The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC BENNETT, DOCKET NUMBER
Appellant, NY-0752-14-0073-C-2
v.
DEPARTMENT OF DATE: October 26, 2022
TRANSPORTATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jonathan Bell, Esquire and Susan Tylar, Garden City, New York, for the
appellant.
Daniel P. Kohlmeyer, Esquire, Jamaica, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 This matter is before the Board on the appellant’s petition for review of the
compliance initial decision, which granted in part and denied in part his petition
for enforcement of the Board’s final decision reversing his removal. For the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
reasons discussed below, we GRANT the appellant’s petition for review. We
AFFIRM the compliance initial decision AS MODIFIED to find the agency in
noncompliance to the extent it failed to provide sufficient and clear information
regarding its calculation of the appellant’s overtime hours as a part of the back
pay award and ORDER the agency to submit satisfactory evidence of compliance.
BACKGROUND
¶2 The appellant was employed by the agency as an Air Traffic Control
Specialist. Bennett v. Department of Transportation, MSPB Docket
No. NY-0752-14-0073-I-2, Appeal File, Tab 21, Initial Decision (ID) at 1. On
March 25, 2011, he experienced an on-the-job injury when he had a debilitating
emotional response after he descended an aircraft too soon and lo st separation
between the aircraft that was descending and one taking off, nearly causing a
mid-air collision. ID at 2. As a result of the emotional trauma, the appellant was
unable to work. ID at 2-6. After years of medical visits and documentation and
questions on whether he could return to work, the agency removed the appellant
for nondisciplinary reasons, effective November 9, 2013. ID at 2, 12-13.
¶3 On July 29, 2016, an administrative judge issued an initial decision finding
that the agency improperly removed the appellant and ordering the agency to
cancel the removal and retroactively restore the appellant , effective November 9,
2013. ID at 27, 37. It also ordered the agency to pay the appellant the
appropriate amount of back pay with interest and to adjust benefits with
appropriate credits and deductions. ID at 37. Neither party petitioned for review
of the initial decision, which became final on September 2, 2016. ID at 40.
¶4 On January 23, 2017, the appellant filed a petition for enforcement. Bennett
v. Department of Transportation, MSPB Docket No. NY-0752-14-0073-C-1,
Compliance File (C-1 CF), Tab 1. The administrative judge dismissed the appeal
without prejudice to allow the parties to sort through some of the enforcement
issues that the appellant had raised. C-1 CF, Tab 13, Compliance Initial
Decision. Upon the automatic refiling of the petition for enforcement, the
3
appellant narrowed the scope of his enforcement challenges and argued that :
(1) the agency failed to correctly calculate his overtime pay; (2) the agency failed
to pay an award; and (3) it failed to give the appellant the opportunity to “buy
back” his leave. Bennett v. Department of Transportation, MSPB Docket
No. NY-0752-14-0073-C-2, Compliance File (C-2 CF), Tab 6 at 6-8.
¶5 On August 1, 2017, the administrative judge issued a compliance initial
decision granting the petition for enforcement in part and denying it in part.
C-2 CF, Tab 11, Compliance Initial Decision (CID). Specifically, she found that
the agency established that the appellant complied with the Board’s final decision
regarding the back pay computation for overtime hours and that the appellant was
not entitled to buy back leave. CID at 3-6. Accordingly, the administrative judge
denied the petition for enforcement regarding these two issues. CID at 6.
However, the administrative judge also granted the petition in part, finding that
the agency failed to establish that it paid the appellant a bonus award to which he
was entitled. CID at 4-6.
¶6 The appellant has filed a petition for review of the compliance initial
decision arguing that the administrative judge erred in finding that the agency
correctly computed the overtime hours he was due as a part of the back pay
award. Petition for Review (PFR) File, Tab 3 at 6-9. The agency has filed a
response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶7 When the Board reverses a personnel action, it orders that the appellant be
placed, as nearly as possible, in the same situation he would have b een in had the
wrongful personnel action not occurred. Rittgers v. Department of the Army,
123 M.S.P.R. 31, ¶ 13 (2015). Overtime back pay may be computed based on
either the appellant’s own overtime history or the average overtime hours worked
by similarly situated employees during the relevant time period. Id. Although
the appellant is not entitled to receive a windfall, he is entitled to be restored to
the status quo ante, and the agency must use the method of computation most
4
likely to achieve this goal. Id. The Board will not nullify the method employed
by the agency in calculating overtime back pay in the absence of a showing that
the method was unreasonable or unworkable, id., but the agency bears the
ultimate burden of proving its compliance with a Board order, New v. Department
of Veterans Affairs, 106 M.S.P.R. 217, ¶ 6 (2007), aff’d, 293 F. App’x 779 (Fed.
Cir. 2008).
The agency’s selection of method to compute the appellant’s overtime hours was
reasonable.
¶8 Here, the agency asserts that it relied on the appellant’s prior overtime
history for 2010, the year before his injury, to accurately estimate the amount of
overtime hours to include in his back pay award. C-1 CF, Tab 7 at 5-6, 13; PFR
File, Tab 5 at 4-5. To support this decision, the agency submitted 2011 overtime
records of similarly situated employees, which demonstrate that the appellant’s
average overtime hours applied to the back pay period exceed the average
overtime hours worked by similarly situated employees a year later. C -2 CF,
Tab 7 at 8. It also submitted an affidavit from a staff manager stating that there
was no mandatory overtime policy at the appellant’s station in 2011. Id. at 7.
Based on this evidence, the administrative judge found that the agency’s decision
to pay the appellant overtime based on his pre-removal overtime hours was not
unreasonable. CID at 4.
¶9 The appellant argued below and again on review that overtime became
mandatory in 2011 and that the average hours of overtime worked by similarly
situated employees increased substantially in 2016. PFR File, Tab 3 at 6. To
support these claims, the appellant submitted an affidavit and what purport to be
the overtime records of allegedly similarly situated employees for 2016. C-1 CF,
Tab 9 at 5-6, 9, 12-13, 26. Thus, the appellant argues that because agency policy
and requirements changed after 2010 and there was a demonstrable increase in
overtime worked in 2016, it was not reasonable for the agency to rely on 2010
5
records to calculate his overtime hours for the back pay period. PFR File, Tab 3
at 6-9.
¶10 We find no reason to disturb the agency’s method of selection in calculating
overtime hours. The appellant’s affidavit is directly contradicted by the staff
manager’s affidavit, and there is no other evidence in the record proving that
there was mandatory overtime during any period between 2011 and 2016.
Further, the appellant has only submitted 1 year of overtime records. The record
contains no additional evidence showing that between 2012 and 2015, similarly
situated employees worked overtime hours consistent with the 2016 records and
in substantial excess of the appellant’s hours in 2010 and the average in 2011.
Based on the foregoing, we agree with the administrative judge’s conclusions and
find that the appellant has failed to show that the agency’s selected method was
unreasonable. Accordingly, we will not nullify that selection. See Rittgers,
123 M.S.P.R. 31, ¶ 13.
The agency has not presented clear and understandable evidence that its
calculation for the appellant’s overtime hours was accurate.
¶11 Nonetheless, despite our agreement with the administrative judge that the
agency’s decision to pay the appellant overtime based on his pre -removal
overtime hours was not unreasonable, we find that the agency has failed to meet
its ultimate burden of proving compliance regarding the overtime calculations.
See Stone v. Department of Health & Human Services, 38 M.S.P.R. 634, 638
(1988) (stating that it is within the Board’s authority to address an issue not
raised by the parties before the initial decision becomes final). The Board has
held that an agency’s assertion of compliance must include a clear explanation of
its compliance actions supported by credible evidence and understandable
documentary evidence. Tubesing v. Department of Health & Human Services,
112 M.S.P.R. 393, ¶ 17 (2009). We find that the evidence submitted by the
agency to demonstrate the accuracy of its calculations is neither clear nor
understandable.
6
¶12 Here, the administrative judge concluded that the agency estimated the
appellant’s overtime at 232 hours. CID at 4. However, there does not appear to
be any evidence in the record that explicitly confirms this number. Thus, to
arrive at this number, we are left to assume that the administrative judge pieced
together several documents to effectively make the agency’s case for it. To wit,
the record includes an affidavit from a Payroll Program Specialist that provides
overtime hours retroactively granted to the appellant per a series of time segments
during the back pay period. C-1 CF, Tab 7 at 9-11. The affidavit does not clearly
state that the appellant earned 232 hours of overtime in 2010. Rather, t o arrive at
the 232 number, one must read this affidavit in conjunction with another affidavit
from a Management Support Specialist, who stated that she “used the hours
Mr. Bennett worked in each pay period the one year prior to his [Office of
Workers’ Compensation Programs] injury . . . [and] applied these hours to the
same pay periods in 2015 and 2016.” 2 C-1 CF, Tab 7 at 13. If one refers back to
the Payroll Program Specialist’s affidavit and adds up the overtime granted to the
appellant between January 11 through June 13, 2015, and June 14, 2015 , through
January 9, 2016, one arrives at 231.5 hours, or approximately 232 hours, as stated
by the administrative judge. Id. at 10-11; CID at 4.
¶13 If the inquiry ended there, we would agree with the administrative judge
that the agency presented sufficient evidence of its calculation of overtime hours
for the back pay period. However, the Management Support Specialist said in her
affidavit that these numbers were applied to 2015 and 2016. C-1 CF, Tab 7 at 13.
If we refer back to the Payroll Program Specialist’s affidavit, the appellant was
2
When this affidavit was submitted, the agency took the position that it was not
required to pay back pay during the Office of Workers’ Compensation Programs
(OWCP) period because the appellant already was receiving outside compensation from
OWCP. C-1 CF, Tab 7 at 5. Thus, it only applied the appellant’s 2010 overtime hours
to 2015 and 2016. Id. at 13. The administrative judge has since ruled that the agency
was required to pay the appellant back pay during the entire back pay period, minus any
deductions, including an offset for any OWCP wage replacement benefits he actually
received. C-1 CF, Tab 12 at 1-2.
7
granted approximately 153 overtime hours in 2016. Id. at 11. Although the back
pay calculations ended in October 2016, and therefore did not include the entire
year because the appellant had been reinstated by that time, id. at 19, if the
Management Support Specialist’s claim that the same numbers were appl ied to
2015 and 2016, the time periods of January through June would be the same for
both years, yet they are not, id. at 9-14. To further confuse matters, the appellant
submitted what appear to be 2010 overtime records, which reflect his hours of
overtime worked as 215 hours. C-1 CF, Tab 9 at 9. Therefore, we find that the
agency has failed to present clear and understandable evidence that its calculation
of the appellant’s overtime hours is accurate and thus has failed to meet its
burden to show that it is in full compliance with the back pay award ordered in
the final decision reversing his removal.
ORDER
¶14 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it properly calculated the appellant’s overtime
hours for 2010 and that the back pay awarded to the appellant reflects that
calculation. The agency must serve all parties with copies of its submission.
¶15 The agency’s submission should be filed under the separate docket
number assigned to the compliance referral matter, MSPB Docket
No. NY-0752-14-0073-X-1. All subsequent filings should refer to that
compliance referral docket number set forth above and should be faxed to
(202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
8
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶16 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶17 The agency is reminded that if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c)(1). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶18 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.