Winning Has Consequences

An employee flush with victory when the Board ordered her reinstatement perhaps got too bullish in dealing with the agency as it tried to work out her back pay. See how this one unfolded and what the court did with it.

In McDonald v. Department of the Army (CAFC No. 2014-3220 (nonprecedential), 3/4/15), the employee did not cooperate when the agency tried to work out the details of her retroactive reinstatement with back pay after she won her removal appeal in front of the Merit Systems Protection Board. Her victory was fleeting indeed. The court explained the facts as reported here.

McDonald worked for Army as an administrative assistant. Army removed her stemming from a background investigation, but she retired before the removal took effect. On appeal the MSPB found a problem with the removal and ordered Army to reinstate her with back pay. The administrative judge specifically ordered McDonald “to cooperate in good faith with…efforts to compute the amount of back pay and benefits due and to provide all necessary information requested” to assist the agency in complying with the reinstatement order. (Opinion p 2)

When asked to furnish documents showing employment income during the back pay period of time, McDonald did not cooperate. She claimed “she was only employed part-time and her employment did not have anything to do with the [Army.]” (p. 3)

When Army gave McDonald a return to duty letter indicating she was to assume her old position on September 17, 2012, she took exception to that as well since “she did not want to return to the same position which she had left.”  She did not report for work then nor did she report in May 2013 as instructed. (p. 3)

McDonald went back to the MSPB challenging the agency’s approach to her reinstatement and back pay and seeking an order of enforcement favorable to her position. The Board however agreed with Army’s approach, finding the agency had acted reasonably and that McDonald had failed to cooperate. It pointed out that back pay cannot be computed without the outside earnings information. It also waived aside any notion that McDonald could choose which position she was to be reinstated into. The Board denied her request for an enforcement order. (pp. 3-4)

McDonald then tried her hand with the appeals court but has now found it equally unreceptive to her arguments. The court sustained MSPB’s holding that Army had made “all reasonable efforts to restore McDonald…” by offering reinstatement to her original position and by trying to compute back pay that deducted her outside earnings.

If you are left wondering how all of this eventually plays out, so am I.

McDonald v. Army (2014-3220)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.