UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

MICHELLE GARCIA, Appellant,

v.
GENERAL SERVICES ADMINISTRATION, Agency. DOCKET NUMBER NY

- 1221

- 14

- 0194

- W

- 1

DATE: July 12, 2016

Jesse Rose , Astoria, New York, for the appellant. Nicole Ludwig
, Esquire, New York, New York, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

ORDER ¶1 The agency has filed a petition for review of the initial decision
, which granted the appellant’s request for corrective action upon a finding of whistleblower reprisal. The two Board members cannot agree on the disposition of the petition for review. Therefore, the initial decision now becomes the final
decision of the Merit Systems Protecti on Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1 200.3 (b)). This
deci sion shall not be considered as precedent by the Board in any other

case. 5 C.F.R. § 1200.3 (d)

. ¶2 Based on the initial decision, which no w becomes the final decision of the Board, the parties’ obligations are set out below:2

¶3 The agency must noncompetitively convert the appellant’ s appointment

— retroactive to January 28, 2014

— to the competitive service position to which she would have been assigned under 5 C.F.R. § 362.204 had Mr. H. made the
conversion at tha t time. ¶4 The agency must 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. The appellant must c ooperate 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, the agency must pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶5 The agency must tell the appellant promptly in writing when it believes it has fully car ried out the Board’s Order and of 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). ¶6 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 dec ision 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 inclu de the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶7 For agencies whose payroll is administered by e ither 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 must timely provide DFAS or NFC with all3

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 fo rth above.

NOTICE TO THE APPELL ANT REGARDING YOUR R IGHT TO REQUEST CONSEQUENTIA L OR COMPENSATORY DA MAGES You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other

reasona ble 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). If you believe you meet these requirements, 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 yo ur appeal.

NOTICE TO THE PARTIE S A copy of the decision will then 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 emp loyee 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 APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of the final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at
the fol lowing address:4

United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your requ est for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as re v. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statu tory de adline 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 pr o h i bited personnel practice s , you may request review of the final decision by the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals o f competent jurisdiction. 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 chose to file, be very careful to file on time. You may choose to reque s t 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 s eek

r e view 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 foun d in
title 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff

. Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm

. Additional information is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “ Guide5

for Pro Se Petitioners and Appellants, ” which is contained within the
court’s Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation for 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 Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board

### 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

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAY MENTS AGREED UPON IN SETTLEMENT CASES 

### 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 premium, 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 p ayments (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 CEN TER 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 Syst ems 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 nu mber. 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 L ump 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 Promot ion, Wage Grade Increase, FLSA, etc.)

a. Must provide sa me data as in 2, a

- g above. b. Prior to conversion computation mus t 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.