Tonya Evette Rhodes v. Department of Veterans Affairs ( 2015 )

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 13, 2015
AFFAIRS,
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Valorie Reilly, Saint Petersburg, Florida, for the appellant.
W. Cheryl Griffith, Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, 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. MSPB Docket No. SF-0752-12-0316-C-1, Compliance File (CF),
Tab 11, Compliance Initial Decision (CID). For the reasons discussed below, we
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
now find the agency in partial compliance and order it to take appropriate action
to bring itself into full compliance.
DISCUSSION OF ARGUMENTS AND
EVIDENCE ON 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. MSPB Docket No. AT-0752-12-0316-I-1, Initial Appeal File,
Tab 47, Initial Decision (ID) at 16. The decision required the agency to pay her
appropriate back pay and benefits. ID at 16. Neither party filed a petition for
review, and the initial decision became the final decision of the Board.
¶3 On July 30, 2013, the appellant filed a petition for enforcement. She
contended that the agency: failed to pay her the correct amount of back pay, with
interest; erroneously generated an overpayment notice relating to her Federal
Employee Health Benefit (FEHB) premiums, causing the agency to attempt to
collect a nonexistent debt; failed to make the required 1 percent Thrift Savings
Plan (TSP) contributions; and failed to withhold money from her back pay for
Federal Employee Group Life Insurance (FEGLI) premiums. CF, Tab 1 at 2-4,
Tab 10 at 4, 7.
¶4 On December 10, 2013, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the March 15, 2013 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. The administrative judge further held
that the agency failed to provide evidence to show that it made appropriate
transfers to the appellant’s TSP account and FEGLI. CID at 3. Finally, the
administrative judge found that the agency admitted that it might have
erroneously submitted a debt notice to the Office of Personnel Management
(OPM) regarding the appellant’s FEHB plan and had not provided evidence that it
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corrected such error. CID at 3. The administrative judge ordered the agency to
take the following actions:
1. Set forth the gross back pay amount and explain how the amount
was calculated;
2. Set forth the amount and reason for all deductions;
3. Set forth the source and amount of all payments and proof that
they were received;
4. Set forth the amount of interest due on the back pay and how that
amount was calculated;
5. Explain any discrepancies between the agency’s calculations and
the appellant’s earnings and leave (E&L) statements;
6. Provide evidence that it transferred money withheld for FEGLI to
the appropriate entity;
7. Provide evidence that it made appropriate TSP payments on the
appellant’s behalf; and
8. Provide evidence that it corrected any erroneous debt notice
transmitted to OPM.
CID at 4-5.
¶5 Neither party filed a petition for review. On January 13, 2014, the agency
filed evidence of purported compliance, to which the appellant responded on
January 31, 2014. 2 See MSPB Docket No. AT-0752-12-0316-X-1, Compliance
Referral File (CRF), Tabs 1, 3. For the reasons explained below, we now find the
agency in partial compliance.
2
Following these submissions, the case was referred to a Board Office of General
Counsel (OGC) attorney for attempted settlement. In February 2015, after the parties
failed to reach an agreement, the case was transferred to a different OGC attorney for a
recommended disposition on the merits. The parties did not submit any further
documents into the record during settlement discussions.
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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. An agency’s assertions of
compliance must include a clear explanation of its compliance actions 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).
Back Pay and Interest
¶7 The administrative judge ordered the agency to clearly set forth the back
pay and interest amounts due, including how the amounts were calculated and the
amount and reason for all deductions. The agency also was required to provide
proof of payment and to explain any discrepancies between its calculations and
the amounts shown on the appellant’s E&L statements. CID at 4-5.
¶8 The agency submitted evidence attempting to comply with these
requirements. Specifically, the agency explained that the back pay period ran
from February 15, 2012, (the effective restoration date), through March 30, 2012
(the day before the appellant’s disability retirement took effect). CRF, Tab 1 at
5; see CF, Tab 3, Exhibit F at 175. The agency explained how it calculated the
appellant’s back pay—by multiplying her hourly rate by the number of hours she
would have worked—and provided evidence that it paid the calculated amounts in
several different installments. CRF, Tab 1 at 5-6, 20-27. The agency also
explained its interest calculations. Id. at 8, 71-73.
¶9 The appellant challenged the agency’s calculations in part, contending that
the agency failed to explain whether it: (1) accounted for any required
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within-grade increase (WIGI) during the back pay period, and (2) included in the
back pay the 20 hours per month mandatory overtime she asserts she would have
worked during the back pay period. CRF, Tab 3 at 9-10, 13. The agency did not
submit a response addressing these issues, and we are unable to determine from
its narrative and documents whether it considered them. Accordingly, we find the
agency noncompliant concerning these issues. To come into compliance, the
agency must submit evidence regarding the appellant’s entitlement to a WIGI and
to overtime pay. If the agency determines that its previous calculations were
incorrect, then it must pay the appellant interest on the amount outstanding.
¶10 Other than these WIGI and overtime pay issues and the FEGLI, TSP, and
FEHB withholding issues discussed below, the appellant did not point to any
specific problems with the back pay analysis. However, she offered a general
challenge to the form of the agency’s narrative explanation and evidence. She
asserted that the agency’s narrative explanation of its calculations was inadequate
because it was not in affidavit form. CRF, Tab 3 at 8. We agree that the
agency’s explanations are inadequate as to the WIGI and overtime issues, as
explained above, and as to the three withholding issues, as explained below. We
otherwise reject the appellant’s challenge because she has not pointed to any
specific flaw in the agency’s calculations. See Brown, 113 M.S.P.R. 325 at ¶ 5.
The agency’s narrative explanation is clear as to the overall back pay and interest
calculations and is supported by documentary evidence. That is sufficient where,
as here, the appellant has not identified specific contradictions or oversights but
merely speculates that the calculations might not be correct.
FEGLI
¶11 The administrative judge ordered the agency to provide evidence that it
transferred money withheld from the appellant’s back pay for FEGLI to the
appropriate entity. CID at 5. In its January 13, 2014 submission, the agency
asserted that OPM’s back pay regulations do not permit employee or agency
contributions for life insurance coverage to be deposited in the fund unless the
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employee “dies during the intervening period or suffered dismemberment
entitling [her to] benefits” during the back pay period. CRF, Tab 1 at 9. The
appellant challenged this assertion, and the agency did not provide any legal
citations for it. CRF, Tab 1 at 76, Tab 3 at 14. However, it appears the agency is
referring to 5 C.F.R. § 870.404(e), which covers both basic and optional FEGLI
contributions and provides:
Effective October 21, 1972, when there is an official finding that an
employee was suspended or fired erroneously, no withholdings are
made from the back pay. Exception: if death or accidental
dismemberment occurs during the period between the employee’s
removal and the finding that the agency action was erroneous,
premiums are withheld from the back pay awarded.
¶12 This provision appears to support the agency’s contention that it was not
permitted to withhold basic or optional FEGLI contributions from the appellant’s
back pay. However, the E&L statement submitted by the agency for the back pay
period appears to contradict its claim that it did not withhold FEGLI
contributions. The agency’s Breakdown of June 15, 2013 Payment and
Deductions—which covered February 16, 2012, to March 30, 2012, see CRF, Tab
1 at 5—lists “FEGLI Options A, B, C” as “-48.36,” CRF, Tab 1 at 21-22; see
CRF, Tab 1 at 6-7 (the agency’s deduction chart lists FEGLI A, B, C deductions
from the June 13, 2013 payment). 3 Accordingly, we find the agency
noncompliant on this issue. To be compliant, the agency must clearly explain
whether it withheld optional FEGLI contributions from the appellant’s back pay,
and how much. If the agency determines that it improperly withheld
contributions, the agency must demonstrate that it refunded to the appellant any
withheld amounts, plus interest. 4
3
Both the E&L and the narrative statement appear to show that the agency properly
did not withhold basic insurance contributions from the back pay payment. See CRF,
Tab 1 at 7, 21-22.
4
The Board does not have jurisdiction over matters pertaining to OPM’s decisions
respecting FEGLI entitlements. Richards v. Office of Personnel Management,
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TSP
¶13 The agency acknowledged that it was required to contribute an amount
equal to 1 percent of the appellant’s salary to her TSP account for each pay period
during the back pay period. CRF, Tab 1 at 6. The agency conceded that it did
not do so. Instead, after finding that it “could not verify” that the required
amounts were received by the TSP, the agency mailed the appellant a check for an
amount equal to the 1 percent contribution during the four pay periods at issue
($92.86). Id. The appellant challenged both the calculation of the 1 percent
contribution and the agency’s decision to provide it to her directly rather than
submit it to the TSP. CRF, Tab 3 at 8-9. We agree and find the agency
noncompliant on both counts.
¶14 The agency did not explain how it calculated the 1 percent contribution.
Moreover, any such calculation would be suspect in light of our finding that the
agency may have failed to account for a WIGI and mandatory overtime during the
back pay period. Accordingly, the agency must recalculate the 1 percent
contributions after it determines whether the appellant was entitled to a WIGI and
to mandatory overtime and must submit a narrative explanation of its
calculations. 5
¶15 The agency also erred in paying the 1 percent contribution directly to the
appellant rather than depositing it into her TSP fund. Absent the appellant’s
consent, direct payment is inadequate to establish compliance because it does not
97 M.S.P.R. 291, ¶ 6 (2004). However, the issue in this compliance case is not the
appellant’s entitlement to FEGLI but whether the agency was required to withhold
contributions from her back pay and submit them to the appropriate entity. Because
this is an issue of compliance with a Board final order, we may address it. See Lua v.
Office of Personnel Management, 102 M.S.P.R. 108, ¶ 8 (2006).
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It is not clear whether the appellant asserts that she is entitled to more than a 1 percent
contribution. In any event, we find that she is not, based on the documentary evidence
in the compliance file showing that upon restoration she elected to use the contribution
election on file at the time of her removal, which was limited to the 1 percent agency
contribution. CF, Tab 3 at 110-13.
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provide her the tax benefits she would have received and the interest she would
have accrued had the funds been deposited into her TSP account. See Tubesing v.
Department of Health and Human Services, 115 M.S.P.R. 327, ¶¶ 17-20 (2010)
(discussing the agency obligation to meet regulatory requirements regarding TSP
contributions). To come into compliance, therefore, the agency must provide
proof that it made the appropriate contributions to the appellant’s TSP account.
Erroneous Debt Notice to OPM
¶16 The appellant asserted that the agency erroneously charged her with a debt
and sent a debt notice to OPM, which began trying to collect the debt from her.
CF, Tab 1 at 2. The administrative judge ordered the agency to provide an
explanation and to submit evidence that it corrected any erroneous debt notice
transmitted to OPM. CID at 5.
¶17 In its January 13, 2014 submission, the agency explained that it erroneously
paid the appellant for the 187.5 hours of annual leave she had accrued at the time
of her removal. The payment was erroneous because the agency had already paid
her for this leave when it removed her. CRF, Tab 1 at 5. The second payment
resulted in a debt of $6,800.63 (gross). See id. at 9. The agency maintained that
this debt was valid. Id.¶18 The agency further explained that it had erroneously charged the appellant
for FEHB premiums during the back pay period and for several months afterward,
creating an apparent debt of $5,160.48 gross ($198.48 per pay period x 26 pay
periods). See id. at 9, 65; see also CF, Tab 8 at 7. The agency conceded this debt
should not have been assessed and provided evidence that it notified OPM to
cancel its attempts to collect the debt. CRF, Tab 1 at 67-69.
¶19 Finally, the agency stated that, during its review of the back pay issues, it
discovered that it had inadvertently failed to deduct employee and agency
retirement contributions from the payment issued to the appellant on June 15,
2013 (which covered the hours worked during the back pay period, although as
noted above, this may have erroneously excluded any WIGI and overtime due
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her). CRF, Tab 1 at 5, 9. The agency stated that it was attempting to correct this
error and that the appellant would receive a notice of indebtedness for her
retirement contributions. Id. at 9. The agency did not submit any evidence
showing that this issue has been resolved.
¶20 The appellant contended that the agency’s explanations were
incomprehensible and sought to have any debt waived. CRF, Tab 3 at 11-12. We
disagree. The agency clearly explained that the appellant owes two debts: one
arising from an erroneous overpayment related to her annual leave, the other from
the agency’s inadvertent failure to withhold employee retirement contributions
from her back pay payment. However, the appellant asserts, without
contradiction, that her collective bargaining agreement required the agency to
provide her notice and an opportunity to request that the debt be waived but that
the agency failed to provide either. CRF, Tab 3 at 13. The agency must address
this issue in its next compliance submission.
¶21 The agency also clearly explained the origin of the debt notice the appellant
received from OPM as arising from erroneous deductions for FEHB premiums.
However, we agree with the appellant that the agency has not provided sufficient
evidence that it corrected this issue. Specifically, the agency must show that, in
addition to canceling the FEHB debt, it refunded to the appellant any amounts it
deducted, with interest. The agency provided evidence that it refunded FEHB
amounts withheld from her back pay, CRF, Tab 1 at 6, 38, but did not address
whether it paid interest on this amount or whether it was required to make any
refund for the period between April 1, 2012, and May 5, 2013, see CF, Tab 8 at 7
(explaining that the debt accrued over 26 pay periods, beginning with the back
pay period (February 15, 2012, to March 30, 2012) and extending until the
appellant was “transferred” onto OPM’s rolls as a disability retirement annuitant
on May 5, 2013).
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Sanctions
¶22 The appellant seeks sanctions against the responsible agency official
pursuant to 5 U.S.C. §§ 1204(a)(2) and (e)(a)(2) and 5 C.F.R. § 1201.183(c).
Because the agency has submitted evidence of partial compliance, it would be
inappropriate to impose sanctions. See Tubesing, 115 M.S.P.R. 327 at ¶ 21;
Eikenberry v. Department of the Interior, 39 M.S.P.R. 119, 121 (1988).
Likewise, we reject the appellant’s request for an independent auditor paid for by
the agency. CRF, Tab 3 at 16. At this time, the remaining compliance issues do
not appear complex enough to warrant such an appointment.
FURTHER ACTIONS NEEDED FOR COMPLIANCE
¶23 Within 21 days of the date of this Order, the agency shall submit
the following:
1. A narrative explanation, supported by documents and/or affidavits
as appropriate, regarding the appellant’s entitlement to a WIGI
and overtime pay during the back pay period. If the agency
determines that the appellant is entitled to either, it must submit
evidence of payment, including interest. Any interest payment
must likewise be accompanied by a narrative explanation and
documentation regarding how it was calculated.
2. A narrative explanation, supported by documents and/or affidavits
as appropriate, explaining whether it withheld optional FEGLI
contributions from the appellant’s back pay, and how much. If
the agency determines that it improperly withheld contributions,
then it must provide evidence that it refunded to the appellant any
withheld amounts, plus interest. Any interest payment must be
accompanied by a narrative explanation and documentation
regarding how it was calculated.
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3. A narrative explanation of how it calculated the appellant’s 1
percent TSP contributions, which also must account for any
amounts owed her for a WIGI and overtime during the back pay
period. The explanation must be supported by documentary
evidence or affidavits. The agency also must provide evidence
that it deposited the appropriate amounts into the appellant’s
TSP fund.
4. Evidence that the agency provided the appellant any applicable
notice and opportunity to request waiver of the debts arising from
the annual leave and employee retirement
contribution overpayments.
5. Evidence, accompanied by a narrative explanation, showing that
the agency refunded to the appellant any amounts deducted, with
interest, for the FEHB debt. The agency should address whether
it: (1) paid interest on the FEHB amounts refunded for pay
periods between February 15, 2012, and March 30, 2012; and
(2) refunded and paid interest on any amounts withheld between
April 1, 2012, and May 5, 2013.
6. The agency must inform the Board whether the responsible
agency official is still Michelle Campbell, Director of HRC
Jackson, Mississippi. If not, the agency is directed to submit the
name and title of the new responsible agency official.
If the agency fails to submit this information, then the Board may issue an order
to show cause why sanctions should not be imposed against the responsible
agency official pursuant to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R.
§ 1201.83(a)(2).
¶24 The appellant shall file a response within 14 days of the agency’s
submission of compliance. Failure to submit a response within the required time
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period may cause the Board to assume she is satisfied and dismiss the petition for
enforcement.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.