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: July 18, 2016
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Tonya Evette Rhodes, Brandon, Florida, pro se.
Kristin Langwell, 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. Rhodes v. Department of Veterans Affairs, MSPB Docket
No. AT-0752-12-0316-C-1, Compliance Initial Decision (CID) (Dec. 10, 2013);
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
Compliance File (CF), CID, Tab 11, On April 13, 2015 and September 25, 2015,
we issued nonprecedential orders finding the agency in partial compliance.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) and Order (Sept. 25, 2015); Compliance Referral File
(CRF), Tabs 5, 12. On December 17, 2015, we issued an order for the agency to
show cause why sanctions should not be imposed due to its failure to comply with
the September 25, 2015 order. CRF, Tab 15. For the reasons discussed below,
we decline to impose sanctions, find the agency in further partial compliance, and
order the agency to take appropriate action to bring itself into full compliance.
DISCUSSION OF ARGUMENTS AND EVIDENCE OF 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. Rhodes v. Department of Veterans Affairs,
MSPB Docket No. AT-0752-12-0316-I-1, Initial Decision (Mar. 15, 2013); 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 Following the appellant’s petition for enforcement, the administrative judge
found the agency in noncompliance with the initial decision. CF, Tab 11, CID.
The administrative judge held that the agency failed to explain adequately its
back pay calculations, including how it calculated the back pay period and
interest amounts. CID at 3. The administrative judge further held that the agency
failed to provide evidence to show that it made appropriate transfers to the
appellant’s Thrift Savings Plan (TSP) account and Federal Employees’ Group
Life Insurance (FEGLI). Id. Finally, the administrative judge found that the
agency admitted it may have erroneously submitted a debt notice to the Office of
Personnel Management (OPM) regarding the appellant’s Federal Employees
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Health Benefits (FEHB) plan and had not provided evidence that it corrected such
error. Id. Neither party filed a petition for review.
¶4 On April 13, 2015, the Board issued a nonprecedential order finding the
agency in noncompliance and ordering it to submit additional evidence. CRF,
Tab 5. On September 25, 2015, the Board issued a second nonprecedential order
that found the agency compliant on some issues and noncompliant on others.
CRF, Tab 12. The Board ordered the agency to submit the following information:
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.
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 with
regard to 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 explain, at a minimum, which pay periods
were affected by the erroneous withholdings; the amount
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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.
CRF, Tab 12 at 10–11.
¶5 Following this order and the December 17, 2015 Order to Show Cause
(discussed below), both parties filed submissions. CRF, Tabs 14, 17–20, 23–29.
For the reasons discussed below, we find the agency in compliance on four of the
six outstanding issues and order it to submit evidence of compliance with
the remainder.
ANALYSIS
¶6 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).
Interest on the 30 Hours of Overtime Pay
¶7 In our September 25, 2015 order, we found that the agency had correctly
paid back pay and interest with the exception of interest owed on 30 hours of
overtime that the appellant would have worked during the back pay period.
CRF, Tab 12 at 5. We ordered the agency to submit its interest calculations and
evidence of payment. Id. at 10.
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¶8 On February 10, 2016, the agency submitted its interest calculations and
stated that it had sent the appellant a check for the appropriate amount.
CRF, Tab 24 at 4–5, 9–11. The appellant did not contest the calculations, but
stated that she had not received the check because the agency sent it to the wrong
address. CRF, Tab 25 at 3, Tab 26 at 4. The agency subsequently sent a second
check to the address provided by the appellant. CRF, Tab 28 at 5. The appellant
filed a response to the agency’s pleading but did not further address this issue.
CRF, Tab 29. We therefore find the agency in compliance on this issue.
Federal Employees’ Group Life Insurance
¶9 In our September 25, 2015 order, we found that the agency appeared to have
improperly withheld $48.36 from the appellant’s back pay for FEGLI
contributions. We ordered the agency to determine if this amount was properly
withheld and, if it was not, to refund it with interest. CRF, Tab 12 at 10.
¶10 On December 30, 2015, the agency submitted evidence that it had refunded
the $48.36 to the appellant along with $4.91 in interest. CRF, Tab 18 at 21–22.
The appellant did not challenge this evidence. We therefore find the agency in
compliance on this issue.
Thrift Savings Plan
¶11 In our September 25, 2015 order, we found the agency failed to show that it
had deposited the 1% TSP contribution in the appellant’s TSP fund or that the
appellant had been credited with the appropriate breakage. CRF, Tab 12 at 7.
¶12 On February 10, 2016, the agency submitted evidence that it had submitted
the appropriate amount to the TSP and that the TSP had credited it to the
appellant’s account, with breakage. CRF, Tab 24 at 21. The appellant did not
challenge this evidence. We therefore find the agency in compliance on
this issue.
¶13 The appellant complained that she was not able to withdraw funds from her
TSP account because the agency had reported her as an “active participant.”
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CRF, Tab 29 at 3. The appellant’s difficulties with the TSP are unfortunate, but
they are beyond the scope of this enforcement matter because they do not appear
to relate to the agency’s back pay obligations stemming from the March 15, 2013
order. The appellant will have to address these issues through other channels.
Waiver Notice for Debt Generated by Lack of Retirement Contributions
¶14 In our April 13, 2015 order, we found that the agency satisfactorily
explained that the appellant owed a debt for retirement contributions that the
agency erroneously failed to deduct from her back pay payment. CRF, Tab 5 at 9.
In our September 25, 2015 order, we found that the agency had failed to submit
evidence that it provided her any applicable notice and opportunity to request
waiver of this debt mandated by her collective bargaining agreement. CRF,
Tab 12 at 8–9.
¶15 On February 10, 2016, the agency submitted a copy of the waiver notice it
had sent the appellant on April 25, 2014. CRF, Tab 24 at 27–29. The appellant
apparently did not receive the notice because it was sent to the wrong address.
CRF, Tab 25 at 3. The agency contended that its provision of the notice in its
pleading corrected this deficiency. CRF, Tab 26 at 5.
¶16 We disagree. Although the letter directs the appellant to consult the
attached instructions titled “Requesting a Waiver,” the agency did not submit
such an attachment as part of its pleading. Without seeing the waiver
instructions, we cannot say that the appellant has received any notice mandated
by her collective bargaining agreement. Nor can we be confident that there is no
detriment to the appellant from the late provision of such notice. For example,
there may be a deadline to request waiver that has long since passed due to the
agency’s failure to send the notice to the correct address. We therefore order the
agency to send a new copy of the complete waiver letter and notice, dated the day
it is sent, to the appellant’s current address, and to submit evidence that it has
done so.
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Interest on Federal Employees Health Benefits Premiums Refunded
¶17 In our September 25, 2015 order, we instructed the agency to file evidence
that it had paid the appropriate amount of interest on the $793.92 the agency
refunded the appellant for FEHB premiums erroneously withheld during the back
pay period. CRF, Tab 12 at 11. On December 30, 2015, the agency submitted a
response asserting that it did not owe interest because it refunded the FEHB
premiums in the same pay period in which it withheld them. CRF, Tab 18 at 7.
The appellant did not challenge this assertion. Accordingly, we find the agency
compliant on this issue.
FEHB Premiums Withheld after the Back Pay Period
¶18 In our September 25, 2015 order, we held that the agency failed adequately
to explain whether and how it refunded the $4,366.56 it owed the appellant for
FEHB premiums erroneously withheld between April 1, 2012, and May 5, 2013
($198.48 per pay period x 22 pay periods). CRF, Tab 12 at 9. Although the
agency claimed that it had credited the full amount to the appellant’s outstanding
annual leave debt, its documents appeared to show that the agency had credited
$176.91 per pay period for 16 pay periods ($2,830.56), leaving it $1,536.00 short.
CRF, Tab 12 at 9 (discussing agency evidence). We ordered the agency to
explain this discrepancy. Id. at 11.
¶19 Despite the Board’s clear instructions, the agency still has not submitted a
comprehensible explanation. Its December 30, 2015 submission purports to
address this issue but does not provide a detailed narrative explanation, or indeed
any real explanation at all. CRF, Tab 18 at 7–8. The documentation purporting
to show that the debt was canceled in full merely provides the same information
that we found in our previous order to be inadequate and inaccurate. Id.
at 40-43. This is unacceptable. Moreover, the appellant asserts that OPM
continues to garnish her monthly annuity in the amount of $176.91. CRF, Tab 19
at 9. Perhaps not coincidentally, this is the exact amount the agency claimed it
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credited her in each pay period—which, as explained above and in our previous
order, would fall short by $1,536.00 even if the agency indeed paid the amounts it
claims to have paid.
¶20 We therefore find the agency noncompliant on this issue and order it to
submit a full and detailed narrative account, with supporting documentation,
explaining how it refunded the $4,366.56 it owed the appellant. The documents
must show that the appellant received the appropriate amount and that OPM is not
garnishing her annuity for this improperly assessed debt.
December 17, 2015 Order to Show Cause
¶21 On December 17, 2015, after the agency failed to submit biweekly
responses (or any responses) as required by our September 25, 2015 order, we
ordered the agency and the responsible agency official to show cause why we
should not impose sanctions. CRF, Tab 15. Pursuant to 5 U.S.C. § 2304(e)(2)(A)
and 5 C.F.R. § 1201.183(c), the Board has authority to impose sanctions against
the agency official responsible for noncompliance with a Board order.
¶22 On December 30, 2015, the agency and the responsible agency official filed
responses, contending that sanctions should not be imposed because then-agency
counsel had been experiencing a serious, life-threatening medical condition and
had recently suffered a loss in her immediate family, and due to these stresses had
inadvertently overlooked the September 25, 2015 order. CRF, Tab 17 at 4–5.
The agency subsequently submitted biweekly updates and evidence of partial
compliance, as detailed above. In light of the serious nature of the difficulties
experienced by then-agency counsel, coupled with the agency’s subsequent
successful attempts to show partial compliance, we find that sanctions are not
warranted and decline to impose them.
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Further Actions Needed for Compliance
¶23 Within 21 calendar days of the date of this Order, the agency shall submit
the evidence required on the debt waiver and FEHB premium issues discussed
above. See supra ¶¶ 14-16, 18-20.
¶24 If the agency’s submission does not fully address all required issues, 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, then the Board again may issue an order to show cause why
sanctions should not be imposed against the responsible agency official pursuant
to 5 U.S.C. § 2304(e)(2)(A) and 5 C.F.R. § 1201.183(c).
¶25 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 filed by the agency that contains substantive evidence of
compliance (as opposed to merely a progress report). Failure to submit responses
within the required time period may cause the Board to assume the appellant is
satisfied and dismiss the petition for enforcement.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.