Marcus D. Smith v. Department of Transportation ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCUS D. SMITH, DOCKET NUMBERS
Appellant, AT-0752-05-0901-X-1
AT-0752-05-0901-X-2
v.
DEPARTMENT OF
TRANSPORTATION, DATE: January 3, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elaine L. Fitch, Esquire, Washington, D.C., for the appellant.
Jennifer D. Ambrose, Esquire, and Russell B. Christensen, Washington,
D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued two decisions—a recommendation and a
compliance initial decision—finding the agency noncompliant with the April 25,
2012 Final Order in the underlying removal appeal. MSPB Docket No. AT-0752-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
05-0901-C-1, Compliance File (CF-1), Tab 5; MSPB Docket No. AT-0752-05-
0901-C-2, Compliance File (CF-2), Tab 4. 2 Following referral to the Board, the
Board joined the petitions for enforcement. For the reasons discussed below, we
now find the agency in compliance and DISMISS the petitions 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)).
BACKGROUND
Referral from the Equal Employment Opportunity Commission (EEOC) and
Compensatory Damages
¶2 On April 25, 2012, the Board issued a Final Order adopting the Equal
Employment Opportunity Commission’s finding that the agency retaliated against
the appellant for his protected equal employment opportunity activity. The Board
ordered the agency to cancel the appellant’s 30-day suspension, restore him to
duty effective August 1, 2005, and provide him appropriate back pay, with
interest, and benefits. MSPB Docket No. AT-0752-05-0901-E-1, EEOC Referral
File (EEOC), Tab 2 at 4; Smith v. Department of Transportation, MSPB Docket
No. AT-0752-05-0901-E-1, Final Order (Apr. 25, 2012). The Board also
forwarded the appellant’s compensatory damages claim to the appropriate
regional office for adjudication. Id. On August 24, 2012, the administrative
judge issued an initial decision in the compensatory damages case awarding the
appellant $175,000 in nonpecuniary compensatory damages and $1,122.84 in
pecuniary damages. MSPB Docket No. AT-0752-05-0901-P-1, Compensatory
Damages (CD) File, Tab 15, Initial Decision at 2. Neither party petitioned for
review of that decision.
2
The first decision was a recommendation because it was issued under the Board’s
pre-November 2012 regulations; the second decision was an initial decision because it
was issued after the revised regulations took effect.
3
First Petition for Enforcement
¶3 On May 29, 2012, the appellant filed a petition for enforcement of the
April 25, 2012 Final Order. On September 13, 2012, the administrative judge
issued a recommendation finding the agency noncompliant. The administrative
judge found that the agency had improperly placed the appellant in paid
administrative leave status rather than canceling his 30 -day suspension, as
ordered, and failed to submit evidence showing it paid appropriate back pay.
CF-1, Tab 5, Recommendation at 3. The case was referred to the Board’s Office
of General Counsel to obtain compliance.
¶4 On September 27, 2012, the agency filed evidence of purported compliance.
Specifically, the agency stated that it canceled the appellant’s 30-day suspension,
as ordered; restored him to duty effective August 1, 2005; expunged all
references to the suspension from his records; placed him in work status rather
than paid administrative leave for the period during which the suspension had
been in effect; and paid him appropriate back pay, with interest, and benefits.
MSPB Docket No. AT-0752-05-0901-X-1, Compliance Referral File (CRF-1),
Tab 3 at 4-5; see CRF-1, Tabs 4-12.
¶5 The appellant did not file a response. However, as part of his compensatory
damages appeal, which was pending at the same time as the compliance referral
matter, the appellant raised various claims of agency noncompliance with the
April 25, 2012 Final Order, including claims that the agency failed t o pay him
appropriate back pay and interest. CD File, Tab 15 at 12. The administrative
judge declined to address these claims as part of the compensatory damages
appeal and informed the appellant he could file a separate petiti on
for enforcement.
Second Petition for Enforcement
¶6 On October 25, 2012, in response to the administrative judge’s order, the
appellant filed a second petition for enforcement raising the enforcement claims
4
he had attempted to present in his compensatory damages case. On February 13,
2013, the administrative judge issued a compliance initial decision finding the
agency noncompliant with the Final Order. CF-2, Tab 4, Compliance Initial
Decision. The administrative judge ordered the agency to perform the
following actions:
1. Submit the name and address of the responsible agency official;
2. Retroactively award the appellant, with interest, a Superior
Contribution Increase (SCI);
3. Pay the appellant $1,850.75, with interest and any other benefits
that would have accrued had his temporary promotion properly
been extended 90 days;
4. Pay the appellant a $1,500 cash award, with interest;
5. Restore 472 hours of sick leave;
6. Destroy and expunge from all records associated with the
appellant the Report of Investigation (ROI) maintained by the
agency’s Security Division, and “do all within its power to undo
the negative consequences that have flowed from its divulgence
of the ROI”; and
7. Retroactively promote the appellant to the appropriate level of the
J-Band.
Compliance Initial Decision at 8-9.
Remaining Issues
¶7 The Board has issued multiple orders and held several telephone
conferences narrowing the issues in these cases. E.g., CRF-1, Tabs 7, 10, 17. On
November 8, 2016, the Board’s Office of General Counsel held a telephone
conference with the parties during which the parties agreed that all issues had
been resolved except one: the question of when the appellant should have been
paid his 2007 Organizational Success Increase (OSI). CRF-1, Tab 37 at 4 (the
appellant asserting that the agency remains noncompliant on this single issue).
Accordingly, we find the agency in compliance on all other issues and address the
2007 OSI below.
5
ANALYSIS
¶8 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 he 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 actio ns 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).
¶9 Here, the parties agree that as part of his back pay, the appellant was
properly paid a 2.7% OSI, which amounted to $302.40, in January 2007. CRF-1,
Tab 37 at 4. However, the parties dispute how the OSI was paid out. The
appellant contends that because the OSI was effective January 7, 2007, it should
have been paid as part of his paycheck for pay period 2 (which began January 7,
2007). Id. Instead, it was actually calculated and paid as of January 30, 2007,
which fell in pay period 3. Thus, the appellant’s back pay from pay period 3
forward reflects an additional $50.40 due to the OSI. Id. at 4-5. The appellant
contends that the increase should have been paid in pay period 2 and that the
agency therefore owes him $50.40 plus interest. Id. at 6.
¶10 The agency does not dispute these dates, but asserts that the 2007 OSI was
properly paid to the appellant as of January 30, 2007, (in pay period 3) because
the same payment method was used for every other employee. CRF -1, Tab 38
at 4-5. The agency submitted documents showing that for all eligible employees,
the 2007 OSI was effective January 7, 2007, but not paid out until January 30,
2007. CRF-1, Tab 36 at 11, 14. The appellant does not appear to dispute that his
2007 OSI was paid in the same manner as for all other eligible employees.
6
CRF-1, Tab 37 at 2 (“[T]he fact that the 2007 OSI was not paid to other
employees until mid-PP3 is irrelevant.”). Rather, he asserts that he should have
been paid differently because his OSI came as a result of his back pay. Id.¶11 We disagree. The purpose of back pay is to place the employee in the
financial position he would have occupied in the absence of the improper
personnel action. See House, 98 M.S.P.R. 530, ¶ 9. Here, it is plain from the
agency’s documents—and the appellant does not dispute—that had he received
the 2007 OSI contemporaneously, it would have been calculated and paid exactly
like those of other employees, and indeed exactly as the agency calculated and
paid it as part of his back pay. We see no error in the agency’s determination that
the appellant’s back pay should mirror, as nearly as possible, the payment he
would have received absent the improper personnel action. Accordingly, we find
the agency in compliance on this issue and dismiss the petitions for enforcement.
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 fe es
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issu ed the initial decision
on your appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on yo ur
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. 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
8
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 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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.