Michael Lucon Favreau v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL LUCON FAVREAU, DOCKET NUMBER
Appellant, SF-0752-11-0273-C-2
v.
DEPARTMENT OF THE ARMY, DATE: December 15, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David P. Clisham, Esquire, San Francisco, California, for the appellant.
Douglas W. Hales and David Michael Tucker, Fort Hunter Liggett,
California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
granted in part his petition for enforcement. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the c ase; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
referring the petition for enforcement to the Board’s Office of General Counsel
for additional processing and issuance of a final decision. See 5 C.F.R.
§ 1201.183(c).
BACKGROUND
¶2 On April 22, 2014, the appellant filed a petition for enforcement of the
Board’s Final Order in Favreau v. Department of the Army, MSPB Docket
No. SF-0752-11-0273-I-1, which affirmed the initial decision reversing the
appellant’s removal for failure to maintain a basic condition of employment .
Compliance File (CF), Tab 1; Favreau v. Department of the Army, MSPB Docket
No. SF-0752-11-0273-I-1, Final Order at 3-12 (Feb. 21, 2014) (hereinafter Final
Order). The Board had ordered the agency to provide the appellant with
appropriate relief, including the payment of back pay with interest and other
benefits. Id. at 13-14. The administrative judge initially dismissed the petition
for enforcement without prejudice to allow the parties to confer over the issues
raised in the petition. CF, Tab 9. The petition for enforcement was automatically
refiled. Refiled Compliance File (RCF), Tab 2.
¶3 The administrative judge ordered the agency to present proof that it had
complied with the Board’s final decision or had good reason for noncompliance
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or for incomplete or partial compliance. RCF, Tab 10. Following receipt of the
parties’ responses, RCF, Tabs 11-13, the administrative judge determined that the
agency had yet to demonstrate that it was in compliance with the Board’s Final
Order and issued a May 12, 2015 order reopening the record, RCF, Tab 14. In
that order, the administrative judge identified numerous areas where the agency’s
submission was deficient. Id. at 2-7. Following receipt of the parties’ subsequent
responses, RCF, Tabs 15-16, the administrative judge found that several disputes
remained, and on January 13, 2016, he issued another order reopening the record
and requiring the agency to file complete responses for all issues identified as
problematic in the May 12, 2015 order, RCF, Tab 17. The parties submitted
additional filings, and the record closed on March 21, 2016. RCF, Tabs 18-23.
The administrative judge granted the petition for enforcement in part, finding that
the agency was not in compliance with some of the requirements set forth in the
Board’s Final Order. RCF, Tab 24, Compliance Initial Decision (CID) at 4-13.
The appellant filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency responded and, while acknowledging some remaining discrepancies
in the appellant’s back pay, declined to file a cross-petition. PFR File, Tab 3 at
11.
ANALYSIS
¶4 The agency bears the burden of proof on the issue of its compliance with a
Board order. Tubesing v. Department of Health & Human Services, 115 M.S.P.R.
327, ¶ 5 (2010). For the agency to be found in compliance regarding the
provision of back pay, interest on back pay, and benefits, the agency must provide
a detailed and clear explanation of the calculations that it made in determining the
amount due the appellant. The agency must clearly set forth the following: the
gross amount due the appellant and how that amount was determined; the amount
and reason for all deductions, reductions, and offsets from the gross am ount due
the appellant; the source and amount of all checks or electronic payments already
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received by the appellant and provide evidence that such checks or electronic
payments were received; and the amount of interest due the appellant and how
that amount was calculated. Bruton v. Department of Veterans Affairs,
111 M.S.P.R. 489, ¶ 17, vacated on other grounds, 112 M.S.P.R. 313 (2009). The
agency also must clearly set forth its calculations relating to the appellant’s sick
and annual leave balances; Thrift Savings Plan account, including both those of
the appellant and of the agency; and any other benefits of employment the
appellant would have received but for the agency’s unwarranted personnel action.
Id. Finally, the agency must take the appropriate steps to restore the appellant’s
health insurance benefits and to provide evidence that it has done so. Id. In
addition to the calculations, the agency must provide a clear and detailed
narrative explanation of its calculations so that the Board may understand the
calculations and verify that they are correct. Id. The agency also must provide
an explanation of all codes and abbreviations used in its documentation. Id.Back Pay, Premium Pay, Differential Pay, and Interest Payments
¶5 The appellant was removed from his position effective January 1, 2011, and
the Board ordered him restored as of that date. Final Order at 2, 13. The
administrative judge found that the appellant received by electronic funds transfer
the proper amount of back pay exclusive of overtime for the following periods:
$10,199.52 for January 1 through February 26, 2011, and $63,194.34 for February
27, 2011, through February 25, 2012. CID at 4. The sums he received included
night differential, Sunday premium pay, and holiday premium pay. Id. The
administrative judge found that the appellant’s basic pay rate was $24.90 per hour
and that he was not eligible for any step increases during the back pay period. Id.The administrative judge likewise found that the agency was in compliance for
the payment of the appellant’s salary post-reinstatement between January 26 and
April 30, 2012, when he was again removed. CID at 6.
¶6 The administrative judge denied the appellant’s request to receive back pay
for the period immediately preceding January 1, 2011, when he was reassigned to
5
the duties of a security guard and, as a result, did not receive opportunities to earn
overtime, shift differentials, and premium pay. CID at 5; RCF, Tab 23 at 3. The
administrative judge determined that the Final Order only required that the
appellant receive back pay effective January 1, 2011, the date of his removal.
CID at 5.
¶7 The administrative judge found that the agency was not in compliance with
the Board’s order regarding the amount of interest it had paid the appellant. CID
at 5-6. The administrative judge found the agency’s explanation as to how it
calculated interest to be insufficient and additionally noted that the agency’s
documentation regarding interest payments showed that it actually paid the
appellant $1,865.77, rather than the $1,902.47 it stated that it paid him. Id.¶8 On review, the appellant argues that the agency was not in compliance for
the payment of his salary during the post-reinstatement period prior to his second
removal, February 26 through April 30, 2012. He argues that the compliance
initial decision is based solely on a spread sheet prepared from time sheets by the
Defense Finance and Accounting Service (DFAS), rather than from payroll
records. PFR File, Tab 1 at 4. The appellant asserts that the agency submitted no
evidence that he was paid the full amount of his salary and benefits for the 5 pay
periods during that time. Id. He further asserts that the agency’s documentation
submitted on February 29, 2016, RCF, Tab 20, shows that he was not paid night
differential, overtime, and Sunday and holiday premium pay, PFR File, Tab 1 at
5-7.
¶9 As the agency explains, however, the appellant himself submitted copies of
his Leave and Earnings Statements for the post-reinstatement pay periods when
he filed his petition for enforcement. PFR File, Tab 3 at 4; CF, Tab 1 at 23-32.
Moreover, he admitted in his March 21, 2016 pleading that the “the spread sheet
covering year 2012” showed that he was paid for the 5 pay periods, and he
included a copy of the DFAS spread sheet in his pleadings. RCF, Tab 23 at 2, 16.
DFAS documentation also shows that he received night differential and Sunday
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premium pay for these pay periods, although reimbursement did not occur until
May 19, 2012. 2 RCF, Tab 20 at 81-82.
Accrued Annual Leave
¶10 The administrative judge found that the agency calculated the appellant’s
payment for accrued annual leave properly and paid him for the leave.
CID at 6-7. The administrative judge explained that the agency submitted
documentation demonstrating that it paid the appellant $6,922.20, and that it later
properly deducted the same amount of money from his back pa y award to prevent
an overpayment. Id.; RCF, Tab 20 at 82, 90. The appellant did not take issue
with the calculations whereby the agency reached the gross payment for leave,
but he asserts on review that the agency twice deducted his payments for
Medicare; Federal and state income taxes; and Old Age, Survivor and Disability
Insurance from the lump-sum payout, first when he was initially paid, and later,
when the agency deducted the gross amount of his payment for accrued annual
leave from his back pay award. PFR File, Tab 1 at 7. As the agency points out,
however, it was required by regulation to recover from any back pay award “a
lump-sum payment for annual leave (i.e., gross payment before any deductions).”
5 C.F.R. § 550.805(e)(2)(iv) (emphasis added). The appellant’s argument is thus
unavailing.
Offsets for Special Pay
¶11 The administrative judge found that the agency twice took offsets from
payments to the appellant, and these offsets were proper. First, he found that the
appellant was paid twice for four pay periods that fell within the back pay
2
The appellant’s attempt to discredit the accuracy of the DFAS spread sheet is
unavailing. The agency explains that when the appellant originally received the spread
sheet during a separate, but related appeal, Favreau v. Department of the Army, MSPB
Docket No. SF-0752-12-0547-I-6, Initial Decision (June 7, 2016), it was accompanied
by supporting documents, including an affidavit from the civilian pay branch chief who
supervised the audit of his back pay. PFR File, Tab 3 at 5. The agency provided the
affidavit for the record in the instant appeal. RCF, Tab 20 at 66-72.
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period. 3 CID at 7-8. The first payment of $7,568.98, which covered the four pay
periods, was made on March 19, 2012, and identified as “Special Pay.” RCF, Tab
20 at 71, 73. The second payment of $5,782.74 was made on May 17, 2012, and
was part of a larger payment identified as “Gross Back Pay.” Id. at 71, 80, 82.
On April 5, 2012, the agency offset a back pay award payment by $7,568.98 for
“Special Pay.” Id. at 77. The administrative judge found that this offset was a
proper one and explained in detail why it had been taken. CID at 7. The
administrative judge explained that the second offset arose from a special
payment that had been made to the appellant on May 7, 2012, when late
submission of a time sheet caused him to miss the normal pay cycle. CID at 8;
RCF, Tab 20 at 71, 78-79. The administrative judge explained that later the
automated payroll system reduced his May 17, 2012 pay by $736.86 because he
already had received those funds. CID at 8; RCF, Tab 20 at 71, 82. Although the
appellant reiterates on review his argument that the offsets were improper , PFR
File, Tab 1 at 7-9, the record evidence cited above supports the administrative
judge’s finding that the offsets were valid ones.
Calculation of Overtime Pay
¶12 Board law allows agencies to calculate back pay for overtime based on
either an employee’s prior overtime assignments, or the overtime assignments for
similarly situated individuals. Brady v. Department of the Navy, 55 M.S.P.R.
693, 696 (1992). The method selected in any particular case must be the one
most likely to restore the employee to the status quo ante. Id. When using the
employee’s preremoval work history may not accurately reflect the period for
which back pay has been awarded, the Board has allowed awards based on
averaging of hours worked by similarly situated employees. Id. For example, in
Bonacchi v. U.S. Postal Service, 46 M.S.P.R. 531, 535-36 (1990), an employee
3
These were the pay periods ending January 15, January 25, February 12, and February
26, 2011. CID at 7; RCF, Tab 20 at 73-74, 80-82.
8
had been demoted to a position in which he previously had not been employed,
and there was no overtime history in that position. Id. at 535. The Board thus
approved the averaging of the overtime hours worked by similarly situated
employees. Id. at 536.
¶13 The administrative judge here upheld the agency’s decision to calculate the
amount of overtime pay based on the average number of overtime hours worked
by the appellant’s colleagues in the agency’s Law Enforcement Branch. CID
at 10-11. The administrative judge explained that the appellant did not submit
any evidence showing that he would have earned overtime while performing
security guard duties—the duties to which he had been assigned immediately
prior to his removal—equivalent to the overtime he earned earlier while
performing law enforcement duties. CID at 10. Alternatively, the administrative
judge found, the appellant failed to demonstrate that he would have been assigned
law enforcement duties during all or a part of the back pay period had he not been
removed. Id. The administrative judge found the agency in compliance with the
Final Order for payment of overtime hours for 2011, but not for 2012, because the
agency had failed to properly document the payment of overtime for that year.
CID at 10-11; see Bruton, 111 M.S.P.R. 489, ¶ 17.
¶14 The appellant reiterates his claim that the agency should have based its
calculations on the overtime he earned while assigned to law enforcement duties
in the past, and not on employee averages, because he engaged in law
enforcement duties even while officially assigned to duties as a security guard.
He further asserts that the agency’s own accounting regulations require that “any
overtime the employee would have earned during the period of wrongful
suspension or separation should be included in the back pay.” PFR File, Tab 1
at 9-10 (citing the Department of Defense Financial Management Regulation
(DOD FMR) 7000.14-R, ¶ 060504D). The regulation that the appellant cites,
however, also states that “[t]he method of computing overtime incident to a back
pay award due an employee may be based on the average number of overtime
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hours worked by fellow employees occupying similar positions during the same
period.” DOD FMR 7000.14-R, ¶ 060504D. Moreover, the Board will not nullify
the method that the agency selects for calculating back pay in the absence of a
showing that it was unreasonable or unworkable. Broadnax v. U.S. Postal
Service, 35 M.S.P.R. 219, 226 (1987). The appellant has not made such a
showing, and his assumption, that he would have been restored to his previous
law enforcement duties during the back pay period, is speculative. We will not
disturb the administrative judge’s findings.
Promotion to Lieutenant
¶15 An employee is entitled to a promotion in a compliance proceeding only
when some provision of law mandates it or when the appellant is able to somehow
“clearly establish” that he would, in fact, have been promoted. Boese v.
Department of the Air Force, 784 F.2d 388, 390 (Fed. Cir. 1986); Jones v.
Department of the Interior, 70 M.S.P.R. 182, 187-88 (1996). “The established
rule is that one is not entitled to the benefit of a position until he has been
appointed to it.” United States v. Testan, 424 U.S. 392, 402 (1976). The
administrative judge found that the appellant did not show that he wa s entitled to
a promotion to lieutenant, as he had claimed. CID at 11-12; RCF, Tab 12 at
13-16. The appellant asserted that he would have been promoted had the agency
given proper weight to his military experience and/or veterans’ preference status.
RCF, Tab 12 at 13. He also argued that, during the back pay period, the agency
hired an outside individual with qualifications inferior to his own. Id. at 14-15.
¶16 The appellant reasserts these arguments on review. PFR File, Tab 1
at 10-11. Any claims he makes apply only to the back pay period, and they are
speculative at best. To the extent that the appellant’s claims here pertain to the
back pay period, he has not shown that he would have been selected had he
applied for the position that the agency filled. He also has not identified any
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legal authority mandating his placement in a higher-graded position during that
period of time. His argument therefore is unavailing.
Conclusion
¶17 Accordingly, we affirm the administrative judge’s findings in the
compliance initial decision. 4 Outstanding issues of compliance remain with
respect to the agency’s calculation of interest and the agency’s calculation of
overtime in 2012. See CID at 5-6, 10-11. The agency submitted evidence and
argument on these issues on June 29 and October 28, 2016, under MSPB Docket
No. SF-0752-11-0273-X-1, which is currently pending in the Board’s Office of
General Counsel. The appellant’s petition for enforcement will therefore be
referred to the Board’s Office of General Counsel, and, depending on the nature
of the submissions, an attorney with the Office of General Counsel may contact
the parties to further discuss the compliance process. The parties are required to
cooperate with that individual in good faith. Because the purpose of the
proceeding is to obtain compliance, when appropriate, an Office of General
Counsel attorney or paralegal may engage in ex parte communications to, among
other things, better understand the evidence of compliance and/or any objections
to that evidence. Thereafter, the Board will issue a final decision fully addressing
the appellant’s petition for review of the compliance initial decision and setting
forth his further appeal rights and the right to attorney fees, if applicable.
ORDER
¶18 The appellant may respond to the agency’s June 29 and October 28 , 2016
submissions within 20 days of the date of this Order. 5 C.F.R. § 1201.183(a)(8).
If the appellant does not respond to the agency’s evidence of compliance, the
4
The compliance initial decision includes findings that the appellant d id not challenge
on review concerning restoration of forfeited annual leave and a time-off award, CID at
8-9, payment of the appellant’s uniform allowance, CID at 12-13, and the rescission of
the removal and reinstatement, CID at 13.
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Board may assume that he is satisfied with the agency’s actions and dismiss the
petition for enforcement.
¶19 The appellant’s response should be filed in the compliance referral matter
currently pending in the Board’s Office of General Counsel , MSPB Docket No.
SF-0752-11-0273-X-1. All subsequent filings should refer to MSPB Docket No.
SF-0752-11-0273-X-1 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
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.
¶20 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 Office of 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(a).
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).
¶21 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
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the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.