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: April 26, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tonya Evette Rhodes, Seffner, Florida, pro se.
Kristin Langwell, Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
No. AT-0752-12-0316-C-1, Compliance File, Tab 11, Compliance Initial
Decision (CID). On April 13, 2015, September 25, 2015, and July 18, 2016, 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issued nonprecedential orders finding the agency in partial compliance.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,
Compliance Referral File (CRF), Tab 5 (April 13, 2015 Order), Tab 12
(September 25, 2015 Order), and Tab 30 (July 18, 2016 Order). For the reasons
discussed below, we now find the agency noncompliant on the two outstanding
issues and order appropriate relief.
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 Appeal File (IAF), Tab 47, Initial Decision.
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, on December 10, 2013,
the administrative judge issued a compliance initial decision finding the agency in
noncompliance with the initial decision. CID. The administrative judge held that
the agency failed to adequately explain its back pay calculations, including how it
calculated the back pay period and interest amounts. CID at 3-4. 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
account and her Federal Employees’ Group Life Insurance. Id. Finally, the
administrative judge found that the agency admitted it may have erroneously
submitted a debt notice to the Office of Personnel Management regarding the
appellant’s Federal Employees Health Benefits (FEHB) plan and had not provided
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evidence that it corrected such error. Id. Neither party filed a petition for review
of the compliance initial decision.
¶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. Finally, on July 18, 2016, the Board issued a third nonprecedential
order that found the agency compliant on four issues and noncompliant on two
issues. CRF, Tab 30 at 4. The Board ordered the agency to submit the following
information:
1. 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.
2. 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.
Id. at 6, 7-8; CRF, Tab 12 at 10-11.
¶5 Following this order, both parties filed submissions. CRF, Tabs 32 -34,
36-38, 40-44. 2,3 For the reasons discussed below, we find the agency
2
On March 5, 2021, the appellant filed a pleading and a number of documents with the
Board’s Atlanta Regional Office, which docketed her submission as a second petition
for enforcement of the Board’s March 15, 2013 final decision. Rhodes v. Department of
Veterans Affairs, MSPB Docket No. AT-0752-12-0316-C-2, Compliance File (C-2 CF),
Tab 1. In a March 19, 2021 compliance initial decision, the administrative judge found
that the appellant’s submission pertained to matters addressed in the first compliance
initial decision and pending before the Board in this compliance referral matter. C -2
CF, Tab 7, Compliance Initial Decision. Accordingly, she determined that the second
petition for enforcement had been docketed in error and dismissed it. Id. The
documents submitted in the improperly docketed second compliance file have been
added to the compliance referral file. CRF, Tab 42.
3
On February 22, 2022, the appellant filed a motion requesting leave to submit
“additional new and material evidence.” We grant the appellant’s motion and have
considered her submissions, which include a May 28, 2015 Equal Employment
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noncompliant on both issues. We order the agency to waive the debt the
appellant owes for retirement contributions and to refund, with interest, the
amounts withheld for the appellant’s FEHB premiums.
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. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. 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).
Waiver Notice for Debt Generated by Lack of Retirement Contributions
¶7 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.
However, 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.
Opportunity Commission, Office of Federal Operations decision, her responses to her
proposed termination, transcripts from the equal employment opportunity investigation,
and work-related emails and letters. CRF, Tabs 43-44. However, these documents
pertain to the merits of the appellant’s termination and to her claims of discrimination,
and they are not relevant to the issues now before the Board—i.e., the agency’s
compliance with the Board’s final order.
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¶8 On February 10, 2016, the agency submitted a copy of the waiver no tice 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. We disagreed because the
letter submitted by the agency did not inform the appellant how to request waiver
of her debt. CRF, Tab 30 at 6. We ordered the agency to send the appellant a
new copy of the complete waiver letter and notice, dated the day it was sent so
that she would have the full time to request waiver. Id.
¶9 On August 3, 2016, the agency filed a copy of the letter it sent to the
appellant in response to our order. CRF, Tab 32. Strangely, contr ary to the
instructions in our order, the agency did not send a new copy of the waiver letter
updated with a new date; rather, it appears the agency merely resent a copy of the
letter dated April 25, 2014. Id. at 7. Not only does this not satisfy the
requirements of our order, it arguably prejudices the appellant because it is not
clear that she can seek waiver of her debt at this late date. The waiver
instructions state that waiver request must be received within 3 years following
the date the debt was discovered. Id. at 12. This date is unclear from the letter.
Because the agency has not proven its compliance on this issue, we find it
noncompliant and order the agency to waive this debt ($74.28 according to the
letter, id. at 7), plus any interest outstanding as a result of the appellant’s failure
to pay the debt. The agency must submit evidence that it has waived this debt
and any interest, in accordance with this order.
FEHB Premiums Withheld after the Back Pay Period
¶10 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
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agency claimed that it had credited the full amount to the appellant’s outstanding
annual leave debt, its documents appeared to show that it credited (if anything)
only $176.91 per pay period for 16 pay periods ($2,830.56), leaving it $ 1,536.00
short. Id. (discussing agency evidence). We ordered the agency to explain this
discrepancy. Id. at 11; CRF, Tab 30 at 7-8.
¶11 On October 28, 2016, the agency submitted its explanation. CRF, Tab 36.
The agency claimed that rather than refund the amount owed for improperly
withheld FEHB premiums as a lump sum, it was “offsetting” this amount against
the appellant’s $6,800.63 debt for annual leave (which we previously found to be
valid, CRF, Tab 12 at 7-8). CRF, Tab 36 at 4. These offset deductions are made
monthly from the appellant’s annuity. Id. The amount, $176.91, is the maximum
the agency can deduct monthly pursuant to its handbook. Id. at 6-11.
¶12 The agency’s explanation makes no sense. The agency states that it is
offsetting—i.e., deducting—these amounts from the appellant’s annuity, but the
agency is not entitled to deduct an amount that it owes the appellant. Rather than
deducting anything, the agency should have credited the amount against the
appellant’s outstanding annual leave debt (as indeed it originally claimed to have
done, though without any evidentiary support). Had it done so, the appellant
would have owed $2,434.07 to cover her annual leave debt ($6,800.63 minus
$4,366.56). Instead, documents submitted by the appellant show that she has paid
the entire amount of the $6,800.63, through monthly deductions or garnishments
of $176.91. CRF, Tab 38 at 4, Tab 45 at 4. The appellant’s evidence therefore
shows that the deductions the agency claims to be “offsets” or “credits” for h er
FEHB debt were in fact deductions to pay for her annual leave debt, and the
agency—contrary to its repeated claims—never refunded the amounts it
improperly withheld to cover her FEHB premiums.
¶13 The agency has submitted nothing of substance to counter t his evidence; its
submissions merely reiterate in conclusory fashion that it is “offsetting” her
annual leave debt, with no apparent understanding that it is essentially compelling
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the appellant to pay two debts when she owes the agency only one. CRF, Tab 40
at 4-5. To the extent the agency relies on its claim that it “canceled” the FEHB
debt and “the amounts taken to satisfy the FEHB debt were transferred to the
lump sum debt,” id. at 11, the evidence submitted by the appellant shows
otherwise. CRF, Tab 38 at 4, Tab 45 at 4.
¶14 Accordingly, we find the agency in noncompliance on this issue and order it
to pay the appellant $4,366.56 plus interest. The interest calculation should begin
from the dates the FEHB premiums were originally withheld and continue t o
within 30 days of the date the payment is made. See 5 U.S.C. § 5596(b)(2)(B).
The agency must submit a narrative explanation and documentary evidence of its
interest calculations, as well as documentary evidence of a check or other
payment made to the appellant for the principal and interest.
Further Action Needed for Compliance
¶15 Within 30 calendar days of the date of this Order, the agency shall submit
the evidence discussed above. If the agency fails to submit the required
information, the Board may again issue an order to show cause why sanctions
should not be imposed against the responsible agency o fficial pursuant to
5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c).
¶16 The appellant shall file a response within 21 calendar days of the agency’s
submission. Failure to submit a response within the required time period may
cause the Board to assume the appellant is satisfied and dismiss the petition for
enforcement.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.