid a performance-based action. See Van Prichard, 117 M.S.P.R. 88,
      ¶ 19.
¶13           Accordingly, we find that the agency neither developed valid performance
      standards nor cured defective performance standards by communicating the
      standards to the appellant. See Henderson, 116 M.S.P.R. 96, ¶¶ 16, 18. Because
      the agency has not shown that its performance standards were valid, the
      appellant’s removal cannot be sustained. See Van Prichard, 117 M.S.P.R. 88,
      ¶ 24 (the Board will not consider charged performance deficiencies absent valid
      performance standards). 4

      Affirmative Defenses
¶14           On review, the appellant continues to assert the affirmative defenses of
      harmful procedural error and disability discrimination.            PFR File, Tab 1.
      Regarding the appellant’s assertions concerning harmful procedural error,
      because we do not sustain the agency’s action, we find it unnecessary to address
      this affirmative defense as it is not outcome determinative. See Taylor v. U.S.
      Postal Service, 75 M.S.P.R. 322, 328 (1997) (declining to address a harmful
      procedural error claim after finding that the agency failed to prove its charge).
¶15           Next, we find that the appellant failed to establish his affirmative defense of
      disability discrimination based upon the agency’s alleged failure to reasonably
      accommodate him.         The appellant must prove his affirmative defenses by
      preponderant evidence. 5 5 C.F.R. § 1201.56(b)(2)(i)(C). In order to establish


      4
        The appellant initially appealed the denial of his within-grade increase (WIGI). IAF,
      Tab 1; see IAF, Tab 7, Subtab 4 at 28 of 136. However, after notifying the appellant of
      the requirements for establishing jurisdiction, the administrative judge severed the
      WIGI appeal from the removal appeal and dismissed the WIGI appeal for lack of
      jurisdiction. Pace v. Department of the Army, MSPB Docket No. CH-531D-14-0359-I-
      1, Initial Decision (July 15, 2014). The appellant did not file a petition for review
      challenging the dismissal of his WIGI appeal, and that matter therefore is not before us.
      5
       A preponderance of the evidence is that “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).
                                                                                        9

      disability discrimination based upon a failure to accommodate, an employee must
      show that:   (1) he is an individual with a disability, as defined by 29 C.F.R.
      § 1630.2(g); (2) he is a qualified individual with a disability, as defined
      by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
      accommodation.     Miller v. Department of the Army, 121 M.S.P.R. 189, ¶ 13
      (2014).
¶16        The administrative judge found that the appellant was provided all
      accommodations he requested prior to the PIP, and that, although the agency
      provided him with adaptive software and a tape recorder (that he had requested
      halfway through the PIP) after the PIP had concluded, his supervisor testified that
      even with these accommodations, the appellant’s performance did not improve to
      an acceptable level. ID at 12-15. The administrative judge therefore found that
      the appellant was not a qualified individual with a disability under the law. ID at
      15. On review, the appellant disagrees with the administrative judge’s finding
      and asserts that the agency failed to accommodate him because it delayed in
      providing certain accommodations until after the PIP concluded. He also asserts
      that these accommodations would have allowed him to succeed during the PIP.
      PFR File, Tab 1 at 5-7.      Assuming without deciding that the appellant is a
      qualified individual with a disability under 29 C.F.R. § 1630.2(g),(m), we find
      that he has not established that the agency failed to accommodate him.
¶17        The Board has held that an agency is entitled to a reasonable period of time
      between an employee’s request for an accommodation and its decision concerning
      the provision of an accommodation.           McConnell v. Department of the
      Army, 61 M.S.P.R. 163, 169 (1994).       The appellant asserts that he requested
      certain devices, including a tape recorder and assistive software, but that these
      were not provided until approximately 3 months after his requests. PFR File, Tab
      1 at 5-6. He also asserts that he had previously requested a tape recorder. Id. at
      5. In his declaration, the proposing official stated that the appellant had informed
      him of his disability, but did not request any accommodation until after he was
                                                                                             10

      placed on the PIP. IAF, Tab 7, Subtab 4 at 23 of 136. The proposing official also
      stated that when the appellant asked, after being placed on the PIP, if he could
      use a recording device as a form of assistive technology, the proposing official
      immediately gave the appellant a device from his office; the appellant was later
      provided with a more sophisticated device. Id. The proposing official further
      stated that he provided the appellant with extra guidance and feedback as
      compared to others in the appellant’s position. Id. at 24-25 of 136; see id. at
      23-24 of 98. Considering the delay in providing the appellant with the requested
      technology in the context of the other evidence, we find that the appellant has not
      shown that the agency failed to accommodate him within a reasonable amount of
      time. Therefore, we find that the appellant has not established his affirmative
      defense of disability discrimination based upon failure to accommodate. 6 See
      generally White, 120 M.S.P.R. 405, ¶¶ 14-15 (finding no failure to accommodate
      where the appellant did not provide sufficient information to support the
      requested accommodation in the form of a “hardship transfer” prior to a
      performance-based action).
¶18         We also find that the appellant failed to establish his affirmative defense of
      disparate treatment based upon disability. 7 The administrative judge, in applying
      the standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
      802-04 (1973), found that the appellant had not established disparate treatment
      based upon disability because she found that he was not treated less favorably,
      and in fact was even provided more leniency, than other employees. ID at 16-17.
      However, in Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶¶ 18–22
      6
        We MODIFY the initial decision to the extent that it found that the appellant was not a
      qualified individual with a disability because we instead find that he failed to show that
      the agency did not reasonably accommodate him.
      7
        The appellant’s arguments on review regarding disability discrimination address only
      his reasonable accommodation claim. See PFR File, Tab 1. Although the appellant
      does not specifically challenge the administrative judge’s findings regarding disparate
      treatment based on disability, we address that claim to apply the correct legal
      framework.
                                                                                        11

      & n.4 (2013), the Board found that a mixed-motive analysis applies to claims of
      disparate treatment based on disability.      Under a mixed-motive analysis, an
      employee is entitled to some relief if he proves that his disability was “a
      motivating factor” in the decision, “even though other factors also motivated the
      practice.” Id., ¶ 23 (citing 42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(1)). An agency
      may limit the extent of the remedy if it demonstrates by clear and convincing
      evidence that it “would have taken the same action in the absence of the
      impermissible    motivating   factor.”     Id.,   ¶¶   23–25   (citing   42   U.S.C.
      § 2000e-5(g)(2)(B)).   Because the record is fully developed on the appellant’s
      affirmative defense, the Board can apply the mixed-motive analysis without
      remand.
¶19         Discrimination may be established by direct or circumstantial evidence.
      Direct evidence may be any statement made by an employer that (1) reflects
      directly the alleged discriminatory attitude, and (2) bears directly on the contested
      employment decision. Arredondo v. U.S. Postal Service, 85 M.S.P.R. 113, ¶ 13
      (2000).   In addition to direct evidence of discrimination, the Board also may
      consider circumstantial evidence in determining whether an appellant has met his
      burden.   Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶ 12
      (2010). Such evidence may include:
            (1) evidence of suspicious timing, ambiguous oral or written
            statements, behavior toward or comments directed at other
            employees in the protected group, and other bits and pieces from
            which an inference of retaliatory intent might be drawn; (2) evidence
            that employees similarly situated to the appellant have been better
            treated; and (3) evidence that the employer’s stated reason for its
            actions is pretextual.
      Troupe v. May Department Stores Company, 20 F.3d 734 (7th Cir. 1994).
¶20         The appellant stated that the proposing official and another agency
      employee made harassing comments towards him. IAF, Tab 1. The appellant
      cited a statement of a coworker that an agency employee (Ms. S.) would degrade
      the appellant to a greater degree than she did other employees and would make
                                                                                        12

      derogatory comments. IAF, Tab 7, Subtab 4 at 42 of 136. He did not, however,
      elaborate as to what comments were made.            Because the appellant has not
      established that the comments allegedly made by Ms. S bear directly on his
      removal, those comments do not constitute direct evidence of discrimination. See
      Arredondo, 85 M.S.P.R. 113, ¶ 13. As to the proposing official, the appellant
      indicated that he was responsive when he heard rumors that another co-worker
      bullied the appellant; the proposing official listened to the appellant’s complaint
      concerning the situation and stated that he would talk to the employee.           We
      therefore find that the appellant’s bare allegations that the proposing official and
      coworkers were discriminating against him do not constitute direct evidence of
      discrimination. See Pinegar v. Federal Election Commission, 105 M.S.P.R. 677,
      ¶ 32 (2007).
¶21         We also have considered circumstantial evidence in deciding whether the
      appellant’s disability was a motivating factor in his removal.          The appellant
      generally objected to the lack of feedback he received from the proposing official,
      stated that the proposing official failed to accommodate his disability, and
      disagreed with the proposing official’s criticism of his work. IAF, Tab 7, Subtab
      4 at 30-43 of 136. However, the appellant admitted in his testimony that the
      proposing official treated everyone in the office the same way. HCD. We find
      that the appellant has not shown that others were treated more favorably than him.
      We also have considered the evidence concerning Ms. S.’s alleged comments.
      See id. at 42 of 136. Nonetheless, we find, upon considering all of the evidence,
      that the appellant has not shown that his disability was a motivating factor in his
      removal. Accordingly, we agree with the administrative judge that the appellant
      failed to establish his affirmative defense of disparate treatment. 8




      8
       We MODIFY the initial decision to the extent that the administrative judge failed to
      apply the mixed-motive analysis.
                                                                                      13

                                             ORDER
¶22         We ORDER the agency to reinstate the appellant and to restore the
      appellant effective February 4, 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.
¶23         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.
¶24         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).
¶25         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).
¶26         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
                                                                                 14

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
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. 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
                                                                                   15

      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.

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
                                                                      16

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.




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