The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA EVETTE RHODES, DOCKET NUMBER
Appellant, AT-0752-12-0316-X-1
v.
DEPARTMENT OF VETERANS DATE: September 25, 2015
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tonya Evette Rhodes, Brandon, Florida, pro se.
W. Cheryl Griffith, Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER
¶1 The administrative judge issued a compliance initial decision finding the
agency noncompliant with the March 15, 2013 initial decision in the underlying
removal appeal. MSPB Docket No. AT-0752-12-0316-C-1, Compliance File
(CF), Tab 11, Compliance Initial Decision (CID). On April 13, 2015, we issued a
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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).
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nonprecedential order finding the agency in partial compliance. Rhodes v.
Department of Veterans Affairs, MSPB Docket No. AT-0752-12-0316-X-1, Order
(Apr. 13, 2015); Compliance Referral File (CRF), Tab 5. For the reasons
discussed below, we again find the agency in partial compliance and order it to
take appropriate action to bring itself into full compliance.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On March 15, 2013, the administrative judge issued an initial decision
reversing the appellant’s removal and requiring the agency to restore her effective
February 15, 2012. MSPB Docket No. AT-0752-12-0316-I-1, Initial Appeal File
(IAF), Tab 47, Initial Decision at 16. The decision required the agency to pay her
appropriate back pay and benefits. Id. Neither party filed a petition for review,
and the initial decision became the final decision of the Board.
¶3 On July 30, 2013, the appellant filed a petition for enforcement. She
contended that the agency: failed to pay her the correct amount of back pay, with
interest; erroneously generated an overpayment notice relating to her Federal
Employee Health Benefit (FEHB) premiums, causing the agency to attempt to
collect a nonexistent debt; failed to make the required 1% Thrift Savings Plan
(TSP) contributions; and failed to withhold money from her back pay for Federal
Employee Group Life Insurance (FEGLI) premiums. CF, Tab 1 at 3-4, Tab 10
at 4, 7.
¶4 On December 10, 2013, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the March 15, 2013 initial
decision. CID. The administrative judge determined that the agency failed
adequately to explain its back pay calculations, including how it calculated the
back pay period and interest amounts. CID at 3. The administrative judge further
found that the agency failed to provide evidence to show that it made appropriate
transfers to the appellant’s TSP account and FEGLI. Id. Finally, the
administrative judge found that the agency admitted it may have erroneously
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submitted a debt notice to the Office of Personnel Management (OPM) regarding
the appellant’s FEHB plan and had not provided evidence that it corrected such
error. Id. Neither party filed a petition for review.
¶5 On January 13, 2014, the agency filed evidence of purported compliance, to
which the appellant responded on January 31, 2014. 2 CRF, Tabs 1, 3. On
April 13, 2015, the Board issued a nonprecedential order finding the agency in
partial compliance and ordering it, in pertinent part, to take the following steps to
bring itself into full compliance:
1. Submit a narrative explanation regarding the appellant’s entitlement to a
within-grade increase (WIGI) and overtime pay during the back pay
period. Submit evidence that the agency paid any amounts owing,
with interest.
2. Submit a narrative explanation regarding whether the agency withheld
optional FEGLI contributions from the appellant’s back pay, and how
much. If necessary, submit evidence that the agency refunded any
amounts withheld, plus interest.
3. Submit a narrative explanation regarding how the agency calculated its
1% TSP contributions, accounting for any amounts owed for a WIGI and
overtime. Provide evidence that the agency deposited the appropriate
amounts in the appellant’s TSP fund.
4. Submit evidence that the agency provided the appellant any applicable
notice and opportunity to request waiver of the debts arising from the
annual leave and employee retirement contribution overpayments.
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Following these submissions, the case was referred to an Office of General Counsel
(OGC) attorney for attempted settlement. In February 2015, after the parties failed to
reach agreement, the case was transferred to a different OGC attorney for a
recommended disposition on the merits. The parties did not submit any further
documents into the record during settlement discussions.
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5. Submit evidence that the agency refunded any amounts owed, with
interest, for the FEHB debt.
Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 10-11; CRF, Tab 5
at 10-11.
¶6 Following this order, both parties filed submissions. CRF, Tabs 7, 9-10.
For the reasons explained below, we again find the agency in partial compliance
and order it to submit evidence of full compliance.
ANALYSIS
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
Back Pay and Interest
¶8 The administrative judge ordered the agency to clearly set forth the back
pay and interest amounts due, including how the amounts were calculated and the
amount and reason for all deductions. The agency also was required to provide
proof of payment and to explain any discrepancies between its calculations and
the amounts shown on the appellant’s Leave and Earning statements. CID at 3-4.
In our April 13, 2015 order, we found the agency compliant on this issue except
concerning whether the agency accounted for the appellant’s alleged entitlements
to a WIGI and 20 hours per month mandatory overtime during the back pay
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period and concerning whether the agency properly withheld amounts relating to
the appellant’s FEGLI, TSP, and FEHB. Rhodes, MSPB Docket No. AT-0752-
12-0316-X-1, Order at 5; CRF, Tab 5 at 5.
¶9 In its May 1, 2015 response, the agency asserted that the appellant was not
entitled to a WIGI during the back pay period (February 15 to March 30, 2012)
because she received a step increase on August 28, 2011, to GS-12 step 4, and
was required to wait 2 years to be eligible for another increase. CRF, Tab 7 at 4.
The appellant did not contest this assertion. Accordingly, we find the agency in
compliance on this issue.
¶10 As to the overtime issue, the agency asserted that it determined that the
appellant was entitled to 30 hours of overtime pay during the back pay period. Id.
The agency calculated this amount as $1,632.30 (gross) and provided evidence
that it had paid this amount, less taxes and deductions, on April 19, 2014. Id.
at 4-5, 19. The agency stated that it had not paid interest on this amount but had
requested that the Defense Finance and Accounting Services (DFAS) calculate
and pay the interest. Id. at 5. The appellant did not contest these assertions.
CRF, Tab 10 at 4. Accordingly, we find the agency in compliance on this issue,
with the exception of the interest payment. The agency must submit evidence that
it paid the required interest.
¶11 The appellant contended that the agency was not in compliance with its
back pay obligations because it did not properly credit her annual leave or permit
her to “cash in” her leave. Id. It is unclear how these allegations relate to the
agency’s back pay obligations. Regardless, we found in our previous order that
the agency was in compliance with its back pay obligations except for the WIGI
and overtime issues discussed above and the withholding issues (FEGLI, TSP,
and FEHB) discussed below. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1,
Order at 5; CRF, Tab 5 at 5. We therefore will not consider the appellant’s new
claims regarding her back pay.
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Federal Employees Group Life Insurance
¶12 The administrative judge ordered the agency to provide evidence that it
transferred money withheld from the appellant’s back pay for FEGLI to the
appropriate entity. CID at 4. In its January 13, 2014 submission, the agency
asserted that OPM’s back pay regulations do not permit employee or agency
contributions for life insurance coverage to be deposited in the fund unless the
employee “dies during the intervening period or suffered dismemberment
entitling [her to] benefits” during the back pay period. CRF, Tab 1 at 9. In our
April 13, 2015 order, we determined that the agency’s position was supported
by 5 C.F.R. § 870.404(e) and appeared to apply to both basic and optional FEGLI
contributions. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 5-6;
CRF, Tab 5 at 5-6. We noted, however, that it appeared the agency nonetheless
had withheld an optional FEGLI contribution of $48.36 from the appellant’s back
pay. We ordered the agency to explain whether it had withheld this contribution
and, if it determined that this contribution was improperly withheld, to refund it
with interest. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 10;
CRF, Tab 5 at 10.
¶13 The agency conceded that it withheld this amount, but stated that it was
unsure whether this withholding was correct and had submitted a “remedy ticket.”
CRF, Tab 7 at 5. Because the agency has not submitted the information required
by our prior order, we find the agency noncompliant on this issue.
Thrift Savings Plan
¶14 The agency acknowledged that it failed to contribute an amount equal to 1%
of the appellant’s salary to her TSP account for each pay period during the back
pay period. CRF, Tab 1 at 6. Instead, the agency mailed the appellant a check
for an amount equal to the 1% contribution during the four pay periods at issue
($92.86). Id. In our April 13, 2015 order, we found the agency noncompliant
both as to calculating the 1% contribution, and as to depositing the appropriate
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amounts into the appellant’s TSP account. Rhodes, MSPB Docket No. AT-0752-
12-0316-X-1, Order at 7-8; CRF, Tab 5 at 7-8. We ordered the agency to explain
its calculations and provide evidence that it deposited the appropriate amounts
into the appellant’s TSP account. Rhodes, MSPB Docket No. AT-0752-12-0316-
X-1, Order at 11; CRF, Tab 5 at 11.
¶15 The agency subsequently explained that it calculated the 1% TSP
contribution based on 1% of the appellant’s basic pay, in accordance with
guidance provided by the TSP. CRF, Tab 7 at 5, 34, 36. The agency stated that it
had submitted a remedy ticket for this amount to be deposited in the appellant’s
TSP fund. Id. at 6. The agency also stated that it intended to recoup the $92.86 it
previously paid to the appellant in error (when it paid the appellant directly
instead of depositing this amount in her TSP account). Id.
¶16 The appellant contended that the agency should not be permitted to recoup
the $92.86 paid in error because “allowing [her] to incur a debt due to internal
miscalculation and training errors are [sic] mean-spirited and does not place
appellant in a positive position.” CRF, Tab 10 at 5. We disagree. The agency
paid this amount in error and is permitted to recoup it. The appellant is not
entitled to a windfall. The agency must, however, provide evidence that it
deposited this amount into the appellant’s TSP account and that her TSP account
has been credited with the appropriate breakage.
Debt Notices
1. Annual Leave Debt
¶17 In its January 13, 2014 submission, the agency explained that it erroneously
paid the appellant for the 187.5 hours of annual leave she had accrued at the time
of her removal. The payment was erroneous because the agency already had paid
the appellant for this leave when it removed her. CRF, Tab 1 at 5. The second
payment resulted in a debt of $6,800.63 (gross). Id. at 9. The agency maintained
that this debt was valid. Id. In our April 13, 2015 order, we found that the
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agency satisfactorily explained the origin of this debt, but failed to submit
evidence that it provided the appellant any applicable notice and opportunity to
request waiver of this debt mandated by her collective bargaining agreement.
Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 9, 11; CRF, Tab 5
at 9, 11.
¶18 The agency subsequently submitted evidence that it had twice advised the
appellant that she could request waiver of this debt. CRF, Tab 7, 47, 50. The
appellant did not challenge this evidence. Instead, she stated that she did not
request waiver of the debt because she did not believe she should owe any money.
CRF, Tab 10 at 5. As we previously found, however, this debt appears accurate.
Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 9; CRF, Tab 5 at 9.
Because the agency has provided the required waiver notice, we find it in
compliance on this issue.
2. Retirement Contributions Debt
¶19 In our prior order, we found that the agency satisfactorily explained that the
appellant owed a debt for employee and agency retirement contributions that the
agency erroneously failed to deduct from the payment issued to the appellant on
June 15, 2013 (which covered hours worked during the back pay period). Rhodes,
MSPB Docket No. AT-0752-12-0316-X-1, Order at 9; CRF, Tab 5 at 9. As with
the debt arising from double payment of the appellant’s annual leave, we ordered
the agency to submit evidence that it provided her any applicable notice and
opportunity to request waiver of this debt mandated by her collective bargaining
agreement. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 11; CRF,
Tab 5 at 11.
¶20 The agency stated that it informed the appellant of the waiver procedure for
the retirement contributions debt at the same time it informed her of the waiver
procedure for the annual leave debt. CRF, Tab 7 at 6. However, the two waiver
notices submitted by the agency relate only to the annual leave debt resolved
above. Id. at 47, 50. We therefore find the agency noncompliant on this issue.
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The agency must submit evidence that it expressly notified the appellant of the
amount owed for retirement contributions and that it informed her how to seek
waiver of this debt.
3. FEHB Premiums
¶21 Finally, the agency explained that it erroneously charged the appellant for
FEHB premiums during the back pay period and for several months afterward,
creating an apparent debt of $5,160.48 gross ($198.48 per pay period x 26 pay
periods). CRF, Tab 1 at 9, 65; see CF, Tab 8 at 7. The agency conceded this debt
should not have been assessed and provided evidence that it notified OPM to
cancel its attempts to collect the debt. CRF, Tab 1 at 67-69. We ordered the
agency to provide evidence that (1) it paid the appellant interest on the FEHB
amounts refunded for the back pay period (February 15 to March 30, 2012), and
(2) it refunded and paid interest on the FEHB amounts withheld between April 1,
2012, and May 5, 2013. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1,
Order at 11; CRF, Tab 5 at 11.
¶22 Regarding the amount refunded during the back pay period ($793.92), the
agency stated that it had not paid interest but had submitted a remedy ticket
requesting that DFAS calculate and pay interest. CRF, Tab 7 at 6. To be deemed
compliant, the agency must submit evidence that appropriate interest has
been paid.
¶23 As to the amounts withheld between April 1, 2012, and May 5, 2013, the
agency stated that it credited these amounts to the appellant’s outstanding annual
leave debt. Id. at 7, 74, 77. The documentation submitted by the agency does not
clearly demonstrate that these amounts were credited to the appellant’s debt,
however. For instance, the agency’s documents appear to show that the agency
credited $176.91 in each pay period for 16 pay periods. See id. at 75. However,
according to our understanding of the agency’s previous explanations, the agency
erroneously withheld FEHB premiums for 22 pay periods between April 1, 2012,
and May 5, 2013. Moreover, the agency’s previous documentation showed that
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the FEHB premiums were $198.48 per pay period, not $176.91 per pay period
(the amounts apparently credited to the appellant’s debt). The agency must
explain these discrepancies and provide a full and comprehensible accounting of
how it applied these amounts to the appellant’s annual leave debt.
Other Issues
¶24 The appellant appears to contend that the agency’s repeated failures to
provide adequate proof of compliance are in retaliation for her prior equal
employment opportunity activity. CRF, Tab 10 at 6. The Board may adjudicate
retaliation claims in the context of a compliance decision. Jimenez v. U.S. Postal
Service, 58 M.S.P.R. 520, 525 (1993). Here, however, there is no indication that
the agency is deliberately refusing to comply. On the contrary, the agency twice
has produced evidence of partial compliance, and its failure to achieve full
compliance appears to be due to the complex calculations required and its
reliance on DFAS to process its requests.
¶25 The appellant requests $25,000 in compensatory damages. CRF, Tab 10
at 6. The Board lacks authority to award compensatory damages in compliance
proceedings. Cunningham v. Department of Veterans Affairs, 91 M.S.P.R. 523,
¶ 3 (2002).
Further Actions Needed for Compliance
¶26 Within 21 calendar days of the date of this Order, the agency shall submit
the following:
1. Evidence that it paid the appropriate amount of interest on the 30 hours
of overtime pay. This evidence shall include a narrative explanation of
how the interest was calculated.
2. An explanation regarding whether the optional FEGLI contribution of
$48.36 was properly withheld and, if it was not, evidence that this
amount was refunded, with interest. The interest calculation must be
supported by a narrative explanation.
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3. Evidence that the agency deposited the appropriate TSP contributions
into the appellant’s TSP account and that the account was credited with
appropriate breakage.
4. Evidence that the agency expressly notified the appellant of the amount
owed for retirement contributions and her options about seeking waiver
of this debt.
5. Evidence that the agency paid the appropriate amount of interest on the
$793.92 refunded for FEHB premiums erroneously withheld during the
back pay period. This evidence shall include a narrative explanation of
how the interest was calculated.
6. A narrative explanation regarding how the FEHB premiums erroneously
withheld between April 1, 2012, and May 5, 2013, were applied to the
appellant’s outstanding annual leave debt. This explanation must
indicate, at a minimum, which pay periods were affected by the
erroneous withholdings; the amount erroneously withheld in each pay
period; when amounts were credited against the annual leave debt, and
how much; and how much annual leave debt remains outstanding. The
narrative explanation must be supported by documentary evidence.
¶27 If the agency’s submission does not fully address all the issues required, the
agency shall submit biweekly reports detailing its progress and efforts until full
compliance is achieved. If the agency fails to submit the required information or
the biweekly reports, the Board may issue an order to show cause why sanctions
should not be imposed against the responsible agency official pursuant
to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R. § 1201.83(a)(2).
¶28 The appellant shall file a response within 14 calendar days of the agency’s
submission. The appellant shall file a response within 14 calendar days to any
biweekly report by the agency that contains substantive evidence of compliance
(as opposed to merely a progress report). Failure to submit responses within the
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required time period may cause the Board to assume the appellant is satisfied and
dismiss the petition for enforcement.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.