The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA R. KING, DOCKET NUMBER
Appellant, DA-0752-09-0604-C-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: April 9, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Barbara R. King, San Antonio, Texas, pro se.
Lawrence Lynch, Joint Base San Antonio, Randoloph, Texas, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, which found the agency not in compliance with the Board’s prior final
order reversing the appellant’s reduction in grade and pay. For the reasons
discussed below, we GRANT the agency’s petition for review IN PART,
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
REVERSE the compliance initial decision IN PART, and REMAND the case to
the regional office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In a remand initial decision dated October 3, 2012, the assigned
administrative judge reversed the appellant’s reduction in grade and pay, and
found that the appellant proved her affirmative defense of whistleblower reprisal.
MSPB Docket No. DA-0752-09-0604-B-1, Remand Initial Decision (Oct. 3,
2012). The administrative judge’s remand initial decision became the Board’s
final order when neither party filed a petition for review. See 5 C.F.R.
§ 1201.113. On December 18, 2012, the appellant filed a request for damages
based upon the administrative judge’s order of corrective action, see MSPB
Docket No. DA-0752-09-0604-P-1, Addendum Appeal File (AAF), 2 and during
the pendency of that proceeding, the appellant raised allegations of agency
noncompliance with the Board’s final order, see AAF, Tab 16. Following a
hearing, the administrative judge found the agency not in compliance with the
Board’s final order because, among other things, the agency did not adequately
explain why it took certain steps in calculating the appellant’s back pay, it did not
award her an additional $5,000 relocation bonus, and it did not demonstrate that it
properly calculated her Federal Employees’ Retirement System (FERS)
contributions and Thrift Savings Plan (TSP) contributions. 3 CID at 5-7, 9.
2
The administrative judge joined the appellant’s motion for damages and her petition
for enforcement. AAF, Tab 55, Compliance Initial Decision (CID) at 1 n.1. For the
purposes of clarity, we are SEVERING the joined appeals and addressing only the
appellant’s petition for enforcement in this order. The agency’s petition for review of
the administrative judge’s damages award remains pending and will be addressed in a
separate order in MSPB Docket No. DA-0752-09-0604-P-1.
3
As explained below, after the appellant’s reduction in grade and pay, but prior to the
administrative judge’s initial decision, the appellant transferred to a different position
with in the agency. The appellant does not allege that she has been improperly restored
to a different position of employment following the reversal of the agency’s adverse
action.
3
¶3 The agency has filed a petition for review arguing that it fully complied
with the Board’s prior final order by properly calculating the appellant’s back
pay, and retirement and TSP contributions. Compliance Petition for Review
(CPFR) File, Tab 1. In support of its petition, the agency has supplied a
declaration from an agency civilian pay analyst, which postdates the initial
decision, further detailing the way in which it calculated the appellant’s back pay.
Id. at 11-13. The appellant has filed a response in opposition to the petition for
review challenging the agency’s reliance on the new declaration and also arguing
that the agency has failed to demonstrate that she has been restored to the status
quo ante. CPFR File, Tab 3.
The agency has demonstrated that it properly calculated the appellant’s back pay
through August 28, 2011.
¶4 We offer the following brief facts as background to the compliance issues
addressed on petition for review. The agency reduced the appellant in grade and
pay from a YA-02 Sexual Assault Prevention & Response Program Manager, to a
GS-7, Step 10 Relocation Assistance Technician effective July 19, 2009. 4 AAF,
Tab 17 at 15. Both positions were in Texas. Id. The appellant applied for and
received a transfer to a GS-11, Step 1 position in California effective October 11,
2009, and 2 years later, she applied for and received another transfer to a GS-13,
Step 1 position in Colorado effective August 28, 2011. Id. at 20, 46. At the time
of the appellant’s July 2009 reduction in grade and pay, her annual salary
(including locality pay) was $79,762, and her annual salary thereafter did not
match or exceed this amount until she accepted the GS-13 position in Colorado in
August 2011. See id. at 15, 46.
¶5 In her compliance initial decision, the administrative judge found that the
agency failed to adequately explain the manner in which it calculated the
4
At the time of her reduction in grade and pay, the appellant’s position was classified
under the National Security Personnel System (NSPS). NSPS has since been abolished.
See Arrington v. Department of the Navy, 117 M.S.P.R. 301, ¶¶ 2, 4 (2012).
4
appellant’s back pay. Specifically, the administrative judge found that the agency
did not explain why it calculated the appellant’s back pay using the rate of pay
for a GS-11, Step 10 position as opposed to that of a GS-12, Step 6 position, as
sought by the appellant. CID at 4. In making this finding, the administrative
judge explained that the base rate of pay for the appellant’s position when she
was reduced in grade and pay was established by the now-abolished NSPS and
that this base rate of pay, $69,278, was equivalent to the base pay rate of GS-12,
Step 6 position as of 2009. CID at 5. The administrative judge found that the
agency failed to explain why it used the lower base rate of pay for a GS-11, Step
10 position, when calculating the appellant’s back pay. CID at 5-6.
¶6 On review, the agency has submitted a declaration from an agency civilian
pay specialist, which explains that the agency used the 2009 Los Angeles rate of
pay for a GS-11, Step 10 because that amount, $81,476 (including locality pay),
was the closest total salary to that of the appellant’s former salary, $79,762,
without going below this amount. 5 The documents submitted by the agency on
review reflect that, if the appellant were to be compensated at the 2009 GS-12,
Step 6 salary level for the Los Angeles area, as suggested by the administrative
judge, then the appellant’s total salary (including locality pay) would be $87,644,
or almost $8,000 more than her total salary when the adverse action occurred in
2009. 6 CPFR File, Tab 1 at 16. Based upon this explanation, we find that the
5
Pursuant to agency policy, because the appellant transferred to the California position
effective October 11, 2009, the agency used the 2009 GS pay scale for Los
Angeles-Long Beach-Riverside, California to calculate her back pay between July 2009
and August 2011. CPFR File, Tab 1 at 12.
6
The administrative judge did not have the benefit of this exp lanation below.
Reviewing the documents submitted below in light of this explanation, we note that
although the base rate of pay for the appellant’s position under NSPS was higher than
under the GS scale, the locality pay the appellant received under the GS scale was
greater. Compare AAF, Tab 17 at 15 (showing the appellant’s prior NSPS position had
a base rate of $70,021 and locality pay of $9,705, for a total salary of $79,726), with id.
at 21 (showing the appellant’s transfer to a GS-11, Step 10 position with a base rate of
$64,403 and locality pay of $17,073, for a total salary of $81,476). Although the
5
agency has adequately explained why it selected the 2009 Los Angeles locality
GS-11, Step 10 rate of pay versus the GS-12, Step 6 rate to calculate the
appellant’s back pay, and we find that the agency has demonstrated compliance
with the Board’s final order regarding how it calculated the appellant’s back pay
between July 19, 2009, and August 28, 2011. 7 Additionally, because we find that
the agency correctly calculated the appellant’s back pay during this time, we find
no reason to conclude that her FERS retirement contributions prior to August 28,
2011, were improperly calculated.
¶7 Accordingly, we REVERSE the administrative judge’s finding that the
agency is not in compliance with the Board’s final order insofar as she concluded
that the agency failed to adequately explain why it used the GS-11, Step 10 rate
of pay in calculating the appellant’s back pay between July 2009 and August
2011. Although we have reached this conclusion based on the explanation
contained within the agency’s declaration, which was not presented to the
administrative judge below, the Board has considered, in previous matters of
compliance with a final Board order, a more complete explanation of an agency’s
compliance effort offered for the first time on review in the interest of ensuring
that compliance has been effected. See McDonough v. U.S. Postal
Service, 60 M.S.P.R. 122, 125-26 (1993). The appellant, moreover, has had an
opportunity to respond to this information on review, see CPFR File, Tab 3, and
we find no basis in the record to conclude that the agency erred in its back pay
calculations prior to August 28, 2011.
appellant’s base rates of pay may have differed before and after her reduction in grade
and pay because of the abolishment of NSPS, for the lim ited purpose of demonstrating
that she received the correct amount of back pay, we find no error with the agency’s
reliance on the GS-11, Step 10 rate of pay for the Los Angeles-Long Beach-Riverside,
Californ ia locality.
7
The agency’s declaration further reflects that the appellant’s pay rate was increased
effective January 2010, and that this pay rate was used to calculate her back pay
through August 2011 because of a wage freeze effective January 2011. CPFR File, Tab
1 at 12, 17-18.
6
The appellant has not demonstrated that she is entitled to an additional $5,000
relocation bonus.
¶8 During the proceedings below, the appellant also alleged that the agency
failed to pay her the full relocation bonus she would have received had she
transferred to the California position in October 2009 without being reduced in
grade and pay. AAF, Tab 1 at 6 (“a lateral transfer would [have] resulted in a
$10,000 bonus versus the $5,000 bonus received due to taking the assignment as a
promotion.”). The administrative judge determined that this $5,000 differential
was part of the back pay award to which the appellant was entitled and that the
agency was not in compliance with the Board’s final order by failing to award her
this additional amount. CID at 9. On review, the agency submits that relocation
bonuses are discretionary and that the appellant has failed to submit any evidence
that she would have received an additional $5,000 relocation bonus had she not
been reduced in grade and pay. CPFR File, Tab 1 at 8-9, 36-44.
¶9 Although the Board has held that a bonus awarded in the routine and
ordinary course of employment may properly be considered part of a back pay
award, see, e.g., Coffey v. U.S. Postal Service, 77 M.S.P.R. 281, 285 (1998), we
find no evidence in the record establishing the appellant’s per se entitlement to an
additional $5,000 relocation bonus under the facts of this case. On review, the
agency has submitted the Department of Defense’s policy for the award of
recruitment and relocation bonuses, which reflects that a relocation bonus of “up
to 25 percent of basic pay may be offered to certain current employees who must
relocate to accept a position in a different commuting area.” CPFR File, Tab 1 at
39. The appellant, however, has submitted no evidence establishing a pattern of
such awards, and we find no basis in the record to conclude that she would have
received an additional $5,000 relocation bonus but for her wrongful reduction in
grade and pay. We agree with the agency, moreover, that the appellant has not
explained how she concluded that she would have received a $10,000 relocation
bonus had she not been reduced in grade and pay, see CPFR File, Tab 1 at 9;
7
pursuant to the agency’s relocation bonus program, the appellant would have been
eligible for a bonus of up to 25 percent of her basic pay, or approximately
$16,100, see AAF, Tab 1 at 49. The appellant, however, has offered no
explanation as to why she believes she would have been entitled to a $10,000
bonus, as opposed to either the $5,000 relocation bonus she received, or to any
other, greater amount, up to $16,100.
¶10 We therefore REVERSE the administrative judge’s compliance initial
decision insofar as it found the agency not in compliance based on the failure to
award the appellant an additional $5,000 relocation bonus as part of her back pay
award. See CID at 9.
We remand the petition for enforcement for further development of whether the
appellant is currently at the correct step in her GS-13 position.
¶11 In addition to challenging the rate of pay used by the agency in calculating
her back pay award, the appellant has also alleged that she currently would be at a
higher step in her GS-13 position had the agency not taken the reduction in grade
and pay in July 2009. CPFR File, Tab 3 at 6 (“[the appellant] should have
entered into service as a GS-13 Step 4 versus a GS-13 Step 1 . . . her current GS-
13 level [should be changed] from a GS-13 Step 3 to a GS-13 Step 7.”). The
administrative judge did not address whether the reversal of the appellant’s
reduction in grade and pay had any effect on the appellant’s current step (and
corresponding rate of pay), and we are unable to discern from the record whether
the appellant would be at a higher step in her current GS-13 position had the
reduction in grade and pay not occurred. See Joos v. Department of the
Treasury, 79 M.S.P.R. 342, 348 (1998) (back pay includes all step increases that
an employee would have received but for the wrongful act). We accordingly
REMAND to the administrative judge for further development of the record on
whether the appellant is currently at the same step had the reduction in grade and
8
pay not occurred in 2009. 8 See McDonough, 60 M.S.P.R. at 129. Additionally,
because the appellant’s FERS retirement and TSP contributions between
August 28, 2011, and the present could be affected if the appellant is entitled to
be paid at a higher step (and corresponding higher rate of pay) between August
28, 2011, and the present, we also REMAND to the administrative judge on
whether the agency can demonstrate that the appellant has received the proper
FERS retirement and TSP contributions during this time.
The administrative judge’s remaining findings of agency noncompliance are
remanded for further development of the record.
¶12 Finally, the administrative judge found that the agency failed to
demonstrate that it complied with the Federal Retirement Thrift Investment
Board’s regulations concerning the processing of the appellant’s TSP
contributions, and that it also failed to demonstrate that it removed all references
to the reduction in grade and pay from her personnel file. CID at 7-8. The
agency argues on review that it demonstrated compliance before the
administrative judge below. CPFR File, Tab 1 at 6-7, 9. Based on the
compliance issues identified above, which are being remanded to the
administrative judge, the appellant’s personnel records and TSP contributions
may also need to be further corrected or amended. We therefore also REMAND
these issues to the administrative judge for further development of the issue of
agency compliance. On remand, the administrative judge may consider any
8
In remanding this issue, we recognize that this determination is complicated by the
fact that the appellant’s position prior to her reduction in grade and pay was classified
under NSPS, and that after she accepted the higher-level position in Californ ia, but
before she transferred to Colorado, NSPS was abolished. The appellant argued below
that prior to her conversion to NSPS, she held a GS-12 position but that, after NSPS
was abolished, she was wrongly placed into a GS-11, Step 10 position. AAF, Tab 1 at
6. While we find that the use of the rate of pay for the GS-11, Step 10 position was
correct for the limited purposes of calculating the appellant’s back pay, we cannot
discern from the record whether she would have been placed in a higher step upon her
transfer to her current position in August 2011 had the 2009 reduction in grade and pay
never been effected. Remand of this issue is therefore warranted.
9
additional information the agency has presented on petition for review, as well as
any other evidence demonstrating its compliance with the Board’s prior final
order.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.