UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2016 MSPB 41

Docket No. DA-0752-15-0171-I-1

Christopher L. Elder,

Appellant,

v. 

Department of the Air Force,

Agency. 

November 22, 2016

Christopher L. Elder, Norman, Oklahoma, pro se. 

Preston L. Mitchell, Esquire, and Telin W. Ozier, Esquire, Tinker Air 

Force Base, Oklahoma, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

reversed the appellant’s removal and granted corrective action. For the reasons 

discussed below, we DENY the agency’s petition for review and AFFIRM the 

initial decision as MODIFIED to analyze the appellant’s affirmative defense of 

reprisal for protected activity under Alarid v. Department of the Army, 

122 M.S.P.R. 600, ¶¶ 12-14 (2015). 
2

BACKGROUND

¶2 The appellant was employed by the agency as an Electrician. Initial 

Appeal File (IAF), Tab 4 at 18. The agency removed him, effective May 17, 

2013, for alleged use of offensive language and tardiness. Elder v. Department of 

the Air Force, MSPB Docket No. DA-0752-13-0480-I-1, Initial Appeal File 

(0480 IAF), Tab 9 at 17-24. He appealed his removal, raising a claim of 

retaliation for whistleblowing, and the parties settled that appeal with an 

agreement providing that the appellant would be reinstated, the removal action 

would be canceled, and he would serve a 90-day suspension. IAF, Tab 4 

at 28-30. The administrative judge entered the agreement into the record for 

enforcement by the Board. 0480 IAF, Tab 18, Initial Decision. 

¶3 However, in connection with the back pay that resulted from the 

agreement, the agency failed to provide the appellant with the opportunity to elect 

whether to reinstate his health benefits retroactively. Elder v. Department of the 

Air Force, MSPB Docket No. DA-0752-13-0480-C-1, Compliance Appeal File 

(0480 C-1 AF), Tab 9 at 5, Tab 12, Compliance Initial Decision (0480 C-1 CID)

at 4-6. Because of this failure, the appellant was incorrectly assessed a debt for 

unpaid health benefits premiums, and the Defense Finance and Accounting 

Service (DFAS) began deducting from his salary to repay this debt. 

0480 C-1 AF, Tab 1 at 3, Tab 9 at 5, 8-9, 15-16; 0480 C-1 CID at 4-6. The 

appellant subsequently filed a petition for enforcement when the problems 

were not corrected. 0480 C-1 AF, Tab 1. The administrative judge granted the 

petition, finding that the agency was not in compliance with the agreement’s 

provisions relating to back pay. 0480 C-1 CID at 1, 6. 

¶4 Because the agency continued to collect from the appellant’s sala ry to 

repay a debt for unpaid health benefits premiums, the appellant filed a second 

petition for enforcement. Elder v. Department of the Air Force, MSPB Docket 

No. DA-0752-13-0480-C-2, Compliance Appeal File (0480 C-2 AF), Tab 1,

Tab 12, Compliance Initial Decision (0480 C-2 CID) at 2, 4-5. While the 
3

appellant’s petition was pending, the agency’s representative and the appellant

met in the agency’s Legal Office on October 22, 2014, for a telephonic 

conference with a representative from DFAS to discuss the compliance issues. 

IAF, Tab 9 at 16, 54. The appellant advised his supervisor, G.W., of this meeting 

in advance. Id. at 45. During the conference, the appellant became frustrated 

because he believed that the back pay problems were not adequately addressed by 

DFAS or the agency’s representative. Id. 

¶5 Following the meeting, the appellant left the Legal Office and returned to 

his desk, where he continued to try to work with the Legal Office and DFAS to 

reach a solution. Id. at 16, 36, 45, 54. He twice called the Legal Office asking to 

know the name and contact information of the second-level supervisor of the 

agency’s representative. Id. at 54. Because the agency disconnected the calls, he 

returned to the Legal Office lobby. Id. at 16, 19, 22, 25, 28, 54. There, he 

requested the same information. Id. at 54. After the appellant spoke with a 

number of agency employees, the Staff Judge Advocate (SJA) instructed the 

appellant to leave, and he did so. Id. at 19, 22, 25, 54. He then returned, 

requested the name of the SJA from a Legal Clerk at the front desk, and left 

again. IAF, Tab 4 at 25, Tab 9 at 31. Because he was in the Legal Office from 

approximately noon to 1:30 p.m., he was not at his duty station during this period. 

IAF, Tab 9 at 36, 45. 

¶6 The previous day, on October 21, 2014, the appellant had a disagreement

with a Section Chief at his worksite. Id. at 33, 51. The appellant heard the 

Section Chief discussing a problem with another electrician and attempted to 

offer a solution. Id. After a brief discussion, the Section Chief told the appellant 

that he did not appreciate his tone of voice. Id. The appellant left, then returned 

and told the Section Chief that he “hope[d] he [did] not need [the appellant’s] 

opinion in the future. With the way he treated [the appellant] he [would] not get 

it.” Id. at 51. 
4

¶7 On October 27, 2014, G.W. presented the appellant with three separate 

Discussions of Incident or Delinquency, on Air Force (AF) Form 971s, regarding 

the events of October 21 and 22, 2014. Id. at 44, 48, 50, 53. On October 28, 

2014, G.W. was not available at the beginning of the appellant’s shift. Id.

at 36-37, 48. Therefore, the appellant informed his Work Leader that he would be 

“out of pocket for most of the day . . . formulating [his] responses” to the AF 

Form 971s. Id. Subsequently, the appellant was not at his duty station for 

approximately 5 hours that day. Id. at 47. 

¶8 On November 18, 2014, the agency proposed the appellant’s removal based 

on charges of (1) leaving the job site without permission/unauthorized absence 

and (2) inappropriate conduct. IAF, Tab 4 at 24-26. Regarding the charge of 

leaving the job site without permission/unauthorized absence, the agency alleged 

that the appellant was absent from his worksite for 1.5 hours on October 22, 

2014, and for 5 hours on October 28, 2014, and his “whereabouts could not be 

accounted for.” Id. at 24. Regarding the inappropriate conduct charge, the 

agency alleged that the appellant acted inappropriately during the incidents on 

October 21, 2014, with the Section Chief, and on October 22, 2014, in the Legal 

Office lobby. Id. at 25-26. The appellant responded in writing to the proposal 

notice. IAF, Tab 9 at 61-62. 

¶9 On December 17, 2014, the administrative judge issued an initial decision 

granting the appellant’s second petition for enforcement of the settlement 

agreement in his prior Board appeal. 0480 C-2 CID. She found that the agency 

still was not in compliance with the Board’s final decision. Id. at 2, 5. One day 

later, in a decision letter dated December 18, 2014, the agency removed the 

appellant, effective December 19, 2014. IAF, Tab 4 at 20-22. The appellant filed 

this appeal, disputing the basis for his removal and alleging that it was in reprisal 

for his prior Board appeal. IAF, Tab 1 at 4-5. 

¶10 The Board’s regional office docketed the appeal, and an administrative 

judge issued an acknowledgment order. IAF, Tab 2. The order stated, in 
5

pertinent part, that within 20 calendar days the agency was to provide 

“all . . . documents . . . which are relevant and material to this appeal” and any 

other information required by 5 C.F.R. § 1201.25. IAF, Tab 2 at 6, 8. The 

agency’s responsive pleading contained only the following documents directly 

relevant to the charges: the settlement agreement of the appellant’s prior appeal, 

the proposal notice, the decision letter, and the Standard Form 50 (SF-50) 

implementing the appellant’s removal. IAF, Tab 4. 

¶11 Because the appellant did not request a hearing, the administrative judge 

issued an order providing the parties with deadlines for final written submissions. 

IAF, Tab 1, Tab 5 at 1, Tab 8. She advised the agency that because it failed to 

comply with the acknowledgment order when it did not furnish any evidence in 

support of its charges, any submission of such evidence would require a showing 

that the evidence was not previously available. IAF, Tab 8 at 2. 

¶12 On April 30, 2015, the day before the record closed on appeal, the agency 

submitted 9 sworn statements, all signed on April 28 or 29, 2015, more than 

5 months after the date of the proposal notice, and more than 3 months after the 

acknowledgment order was issued. IAF, Tab 9. The agency also submitted 

copies of the AF Form 971s relevant to the incidents underlying the appellant’s 

removal. Id. In addition, the agency provided the appellant’s responses to the AF

Form 971s, his written response to the proposal notice, and a written summary of 

the deciding official’s Douglas factors penalty considerations. Id.; see 

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a 

nonexhaustive list of factors relevant to determining the appropriateness of a 

penalty for misconduct). However, the agency failed to provide any explanation 

as to why these documents were not submitted earlier in compliance with the 

instructions in the acknowledgment order. IAF, Tab 9 at 4-7. Instead, it argued 

that the documents were relevant hearsay evidence. Id. at 5. 

¶13 Despite the agency’s failure to explain its late submission of this evidence, 

the administrative judge considered it. IAF, Tab 14, Initial Decision (ID) at 5. 
6

She issued an initial decision reversing the removal and finding that the agency 

retaliated against the appellant for his prior Board activity under 5 U.S.C. 

§ 2302(b)(9). ID at 1, 16-18. 

¶14 As to charge 1, the administrative judge found that the appellant had 

informed his supervisors that he would be absent for work-related business on 

October 22 and 28, 2014. ID at 5-8. Therefore, she did not sustain the charge. 

ID at 8. She also did not sustain charge 2. ID at 8-16. Concerning the 

appellant’s exchange with the Section Chief on October 21, 2014, the 

administrative judge credited the appellant’s denial that he was loud and 

demonstrative, as charged, over the description of the incident provided by the 

Section Chief. ID at 10. As to the appellant’s behavior in the Legal Office lobby 

on October 22, 2014, she found that the agency failed to prove that the appellant 

behaved inappropriately under the circumstances. ID at 15-16. In making her 

findings regarding the second charge, the administrative judge generally gave less 

weight to the agency’s statements than the appellant’s statement, which was

completed shortly after the incident. ID at 8-16. In so doing, she considered a 

number of factors, including the fact that the agency’s statements were submitted 

long after the events in question. ID at 10-11, 14-15. 

¶15 The administrative judge granted corrective action on the appellant’s 

affirmative defense of reprisal for protected activity, i.e., appealing his prior 

removal and filing two petitions for enforcement. ID at 16-18. In so doing, she

applied the standard set forth in Warren v. Department of the Army, 804 F.2d 654, 

656-58 (Fed. Cir. 1986), superseded in part by statute as stated in Alarid, 

122 M.S.P.R. 600, ¶ 15.1 ID at 16. She determined that it was more likely true 

 

1 Under Warren, for an appellant to prevail on a contention of illegal retaliation, he has 

the burden of showing that: (1) a protected disclosure was made; (2) the accused 

official knew of the disclosure; (3) the adverse action under review could have been 

retaliation under the circumstances; and (4) there was a genuine nexus between the 

alleged retaliation and the adverse action. Warren, 804 F.2d at 656-58. 
7

than untrue that, but for the appellant’s prior protected activity, he would not 

have been removed.2 ID at 18. 

¶16 The agency has filed a petition for review, primarily challenging the weight 

the administrative judge gave to the evidence and her credibility determinations. 

Petition for Review (PFR) File, Tab 1. The appellant has responded to the 

petition for review, and the agency has replied. PFR File, Tabs 3, 5. 

¶17 In addition, the appellant has filed a petition for enforcement of the initial 

decision’s interim relief order. PFR File, Tab 6. The agency has replied to the 

petition for enforcement, and the appellant has responded. PFR File, Tabs 7-8. 

ANALYSIS

We decline to dismiss the petition for review based on the agency’s 

noncompliance with the order for interim relief. 

¶18 When, as here, the appellant was the prevailing party in the initial decision 

and interim relief was ordered, a petition for review filed by the agency must be 

accompanied by a certification that the agency has complied with the interim

relief order, either by providing the interim relief ordered, or by making a 

determination that returning the appellant to the place of employment would 

cause undue disruption to the work environment. Ayers v. Department of the 

Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C. 

§ 7701(b)(2)(A)(ii). However, if an agency makes a determination that an 

employee will pose an undue disruption, it nonetheless must return the employee 

to a pay status pending the outcome of its petition for review. 5 U.S.C. 

§ 7701(b)(2)(B); Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶ 9 (2013). 

 

2

The administrative judge also indicated that the deciding official did not consider any 

mitigating circumstances. ID at 18. In context, we interpret her statement as reflecting 

a valid concern that the deciding official essentially discounted the unusual job tensions 

caused by the agency’s continued failure to resolve the back pay issues arising out of 

the settlement agreement of the appellant’s prior removal appeal. IAF, Tab 9 at 65. 
8

¶19 With its petition for review, the agency stated that it returned the appellant 

to work, although it temporarily reassigned him to another position based on its 

determination that returning him to his assigned position would be unduly 

disruptive. PFR File, Tab 1 at 4, Tab 7 at 9. In his petition for enforcement, the 

appellant does not challenge his temporary work assignment, but contends that he 

has not been properly paid since returning to work. PFR File, Tab 6. Although 

the agency admits that the appellant’s pay was initially delayed, it has provided 

evidence that he has since been paid. PFR File, Tab 7 at 5-8. In reply, the 

appellant argues that his pay should have begun on the day the initial decision 

was issued, his rate of pay is too low, and he has “not been counseled on health 

insurance or [the Thrift Savings Plan].” PFR File, Tab 8 at 4-5. 

¶20 The appellant’s petition for enforcement is denied because the Board’s 

regulations do not allow for a petition for enforcement of an interim relief order. 

Ayers, 123 M.S.P.R. 11, ¶ 7; see 5 C.F.R. § 1201.182(a)-(b). We may instead 

consider the appellant’s pleading as a challenge to the agency’s certification of 

compliance. 5 C.F.R. § 1201.116(b). Ordinarily, when an appellant challenges 

the agency’s certification of compliance with an interim relief order, the Board 

will issue an order affording the agency the opportunity to submit evidence of 

compliance. Id. If the agency fails to provide evidence of compliance in 

response to such an order, the Board may, at its discretion, dismiss the agency’s 

petition for review. 5 C.F.R. § 1201.116(e). In this case, however, we find that 

the agency’s petition does not meet the criteria for review in any event, and the 

issuance of our final decision renders moot any dispute concerning the agency’s 

compliance with the interim relief order. See Ayers, 123 M.S.P.R. 11, ¶ 8 

(reaching the same conclusion where the Board affirmed the administrative 

judge’s reversal of the appellant’s removal based on whistleblower reprisal). If 

the appellant believes that the agency is in noncompliance with the Board’s final 

order, he may file a petition for enforcement in accordance with the instructions 

provided below. See id. 
9

The administrative judge properly found that the agency failed to prove 

its charges. 

¶21 In disputing the administrative judge’s findings regarding the charges, the

agency primarily disagrees with the weight she gave to its evidence. E.g.,

PFR File, Tab 1 at 10-11, 13, 16. If, as here, an administrative judge’s findings 

are not based on the observation of witnesses’ demeanor, the Board is free to 

reweigh the evidence and substitute its own judgment on credibility issues. 

Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002). We have 

reviewed the record evidence, but nonetheless find that the administrative judge 

properly weighed the evidence. 

¶22 Because no hearing was held, the administrative judge applied the relevant 

factors in weighing the parties’ hearsay evidence. ID at 4-5; Borninkhof v. 

Department of Justice, 5 M.S.P.R. 77, 87 (1981) (listing the following factors as 

affecting the weight to be accorded to hearsay evidence: (1) the availability of 

persons with firsthand knowledge to testify at the hearing; (2) whether the 

statements of the out-of-court declarants were signed or in affidavit form, and 

whether anyone witnessed the signing; (3) the agency’s explanation for failing to 

obtain signed or sworn statements; (4) whether the declarants were disinterested 

witnesses to the events, and whether the statements were routinely made; (5) the 

consistency of the declarants’ accounts with other information in the case, 

internal consistency, and their consistency with each other; (6) whether 

corroboration for statements can otherwise be found in the agency record; (7) the 

absence of contradictory evidence; and (8) the credibility of the declarant when 

he made the statement attributed to him). The agency asserts that the 

administrative judge erred when she did not give greater weight to the statements

it included with its April 30, 2015 close-of-record submission than to the 

appellant’s statements. PFR File, Tab 1 at 13. It argues that its witness 

statements are entitled to this weight because they are sworn, internally 
10

consistent, and consistent with the AF Form 971s.

3

 Id. However, the appellant, 

like the agency, submitted a sworn statement with his close-of-record submission. 

IAF, Tab 11 at 3-5. Further, his sworn close-of-record statement was consistent 

with his prior statements, including his responses to the AF Form 971s. IAF,

Tab 9 at 45, 48, 51, 54, 61-62. Therefore, we are not persuaded that the agency’s 

statements are entitled to greater weight. 

¶23 The agency next argues that the administrative judge erred in finding that it 

did not comply with the acknowledgment order, and as a result incorrectly gave

“virtually no weight” to the witness statements submitted by the agency on 

April 30, 2015. PFR File, Tab 1 at 10, 12, 16. The administrative judge found 

that the agency failed to comply with the acknowledgment order because it 

did not submit all documents relevant and material to the appeal. ID at 3. The 

agency claims that the acknowledgment order contained “no such order!” PFR 

File, Tab 1 at 11 (emphasis in original). We disagree. The acknowledgment 

order required the agency to submit such evidence within 20 days. IAF, Tab 2

at 6, 8. Further, the Board’s regulations similarly mandate that an agency submit 

all documents contained in its record of the action within 20 days of the 

docketing of an appeal. 5 C.F.R. §§ 1201.22(b), .25(c). 

¶24 Notwithstanding the agency’s failure to timely submit this evidence, and its 

failure to comply with the administrative judge’s order to show that any new 

evidence was not previously available, the administrative judge considered the 

agency’s April 30, 2015 close-of-record submission. IAF, Tab 8 at 2, Tab 9 

 

3

The administrative judge found that the accuracy of the statement of one agency 

witness was questionable because, in part, it was internally inconsistent and 

inconsistent with the statement of another agency witness. ID at 14; IAF, Tab 9 

at 19, 22. For the first time in its reply to the appellant’s response to th e petition for 

review, the agency disputes this finding. PFR File, Tab 5 at 11-12. We decline to 

consider this argument, as well as others that the agency raises for the first time in its 

reply. See 5 C.F.R. § 1201.114(a)(4) (limiting a reply to a response to a petition for 

review to the factual and legal issues raised in the response). 
11

at 4-7; ID at 3-5. She assigned statements from agency witnesses less weight 

than that of the appellant’s contemporaneous responses to the AF Form 971s. ID

at 9-10, 14. We find assigning greater weight to the appellant’s statements 

because they were completed closer in time to the events in question was 

appropriate. See United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948) 

(finding that testimony that conflicted with contemporaneous documents was 

entitled to “little weight”). 

¶25 The agency also argues that the administrative judge was required to credit 

the agency’s statements because they were completed by disinterested witnesses. 

PFR File, Tab 1 at 13, 17. We disagree. To resolve credibility issues, an 

administrative judge must consider relevant factors, which include a witness’s

bias or lack of bias. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 

(1987) (listing these and other factors to be considered). However, the Board 

will not discredit an appellant’s testimony solely because it can be characterized 

as self-serving. See Thompson v. Department of the Army, 122 M.S.P.R. 372, 

¶ 25 (2015) (observing that most testimony that an appellant is likely to give can 

be characterized as self-serving and finding that it is improper to discredit it 

solely on that basis). Further, we decline to find that other witnesses, such as the 

appellant’s supervisor, the deciding official, and staff from the agency’s Legal

Office, had no interest in the outcome of the appeal. See id. (observing that a 

supervisor who proposed an appellant’s removal may have an interest in the 

outcome of the resulting Board appeal). All of these individuals would, for 

different reasons, have an interest in ensuring the agency’s success in this appeal. 

¶26 We also are not persuaded that the administrative judge should have found 

the appellant less than credible because his submissions allegedl y contain “an 

obvious falsehood . . . that there was an oral agreement in his previous appeal.” 

PFR File, Tab 1 at 9, 13. Assuming, without deciding, that the appellant’s

representation regarding an oral agreement was incorrect, we decline to infer that 

any error was deliberate. The appellant was, and remains, pro se. IAF, Tab 1 
12

at 4. He references an oral agreement reached during “settlement talks with [the 

administrative judge]” that his “previous record . . . would be cleared.” IAF,

Tab 11 at 4. His statements appear to reflect, at most, a misunderstanding 

regarding the settlement process. We find that they do not justify an inference 

of dishonesty. 

¶27 The agency has the burden of proving its charges by preponderant 

evidence. 5 C.F.R. § 1201.56(b)(1)(ii). As discussed below, we affirm the 

administrative judge’s finding that the agency failed to prove its charges. 

Charge 1: Leaving the job site without permission/unauthorized absence

¶28 To prove a charge of unauthorized absence, the agency must demonstrate 

that the employee was absent and that his absence was unauthorized or that his

request for leave was properly denied. 4 Smith v. Department of the Interior, 

112 M.S.P.R. 173, ¶ 9 (2009). The following findings are not disputed. During 

the 1.5 hours that the appellant was allegedly absent without authorization on 

October 22, 2014, he was in the lobby of the Legal Office attempting to address 

the back pay issues that arose from the settlement agreement in his prior appeal. 

ID at 6-7; IAF, Tab 9 at 36, 45, 61. In addition, G.W. previously had granted the 

appellant permission to meet with the Legal Office that day. ID at 6-7; IAF,

Tab 9 at 36, 45. Further, during the 5 hours the appellant allegedly was absent on 

October 28, 2014, he was responding to the AF Form 971s that G.W. presented to 

him the previous day. ID at 7; IAF, Tab 9 at 36, 48. In G.W.’s absence that 

 

4 We find that the charge of leaving the job site without permission merges with the 

unauthorized absence charge, and therefore we will not separately address it. See 

Hawes v. Office of Personnel Management, 122 M.S.P.R. 341, ¶ 6 (2015) (finding that 

an administrative judge appropriately merged charges based on the same set of 

underlying facts); McNab v. Department of the Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014) 

(finding that an administrative judge properly merged specific absences that were listed 

under both an absence without leave charge and a charge of failure to follow leave 

restriction letter procedures). 
13

morning, the appellant advised his Work Leader in advance that he would be 

responding to the AF Form 971s. ID at 6-7; IAF, Tab 9 at 36-37, 48. 

¶29 However, the agency disputes that the appellant’s activities were 

authorized. PFR File, Tab 1 at 16. In this regard, it argues that the 

administrative judge required the agency to prove the existence of a procedure

requiring advance permission for “duty time” or “official time.” Id. at 14-15. It 

argues that, in any event, it established the existence of an unwritten policy 

through its table of penalties, G.W.’s statement, the AF Form 971s, and the 

appellant’s prior discipline. Id. at 15-16. 

¶30 We disagree with the agency that the administrative judge found that it was 

required to prove the existence of an official time procedure. Instead, she

properly considered the lack of a written procedure in weighing the evidence. ID

at 6-7; see Borninkhof, 5 M.S.P.R. at 87. As she observed, the absence of a 

written procedure weighed against the agency’s claim that the appellant was 

required to make a second request for official time after returning to his worksite 

on October 22, 2014, and before returning to the Legal Office lobby. ID at 6. It 

also weighed against the agency’s claim that the appellant’s Work Leader 

could not approve the appellant’s request for official time on October 28, 2014.5 

ID at 7. 

¶31 The documents that the agency cites on review support the conclusion that 

approval is required for leaving the jobsite and for official time. PFR File, Tab 1

at 15-16; IAF, Tab 4 at 44, Tab 9 at 44, 47. However, other than G.W.’s 

late-submitted statement, the weight of which we already have addressed above, 

 

5

The agency argues that the administrative judge erred in considering its attendance 

policy regarding unscheduled leave. PFR File, Tab 1 at 4; ID at 7-8. We find that she 

appropriately weighed the appellant’s compliance with this policy on October 28, 2014, 

as evidence supporting the appellant’s claim that he properly advised his Work Leader 

that he would be working on his responses to the AF Form 971s on that day. Id.; IAF, 

Tab 11 at 7; see Borninkhof, 5 M.S.P.R. at 87.
14

they do not establish that the manner in which the appellant requested permission 

on October 22 and 28, 2014, was improper. IAF, Tab 4 at 44, Tab 9 at 44, 47. 

¶32 Therefore, we agree with the administrative judge that the agency failed to 

prove that the appellant’s alleged absences on October 22 and 28, 2014, were 

unauthorized. As a result, we also agree that the agency did not prove its 

unauthorized absence charge. Additionally, although the agency claims that the 

administrative judge incorrectly remembered her prior findings regarding its 

noncompliance, we do not agree. 

Charge 2: Inappropriate conduct

¶33 In finding that the agency failed to prove that the appellant engaged in 

inappropriate conduct on October 21, 2014, during an exchange with the Section 

Chief, the administrative judge gave greater weight to the appellant’s statement 

completed a week after the incident than the Section Chief’s statement completed 

6 months later. IAF, Tab 9 at 33, 51. Although the agency argues that the 

Section Chief was a disinterested coworker, it provides no first-hand evidence to 

support this claim.

6

 PFR File, Tab 1 at 16. In addition, as the administrative 

judge found, the agency failed to provide a statement from the electrician who 

was present during the incident. ID at 10; IAF, Tab 4 at 24. Therefore, we find 

that the administrative judge appropriately weighed the evidence. Borninkhof, 

5 M.S.P.R. at 87. 

¶34 The administrative judge also found that the agency failed to prove that the 

appellant engaged in inappropriate conduct during the October 22, 2014 incident 

in the Legal Office lobby. ID at 10-16. Instead, she found that the appellant, 

 

6

In a subsequent submission on review, the agency provided a statement from the 

deciding official that the Section Chief was not in the appellant’s chain of command, 

had no interest in his removal, and “no reason to malign” the appellant. PFR File, 

Tab 11 at 20. However, the Section Chief did not explain his relationship to the 

appellant in his statement on appeal. IAF, Tab 9 at 33. 
15

although frustrated by the agency’s continued noncompliance with the settlement 

agreement reached in his prior appeal, credibly explained that he was calm and 

was only seeking information related to the ongoing compliance issues. ID 

at 13-14; IAF, Tab 9 at 54, 61. 

¶35 The agency argues that the administrative judge’s findings were “tainted by 

her erroneous recollection of the appellant’s prior case.” PFR File, Tab 1 at 10. 

Specifically, the agency argues that the administrative judge’s recitation of the 

facts was inaccurate when she found that the agency did not comply with the 

settlement of the appellant’s prior Board appeal because it did not complete a 

DFAS checklist. Id. The agency further contends that the administrative judge 

erred by stating that there was a finding of agency noncompliance with the 

settlement agreement. Id. 

¶36 As the agency observes, in the initial decision in the instant appeal, the 

administrative judge described the agency’s noncompliance that led to the 

October 22, 2014 meeting as arising out of its failure to complete a DFAS 

checklist. ID at 2. This was in error because there was no DFAS checklist 

attached to the initial decision in the appellant’s prior appeal. 0480 IAF, Tab 18, 

Initial Decision. However, we find that the administrative judge’s alleged error 

does not provide a basis for granting review. Although the Board may grant a 

petition for review based on a factual error, such error must be material. 5 C.F.R. 

§ 1201.115(a)(1). A material error is one that is of sufficient weight to warrant 

an outcome different from that of the initial decision. Id. 

¶37 Contrary to the agency’s claims that “there was . . . no finding that the 

agency was not in compliance with the agreement,” the administrative judge 

granted the appellant’s petition for enforcement of the settlement agreement in his 

prior appeal due to the agency’s erroneous withholding of health benefits 

premiums from his back pay. 0480 C-1 CID at 4-6; PFR, Tab 1 at 7. In addition, 

at the time of the appellant’s conference in the Legal Office on October 22, 2014, 

DFAS was continuing to collect for a debt related to health benefits premiums, 
16

but was unable to provide an understandable explanation of this debt. 0480 C-2

AF, Tab 1; 0480 C-2 CID at 4-5; IAF, Tab 9 at 54. 

¶38 In any event, the administrative judge’s finding that the agency failed to 

prove the alleged misconduct on October 22, 2014, was based on her 

determination that the appellant’s statement regarding the incident was credible. 

ID at 14. It was not based on her finding of the agency’s noncompliance with the 

settlement agreement in the prior appeal. 

We affirm the finding that the agency retaliated against the appellant for his prior 

Board appeals, as modified to apply the proper standard. 

¶39 In its petition for review, the agency did not challenge the administrative 

judge’s determination that the agency’s removal action was retaliation for 

protected activity. Nevertheless, we found that the administrative judge relied on 

the burden of proof set forth in Warren, 804 F.2d at 656-58, in both the order and 

summary of the close-of-record conference and the initial decision. IAF, Tab 8 

at 2; ID at 16. The Warren7standard is inapplicable to claims, like the one here,

that allege reprisal for filing a prior Board appeal under 5 U.S.C. 

§ 2302(b)(9)(A)(i).8See 5 U.S.C. § 1221(e); Clay v. Department of the Army, 

123 M.S.P.R. 245, ¶ 10 (2016) (finding that a retaliation claim arising under

section 2302(b)(9)(A)(i) should be analyzed under section 1221(e), rather than a 

general reprisal standard). Instead, the reprisal claim must be analyzed under the 

burden-shifting standards set forth in section 1221(e). Alarid, 122 M.S.P.R. 600, 

 

7 Although Warren has not been overruled by the U.S. Court of Appeals for the Federal 

Circuit, the statutory changes of the Whistleblower Protection Enhancement Act of 

2012 significantly narrow the scope of cases to which it applies. Alarid, 122 M.S.P.R. 

600, ¶ 15. 

8

Section 2302(b)(9)(A)(i) prohibits retaliation for various protected activity including, 

among other things, filing a Board appeal “with regard to remedying a violation of 

[section 2302(b)(8)],” i.e., it prohibits retaliation for filing a Board appeal in which a 

claim of whistleblower retaliation was raised under 5 U.S.C. § 2302(b)(8). 
17

¶ 12. In such cases, the appellant first must establish by preponderant evidence 

that he engaged in protected activity that was a contributing factor in the 

personnel action at issue. Id., ¶¶ 13-14. If he does so, the burden of persuasion 

shifts to the agency to prove by clear and convincing evidence that it would have 

taken the same action in the absence of the appellant’s protected activity. Id., 

¶ 14. 

¶40 Here, because the appellant raised a claim that the agency’s removal action 

was in retaliation for the filing of his prior Board appeal, which included a 

whistleblower retaliation claim under 5 U.S.C. § 2302(b)(8), and his filing of two 

separate petitions for enforcement with the Board, the proper analysis of this 

claim is as a prohibited personnel practice under section 2302(b)(9)(A)(i). IAF,

Tab 8 at 1, Tab 11 at 4. Accordingly, we find that the administrative judge 

should have apprised the parties of the burdens of proof under section 1221(e). 

While the case was pending on review, we issued an order to the parties setting 

forth the proper standards for analyzing the appellant’s reprisal claim and 

instructing the parties to provide evidence and argument consistent with these 

burdens. PFR File, Tab 9. The agency and the appellant have responded. PFR 

File, Tabs 11-12. 

¶41 The agency’s response challenges the administrative judge’s finding that 

the appellant met his burden to prove that he engaged in protected activity that 

was a contributing factor in his removal. E.g., PFR File, Tab 11 at 12-13. The 

administrative judge found in pertinent part that the deciding official was aware 

of the appellant’s 2013 and 2014 protected activity when he made his removal 

decision in 2014. ID at 2-3, 16-17. We see no reason to disturb these factual 

findings on review, given the similarity in the Warren standard cited by the 

administrative judge and the appellant’s initial burden under section 1221(e). 

Compare Warren, 804 F.2d at 656-58 (setting forth the Warren standard), with

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015) 

(explaining that the knowledge/timing test allows an employee to demonstrate 
18

that a protected disclosure was a contributing factor in a personnel action through 

circumstantial evidence, such as evidence that the official taking the personnel 

action knew of the disclosure, and that the personnel action occurred within 1 to 

2 years of the appellant’s disclosures); Avansino v. U.S. Postal Service, 

3 M.S.P.R. 211, 214 (1980) (finding that the Board generally will not consider an 

argument raised for the first time in a petition for review absent a showing that it 

is based on new and material evidence not previously available despite the party’s 

due diligence). Therefore, we decline to consider the agency’s new arguments 

and evidence to the extent that they concern the appellant’s prima facie case of 

reprisal for protected activity. 

¶42 However, because the Warren standard lacks a similar element, we have 

considered the agency’s response to the extent that it addresses its burden to 

prove by clear and convincing evidence that it would have taken the same action 

in the absence of the appellant’s protected activity, i.e., the appellant’s prior 

Board appeal alleging whistleblowing retaliation and the subsequent compliance 

matters. Clear and convincing evidence “is that measure or degree of proof that 

produces in the mind of the trier of fact a firm belief as to the allegations sought 

to be established.” 5 C.F.R. § 1209.4(e). It is a higher standard than 

preponderant evidence. McCarthy v. International Boundary and Water 

Commission, 116 M.S.P.R. 594, ¶ 43 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 

2012). In determining whether the agency has shown by clear and convincing 

evidence that it would have taken the same personnel action in the absence of 

protected activity, the Board generally will consider the following factors: 

(1) the strength of the agency’s evidence in support of its action; (2) the existence 

and strength of any motive to retaliate on the part of the agency’s officials who 

were involved in the decision; and (3) any evidence that the agency takes similar 

actions against employees who did not engage in protected activity but who are 

otherwise similarly situated. See Carr v. Social Security Administration, 

185 F.3d 1318, 1323 (Fed. Cir. 1999); Alarid, 122 M.S.P.R. 600, ¶ 14. The Board 
19

must consider all pertinent record evidence in making this determination. 

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012); 

Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 25 (2012). The Board 

does not view these factors as discrete elements, each of which the agency must 

prove by clear and convincing evidence. Phillips v. Department of 

Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). Rather, the Board will weigh the 

factors together to determine if the evidence is clear and convincing as a 

whole. Id. 

¶43 Here, the strength of the agency’s evidence in support of its removal action 

is weak and, as noted above, was in large part prepared well after the fact. As we 

found above, after considering all of the evidence, the administrative judge 

correctly found that the agency did not prove either of the charges against the 

appellant. Furthermore, the agency’s delay in taking any sworn witness 

statements concerning the appellant’s alleged actions until more than 5 months 

after the proposal notice had been issued—in addition to raising serious due 

process concerns—strongly suggests that: (1) it did not consider the appellant to 

have engaged in serious misconduct; and (2) the charges were a pretext 

for reprisal. 

¶44 In addition, we find that G.W., who proposed the appellant’s removal, and 

the deciding official both had a strong motive to retaliate. Although G.W. 

was not involved in the removal that led to the appellant’s prior Board appeal, he 

was aware, as the appellant’s supervisor, of the compliance issues that arose. 

PFR File, Tab 11 at 22-23. He claims that the appellant’s conduct, and not his 

protected activity, was the reason he proposed the appellant’s removal. Id. 

However, we find that his claim that “[i]t had never mattered to me that he’d 

actually made an appeal; it’s not like I have no experience with 

employer-employee matters like that,” is less than convincing. Id. at 23

(emphasis in original). In particular, G.W.’s inability to prevent the appellant

from visiting the Legal Office lobby, which formed part of the basis of charge 2,
20

reflected on his capacity as a supervisor. Chavez v. Department of Veterans 

Affairs, 120 M.S.P.R. 285, ¶¶ 32-33 (2013) (finding that an appellant’s 

disclosures of subordinate employees’ wrongdoing created a motive to retaliate

on the part of their first- and second-level supervisors). Further, as we have 

found, this visit was related to the agency’s continued noncompliance. As such, 

it was protected activity. 5 U.S.C. § 2302(b)(9)(A)(i). G.W.’s retaliatory motive 

is reflected in the statement that what “matter[ed] to me was that [the appellant]

acted out, both on the job and over in the Legal Office, in such a manner so as to 

undermine the morale and discipline of my unit and bring discredit to my

organization.” PFR File, Tab 11 at 23.

¶45 The deciding official, moreover, had a strong motive to retaliate. He also 

was the deciding official in the removal action that was the subject of the 

appellant’s prior Board settlement agreement. PFR File, Tab 11 at 19. In 

addition, he has admitted that he “was aware that [the appellant] was frustrated 

and unhappy with the legal process regarding his reinstatement,” and that his 

presence in the Legal Office lobby on October 22, 2014, was to seek compliance 

with the settlement agreement in the prior Board appeal. PFR File, Tab 11 at 19. 

However, he has not explained what steps, if any, he took to resolve the ongoing

compliance issues. 

¶46 Finally, the agency claims that it would have removed the appellant in the 

absence of the protected activity because his removal was the seventh time he 

received discipline. Id. at 26. According to the agency, other employees who 

were disciplined multiple times were, like the appellant, removed. Id. at 25-26. 

Specifically, the agency asserts that it removed other employees who were 

disciplined more than five times for charges including “leaving the job without 

permission,” and also removed other employees who were charged with 

“discourteous conduct” more than five times. Id. However, the agency does not 

provide evidence as to whether or not these employees had, like the appellant, 

engaged in protected activity, or any specific information as to the nature of their
21

alleged misconduct. Id. Thus, we find that the third Carr factor is not a 

significant factor for the analysis of this case. Runstrom v. Department of 

Veterans Affairs, 123 M.S.P.R. 169, ¶ 18 (2016). 

¶47 Ultimately, after considering the record as a whole, we find that the agency 

has not proven by clear and convincing evidence that it would have removed the 

appellant absent his protected activity of filing a prior Board appeal seeking to 

remedy a violation of 5 U.S.C. § 2302(b)(8) and the subsequent compliance 

actions. See 5 U.S.C. § 2302(b)(9)(A)(i). Therefore, we affirm the initial

decision, as modified by this Opinion and Order. 

ORDER

¶48 We ORDER the agency to cancel the appellant’s removal and retroactively 

restore the appellant effective December 18, 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. 

¶49 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. 

¶50 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board's Order and to describe the 

actions it took to carry out the Board’s Order. The appellant, if not notified, 

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). 
22

¶51 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision in this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a). 

¶52 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. 

¶53 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

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 U.S. Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); or 

38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201, 

1202.202, 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. 
23

NOTICE TO THE APPELLANT REGARDING 

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential 

damages, including medical costs incurred, travel expenses, and any other 

reasonable and foreseeable consequential damages. To be paid, you must meet 

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may 

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204. 

In addition, the Whistleblower Protection Enhancement Act of 2012 

authorized the award of compensatory damages including interest, reasonable 

expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), 1221(g)(1)(A)(ii), which 

you may also be entitled to receive.

If you believe you are entitled to these damages, you must file a motion for 

consequential damages and/or compensatory damages WITHIN 60 CALENDAR 

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the 

office that issued the initial decision on your appeal. 

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to 

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on 

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D). 5 U.S.C. § 1221(f)(3).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

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 
24

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request the U.S. Court of Appeals for the Federal Circuit or any court of 

appeals of competent jurisdiction to review this final decision. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

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

title 5 of the U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about other 

courts of appeals can be found at their respective websites, which can be accessed 

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

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 
25

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. 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:

______________________________

Jennifer Everling

Acting 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

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 p remium, 

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.