                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD

                                      2016 MSPB 6

                            Docket No. DC-0752-15-0108-I-1

                                    Beverly Martin,
                                       Appellant,
                                            v.
                             United States Postal Service,
                                        Agency.
                                    January 21, 2016

           Joseph V. Kaplan, Esquire, Washington, D.C., for the appellant.

           Stephen W. Furgeson, Esquire, Landover, Maryland, for the agency.


                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her suspension appeal for lack of jurisdiction.       For the reasons
     discussed below, we GRANT the appellant’s petition for review, REVERSE the
     initial decision, and REMAND the case for adjudication of the appellant’s claims
     of discrimination and reprisal for equal employment opportunity (EEO) activity.
     The agency’s action is NOT SUSTAINED.
                                                                                     2

                                     BACKGROUND
¶2         On July 22, 2011, the parties entered into a settlement agreement that
     resolved the appellant’s pending case before the Equal Employment Opportunity
     Commission (EEOC), as well as her pending EEO complaints before the agency.
     Initial Appeal File (IAF), Tab 7 at 108-16.       Pursuant to the terms of the
     agreement, the appellant promised to retire effective July 31, 2011, decline any
     agency job offer that required her to relocate from her current residence, and
     withdraw her EEOC case and other EEO complaints. Id., ¶¶ 4, 7-8. In return, the
     agency agreed to “enhance” its contributions to the appellant’s retirement for the
     3 previous years for an annual salary of $165,000.      Id., ¶ 9.   The agreement
     further provided that, in the event the Office of Personnel Management (OPM)
     did not approve the enhanced retirement contribution, the agreement would
     “become inoperative,” with the exception of the appellant’s agreement to decline
     any agency job offer that would require her to relocate from her current
     residence. Id., ¶ 9; see id., ¶ 8. The agency also agreed to pay the appellant and
     her attorneys each a lump sum of $25,000, to be held in a trust account until OPM
     approved the retirement provided for in the agreement, with the proviso that if
     OPM did not grant approval, both sums would be returned to the agency with
     interest. Id., ¶¶ 5, 10.
¶3         The agreement did not make explicit whether the appellant would be
     restored to the status quo ante in the event OPM did not approve the retirement
     with enhanced contributions.    However, on July 21, 2011, the day before the
     agreement was executed, agency counsel sent counsel for the appellant an email
     with the subject line: “This is what happens if retirement is not approved.” IAF,
     Tab 13 at 4. In that email, agency counsel stated that, while it was “anticipated”
     that OPM would approve the retirement provided for in the agreement, in the
     event it was not approved, the appellant “would be restored as if he/she had not
     left.” Id.
                                                                                       3

¶4        In April 2012, the parties learned that OPM had disapproved the enhanced
     agency contribution provided for in the agreement. Petition for Review (PFR)
     File, Tab 7 at 7; IAF, Tab 10 at 5. Shortly thereafter, the appellant requested that
     she be returned to duty. IAF, Tab 6 at 11, 68, Tab 7 at 106. On July 31, 2012,
     the appellant notified the EEOC administrative judge assigned to her case that the
     agreement had “failed because of mutual mistake of fact,” and requested that the
     case be returned to her active calendar.        IAF, Tab 7 at 105.       Following
     unsuccessful settlement efforts, the appellant was returned to paid duty status on
     October 3, 2012. IAF, Tab 7 at 78-79, Tab 10 at 6. The agency reinstated the
     appellant retroactive to July 31, 2011, but without back pay, thus placing her in
     leave without pay (LWOP) status for the period from July 31, 2011, to October 3,
     2012. IAF, Tab 7 at 78-79, Tab 10 at 6.
¶5        On October 23, 2012, the appellant moved to amend her complaint before
     the EEOC to include, among other claims, an allegation that the agency had
     retaliated against her for her EEO activity by refusing to reinstate her
     retroactively with back pay. IAF, Tab 7 at 93-100. On February 13, 2013, the
     EEOC administrative judge denied that motion, and deemed October 23, 2012, to
     be the date of first contact regarding the claims contained therein. Id. at 30-31.
     On March 22, 2013, after receiving notice of her right to file, the appellant timely
     filed a new formal EEO complaint with the agency, alleging that the agency
     retaliated against her by refusing to reinstate her retroactively with back pay and
     benefits and discriminated against her on the bases of race, sex, and age. IAF,
     Tab 1 at 20-24.
¶6        On October 27, 2014, the appellant filed a Board appeal, in which she
     asserted that she suffered a constructive suspension based on the agency’s refusal
     to provide her back pay for the period from July 31, 2011, to October 3, 2012.
     IAF, Tab 1.       She also asserted that the constructive suspension constituted
     discrimination on the bases of sex and national origin, and reprisal for prior
     protected EEO activity. Id. On October 30, 2014, she amended her appeal to
                                                                                          4

     clarify that, in light of the Board’s then-recent decision in Abbott v. U.S. Postal
     Service, 121 M.S.P.R. 294 (2014), her position was that the agency had instead
     imposed a nonconstructive suspension by placing her in enforced LWOP status.
     IAF, Tab 2. The agency moved to dismiss the appeal for lack of jurisdiction or,
     in the alternative, as untimely filed. IAF, Tab 7 at 12, 14-23. The appellant
     responded, again citing Abbott, and both parties filed supplemental pleadings.
     IAF, Tabs 10, 12-13, 15.
¶7         Without providing any written notice as to the appellant’s burden of proof
     on jurisdiction, the administrative judge issued an initial decision dismissing the
     appeal without a hearing.     IAF, Tab 16, Initial Decision.      Applying case law
     appropriate to constructive suspension appeals, the administrative judge found
     that the appellant failed to make a nonfrivolous allegation that she was
     constructively suspended because her decision to retire was knowing and
     voluntary.   Id. at 4-7.   He did not address the appellant’s argument that the
     agency had nonconstructively suspended her by placing her in LWOP status
     without her consent.
¶8         On petition for review, the appellant argues that the administrative judge
     erred in finding that her July 31, 2011 retirement was voluntary because the
     settlement agreement was based on mutual mistake and thus was void ab initio.
     PFR File, Tab 3 at 5, 11-17. She further argues that she did not voluntarily agree
     to the agency’s unilateral imposition of LWOP in the event the settlement
     agreement was rendered void. See id. at 17-18. The agency has responded, PFR
     File, Tab 7, and the appellant has filed a reply, PFR File, Tab 8. 1


     1
       The agency’s motion for leave to file a response to appellant’s reply to the agency’s
     response to the petition for review is denied. PFR File, Tab 10. Such a pleading is not
     generally allowed on review, absent approval by the Clerk of the Board based on a
     party’s motion describing the nature of and need for the pleading. See 5 C.F.R.
     § 1201.114(a)(5). We are not persuaded by the agency’s unsupported assertion that the
     appellant’s reply is “replete with errors of law and facts.” PFR File, Tab 10 at 1. Nor
                                                                                              5

                                            ANALYSIS
¶9          The placement of an employee in enforced leave status for more than
      14 days constitutes an appealable suspension within the Board’s jurisdiction.
      Abbott, 121 M.S.P.R. 294, ¶ 10; see 5 U.S.C. §§ 7512(2), 7513(d), 7701(a). We
      have held that when an agency reinstates an appellant following a negative
      retirement determination by OPM, and retroactively places him in LWOP status
      without her consent for the period during which the retirement inquiry was
      pending, her placement in LWOP status constitutes such an appealable
      suspension. Bannister v. General Services Administration, 42 M.S.P.R. 362, 364,
      368 (1989). In Bannister, we described the agency’s unilateral placement of the
      appellant in LWOP status as a “constructive suspension.” Id. at 368. However,
      we have since clarified that the term “constructive suspension” is properly
      reserved for appeals in which an appellant alleges that leave that appeared to be
      voluntary was not. Abbott, 121 M.S.P.R. 294, ¶¶ 6-11. Here, as in Abbott, the
      appellant’s retroactive placement in LWOP status was not even ostensibly
      voluntary. See id., ¶ 9. Hence, it was error for the administrative judge to apply
      case law applicable to appeals where the voluntariness of leave is at issue. See
      id., ¶ 10. Because the agency placed the appellant in LWOP status, without her
      consent, for a period of 430 days, we find that she suffered an appealable
      nonconstructive suspension within the Board’s jurisdiction. 2
¶10         We further find that her appeal was timely filed. Our regulations provide
      that when an appellant seeks to raise an allegation of prohibited discrimination
      concerning an action that is otherwise appealable to the Board, she may either file


      do we believe that further briefing is necessary for our understanding of the case, or for
      “justice and fair play,” as claimed. Id.
      2
        In so finding, we do not decide whether the appellant is correct in her contention that
      the settlement agreement was rendered void ab initio. We consider the agreement only
      to note the absence of any term that might be construed as expressing the appellant’s
      consent to retroactive placement in LWOP status.
                                                                                         6

      a timely complaint of discrimination with the agency, or file an appeal with the
      Board within 30 days after the effective date of the agency action being appealed.
      5 C.F.R. § 1201.154(a). If the appellant has elected to file a complaint with the
      agency, the Board appeal must be filed within 30 days after the employee receives
      the final agency decision on the discrimination issue or, if the agency has not
      resolved the matter or issued a final decision on the complaint within 120 days,
      the appellant may appeal the matter directly to the Board at any time after the
      expiration of 120 calendar days. 5 C.F.R. § 1201.154(b). Here, the appellant
      filed a timely EEO complaint alleging reprisal and discrimination regarding her
      suspension, and filed her Board appeal after 120 days had elapsed without a final
      agency decision being issued on her complaint.
¶11         As for the merits of the appeal, because a tenured Federal employee has a
      property interest in continued employment, the agency was prohibited from
      suspending the appellant without providing the due process required under the
      Fifth Amendment.         See Buelna v. Department of Homeland Security,
      121 M.S.P.R. 262, ¶ 13 (2014).      Due process requires, at a minimum, that an
      employee being deprived of her property interest be provided an “opportunity to
      be heard ‘at a meaningful time and in a meaningful manner.’” Id., ¶ 16 (quoting
      Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).          Here, the agency did not
      provide the appellant a hearing of any kind, either before or after it retroactively
      suspended her. Consequently, its action cannot be sustained.
¶12         Finally, because the appellant’s suspension is an appealable action, she is
      entitled to a decision on her claim that the agency’s action constituted reprisal for
      her prior EEO activity and discrimination claims.       See 5 U.S.C. § 7702(a)(1).
      The case therefore must be remanded for adjudication of the appellant’s reprisal
      and discrimination claims, including her requested hearing.         See Aldridge v.
                                                                                              7

      Department of Agriculture, 111 M.S.P.R. 670, ¶ 23 (2009); Totten v. U.S. Postal
      Service, 68 M.S.P.R. 255, 257 (1995). 3

                                              ORDER
¶13         The initial decision is REVERSED, and the case is REMANDED to the
      Washington Regional Office for further adjudication.
¶14         Pending    the     remand    proceedings   on   the   appellant’s    reprisal   and
      discrimination claims, we ORDER the agency to cancel the suspension action and
      retroactively place the appellant in pay status for the period from July 31, 2011,
      to October 3, 2012. 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.
¶15         We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
      Service Regulations, as appropriate, 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.
¶16         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 to describe 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).


      3
        The Board’s regulations provide that a request for attorney fees must be made within
      60 days after issuance of a final decision. 5 C.F.R. § 1201.203(d). In this case, the
      time limit for filing such a request will not begin to run until the decision on remand is
      final. See Aldridge, 111 M.S.P.R. 670, ¶ 23 n.4; Totten, 68 M.S.P.R. at 257 n.2.
                                                                                      8

¶17        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 in 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).
¶18        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 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.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      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.
