                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLIAM L. OWENS,                               DOCKET NUMBER
                   Appellant,                        AT-315H-14-0479-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 21, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joe L. Brown, Esquire, Savannah, Tennessee, for the appellant.

           Joree G. Brownlow, Esquire, Cordova, Tennessee, for the appellant.

           Allen S. Black, Esquire, and Sherry E. Blount, Memphis, Tennessee, for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which:
     (1) did not sustain the charge of inability to perform the essential duties of the
     marine electrician position; (2) sustained the charge of refusal to accept suitable

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     employment; (3) concluded that the appellant did not prove his affirmative
     defense of disability discrimination; (4) found that no penalty was the maximum
     reasonable penalty for the sustained misconduct; (5) reversed the removal and
     ordered the agency to reinstate the appellant; and (6) awarded interim relief.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed.   See Title 5 of the Code of Federal Regulations, section 1201.115
     (5 C.F.R. § 1201.115).   After fully considering the filings in this appeal, and
     based on the following points and authorities, we conclude that the petitioner has
     not established any basis under section 1201.115 for granting the petition for
     review. Therefore, we DENY the petition for review and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                     BACKGROUND
¶2        Effective February 11, 2014, the agency removed the appellant from his
     marine electrician position based on two charges: (1) inability to perform the
     essential duties of his position; and (2) refusal to accept suitable employment.
     Initial Appeal File (IAF), Tab 11, Subtabs 4c-4d. The appellant filed a Board
     appeal, and a hearing was held. Hearing Transcript (HT). The administrative
     judge issued an initial decision finding that: (1) the agency failed to prove that
     the appellant was unable to perform the essential duties of his position; (2) the
     agency proved that the appellant refused to accept suitable employment when he
     did not accept the agency’s offer of an administrative support assistant position;
                                                                                              3

     (3) the appellant failed to establish that the agency discriminated against him on
     the basis of his disability; and (4) the maximum penalty for the sustained charge
     was no penalty. IAF, Tab 24, Initial Decision (ID). The administrative judge
     therefore ordered the agency to cancel the removal action and retroactively
     restore the appellant, effective February 11, 2014, and to provide him with
     interim relief.   ID at 20-21.     The agency has filed a petition for review, the
     appellant has filed a response, and the agency has filed a reply.            Petition for
     Review (PFR) File, Tabs 1, 4, 6. 2 The appellant also has filed a petition for
     enforcement of interim relief and a request to dismiss the agency’s petition for
     review due to noncompliance with the interim relief order, to which the agency
     responded. PFR File, Tabs 3, 5.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶3         On review, the agency argues that the administrative judge erred by:
     (1) awarding back pay for the period that the appellant was not ready, willing,
     and able to perform his duties; (2) failing to consider evidence regarding the
     inherent dangers of working on barges and the appellant’s inability to perform his
     duties due to the heightened risk associated with his exposure to these dangers in
     light of his medical condition; and (3) considering reasonable accommodations
     because the appellant refused to cooperate with the agency’s attempt to determine
     the extent of his physical limitations. PFR File, Tab 1 at 17-22. The agency also
     asserts that the administrative judge committed factual errors, including that the
     appellant could safely perform the essential functions of his position with an
     accommodation and that the accommodations identified by the administrative
     judge were inconsistent with the March 2, 2012 “permanent” restrictions, the
     2
       In his opposition to the agency’s petition for review, the appellant argues that the
     agency’s submission was untimely filed. PFR File, Tab 4 at 4-5. The Federal Express
     receipt attached to the agency’s submission indicates that the petition for review was
     timely filed. PFR File, Tab 1; see 5 C.F.R. § 1201.114(e). To the extent that the Office
     of the Clerk of the Board identified a different and later filing date for the petition for
     review, PFR File, Tab 2, this error does not warrant a different outcome.
                                                                                              4

     May 22, 2013 temporary restrictions, and the September 2013 functional capacity
     evaluation.    Id. at 23-29. 3     For the following reasons, we find that these
     arguments are unavailing.

     We deny the appellant’s motion to dismiss the agency’s petition for review for
     failure to comply with the interim relief order. 4
¶4         The appellant alleges that the agency did not issue the paperwork required
     to put him in a pay status nor did it reinstate any of the pay and benefits of the
     marine electrician position. PFR File, Tab 3. He notes that the only Standard
     Form 50 submitted by the agency shows that his removal was cancelled. Id. at 4,
     6. The appellant avers, among other things, that he was not being paid at the
     appropriate hourly rate and that he learned that he owed back premiums for his
     health insurance.      PFR File, Tab 4 at 15-16.             In response, the agency
     acknowledges that there were various delays in the agency’s compliance with the
     interim relief order, but it explains that these delays were due in part to
     complications arising from the appellant’s prior enrollment in Office of Workers’
     Compensation Programs (OWCP) and his extended leave without pay status, a
     system payment error with the Defense Finance and Accounting Services that
     needed to be resolved, and the apparent cancellation of his prior health insurance
     by the provider due to nonpayment of premiums after his OWCP wage loss
     benefits were terminated. E.g., PFR File, Tab 5, Subtabs 2-3.
¶5         If an agency fails to establish its compliance with the interim relief order,
     the Board has discretion to dismiss its petition for review, but the Board need not
     do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,

     3
       Because the appellant chose not to file a petition for review of the initial decision, we
     affirm the administrative judge’s conclusions that the agency proved that he refused to
     accept suitable employment and that he did not prove his affirmative defense of
     disability discrimination. ID at 5-6, 19.
     4
      The Board will not entertain a motion to enforce an interim relief order. Parbs v. U.S.
     Postal Service, 107 M.S.P.R. 559, ¶ 5 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008).
     Therefore, we only will consider the appellant’s submission as a motion to dismiss the
     petition for review.
                                                                                      5

     ¶ 11 (2013); see Guillebeau v. Department of the Navy, 362 F.3d 1329, 1332-34
     (Fed. Cir. 2004). Under the circumstances of this case, we do not exercise our
     discretion to dismiss the agency’s petition for review because the agency has
     submitted evidence showing that it has substantially complied with the interim
     relief order and that its delayed compliance with the initial decision was due to
     the complications listed above. PFR File, Tabs 4-5. In particular, the debt for the
     outstanding health insurance premiums and the lapse in health insurance coverage
     appear to have been due to OWCP’s decision to terminate the appellant’s benefits
     after he refused to accept the administrative support assistant position, and we
     find that this lapse did not constitute agency noncompliance. See, e.g., Crickard
     v. Department of Veterans Affairs, 92 M.S.P.R. 625, ¶ 4 n.2 (2002) (rejecting the
     appellant’s request to dismiss the agency’s petition for review for failure to
     comply with the interim relief order because, among other things, the apparent
     lapse in the appellant’s health insurance coverage was inadvertent and not the
     agency’s fault, and the apparent error on the insurance carrier’s part had been
     corrected as a result of the agency’s further actions), overruled on other grounds
     by Koehler v. Department of the Air Force, 99 M.S.P.R. 82 (2005).

     The administrative judge properly concluded that the agency did not prove the
     charge of inability to perform the essential duties of the marine electrician
     position.
¶6          The agency does not challenge the administrative judge’s conclusion that
     the appellant’s position was not subject to medical standards or physical
     requirements. ID at 8, 11. Accordingly, for the agency to prevail on the inability
     to perform charge, it must prove: (1) a nexus between the employee’s medical
     condition and observed deficiencies in his performance or conduct; or (2) a high
     probability, given the nature of the work involved, that his condition may result
     in injury to himself or others. Fox v. Department of the Army, 120 M.S.P.R. 529,
     ¶ 25    (2014)    (citing   Marshall-Carter     v.   Department     of    Veterans
     Affairs, 94 M.S.P.R. 518, ¶ 10 (2003), aff’d, 122 F. App’x 513 (Fed. Cir. 2005));
                                                                                      6

     see Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 5 (2014). In other
     words, the agency must establish that the appellant’s medical condition prevented
     him from being able to safely and efficiently perform the core duties of his
     position. See Fox, 120 M.S.P.R. 529, ¶ 25. In determining if the agency has met
     its burden, the Board will consider whether a reasonable accommodation exists
     that would enable the appellant to safely and efficiently perform those core
     duties. See id. However, for the limited purposes of proving the charge, the
     agency is not required to show that it was unable to reasonably accommodate the
     appellant by assigning him to a vacant position for which he was qualified;
     whether it could do so goes to the affirmative defense of disability discrimination
     and the reasonableness of the penalty. Id.
¶7        Regarding the administrative judge’s conclusion that the agency did not
     prove a nexus between the appellant’s medical condition and noted deficiencies in
     his performance or conduct, the agency argues that the administrative judge
     improperly considered accommodations in addressing this issue because of the
     appellant's “refusal to cooperate” with the agency’s attempts to determine the
     extent of his limitations. PFR File, Tab 1 at 21-22; ID at 14-17. We are not
     persuaded that this argument warrants a different outcome.               Both the
     administrative judge and the agency acknowledged the general rule that an
     administrative judge may consider whether a reasonable accommodation exists to
     allow the appellant to perform his essential duties, but an exception to this rule
     limits such consideration if the appellant refuses to cooperate with the agency.
     PFR File, Tab 1 at 21-22; ID at 7 n.2 (citing Brown v. Department of the
     Interior, 121 M.S.P.R. 205, ¶ 19 (2014)). We recognize that, in the functional
     capacity evaluation (FCE), the evaluator noted the appellant’s lack of consistent
     effort. IAF, Tab 6 at 16. However, the agency cited no evidence to show that it
     requested that the appellant provide updated or additional medical information
     and he refused. Indeed, the appellant testified that he asked for a full release
     from his doctor, but he had not yet received one. HT 2 at 94. The agency’s
                                                                                      7

     Human Resources Specialist testified that she reviews OWCP files on a periodic
     basis and would contact the Department of Labor to obtain updated medical
     reports, but, for reasons that are unclear, she did not do so for the appellant. HT
     1 at 188-89, 226; see HT at 216 (the Human Resources Specialist explained her
     belief that, after the appellant’s temporary restrictions were “lifted,” his
     “permanent” restrictions would remain in effect). Because there is no evidence
     that the agency requested additional or updated medical documentation, and no
     evidence that the appellant refused to comply with this request, we discern no
     error with the administrative judge’s consideration of potential accommodations
     for the appellant in his assessment of whether the agency proved this charge.
¶8         We also have considered the agency’s contention that the accommodations
     identified by the administrative judge were inconsistent with the appellant’s
     “permanent” restrictions, the temporary medical restrictions, and the FCE, PFR
     File, Tab 1 at 17-23, but we are not persuaded that these arguments warrant a
     different outcome. Regarding the agency’s assertion that the administrative judge
     failed to consider the FCE and how the FCE relates to the reasonable
     accommodation issue, the administrative judge discussed the FCE in the
     background section in the initial decision. ID at 4. His failure to specifically
     discuss the FCE in his analysis of the accommodation issue does not mean he did
     not   consider   it.   See   Marques   v.   Department    of   Health   &   Human
     Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
     (Table). We have considered the FCE, but we find that it has limited relevance to
     the accommodation issue. Importantly, the FCE’s purpose was to determine the
     appellant’s functional abilities as they related to the essential physical demands
     of the administrative support assistant position, not the marine electrician
     position.   IAF, Tab 6 at 16-27.    Moreover, the FCE evaluator noted that the
     appellant “demonstrated a consistency of effort at 58.3%,” which suggested that
     the appellant “presented with significant observational and evidence[-]based
     contradictions resulting in consistency of efforts discrepancies and self-limiting
                                                                                               8

      behaviors.” Id. at 16. The OWCP Hearing Representative, who determined that
      OWCP properly terminated the appellant’s entitlement to benefits, noted that,
      because the FCE report concluded that the appellant did not make a consistent
      effort, it “is not probative as to the [appellant’s] work capacity,” and the “weight
      of medical evidence rests with” the prior opinion that he could work 8 hours per
      day with restrictions. IAF, Tab 11, Subtab 4a at 5. Although the OWCP Hearing
      Representative’s determination on the probative value of the FCE is not binding
      on the Board, we similarly conclude that the FCE has limited, if any, probative
      value regarding the appellant’s ability to perform the essential functions of the
      marine electrician position. We therefore discern no error with the administrative
      judge’s decision not to rely on the FCE in his discussion of the accommodation
      issue.
¶9             Regarding the administrative judge’s allegedly improper exclusion of the
      appellant’s temporary restrictions, the May 22, 2013 report itself indicated that
      his restrictions only lasted for 3 months, and the agency did not propose the
      appellant’s removal until November 5, 2013.           IAF, Tab 11, Subtab 4d at 1-3
      & Enclosure 3. We agree with the administrative judge that, absent any evidence
      that the temporary restrictions extended beyond the 3-month time period indicated
      in the report itself, it was improper to consider such evidence in determining
      whether the appellant was physically unable to perform the duties of his position.
      ID at 11. 5
¶10            We therefore must consider whether the accommodations identified by the
      administrative judge are consistent with the March 2, 2012 “permanent”
      restrictions, which indicated that the appellant was limited to 6 hours of walking

      5
        In the initial decision, the administrative judge noted that some of the “permanent”
      restrictions are more restrictive than the subsequent, “temporary” restrictions. ID at 11
      n.3. Compare IAF, Tab 11, Subtab D, Enclosure 2, with id., Enclosure 3 (the permanent
      restrictions limited twisting and bending/stooping to 2 hours but the temporary
      restrictions only limited these tasks to 4 hours). In light of our disposition, we need not
      reconcile this discrepancy.
                                                                                             9

      and standing, 2 hours of twisting, bending/stooping, and climbing, and 2 hours
      and 30 pounds of pushing and pulling, that he was unable to squat or kneel, but
      that he had no restrictions regarding sitting, reaching, and reaching above his
      shoulders. IAF, Tab 11, Subtab 4d, Enclosure 2. The appellant’s doctor also
      answered “yes” to a question regarding whether the appellant was “able to work
      for 8 hours per day with restrictions.” Id.
¶11         The agency asserts that the administrative judge erroneously found that a
      coworker assisting the appellant, the appellant sitting on a chair, bucket, or stool,
      and the appellant “lying on his side” were proper accommodations for his
      kneeling and lifting restrictions. 6 PFR File, Tab 1 at 24-26; ID at 14-16.         The
      agency cites to the testimony of witness L.F., who stated that “[s]ometimes”
      someone might not be available to help the appellant, and it argues that sitting on
      a chair, bucket or stool “increases” the appellant’s bending/stooping activities
      beyond the 2-hour restriction identified in the permanent restrictions. PFR File,
      Tab 1 at 24-26. Here, too, the administrative judge’s failure to mention all of the
      evidence of record does not mean that he did not consider it in reaching his
      decision. See Marques, 22 M.S.P.R. at 132. Moreover, the agency’s assertions
      appear to be speculative, and we are not persuaded that the identified
      accommodations would conflict with the permanent restrictions in this manner.
¶12         Regarding the agency’s contention that the administrative judge ignored the
      discrepancy between the appellant’s permanent medical restrictions, which stated
      that he could work an 8-hour day, and the witness’ testimony that the appellant’s
      work schedule often exceeded 8 hours a day for several months, PFR File, Tab 1
      at 26-27, we note that the administrative judge mentioned this restriction in the
      background section of the initial decision, ID at 3; see Marques, 22 M.S.P.R. at
      132. Regarding the agency’s assertion that a coworker assisting the appellant and

      6
        The agency does not appear to challenge the administrative judge’s conclusion that
      kneeling and lifting are the means by which a marine electrician would perform the
      essential functions of his position, not the essential functions themselves. ID at 13-14.
                                                                                          10

      an alteration of the appellant’s time and attendance requirements would be an
      undue burden, PFR File, Tab 1 at 24, 27, the agency does not cite to, and we are
      unaware of, any evidence that purports to explain how either of these
      accommodations would have been an undue burden on the agency. See Hendricks
      v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995) (finding that the
      statements of a party’s representative in a pleading do not constitute evidence). 7
      Thus, we are not persuaded that this argument warrants a different outcome. We
      therefore discern no basis for disturbing the administrative judge’s finding that
      the agency failed to establish a nexus between the appellant’s medical condition
      and observed deficiencies in his performance or conduct. ID at 17.
¶13         The agency further contends that the administrative judge failed to consider
      evidence regarding the inherent danger of working on barges and the appellant’s
      inability to perform his duties due to the heightened risk associated with his
      exposure to these dangers in light of his medical condition. PFR File, Tab 1 at
      12-21.      Contrary to the agency’s assertion, the administrative judge briefly
      discussed in the initial decision the inherent dangers of the marine electrician
      position.    In pertinent part, the administrative judge noted that the proposed
      removal did not allege that the appellant was unable to perform his duties due to
      the heightened risk associated with his exposure to the inherent dangers of
      working on barges in light of his medical condition, and he concluded that the


      7
        The agency cites generally to the Special Panel decision in Alvara v. Department of
      Homeland Security, 121 M.S.P.R. 613 (2014), for the proposition that an alteration of
      the time and attendance requirements for the marine electrician position would place an
      undue burden on the agency. PFR File, Tab 1 at 27. We disagree with the agency’s
      interpretation of the Special Panel decision. Rather, the Special Panel, MSPB Vice
      Chairman Wagner dissenting, affirmed the Equal Employment Opportunity
      Commission’s determination that the agency did not meet its burden to show that the
      appellant’s requested accommodation, a modification of his work schedule, would be an
      undue burden because it “merely state[d] in a conclusory manner that an
      accommodation would be an undue hardship.” Alvara, 121 M.S.P.R. 613, ¶¶ 13-14, 44.
      Similarly, the agency attorney’s assertion of undue burden is conclusory and not
      supported by any persuasive evidence.
                                                                                            11

      agency could not rely on such evidence in support of its charges. ID at 17 (citing
      Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989)). 8                The
      administrative judge acknowledged that there was hearing testimony regarding
      the inherent dangers of working on barges and the “possibility” that, due to the
      appellant’s physical condition, he could be at a higher risk than other employees
      concerning such dangers. ID at 17. He further acknowledged the appellant’s
      concession that the duties themselves, aside from being performed in a dangerous
      environment, also involved some risk.         Id.    The administrative judge found,
      however, that the agency presented no evidence to establish that the appellant’s
      medical condition made it highly probable that the manner in which he performed
      his duties would result in injury to him or others. Id.
¶14         The agency argues that it gave the appellant notice that it believed he could
      not safely perform the essential functions of his position.        PFR File, Tab 1 at
      13-14. Even if the proposal notice sufficiently alleged that the appellant could
      not safely perform the essential functions of the marine electrician position due to
      his medical condition, we discern no error with the administrative judge’s
      conclusion that the agency did not meet its burden to show a high probability,
      given the nature of the work involved, that the appellant’s condition may result in
      injury to himself or others.
¶15         Importantly, the administrative judge’s failure to mention all of the
      evidence of record does not mean that he did not consider it in reaching his
      decision.   Marques, 22 M.S.P.R. at 132.            We have considered the agency’s
      assertion that the appellant “had a history of repeated falls due to his knee injury”

      8
        We have considered the agency’s assertion that the administrative judge improperly
      relied on Gottlieb because Gottlieb involved different charges and different facts. PFR
      File, Tab 1 at 13. We are not persuaded that these differences warrant a different
      outcome because the propositions articulated in Gottlieb that were referenced by the
      administrative judge, i.e., that the Board is required to review the agency’s decision on
      an adverse action solely on the grounds invoked by the agency and that the Board may
      not substitute what it considers to be a more adequate or proper basis, are equally
      applicable in this adverse action appeal.
                                                                                        12

      and its references to the testimony that the appellant’s physical presence was
      required on the Bank Grading Unit or other units, that the locations on which he
      must perform his essential duties are inherently dangerous for personnel without
      medical restrictions, and that employees with no medical restrictions have fallen
      off the unit and have been crushed, drowned, or required emergency rescues.
      PFR File, Tab 1 at 15-21. Based on our review of the record, we agree with the
      administrative judge that, while possible, there is not a high probability that the
      appellant’s medical condition may result in injury to himself or others, given the
      nature   of   the   work   involved.     ID    at   17.     Compare     http://legal-
      dictionary.thefreedictionary.com/high+probability (defining a “high probability”
      as “almost certainly, favorable prospect, in all likelihood, in most instances, with
      a high degree of certainty”), with The American Heritage Dictionary of the
      English Language, 1370 (Houghton Mifflin Co. 4th ed. 2000) (defining
      “possible” as “[c]apable of happening, existing, or being true without
      contradicting proven facts, laws, or circumstances”).
¶16        This case stands in sharp contrast to Clemens, 120 M.S.P.R. 616, ¶ 9, where
      the Board found a high probability that Mr. Clemens’ medical condition may
      result in injury to others.     Mr. Clemens was a Supervisory Public Safety
      Dispatcher, and, in this capacity, he was required, among other things, to initiate
      “immediate, appropriate, emergency response,” provide “advanced life support,”
      such as instructing callers on how to perform cardiopulmonary resuscitation, the
      Heimlich maneuver, or emergency childbirth and how to open an airway or
      control bleeding, and give instructions “regarding what to do, and what not to do,
      prior to the arrival of pre-hospital care providers.”             Id., ¶ 8.      Mr.
      Clemens “suffered a significant loss of speech ability” after a stroke and related
      complications, and the agency removed him for physical inability to perform the
      essential functions of his position. Id., ¶ 2. The Board found that “significant
      verbal communication was an essential function of the appellant’s position,” and
      it concluded there was a high probability, given the nature of the work involved,
                                                                                       13

      that Mr. Clemens’ medical condition may result in injury to others, and it
      sustained the inability to perform charge.         Id., ¶¶ 8-9.    Here, however,
      notwithstanding the inherent dangers of the appellant’s work environment, we do
      not view his medical condition as creating a situation in which it is highly
      probable that he or others will be injured.
¶17         Because the agency has not persuaded us that the administrative judge erred
      in his conclusion that it did not prove the charge of physical inability to perform
      the essential functions of the marine electrician position, we affirm the initial
      decision in this regard.      The agency has not specifically challenged the
      administrative judge’s decision not to impose a penalty for the sustained charge
      of refusal to accept suitable employment, ID at 18-19, and we affirm this
      decision.

      We decline to address the agency’s assertion that the appellant was not entitled to
      back pay because entitlement to back pay is normally a compliance matter.
¶18         In the initial decision, the administrative judge ordered the agency to cancel
      the removal, retroactively restore the appellant effective February 11, 2014, and
      pay him the appropriate amount of back pay. ID at 20. The agency argues that
      the appellant was not ready, willing, and able to work, and, thus, he was not
      entitled to back pay. PFR File, Tab 1 at 7-8 (citing Hodges v. Department of
      Justice, 121 M.S.P.R. 337 (2014)).
¶19         The agency correctly notes that a back pay award may not include any
      period during which an employee was not ready, willing, and able to perform his
      or her duties because of an incapacitating illness or injury.        See 5 C.F.R.
      § 550.805(c)(1).   In Hodges, 121 M.S.P.R. 337, ¶ 24, the Board noted that
      entitlement to back pay is normally a compliance matter, but it decided the issue
      of Mr. Hodges’ entitlement to back pay due to the “unique circumstances” of that
      case, including that the agency did not learn that Mr. Hodges was able to return to
      work without restrictions until his doctor testified at the hearing, at which time
      the agency reinstated him. The Board ultimately concluded that Mr. Hodges was
                                                                                          14

      not entitled to back pay because he was not ready, willing, and able to work
      during the removal period. Id. The agency has not identified any similar “unique
      circumstances” in this matter, and, in the absence of current medical
      documentation in the record, 9 we believe it is not appropriate to render a decision
      on the appellant’s entitlement to back pay at the merits stage. Because this order
      constitutes the Board’s final decision in the removal appeal, the parties shall
      follow the procedures, described below, regarding calculation and payment of
      back pay. If the appellant believes that the agency has not complied with the
      Board’s order regarding back pay, he should follow the applicable procedures for
      filing a timely petition for enforcement. See 5 C.F.R. § 1201.182.

                                             ORDER
¶20         We ORDER the agency to cancel the removal and to restore the appellant
      effective February 11, 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.
¶21         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.



      9
        The agency appears to rely on the appellant’s “permanent” restrictions, which were
      nearly 2 years old when his removal was effected, and those restrictions do not account
      for his subsequent rotator cuff surgery in March 2013 or any subsequent improvement
      in his mobility in this or other areas. IAF, Tab 11, Subtab 4a at 3.
                                                                                      15

¶22        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).
¶23        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).
¶24        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.

                      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
                                                                                 16

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
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
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.
                                                                                   17

Discrimination and Other Claims: Judicial Action
     If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




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