UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONIA LEE HARDYWAY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0752-17-0695-I-1

DATE: December 12, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jeffrey H. Jacobson, Esquire, Tucson, Arizona, for the appellant.

Lois F. Prince and Kathleen Pohlid, Esquire, Nashville, Tennessee, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

which reversed the appellant’s reduction in grade and pay under 5 U.S.C.

chapter 75. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant was formerly a Supervisory Social Worker, Assistant Chief of

Social Work Services, in the Social Work Service branch of the Veterans

Administration Tennessee Valley Health Care System. Initial Appeal File (IAF),

Tab 43 at 42; Hearing Transcript, Vol. III at 144, 146 (testimony of the

appellant). The Assistant Chief position is located in the Office of the Chief of

Social Work Service, which oversees ten different programs, including the

Community Based Care Program (CBCP). IAF, Tab 16 at 62, Tab 17 at 5. 

¶3 Effective July 23, 2017, the agency reduced the appellant in grade and pay

from her Assistant Chief of Social Work Service position to a nonsupervisory

position based on a charge of “Failure to Provide Adequate Program Oversight”

over the CBCP. IAF, Tab 16 at 18-60. The appellant filed a Board appeal,

challenging the merits of the agency’s action on the basis that she was not

responsible for CBCP oversight and raising affirmative defenses of harmful

procedural error and retaliation for equal employment opportunity (EEO) activity.

IAF, Tab 1, Tab 91 at 1-5. After a hearing, the administrative judge issued an

initial decision reversing the action based on the agency’s failure to prove that the

appellant was assigned responsibility over the CBCP program. IAF, Tab 123,

Initial Decision (ID) at 4-9. The administrative judge found that the appellant
3

failed to prove her affirmative defense of EEO retaliation, and, because she had

reversed the agency’s action on the merits, she declined to adjudicate the

appellant’s harmful error defense. ID at 9-10.

¶4 The agency has filed a petition for review, challenging the administrative

judge’s findings about the scope of the appellant’s responsibilities as Assistant

Chief. Petition for Review (PFR) File, Tab 1. The appellant has filed a response

to the petition for review, and the agency has filed a reply to the appellant’s

response. PFR File, Tabs 7, 11. 

¶5 We have considered the agency’s arguments on review that the

administrative judge misconstrued the charge, applied an incorrect evidentiary

standard, and ignored certain evidence in reaching her decision. PFR File, Tab 1

at 14-16, 19-20. We find these arguments to be unpersuasive and unsupported by

the record. It appears to us that the agency is actually contesting the

administrative judge’s weighing and evaluation of the evidence.

¶6 In her initial decision, the administrative judge relied in part on the

testimony of the appellant’s former supervisor, the Chief of Social Work Service,

who testified that she never assigned the appellant to oversee the CBCP. ID at 5;

Hearing Transcript, Vol. II at 115-16 (testimony of the Chief). While

acknowledging the deference owed to the administrative judge’s assessment of

the Chief’s credibility, see Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002), the agency argues that there are sufficiently sound reasons for

the Board to overturn that credibility determination. PFR File, Tab 1 at 18-19.

We disagree. The Chief’s testimony was corroborated by the CBCP program

manager, who testified that the CBCP was not part of the appellant’s

responsibility. ID at 7-8; Hearing Transcript, Vol. I at 181-83 (testimony of the

CBCP program manager). The administrative judge also found the Chief’s

testimony compelling because she made a statement against interest by taking

responsibility for the shortcomings in CBCP oversight, rather than shifting the

blame to the appellant, and had in fact been removed because of her lack of
4

oversight. ID at 5 n.8. We see no basis for setting aside the administrative

judge’s well-reasoned credibility determinations.

¶7 Finally, in analyzing the appellant’s defense of EEO retaliation, the

administrative judge applied the standard applicable in general retaliation claims

set forth in Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir.

1986), rather than the standard applicable in EEO retaliation claims. After the

initial decision was issued, the Board clarified the analytical framework for

addressing EEO retaliation claims. Claims of retaliation for opposing

discrimination in violation of Title VII are analyzed under the same framework

used for Title VII discrimination claims, namely, that the appellant bears the

initial burden of proving by preponderant evidence that her protected EEO

activity was a motivating factor in her reduction in grade and pay. Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶ 30. It is undisputed that the

appellant engaged in EEO activity protected under Title VII. IAF, Tab 45 at 6.

The administrative judge found, however, that the appellant introduced little

evidence of retaliation other than the fact of her complaint. ID at 9-10. In

addition, the administrative judge found that the agency’s action was the result of

an investigation that discovered serious problems in the CBCP. ID at 10. The

appellant does not dispute these findings on review. Therefore, we find that the

appellant has not shown that her EEO activity was a motivating factor in the

agency’s decision to demote her. 2 

ORDER

¶8 We ORDER the agency to cancel the appellant's reduction in grade and pay

and reinstate her to the position of Assistant Chief of Social Work Services

effective July 27, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d

2

 Because we discern no error with the administrative judge’s motivating factor

conclusions regarding the appellant’s retaliation claim, it is unnecessary for us to

address whether retaliation was a “but-for” cause of the reduction in grade and pay. See

Pridgen, 2022 MSPB 31, ¶¶ 20-25.
5

730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days

after the date of this decision.

¶9 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. 

¶10 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). 

¶11 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).

¶12 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
6

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 OF APPEAL RIGHTS3

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 the 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.

3

 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 matter.
7

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

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
8

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

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: 
9

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 

(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 described 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.4 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). 

4

 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. 
10

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. 

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: ______________________________

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.