Opinion

Jeffrey Rogers v. Department of the Navy

Court: Merit Systems Protection Board
Filed: May 25, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFFREY L. ROGERS, DOCKET NUMBER

Appellant, AT-0752-16-0742-X-1

DEPARTMENT OF THE NAVY, DATE: May 25, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Archibald J. Thomas, III, Esquire, Jacksonville, Florida, for the appellant.

Mark E. Gleason, Esquire, Kings Bay, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

¶1 On April 13, 2018, the administrative judge issued a compliance initial

decision granting the appellant’s petition for enforcement and finding the agency

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

in partial noncompliance with the March 1, 2017 initial decision, which mitigated

the appellant’s removal to a letter of reprimand and ordered him reinstated with

back pay and benefits. Rogers v. Department of the Navy, MSPB Docket No. AT-

0752-16-0742-C-1, Compliance File (CF), Tab 28, Compliance Initial Decision

(CID); Rogers v. Department of the Navy, MSPB Docket No. AT-0752-16-0742-I-

1, Initial Appeal File (IAF), Tab 19, Initial Decision (ID). For the reasons

discussed below, we now find the agency in compliance and DISMISS the

petition for enforcement.

BACKGROUND

¶2 Effective July 8, 2016, the agency removed the appellant from his position

as an Optical Instrument Repairer for conduct unbecoming a Federal employee.

IAF, Tab 1 at 24-33, Tab 3 at 35. The appellant timely appealed his removal to

the Board. IAF, Tab 1. In the March 1, 2017 initial decision, the administrative

judge mitigated the appellant’s removal to a letter of reprimand and ordered the

agency to cancel the removal, substitute in its place a letter of reprimand, and

provide the appellant with appropriate back pay, interest, and benefits. ID at 18.

Neither party filed a petition for review, and the initial decision became the final

decision of the Board on April 5, 2017. ID at 21; see 5 C.F.R. § 1201.113.

¶3 On July 21, 2017, the appellant petitioned for enforcement of the initial

decision. CF, Tab 1. He submitted evidence showing that the agency had

cancelled his removal and reinstated him to his former position as of March 9,

2017, and had placed in his Official Personnel File (OPF) a letter of reprimand

for conduct unbecoming a Federal employee. Id. at 10-13. He also submitted

evidence showing that, for the 18 pay periods of the back pay period—from the

pay period ending on July 23, 2016, through the pay period ending on March 18,

2017—the agency paid him regular pay back pay in the gross amount of

$39,254.40 and overtime back pay for 19 to 19.5 hours of overtime per pay period

in the gross amount of $14,332.03. Id. at 14. The appellant argued, however,

that the letter of reprimand placed in his OPF contained allegations that were not

proven at the hearing and that the agency had failed to pro vide him the

appropriate amount of back pay, interest, and benefits. CF, Tab 1.

¶4 In the April 13, 2018 compliance initial decision, the administrative judge

granted the appellant’s petition for enforcement, finding the agency in partial

noncompliance with the Board’s order. CID. First, the administrative judge

found that, in determining that the appellant was entitled to 19 or 19.5 hours of

overtime back pay per pay period, the agency acted unreasonably by averaging

the overtime of all employees of the same title and grade, regardless of their date

of seniority, which determines the employee’s priority for the assignment of

voluntary overtime. CID at 3-5. The administrative judge therefore ordered the

agency to recalculate the overtime portion of the appellant’s back pay award

using only comparators of similar seniority to the appellant and to provide the

appellant a narrative explanation of its calculations, the documents on which it

based its calculations, and evidence regarding the seniority dates and overtime

hours of the employees it used as comparators. CID at 6, 8-9. Second, she found

that the letter of reprimand exceeded the scope of the Board’s order and ordered

the agency to rescind it and replace it with a corrected one retroactive to

August 4, 2016. CID at 7-9. Neither party filed any submission with the Clerk of

the Board within the applicable time limits, and the appellant’s petition for

enforcement was referred to the Board for a final decision on issues of

compliance pursuant to 5 C.F.R. § 1201.183(b)-(c). Rogers v. Department of the

Navy, MSPB Docket No. AT-0752-16-0742-X-1, Compliance Referral File

(CRF), Tab 1.

¶5 On May 31, 2018, the agency submitted to the Board its first notice of

compliance. CRF, Tab 2. The agency stated that it had recalculated the amount

of overtime pay due to the appellant by averaging the number of overtime hours

worked by the two employees most similarly situated to the appellant in terms of

years of service and provided evidence showing that those employees, whom it

designated as Employee 1 and Employee 2, had 19 and 12 years of service,

respectively, and that the appellant had 13 years of service. Id. at 2, 4. The

agency determined these comparators worked an average of 50 hours of overtime

per pay period from July 9, 2016, through July 26, 2017. 3 Id. at 2. The agency

stated that the Defense and Finance Accounting Service (DFAS) would issue

payment to the appellant for 50 hours of overtime for each pay period minus the

overtime hours already paid and all normal deductions. Id. The agency further

indicated that it rescinded the letter of reprimand containing the unproven

allegations and replaced it with a corrected letter retroactively dated to August 4,

2016. Id. at 3. The agency provided a copy of the letter, which reflected that it

would remain in the appellant’s OPF for 2 years from the date of the letter. Id.

at 6-7.

¶6 In a June 20, 2018 response to the agency’s evidence of compliance, the

appellant argued that the agency still had not paid him or provided him its back

pay and benefit calculations. CRF, Tab 3 at 4-5. He also expressed concern that

the agency had included in its overtime back pay calculation the number of

overtime hours worked by the comparators outside of the back pay period without

providing any evidence regarding the effect of the additional 9 pay periods on the

average. Id. at 5. In addition, the appellant argued that the agency had not

provided him the “Command Letter” and supporting documents identified in the

“DFAS Checklist” at the end of the initial decision. Id. at 6; ID at 27.

¶7 On August 3, 2018, the agency submitted a second notice of compliance

indicating that it had paid the appellant’s back pay award in full on June 29,

As noted above, the agency reinstated the appellant to his former position as of

March 9, 2017. CF, Tab 1 at 10. However, the agency calculated the appellant’s

additional back pay award by averaging the number of overtime hours worked by the

two comparators through July 26, 2017. CRF, Tab 2 at 2, 5. The agency did not

explain why it relied on overtime data from outside the back pay period to calculate the

appellant’s overtime back pay award.

2018, and had rescinded and redrafted the prior letter of reprimand. CRF, Tab 4

at 4-5. Regarding its overtime back pay calculations, the agency submitted a

chart showing the number of overtime hours per pay period for which it had

previously paid the appellant and, by subtracting that number from 50 hours, the

number of additional hours of overtime for which he was owed payment for each

pay period. Id. at 9. The chart reflects that, for the 27 pay periods from July 23,

2016, through July 22, 2017, 4 he was entitled to retroactive earnings for a total of

897.35 5 additional hours of overtime. Id. Notwithstanding its determination that

the appellant was entitled to payment for 897.35 additional hours of overtime, the

agency’s submissions reflect that it paid the appellant for 882.35 hours of

overtime and 16 hours of regular pay. Id. at 41, 44-47.

¶8 In an August 23, 2018 response to the agency’s second notice of

compliance, the appellant argued that the agency failed to explain how it

calculated his Thrift Savings Plan (TSP) withholdings and contributions for the

back pay period and that it appeared that those amounts were incorrect. CRF,

Tab 5 at 4. He also requested that the agency certify that it had removed the

letter of reprimand from his OPF because the 2-year period from August 4, 2016,

had elapsed. Id. at 5.

¶9 In an August 7, 2019 submission, the agency asserted that it had reviewed

the appellant’s TSP withholdings and contributions related to the back pay award

The agency did not explain why it paid the appellant additional overtime back pay for

the 9 pay periods after his reinstatement. Compare CF, Tab 1 at 10, 14 with CRF,

Tab 4 at 9.

As described in the Clerk of the Board’s January 23, 2020 order, there were several

discrepancies in the agency’s representations regarding the total number of additional

overtime hours to which the appellant was entitled, including references to 184 hours,

882.35 hours, or 898.35 hours of overtime. CRF, Tabs 4, 8, 9. In response, the agency

clarified that the appellant was entitled to 897.35 hours of additional overtime pay but

that he received payment for 882.35 hours of overtime, which included an overpayment

of 1 hour, and 16 hours of regular pay, for a total of 898.35 hours of additional

retroactive earnings. CRF, Tab 13.

and determined that they were correct. CRF, Tab 8 at 4. The agency explained

that TSP withholdings and contributions are not authorized for overtime and that

the appellant was therefore entitled only to TSP withholdings and contributions in

connection with his retroactive earnings for 16 hours of regular pay. Id. at 4-5.

Finally, the agency asserted that it had deleted the letter of reprimand from the

appellant’s official personnel file and provided evidence reflecting the deletion.

Id. at 5, 8-9.

¶10 In a January 23, 2020 order, the Clerk of the Board ordered the agency to

clarify, among other things, why it paid the appellant for 16 hours of regular pay

instead of overtime pay. CRF, Tab 9. In response, the agency stated that it paid

the appellant 16 hours of regular pay, rather than overtime pay, for the pay period

ending on June 10, 2017, because the appellant had not worked 40 hours per week

during that pay period but had been absent without leave for 16 hours. CRF,

Tab 13 at 5. The agency explained that the Fair Labor Standards Act (FLSA)

requires nonexempt employees, such as the appellant, to work 40 hours of work

per week before being paid overtime. Id. Accordingly, the agency explained

that, instead of paying the appellant for an additional 50 hours of overtime for

that pay period, it paid him for 16 regular hours and 34 overtime hours. Id.

¶11 On March 18, 2020, the appellant challenged the agency’s representation

that the FLSA required payment of 16 hours of regular pay, arguing that it was

contrary to the ordered relief compliance initial decision. CRF, Tab 14 at 4-5.

He also reiterated his argument that the agency failed to provide him the

documentation set forth in the initial decision’s DFAS Checklist. Id. at 5-6.

ANALYSIS

¶12 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 been in had the

wrongful personnel action not occurred. Vaughan v. Department of Agriculture,

116 M.S.P.R. 319, ¶ 5 (2011). The agency bears the burden to prove compliance

with the Board’s order by a preponderance of the evidence. 6 Id.; 5 C.F.R.

§ 1201.183(d). An agency’s assertions of compliance must include a clear

explanation of its compliance actions supported by documentary evidence.

Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence

of compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

¶13 In the compliance initial decision, the administrative judge found that the

agency had to take the following actions to resolve the outstanding compliance

issues: (1) recalculate the overtime portion of the appellant’s back pay award

using only comparators of similar seniority as the appellant; (2) provide the

appellant a narrative explanation of its calculations, the documents on which it

based its calculations, and evidence regarding the seniority dates and overtime

hours of the employees it used as comparators; and (3) rescind the March 29,

2017 letter of reprimand and replace it with a corrected one retroactive t o

August 4, 2016. CID at 6-9.

¶14 As described above, the agency determined that Employee 1 and

Employee 2 were the most similarly situated in terms of service computation date

to the appellant, who had 13 years of service, and submitted evidence showing

that Employee 1 had 19 years of service and Employee 2 had 12 years of service.

CRF, Tab 2 at 2, 4. The appellant has not challenged the agency’s selection of

these two employees as the most similarly situated in terms of service

computation dates, and we find that they are appropriate comparators for the

purposes of calculating the appellant’s overtime back pay award .

¶15 The agency submitted evidence showing that from July 9, 2016, through

July 26, 2017, Employee 1 worked 1,474 hours of overtime (an average of

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

54.5 hours of overtime per pay period), and Employee 2 worked 1,182 hours of

overtime (an average of 43.8 hours per pay period). CRF, Tab 2 at 5. The agency

therefore determined that the appellant was entitled to 50 hours of overtime back

pay for each of the 27 pay periods covering that timeframe. Id. at 2. By

subtracting the number of overtime hours for which it had already paid the

appellant per pay period from 50 hours per pay period, the agency determined that

the appellant was entitled to an additional 897.35 hours of overtime pay for the

entire period from pay period ending on July 23, 2016 through pay period ending

on July 22, 2017. CRF, Tab 2, Tab 4 at 9. As noted above, the agency did not

explain why it relied on overtime data from outside of the back pay period to

calculate the appellant’s overtime back pay award or why it paid him overtime

back pay for the 9 pay periods after his reinstatement.

¶16 To the extent the agency relied on comparator overtime data from outside of

the back pay period to calculate the appellant’s back pay award, we find that the

agency erred. The agency should have calculated the overtime back pay owed to

the appellant by averaging the number of overtime hours worked by the

comparators for the relevant period, i.e., the back pay period from the appellant’s

July 8, 2016 removal through his March 9, 2017 reinstatement. See Russo v. U.S.

Postal Service, 107 M.S.P.R. 296, ¶ 11 (2007) (stating that one way to calculate

overtime back pay is based on the average overtime hours worked by similarly

situated employees during the relevant time period). The agency’s error is

compounded by the fact that it failed to provide any evidence or information

reflecting the effect of the comparators’ overtime hours worked during the

additional pay periods on the average. Nonetheless, given that the agency in fact

paid the appellant overtime back pay up to 50 hours per pay period for the 9 pay

periods after he had been returned to duty, amounting to over 300 additional

hours of overtime pay, we find that the appellant received at least as much

overtime back pay as he would have received had the agency properly calculated

the average overtime hours worked by the comparators for the relevant period .

CRF, Tab 4 at 45-46. Accordingly, we find that the agency’s errors did not

prejudice the appellant. In addition, the appellant expressly stated that he would

accept the agency’s calculation of his overtime back pay if it paid him for

50 hours of overtime per pay period of the back pay period. CRF, Tab 3 at 5. As

the agency ultimately did so, in addition to paying him for 50 hours of overtime

for 8 of the 9 following pay periods, we find that the appellant is satisfied.

¶17 Although the agency determined that the appellant was entitled to

897.35 hours of additional overtime back pay, the record reflects that the agency

actually paid him retroactive earnings for 882.35 overtime hours and 16 regular

hours. CRF, Tab 4 at 41, Tab 13 at 5, 7. In response to the Board’s request to

explain why the agency paid some of the additional overtime hours at a regular

rate of pay, the agency explained that the FLSA precluded it from paying the

appellant 50 hours of overtime for the pay period ending on June 10, 2017,

because he had been recorded as AWOL for 16 hours during that pay period.

CRF, Tab 13 at 5. In response and for the first time, the appellant challenged the

agency’s decision to pay some of the 897.35 hours at a regular rate of pay,

arguing that it was contrary to the compliance initial decision. CRF, Ta b 14

at 4-5. However, the agency had no obligation to pay the appellant any back pay

for the pay periods after his March 9, 2017 reinstatement. As such, the agency’s

decisions regarding its payment of retroactive earnings to the appellant for the

9 pay periods following his reinstatement, including the payment of 16 hours at a

regular rate of pay for the pay period ending on June 10, 2017, are beyond the

scope of our review.

¶18 The appellant also challenged the agency’s TSP withholdings and

contributions in connection with the overtime back pay award. As the agency

correctly stated, however, TSP withholding and contribution percentages are

calculated on the basis of the appellant’s “basic pay,” which does not include

overtime pay. See 5 C.F.R. §§ 1600.19-.20, 1690.1 (providing that “basic pay”

means “basic pay” as defined in 5 U.S.C. § 8331(3)). Accordingly, the agency

properly did not deduct any TSP withholdings or make any agency TSP

contributions in connection with the appellant’s overtime back pay award. CRF,

Tab 4 at 40-41, Tab 8 at 4-5. To the extent the appellant challenges the TSP

deduction and contributions in connection with the 16 hours of regular pay from

pay period ending on June 10, 2017, we are without authority to review them

because they pertain to retroactive earnings outside of the back pay period.

¶19 In light of the foregoing, we find that the agency has established

compliance with its obligations to recalculate the overtime portion of the

appellant’s back pay award using comparators of similar seniority as the appellant

and to provide evidence and explanation supporting its calculations. Althou gh

the agency erroneously relied on overtime data from outside the back pay period

and paid the appellant overtime back pay for 9 pay periods after the end of the

back pay period, we find that the appellant was not prejudiced by these errors and

that they do not preclude a finding of compliance. We further find that the

agency complied with its obligation to rescind and redraft the letter of reprimand ,

which has since been deleted from the appellant’s OPF. Finally, the appellant’s

assertion that the agency has not provided him the documents from the DFAS

Checklist does not establish noncompliance. The DFAS Checklists

accompanying Board decisions identify the information the civilian personnel

offices must provide to the civilian payroll offices via command letter to process

payments ordered by the Board and do not impose any obligation on the agency to

provide any documents to the appellant. See, e.g., ID at 27.

¶20 We find that the agency is now in compliance and dismiss the petition for

enforcement. This is the final decision of the Merit Systems Protection Board in

this compliance proceeding. Title 5 of the Code of Federal Regulations, section

1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and ca refully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.