UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLENDA SMITH-DAVIS, DOCKET NUMBERS
Appellant, DE-0752-12-0108-C-1
DE-0752-12-0108-X-1
v.
DEPARTMENT OF THE ARMY, DATE: SEPTEMBER 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Glenda Smith-Davis, Lansing, Kansas, pro se.
Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This proceeding is before the Board based on the administrative judge’s
March 17, 2014 compliance initial decision finding the agency in partial
compliance and partial noncompliance with the Board’s April 25, 2012 final
decision. While the administrative judge’s findings of partial compliance and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
partial noncompliance were docketed as separate matters by the Clerk of the
Board, we JOIN the two matters under 5 C.F.R. § 1201.36 and address them both
in this decision. 2 After fully considering the record in this matter, and based on
the following points and authorities, we DISMISS AS MOOT MSPB Docket No.
DE-0752-12-0108-X-1 and DENY the appellant’s petition for review in MSPB
Docket No. DE-0752-12-0108-C-1 for failure to meet the criteria for
review. 5 C.F.R. § 1201.115.
¶2 On April 25, 2012, the administrative judge issued an initial decision
reversing the agency action removing the appellant from her GL-07 Supply
Technician position, effective December 14, 2011. Smith-Davis v. Department of
the Army, MSPB Docket No. DE-0752-12-0108-I-1, Initial Decision (ID). The
administrative judge ordered the agency to cancel the removal action;
retroactively restore the appellant, effective December 14, 2011; and pay the
appellant the appropriate amount of back pay, with interest and appropriate
credits and deductions for benefits. ID at 15-16. Neither party filed a petition for
review of the initial decision in MSPB Docket No. DE-0752-12-0108-I-1.
¶3 The appellant later filed a petition for enforcement, arguing that, for various
reasons, the agency did not pay her the appropriate amount of back pay. MSPB
Docket No. DE-0752-12-0108-C-1, Compliance File (CF), Tab 1. The
administrative judge issued an initial decision on March 17, 2014, finding that the
agency proved by preponderant evidence that it properly calculated the back pay
and benefits owed to the appellant and issued payment to her accordingly. CF,
Tab 25, Compliance Initial Decision (CID). However, she found that the agency
was in partial noncompliance with her previous order because it deducted from
the appellant’s back pay award $10,212.00 for unemployment compensation she
2
Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite processing of the cases and will not adversely affect the interests of
the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010);
5 C.F.R. § 1201.36(a)(2), (b). We find that these appeals meet the regulatory
requirement; therefore, we join them here.
3
received from the State of Kansas but did not establish that it remitted those
funds to the State of Kansas. CID at 4. She ordered the agency to submit proof
that it issued a payment on the appellant’s behalf to the State of Kansas in the
amount of $10,212.00. CID at 4.
¶4 The agency timely filed a statement of compliance, asserting that it issued
the required payment to the State of Kansas. MSPB Docket No. DE-0752-12-
0108-X-1, Compliance Referral File (CRF), Tab 1 at 4-5. In support of this
claim, the agency submitted a letter from the Kansas Department of Labor, dated
April 18, 2014, confirming that it received a payment from the agency in the
amount of $10,212.00 via check dated July 23, 2013. Id. at 7. The agency also
provided a copy of the check. Id. at 8. In light of the agency’s evidence, which
the appellant does not contest, 3 we FIND that the agency has complied with the
compliance initial decision. Accordingly, the portion of the appellant’s petition
for enforcement docketed as MSPB Docket No. DE-0752-12-0108-X-1 is
DISMISSED AS MOOT.
¶5 The appellant has filed a petition for review of the compliance initial
decision. MSPB Docket No. DE-0752-12-0108-C-1, Petition for Review (PFR)
File, Tab 1, Tab 2. She argues that the agency did not establish that it paid her
for the period between June 12, 2012, and June 30, 2012. PFR File, Tab 2 at 2.
She bases this claim on the fact that the agency’s spreadsheet documenting the
payments she was owed for each pay period during the relevant back pay period
indicates that she was not paid for the pay periods ending June 16 and 30, 2012.
Id. at 2-3; CF, Tab 18 at 7. However, the appellant herself submitted leave and
earnings statements showing that she received payment at the GL-7, Step 7 rate,
including locality pay, for 80 hours for both the pay period ending June 16, 2012,
and the pay period ending June 30, 2012. CF, Tab 1 at 6-8.
3
The Clerk of the Board issued an Acknowledgement Order, advising the appellant of
her right to file a response to the agency’s statement of compliance. CRF, Tab 2 at 2.
The appellant did not file a response.
4
¶6 The appellant also submits her 2012 W-2 form, arguing that the salary listed
in box 1 of the form proves that she did not receive the total amount of salary she
should have received in 2012. PFR File, Tab 2 at 2-3, 6; see CF, Tab 1 at 11.
The W-2, without more, does not indicate that the agency failed to pay the
appellant the correct amount of back pay. 4 Other than her claim concerning the
pay periods ending June 16 and June 30, the appellant does not contest the
agency’s calculations; she does not challenge the hourly rate it applied, the
number of work hours for which it determined she was entitled to back pay, its
interest calculation, or any deductions it made. Moreover, the appellant
submitted a bank statement indicating that the agency transmitted the net amount
of $8,012.53 to her account electronically on July 26. CF, Tab 1 at 5. A leave
and earnings statement the appellant provided indicates that this net payment
resulted from a gross amount of $13,632.38, after tax, insurance, and retirement
deductions. Id. at 8. The agency explained that the July 26 payment included
payment for the pay periods ending June 30 and July 14, as well as the appellant’s
back pay award. CF, Tab 13 at 4. This appears to be correct because the
appellant’s gross earnings for the pay periods ending June 30 and July 14 were
$1,982.40 and $1,932.80, respectively, and the agency determined that it owed
her gross back pay in the amount of $9,717.18, all of which total $13,632.38. CF,
Tab 1 at 7-8, Tab 18 at 9.
¶7 The appellant has shown no error in the administrative judge’s finding that the
agency properly calculated the amount of back pay owed to her, and we therefore
DENY her petition for review docketed as MSPB Docket No. DE-0752-12-0018-
C-1 and AFFIRM the compliance initial decision. The compliance initial
decision is now the final decision of the Board regarding those issues. As stated
previously, we DISMISS as MOOT the compliance referral docketed as MSPB
4
We note that the amount listed in box 1 on a W-2 does not necessarily reflect gross
wages. See Internal Revenue Service, General Instructions for Forms W-2 and W-3
(Dec. 17, 2013), at 14-15, available at http://www.irs.gov/pub/irs-pdf/iw2w3.pdf.
5
Docket No. DE-0752-12-0108-X-1, and this is the final decision of the Board in
that matter.
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
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
6
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.