Benjamin Campbell v. United States Postal Service

                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BENJAMIN E. CAMPBELL,                           DOCKET NUMBER
                   Appellant,                        AT-0752-15-0019-X-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: May 16, 2022
                   Agency.




                  THIS ORDER IS NONPRECEDENTIAL 1

           Christopher W. Waters, Birmingham, Alabama, for the appellant.

           Eric B. Fryda, Esquire, Dallas, Texas, for the agency.

           Margaret L. Baskette, Esquire, Tampa, Florida, for the agency.


                                           BEFORE

                               Raymond A. Limon, Vice Chair
                                 Tristan L. Leavitt, Member


                                           ORDER

¶1         In a July 24, 2017 compliance initial decision, the administrative judge
     found the agency in partial noncompliance with the Board’s final decision in the
     underlying appeal to the extent it improperly placed the appellant on leave


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     without pay (LWOP) status during the interim relief period. Campbell v. U.S.
     Postal Service, MSPB Docket No. AT-0752-15-0019-C-1, Compliance File,
     Tab 12, Compliance Initial Decision (CID); Campbell v. U.S. Postal Service,
     MSPB Docket No. AT-0752-15-0019-I-1, Final Order (Sept. 9, 2016); Petition for
     Review File, Tab 8. Accordingly, the administrative judge ordered the agency to
     pay the appellant back pay plus interest for time he was in LWOP status, from
     March 25 through September 9, 2016, and to provide him an explanation of its
     back pay and restored leave calculations. CID at 8.
¶2        On August 28, 2017, the agency informed the Board that it had taken the
     actions identified in the compliance initial decision.   Campbell v. U.S. Postal
     Service, MSPB Docket No. AT-0752-15-0019-X-1, Compliance Referral File
     (CRF), Tab 1. As evidence of compliance, the agency provided, among other
     things, a sworn declaration from a Labor Relations Manager and that individual’s
     August 24, 2017 letter to the appellant setting forth the agency’s back pay and
     leave calculations. Id. at 15-25. In particular, the declaration and letter reflect
     that the agency determined that there was insufficient documentation to
     substantiate the appellant’s placement on LWOP for 230.63 hours during the
     periods from March 26 through April 25, 2016, and from August 18 through
     September 9, 2016, and that it would therefore convert those 230.63 hours of
     LWOP to administrative leave and pay the appellant back pay with interest and
     credit him appropriate leave for those periods. Id. at 4-7, 15-17. Regarding the
     remainder of the interim relief period, from April 26 through August 1, 2016, the
     agency determined that the appellant was not entitled to back pay for the hours he
     was placed on LWOP because he had been medica lly unable to work and had used
     LWOP after exhausting his sick and annual leave. Id. at 8-9, 17-19, 61-74. In the
     August 24, 2017 letter, the Labor Relations Manager informed the appellant that ,
     for the agency to process the back pay and credit the leave, he must complete and
     sign a Postal Service (PS) Form 8038 (“Employee Statement to Recover Back
     Pay”) and sign a PS Form 8039 (“Back Pay Decision/Settlement Worksheet”),
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     which the agency would provide to him for signature after completing it using the
     information from his completed PS Form 8038. Id. at 4-5, 11, 21, 23-29.
¶3        The appellant responded to the agency’s submission on September 23, 2017,
     stating that the agency had not spoken with him about the calculation of back pay,
     that he missed overtime pay during the LWOP period, and that he was currently
     repaying a debt for $4,282.54 in pay that he had erroneously received for the
     period in question. CRF, Tab 4. The appellant argued that he should receive
     back pay for 891.07 hours, as well as 251.82 hours of overtime pay, and be
     reimbursed for the debt he was paying to the agency. Id. at 2.
¶4        The agency responded on October 3, 2017, stating that it had no t paid the
     appellant his back pay because he had not filled out and signed the forms
     necessary to process the payment. CRF, Tab 5 at 6. The agency also stated that
     the documentation supplied by the appellant regarding overtime pay was not from
     the time period at issue and that his claim about the debt owed to the agency was
     not properly raised in the compliance proceeding. Id. at 7.
¶5        The Board issued an order on February 2, 2018, directing the appellant to
     submit his arguments on the issue of the back p ay and interest dispute to the
     Board within 15 days. CRF, Tab 6. The order indicated that failure to do so
     might cause the Board to assume the appellant was satisfied and dismiss the
     petition for enforcement. Id. The appellant did not respond.
¶6        On September 21, 2021, the Board issued an order directing the agency to
     provide an update on its compliance with the Board’s final order. CRF, Tab 8. In
     particular, the Board ordered the agency to address whether it had received the
     completed and signed PS Form 8038 and signed PS Form 8039 from the appellant
     and whether it had provided him the back pay and leave described in its prior
     submissions. Id. In the event that the appellant had not submitted a completed
     and signed PS Form 8038 and/or signed PS Form 8039, the Board directed the
     agency to explain whether and why the absence of such forms precludes it from
     providing the appellant the back pay and restored leave it has determined he is
                                                                                       4

     entitled to, as described in its compliance submission. Id. The Board informed
     the appellant of his right to respond to the agency’s submission and that, if he did
     not respond, the Board might assume he was satisfied and dismiss the petition for
     enforcement. Id.
¶7           In an October 12, 2021 response, the agency informed the Board that the
     appellant has still failed to provide the completed and signed PS Forms 8038 and
     8039.     CRF, Tab 9.     The agency further stated that it cannot process the
     appellant’s back pay award as ordered by the Board’s final decision without these
     forms.    Id. at 4.   In support, the agency submitted a copy of Postal Service
     Management Instruction (PSMI) EL-430-2017-6, which provides that the “hours
     calculation” method must be used whenever the back pay award calls for the
     employee to be “made whole.”       Id. at 10.   Pursuant to the PSMI, the “hours
     computation” method makes the employee whole by determining the appropriate
     back pay award based on a hypothetical schedule that the employee would have
     worked but for the now-reversed personnel action and providing him all pay and
     employment-related benefits—such as sick and annual leave, health and life
     insurance, Thrift Savings Plan (TSP) participation, and retirement benefits—he
     would have received for that period. Id. The PSMI mandates that, for an “hours
     calculation” award to be authorized, the employee must complete and sign a PS
     Form 8038 and include all applicable information on mitigating da mages and/or
     receipt of unemployment compensation, voluntary refunds of retirement plan
     contributions, participation in the TSP and/or health insurance, and receipt of
     annuity payments from OPM. Id. at 20. As the appellant had refused to provide
     the documentation necessary for the processing of an “hours calculation” award,
     the agency requested that the Board order a lump sum back pay award instead,
                                                                                         5

      which it could process without any additional action on the appellant’s part. 2 Id.
      at 6-7. The appellant did not respond.
¶8          On December 2, 2021, the Board ordered the agency to provide the amount
      of the lump sum award the appellant would be entitled to receive based on the
      payment of 230.63 hours of administrative leave, plus interest, and restored leave.
      CRF, Tab 10 at 3. The Board again informed the appellant of his right to respond
      to the agency’s submission and that, if he did not respond, the Board might
      assume he was satisfied and dismiss the petition for enforcement. Id. at 3-4.
¶9          On January 31, 2022, the agency submitted its lump sum back pay
      calculation. CRF, Tab 11. The agency stated that the appellant was entitled to
      back pay for 230.63 hours at a rate of $28.28 per hour for a total of $6,637.53.
      Id. at 4. The agency further stated that the conversion of the appellant’s LWOP
      to unpaid administrative leave was a mere characterization change and that there
      was no monetary value associated with it. Id. Finally, the agency stated that it
      believed the appellant was entitled to interest on the back pay award for the
      period through August 24, 2017, when he was originally notified of the
      calculations. Id. at 4-5.
¶10         On February 1, 2022, the appellant responded to the agency’s submission
      arguing that the 230 hours of back pay was a “complete fabrication” but that he
      “no longer [has] any of this documentation.” CRF, Tab 12 at 3. He also stated
      that the agency failed to address the “4680.00 that was taken each year for the
      two years that [he] worked when [he] was reinstated to [his] job” or his request
      for overtime back pay. Id.
¶11         In light of the foregoing, we find that the agency has provided the appellant
      with an accounting of the back pay owed to him. CRF, Tab 1. We further find


      2
        According to PSMI EL-430-2017-6, a lump sum award is a single payment of a known
      amount of money that does not include other employment-related benefits or affect the
      compensation history used by the Office of Personnel Management to calculate
      retirement annuities. CRF, Tab 9 at 10.
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      that the appellant waived his challenge to the agency’s calculations when he
      failed to respond to the Board’s February 2, 2018 Order, and subsequent orders,
      instructing him to submit his arguments regarding back pay and interest. Even
      now, the appellant has provided no specific contradiction of the agency’s
      accounting. We therefore adopt the agency’s calculations.
¶12        In addition, we find that the appellant’s refusal to complete, sign, and return
      the required PS Form 3083 has precluded the agency from processing his back
      pay award. The record reflects that, by letter dated August 24, 2017, the agency
      instructed the appellant that he must complete and sign the form before the
      agency could process his back pay award and provided him a copy of the form.
      CRF, Tab 1 at 21, 23-31. Moreover, during this compliance referral proceeding,
      the agency’s submissions and the Board’s orders have repeatedly reiterated the
      requirement that the appellant must submit the form before the agency could
      process his back pay award. CRF, Tabs 1, 5, 8 -10. Nonetheless, as of present
      date, he has failed to return the completed form to the agency. When an appellant
      does not cooperate with an agency’s efforts to achieve compliance, the Board may
      deny his petition for enforcement. See Coe v. U.S. Postal Service, 101 M.S.P.R.
      575, ¶¶ 13-14, aff’d, 208 F. App’x 932 (Fed. Cir. 2006). Nonetheless, under the
      unique circumstances here, including the agency’s commendable efforts to pay
      the appellant despite his failure to cooperate, we find it appropriate to order the
      agency to pay the appellant a lump sum back pay award to compensate him for
      the 230.63 hours for which he was improperly placed on LWOP status during the
      periods from March 26 through April 25, 2016, and from August 18 through
      September 9, 2016. Accordingly, we find that the appellant is entitled to a total
      of $6,637.53 plus interest through August 24, 2017, when he was notified of the
      back pay calculations and instructed to submit the completed PS Form 8038 .
      CRF, Tab 11 at 4. We further agree that the appellant is not entitled to interest
      after August 24, 2017, as his failure to cooperate with the agency’s efforts to
                                                                                     7

      achieve compliance since that date has caused the delay. CRF, Tab 1 at 21, 23-
      31.
¶13           We ORDER the agency to pay the appellant a lump sum back pay award of
      $6,637.53 plus interest calculated from the date of accrual through August 24,
      2017.    Within 21 days from the date of this Order, the agency must provide
      evidence to the Board that it has completed this action.
¶14           The appellant may submit a reply to the agency’s evidence of compliance
      with this Order within 21 days of the date of service of the agency’s submission.
      Any such reply must be limited to the following issues: (1) whether the agency
      timely paid the principal amount of $6,637.53; (2) the agency’s interest
      calculation, from the date of accrual through August 24, 2017; and (3) whether
      the agency timely paid the interest amount. If the appellant does not respond to
      the agency’s submission within 21 days, the Board may assume that the appellant
      is satisfied and dismiss the petition for enforcement.




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