Eisele v. United States Postal Service
Eisele v. United States Postal Service
Opinion of the Court
Mark D. Eisele appeals from a decision of the Merit Systems Protection Board (Board) denying his petition to enforce the Board’s order for back pay. See Eisele v. U.S. Postal Serv., No. DC -0752-08-626-1-1 (MSPB Nov. 26, 2008) (Eisele I) (ordering the Postal Service to pay Mr. Eisele back pay); Eisele v. U.S. Postal Serv., No. DC -0752-08-626-C-2 (MSPB July 2, 2009) (Eisele II) (denying petition to enforce). For the reasons discussed below, we affirm.
Background
Mr. Eisele was employed as a mail processing clerk at the Charlotte Processing and Distribution Facility in Charlotte, North Carolina. On April 17, 2008, the Postal Service placed Mr. Eisele on administrative leave with pay pending a fitness for duty examination. Mr. Eisele was examined by Dr. Amalia Falcon (his own physician), Dr. Richard Bradner (a physician hired by the Postal Service), and Dr. Alan Lombardi (a psychologist hired to conduct the fitness for duty examination), all of whom expressed concerns about Mr. Eisele’s mental condition. Eisele I, at 2-3. Drs. Falcon and Bradner concluded that Mr. Eisele was not fit to return to work and that he was in need of long term psychiatric treatment. Id. Dr. Lombardi concluded that although Mr. Eisele was “not necessarily unfit, it might be prudent
On May 28, 2008, the Postal Service informed Mr. Eisele that it had concluded that he was not fit to return to work and gave him three options: resign, apply for disability retirement, or retire if eligible. On June 13, 2008, the Postal Service informed Mr. Eisele that if he did not select one of the three options, then his administrative leave status would be terminated and the Postal Service would propose his removal. On June 14, 2008, the Postal Service placed Mr. Eisele on leave without pay.
Mr. Eisele appealed to the Board, alleging that he had been constructively removed. The Board determined that the Postal Service did not provide Mr. Eisele with the procedural protections required by statute and the U.S. Constitution prior to suspending him. The Board reversed the suspension and ordered the Postal Service to retroactively restore Mr. Eisele’s pay and benefits effective June 14, 2008. The initial decision issued on November 26, 2008. Mr. Eisele filed a notice of appeal to this court, but he did not submit a brief. His appeal was dismissed on June 4, 2009, and at which point the initial decision ordering back pay became the final decision of the Board.
While Mr. Eisele’s case was pending before the Board, the Postal Service took steps to correct any possible due process violation. On November 7, 2008, the Postal Service proposed that Mr. Eisele be placed on enforced leave based on a medical condition rendering him unfit for duty. Gov’t Br. 3. Mr. Eisele responded on November 24, 2008. Id. After this period for notice and response, the agency then placed Mr. Eisele on enforced leave effective December 14, 2008. Id.
The Postal Service did not pay Mr. Ei-sele any back pay for the period after June 14, 2008. The Postal Service sent Mr. Eisele a letter dated January 21, 2009 informing him that he was not entitled to back pay because Mr. Eisele was not ready, willing, and able to work during the period in question. The Postal Service asserted that it was in full compliance with the Board’s order.
Mr. Eisele filed a petition for enforcement seeking his back pay.
Mr. Eisele appealed to this court for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
Discussion
A decision by the MSPB must be affirmed unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Hamel v. President’s Comm’n on Exec. Exch., 987 F.2d 1561, 1564 (Fed.Cir. 1993). “Substantial evidence must be such as would persuade a reasonable fact finder, but need not be, in our view, a preponderance.” Stanek v. Dep’t of Transp., 805 F.2d 1572, 1577 (Fed.Cir. 1986).
An employee affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction in pay is entitled to back pay that “the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period.” 5 U.S.C. § 5596(b)(1) (Back Pay Act). “[T]he basic principle of back pay, adopted by Congress in 1948, holds that an employee is entitled to be made whole whenever an erroneous personnel action which has terminated or reduced his compensation is corrected by appropriate authority.” Martin v. Dep’t of the Air Force, 184 F.3d 1366, 1371 (Fed.Cir. 1999).
The statute itself does not address how an agency must calculate the amount of back pay. Congress authorized the Office of Personnel Management (OPM) to prescribe regulations to carry out the Back Pay Act. 5 U.S.C. § 5596(c); Martin, 184 F.3d at 1370. Pursuant to this authority, OPM issued a regulation instructing that when computing the amount of back pay, an agency may not include pay for “[a]ny period during which an employee was not ready, willing, and able to perform his or her duties because of an incapacitating illness or injury.” 5 C.F.R. § 550.805. This reflects the desire to make the employee whole and to avoid overcompensation when it is clear that the employee would not have been able to work even in the absence of the wrongful personnel action.
The Board’s conclusion that Mr. Eisele was not ready, willing, or able to work due
Conclusion
For the reasons discussed above, we affirm the Board’s denial of Mr. Eisele’s petition to enforce the Board’s prior order of back pay.
AFFIRMED
. Mr. Eisele’s first petition for enforcement was dismissed because his appeal before this court was still pending. Mr. Eisele filed a second petition, and shortly thereafter his appeal was dismissed. Thus the Board determined that it was appropriate to adjudicate his second petition.
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