Suzanne Strohl v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SUZANNE V. STROHL, DOCKET NUMBER
Appellant, DC-0752-14-0928-I-1

v.

DEPARTMENT OF DEFENSE, DATE: July 26, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edward H. Passman, Esquire, Silver Spring, Maryland, for the appellant.

Kevin Greenfield, Lisa Wischkaemper, and Loraine Kovach-Padden,
Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision. The
appellant’s removal is NOT SUSTAINED.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND
¶2 The agency employed the appellant as a General Engineer with the Test
Resource Management Center (TRMC), a Department of Defense Field Activity.
Initial Appeal File (IAF), Tab 5 at 13. On January 17, 2013, the appellant began
an extended absence from the workplace. Id. at 99. For the next several months,
the appellant provided multiple medical notes to her supervisor indicating that she
had received medical treatment and would be unable to work for the next month.
IAF, Tab 34 at 280-295. On November 14, 2013, the appellant’s supervisor
ordered her to either return to duty by November 25, 2013, request a reasonable
accommodation, or submit a resignation letter. IAF, Tab 5 at 51-52.
¶3 On November 20, 2013, the appellant submitted a letter requesting
reasonable accommodation in the form of a reassignment and a new supervisor ;
she claimed that working in a hostile environment had caused her emotional
distress and had impacted her ability to return to work. Id. at 32-34. On
December 9, 2013, the agency requested that the appellant provide additional
documentation to support her reasonable accommodation request. Id. at 36-40.
The appellant provided additional documentation on January 6, 2014. Id. at 41.
On March 25, 2014, the agency’s Reasonable Accommodation Branch Chief
informed the appellant of the agency’s decision on her accommodation request.
The agency determined that the appellant was a qualified individual with a
disability, and it offered her the accommodations of teleworking 2 days per week,
changing her schedule to a compressed work schedule, and modifying her direct
chain-of-command to minimize her contact with the individuals she alleged to be
creating a hostile work environment. Id. at 42-44
¶4 On April 1, 2014, the appellant’s representative responded to the agency’s
offer of reasonable accommodation, indicating that the only viable option for
accommodating the appellant was a “mutually agreeable reassignment.” Id. at 45.
On April 16, 2014, the agency acknowledged the appellant’s refusal of its offered
 3

accommodation and indicated that it did not have a duty to provide the appellant
with a new supervisor as a reasonable accommodation. Id. at 46.
¶5 On April 23, 2014, the appellant’s supervisor proposed the appel lant’s
removal for excessive absenteeism. Id. at 47-49. While her proposed removal
was pending, the appellant received and accepted an offer of employment from
the Department of the Navy. Although the Department of the Navy contacted the
agency and requested that it provide a release date for the appellant, the agency
did not release the appellant, reassign her, or transfer her. IAF, Tab 46 at 33-34.
Instead, the agency removed the appellant effective June 30, 2014. The agency
stated in its removal decision that the appellant did not report to work in any
capacity after January 17, 2013, and that she failed to provide sufficient medical
documentation specifying the extent of her incapacity to return to work or
providing an expected return to duty date. IAF, Tab 5 at 14-18.
¶6 On appeal to the Board, the appellant contested the charge and
reasonableness of the penalty and alleged that the action was based on reprisal for
whistleblowing, disability discrimination, and retaliation for filing equal
employment opportunity (EEO) complaints. IAF, Tab 1 at 2 -3, Tab 49 at 5-9.
After a hearing, the administrative judge affirmed the removal. IAF, Tab 64,
Initial Decision (ID) at 2, 29. The administrative judge found that the agency had
proven its charge by preponderant evidence in light of the appellant’s stipulation
that she had been absent from duty based on conditions beyond her control for
17 months. ID at 5. The administrative judge also found that the agency had
proven a nexus between the sustained charge and a legitimate Government
interest and considered the relevant factors in imposing a reasonable penalty. ID
at 5-7.
¶7 The administrative judge further found that the appellant did not prove
reprisal for whistleblowing because she did not prove that he r disclosures to the
Inspector General and other agency officials were protected and did not prove
that the one arguably protected disclosure she did make, alleging that the agency
 4

had improperly stored employee performance appraisals and related personall y
identifiable information on an open share drive accessible to all employees, was a
contributing factor in her removal. ID at 7-22. The administrative judge found
that the appellant did not prove disability discrimination because she did not
show that the agency treated her in a disparate manner compared to any
comparator who engaged in similar conduct and did not show that the agency
failed to accommodate her conditions. ID at 22 -28. Regarding accommodation,
the administrative judge found that the agency searched for vacant positions but
could identify no position for which the appellant qualified. ID at 25 -28.
Finally, the administrative judge found that the appellant did not prove retaliation
for filing EEO complaints. ID at 29.
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied. PFR File,
Tabs 3-4.

ANALYSIS
The agency failed to prove its charge.
¶9 To prove a charge of excessive absence, an agency must estab lish that
(1) the employee was absent for compelling reasons beyond her control so that
agency approval or disapproval of leave was immaterial because the employee
could not be on the job; (2) the absences continued beyond a reasonable time, and
the agency warned the employee that an adverse action could be taken unless the
employee became available for duty on a regular full-time or part-time basis, and
(3) the position needed to be filled by an employee available for duty on a
regular, full-time or part-time basis. Gartner v. Department of the Army,
104 M.S.P.R. 463, ¶ 9 (2007). The Board has held that a removal for excessive
absences is not justified when the agency has failed to show that the appellant’s
absence constituted a burden on the agency or its employees. Walker v.
Department of the Air Force, 24 M.S.P.R. 44, 45-47 (1984).
 5

¶10 Under the particular circumstances here, we find that the appellant’s
extended absence did not justify her removal. The agency knew before it
removed the appellant that the Department of the Navy had requested that the
appellant be released for employment in that agency. IAF, Tab 46 at 33-34.
Thus, the appellant’s absences had a foreseeable end at the time the agency
removed her. See Edwards v. Department of Transportation, 109 M.S.P.R. 579,
¶ 17 (2008) (finding that a removal based on unavailability for duty due to
incapacitation was not warranted when the absence at issue had a foreseeable end
at the time of the removal). We therefore find that the agency failed to prove its
charge and the appellant’s removal is not sustained. 2

The appellant proved that the agency discriminated against her based on
disability.
¶11 The appellant raised disability discrimination based on both disparate
treatment and a failure to provide reasonable accommodation. As to the disparate
treatment claim, at the time that the administrative judge issued the initial
decision in this case, the Board’s case law provided that the framework set out in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), was inapplicable
to Board proceedings. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46
(2015). However, while this case was pending on petition for review, the Board
overruled Savage in that regard and held that the McDonnell Douglas framework
is one of several methods by which an appellant may prove a claim of disparate
treatment discrimination in a Board appeal. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 23-25, 42. We therefore analyze the appellant’s
disparate treatment disability discrimination claim pursuant to Pridgen.
2
Although we need not reach the issue of nexus given our finding as to the charge, we
note that removing an employee for nondisciplinary reasons when another Federal
agency is seeking to hire that employee does not appear to promote the efficiency of the
service. See Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶¶ 10-15 (2014)
(defining “service” in the phrase “efficiency of the service” to include the civil service
as a whole, not just the employing agency).
 6

¶12 In McDonnell Douglas, 411 U.S. at 802-04, the U.S. Supreme Court held
that to establish a claim of prohibited employment discrimination, the employee
first must establish a prima facie case; the burden of going forward then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its action; and,
finally, the employee must show that the agency’s stated reason is merely a
pretext for prohibited discrimination. Under this framework, an employee may
establish a prima facie case of prohibited discrimination by introducing evidence
to show (1) that she is a member of a protected group; (2) that she suffered an
appealable adverse employment action; and (3) that the unfavorable action gives
rise to the inference of discrimination. Hodges v. Department of Justice,
121 M.S.P.R. 337, ¶ 19 (2014) (citing McDonnell Douglas, 411 U.S. at 796, 802
(stating that an individual alleging nonselection based on race may establish his
prima facie case by “showing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that,
after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications”)).
¶13 Here, the appellant has established a prima facie case. Specifically, it is
undisputed that she was disabled and was removed by the agency, thereby
satisfying the first two elements. Regarding the third element, the agency chose
to remove the appellant despite knowing that another agency was seeking a
release that would enable the appellant to transfer into another position. A
delayed or denied release date can be the subject of a discrimination or retaliation
complaint. See, e.g., Montgomery v. Department of Transportation, EEOC
Appeal No. 0120064430, 2008 WL 1744021, *1 (Apr. 11, 2008) (finding that the
postponement of the appellant’s release date triggered the time limit for filing a
discrimination complaint); Black v. Department of Transportation, EEOC Appeal
No. 01A45917, 2005 WL 2137500, *1-*3 (Aug. 24, 2005) (concluding that
delaying a complainant’s release from one position to another within the agency
 7

was pretextual); Thompson v. Department of the Air Force, EEOC Appeal No.
01900934, 1990 WL 711389, *4-*5, *7-*9 (July 20, 1990) (finding that an agency
retaliated against an employee who was awaiting release to a different position
within the agency by suspending her and then informing the selecting official of
her suspension, which caused him to withdraw the job offer) . In addition, the
agency did not reassign the appellant to a vacant position, even though that is a
form of reasonable accommodation under the Equal Employment Opportunity
Commission’s regulations. 29 C.F.R. § 1230.2(o)(2)(ii). Under the
circumstances here, we find that the agency’s decision to remove the appellant
without exploring the possibility of a release or reassigning her gives rise to an
inference of discrimination.
¶14 Once the appellant has established a prima facie case, th e burden shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Here, the Director of Administration testified that she would have been happy to
help with a reassignment for the appellant, but that the agency had no vacant
positions and was further being subjected to downsizing due to Congressional
budgetary constraints, limiting the agency’s ability to create any new positions.
Hearing Transcript, May 23, 2016 at 215-18. This meets the agency’s burden of
production under Burdine.
¶15 Turning to the pretext analysis, a complainant can show pretext in two
ways, “either . . . by persuading the court that a discriminatory reason more likely
motivated the employer or . . . by showing that the employer’s proffered
explanation is unworthy of credence.” Burdine, 450 U.S. at 256. The credibility
of the explanation can be called into question if it is unduly vague, appears to be
an after-the-fact explanation, or appears otherwise fabricated (e.g., the
explanation shifts, or inconsistent reasons are given). Pamila R. v. United States
Postal Service, EEOC Appeal No. 0120160810, *4 (2018). Here, if budgetary
constraints were the reason the agency could not reassign the appellant internally ,
 8

there would be no reason for the agency to refuse to provide the release to the
Department of the Navy. Moreover, the Director of Administration’s testimony
regarding reassignment is inconsistent with the record. Specifically, in response
to the appellant’s request for a reassignment as an accommodation, the agency
rejected the idea and cut off the interactive process without conducting a search
for vacant positions. IAF, Tab 5 at 48. The agency’s failure to provide the
appellant with a release under the circumstances and its shifting explanations
indicate that its proffered excuse was pretext for disability discrimination.
Accordingly, we find that the appellant proved that her disability was a but-for
cause of her removal and she is entitled to full relief for her claim of disability
discrimination. See Pridgen, 2022 MSPB 31, ¶¶ 24 n.5, 40, 42. 3

The appellant failed to prove retaliation for prior EEO activity.
¶16 Regarding the appellant’s claim of retaliation for filing prior EEO
complaints, the administrative judge found that the appellant presented no
evidence in support of that claim and therefore failed to meet her burden of proof.
We address that claim here to apply the correct legal standard.
¶17 The appellant alleged in her prior EEO complaint that the agency had
discriminated against her based on sex and disability. IAF, Tab 5 at 12. Thus,
she engaged in activity protected under both Title VII and the Rehabilitation Act
of 1973 (the Rehabilitation Act). The Board in Pridgen held that retaliation
claims under Title VII and the Rehabilitation Act are subject to different
causation standards. Specifically, the Board held that claims of retaliation for
opposing discrimination in violation of Title VII are analyzed under the same
framework used for Title VII discrimination claims, which requires proof that a

3
As to the appellant’s claim that she was denied a reasonable accommodation for her
disability, we question whether the agency properly engaged in the interactive process.
However, we find it unnecessary to resolve that question under the unique
circumstances here because it appears that any relief for that claim would overlap with
the appellant’s relief for her proven status-based disability discrimination claim.
 9

prohibited consideration was a motivating factor in the agency’s decision .
Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30. However, the Board held that an
appellant alleging retaliation for activity protected under the Rehabilitation Act
must prove that such retaliation was a “but-for” cause of the agency’s action to be
entitled to any relief. Id., ¶¶ 44-46. We have applied the applicable standards
under Pridgen and find no reason to disturb the administrative judge’s
determination that the appellant failed to prove her claim of retaliation for prior
EEO activity under either standard.

The appellant has not shown that the administrative judge erred in analyzing h er
whistleblower reprisal claim. 4
¶18 The appellant contends on review that the administrative judge applied the
wrong standard when he found that a reasonable person “would” not have
believed that the appellant’s disclosures violated a law, rule, or regulatio n or met
any of the other criteria set forth at 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 19,
26. The appellant asserts that the administrative judge should have instead
determined whether a reasonable person with the same information “could” have
reached that conclusion. Id.
¶19 An employee who has the authority to take any personnel action shall not,
with respect to such authority, take such a personnel action because of any
disclosure of information that the employee “reasonably believes” evidences any
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. 5 U.S.C. § 2302(b)(8). Citing to the court’s decision in Lachance v.
White, 174 F.3d 1378, 1380-81 (Fed. Cir. 1999), the administrative judge
correctly explained that, in determining whether an employee’s belief that a
disclosure was protected was reasonable, the test is whether “a disinterested

4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
 10

observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude” that the information disclosed
evidences one of these categories of wrongdoing. ID at 10. Nevertheless, the
administrative judge proceeded to find, regarding several of the appellant’s
disclosures, that a disinterested observer “would” not reasonably conclude that
the disclosures were protected. ID at 10-17, 19-21. 5
¶20 We acknowledge that the word “could,” which is the past tense of the word
“can,” generally denotes possibility, while the word “would,” which is the past
tense of the word “will,” generally implies probability. See Merriam-Webster’s
Collegiate Dictionary 164, 263, 1361 (10th ed. 2002). We also note, however,
that our reviewing court and the Board have occasionally used the term “would”
in connection with the reasonable belief test. See Herman v. Department of
Justice, 193 F.3d 1375, 1379-80 (Fed. Cir. 1999) (determining that “a reasonable
person would not believe” the appellant’s disclosure evidenced a violation of an
agency directive); Sinko v. Department of Agriculture, 102 M.S.P.R. 116, ¶ 17
(2006) (stating that an appellant failed to nonfrivolously allege that a reasonable
person “would believe” that his disclosures evidence d gross mismanagement or a
gross waste of funds). In any event, we find that, for the reasons explained by the
administrative judge, ID at 10-22, which included his determination that the
essential facts necessary for a reasonable person to arrive at such conclusions
were missing in several instances, the appellant did n ot show that a disinterested
observer reasonably could have concluded that these disclosures evidenced a
violation of law, rule, or regulation, or any of the other circumstances set forth at
5 U.S.C. § 2302(b)(8).

5
The administrative judge did find, after addressin g several November 18, 2011
disclosures, that a disinterested observer, “armed with such speculative facts” and
“armed with these skeletal facts,” “could” not reasonably conclude that the disclosure
evidenced a conflict of interest or abuse of power. ID at 8, 10-11, 13.
 11

¶21 The appellant also contends that the administrative judge “read the
transcript extremely narrowly, selecting single sentences out of pages of detail
and then finding that Appellant did not have enough evidence to reasonably
believe her allegations disclosed subject matter protected by §2302(b)(8).” PFR
File, Tab 1 at 26 (spacing as in original). In this regard, the appellant reasserts
the general nature of her alleged protected disclosures, contends that the
allegations underlying those disclosures were specific, detailed, and based on her
personal observations or those of an individual she trusted, and claims that a
reasonable person with that information could conclude that the allegations
disclosed a violation of law, rule, or regulation, or a “waste of money.” Id.
at 21-26. The appellant does not, however, identify the testimony that the
administrative judge allegedly read too narrowly, nor does she identify any
testimony or evidence contradicting the findings made by the administrati ve
judge. A petition for review must be supported by specific references to the
record. 5 C.F.R. § 1201.114(b). The appellant has not done so regarding this
argument. Thus, she has shown no error by the administrative judge.
¶22 Finally, the appellant asserts that, if the Board finds that her disclosures are
protected, it should also find that they were a proximate cause of her disability
and absence and, thus, a contributing factor in he r removal. PFR File, Tab 1
at 26-27. The appellant has not, however, shown that the administrative judge
erred when he found that the disclosures were not protected. Therefore, we need
not address whether those disclosures were a contributing factor in the appellant’s
removal. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 12 (2015)
(recognizing that, in asserting a whistleblower reprisal affirmative defense, an
appellant must prove by preponderant evidence both that she made a protected
disclosure and that her disclosure was a contributing factor in the agency’s
personnel action); El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 13 (2015)
(declining to address an appellant’s arguments regarding the contributing factor
criterion at the jurisdictional stage of an individual right of action appeal when he
 12

failed to nonfrivolously alleged that he made a protected disclosure) , aff’d per
curiam, 663 F. App’x 921 (Fed. Cir. 2016).

ORDER
¶23 We ORDER the agency to cancel the appellant’s removal and to restore her
effective June 30, 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.
¶24 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.
¶25 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 has
taken 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).
¶26 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).
 13

¶27 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 forth 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
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.

NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements set out at
42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201,
1201.202, and 1201.204. If you believe you meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
 14

THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 6
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review th e law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court

6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any ma tter.
 15

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
 16

with the district court no later than 30 calendar days after your representative
receives this decision. 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.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
 17

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describ ed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.

7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
 18

If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
 DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations

DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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-50s (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.