Anthony Caros v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY CAROS, DOCKET NUMBERS
Appellant, PH-0752-12-0402-X-1
PH-0752-12-0402-C-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: December 27, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rosemary Dettling, Washington, D.C., for the appellant.
Jeane Yoo and Laurel L. Poe, Baltimore, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the petitioner’s December 8,
2014 petition for enforcement of the Board’s February 25, 2014 order, which
directed the agency to cancel the appellant’s removal and pay him the correct
amount of back pay, interest, and other benefits. Caros v. Department of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 decis ions. 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
Homeland Security, MSPB Docket No. PH-0752-12-0402-C-1, Compliance File
(CF), Tab 1; Caros v. Department of Homeland Security, MSPB Docket No.
PH-0572-12-0402-I-2, Final Order (Feb. 25, 2014). On October 5, 2015, the
administrative judge issued a compliance initial decision denying the appellant’s
petition for enforcement, CF, Tab 7, Compliance Initial Decision, and the
appellant filed a petition for review, Caros v. Department of Homeland Security,
MSPB Docket No. PH-0752-12-0402-C-1, Compliance Petition for Review File,
Tab 1. On April 18, 2016, the Board granted the appellant’s petition for review,
found the agency not in full compliance with the Board’s February 25, 2014
Order because it failed to show that its overtime and premium pay calculations
for the back-pay period were reasonable, and referred the petition for enforcement
to the Board’s Office of General Counsel. Caros v. Department of Homeland
Security, MSPB Docket No. PH-0752-12-0402-C-1, Order (Apr. 18, 2016). After
fully considering the filings in this appeal, and based on the following points and
authorities, we now find the agency in compliance with the Board’s February 25,
2014 Order. Accordingly, we hereby DISMISS the appellant’s petit ion for
enforcement, based on our finding the agency in compliance. 5 C.F.R.
§ 1201.114(e), (g).
¶2 On June 17, 2016, the agency filed a response to the Board’s April 18, 2016
Order, in which it asserted that it recalculated the appellant’s overtime and
premium pay for the back-pay period by using employees similarly situated to the
appellant and determined that additional funds were owed to him. Caros v.
Department of Homeland Security, MSPB Docket No. PH-0752-12-0402-X-1,
Compliance Referral File (CRF), Tab 2 at 4. The response, however, did not
include any evidence that the additional funds had been paid to the appellant.
CRF, Tab 2. On October 6, 2016, the agency submitted evidence that the
appellant’s recalculated overtime and premium pay for the back-pay period had
3
been paid to the appellant, along with interest. 2 CRF, Tab 7 at 3, 6-7. Thus,
because the agency provided evidence that it made the required recalculated
overtime and premium pay payments, we find that the agency is now in full
compliance with the February 25, 2014 Order.
¶3 Therefore, the Board finds that the agency is in compliance with the
Board’s February 25, 2014 Order and dismisses 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) (5 C.F.R. § 1201.183(c)).
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 mot ion 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.
2
On August 3, 2016, the appellant submitted a pleading in which he alleged that the
agency did not properly calculate his overtime back-pay for the appropriate time period.
CRF, Tab 3. As noted in the Board’s August 25, 2016 Order, the appellant’s concern is
based on a misreading of the agency’s June 17, 2016 submission. CRF, Tab 4 at 2.
Contrary to the appellant’s allegation, the agency’s submission demonstrates that it did
accurately recalculate the appellant’s overtime and premium pay for the entire back -pay
period. CRF, Tab 2 at 4.
4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 3
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
3
The administrative judge failed to inform the appellant of his mixed -case right to
appeal from the compliance initial decision on his discrimination claim to the Equal
Employment Opportunity Commission and/or the United States District Court. This
was error, but it does not constitute reversible error, because we notify the appellant of
his mixed-case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186-87 (1988).
5
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be ent itled 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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.