Appellant:  Reginald B. Day

Agency:  United States Postal Service

Decision Number:  2010 MSPB 63

Docket Number:  AT-0752-09-0163-X-1

Issuance Date:  April 13, 2010

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

Compliance

       This case was before the Board pursuant to a recommendation of the administrative judge that the Board grant the appellant’s petition for enforcement (PFE) and enforce the terms of a final Board order.  In the underlying appeal, the judge found that the agency’s placement of the appellant on enforced leave for more than 14 days constituted a constructive suspension.  The judge reversed the agency action and ordered the agency to provide the appellant with back pay.  The appellant later filed a PFE stating that the agency had failed to pay him back pay for the constructive suspension period.  The agency argued that the appellant was not entitled to back pay for the period in question because he was not ready, willing, and able to work during the period.  The administrative judge found the agency’s argument without merit and that the appellant was entitled to back pay.  Accordingly, the judge recommended that the appellant’s PFE be granted, and the matter was referred to the Board.  In his compliance recommendation, the judge informed the agency that, if it agreed with the recommendation, it had 15 days to submit to the Clerk of the Board evidence of its compliance, and that, if it decided not to take the actions required by the compliance recommendation, it had 30 days to file written arguments supporting its disagreement with the recommendation.  The Clerk of the Board reiterated this information in an acknowledgment order.  Despite the instructions of the compliance recommendation and the acknowledgment order, the agency has failed to inform the Clerk of the Board whether it agrees or disagrees with the compliance recommendation. 

Holdings:  The Board found the agency in noncompliance and ordered it to submit evidence and argument demonstrating compliance.  The Board also identified the agency official responsible for compliance and stated that, if the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.

From the full decision:

As set forth above, the agency has failed to demonstrate compliance with the Board’s final order in this matter. In the July 15, 2009 order acknowledging receipt of the appellant’s petition for enforcement, the administrative judge ordered the agency to submit the name of the official responsible for compliance with the March 12, 2009 order. CF, Tab 2 at 2. The administrative judge repeated that instruction in the November 3, 2009 compliance recommendation. CF, Tab 6 at 6. The agency has failed to identify the official responsible for compliance.

Accordingly, we have determined that Linda J Welch, Acting Vice President, Southeast Area Operations, is the agency official responsible for compliance. If the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.

ORDER

The agency is ordered to file evidence and argument demonstrating compliance with the Board’s final order in this case and shall support its assertions of compliance with clear and understandable documentary evidence.

If the agency fails to demonstrate compliance, the responsible agency official may be ordered to appear before the General Counsel of the Merit Systems Protection Board to show cause why the Board should not seek the withholding of her pay pursuant to 5 U.S.C. § 1204(e)(2)(a).