Eric Bennett v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC BENNETT, DOCKET NUMBERS
Appellant, NY-0752-14-0073-X-1
NY-0752-14-0073-C-2
v.
DEPARTMENT OF
TRANSPORTATION,
Agency. DATE: June 12, 2023
THIS ORDER IS NONPRECEDENTIAL 1
Jonathan Bell, Esquire, and Susan Tylar, Esquire, Garden City, New York,
for the appellant.
Daniel P. Kohlmeyer, Esquire, Jamaica, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
¶1 In an October 26, 2022 Order, the Board affirmed, except as modified to
find an additional basis of agency noncompliance, the compliance initial decision,
which granted in part the appellant’s petition for enforcement and found the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
agency in partial noncompliance with the final decision in the underlying appeal
reversing the appellant’s removal and ordering him reinstated with back pay and
benefits. Bennett v. Department of Transportation, MSPB Docket No. NY-0752-
14-0073-C-2, Order (Oct. 26, 2022); Bennett v. Department of Transportation,
MSPB Docket No. NY-0752-14-0073-C-2, Compliance Petition for Review
(CPFR) File, Tab 6; Bennett v. Department of Transportation, MSPB Docket
No. NY-0752-14-0073-C-2, Compliance File (C-2 CF), Tab 11, Compliance
Initial Decision (CID). Specifically, the compliance initial decision found the
agency in noncompliance to the extent it had failed to pay the appellant $6,000 in
bonus pay as part of his back pay award. CID at 4-5. The Board modified the
compliance initial decision to also find the agency in noncompliance to the extent
it failed to provide sufficient and clear information regarding its calculation of
the appellant’s overtime back pay. Order, ¶¶ 1, 11-13. The Board ordered the
agency to submit evidence of compliance within 60 days demonstrating that it
properly calculated the appellant’s overtime hours and that the back pay award
reflected that calculation. Id., ¶ 14. For the reasons discussed below, we find
that the agency has established compliance with its obligation to pay the appellant
$6,000 in bonus back pay but remains in noncompliance with its obligation to
demonstrate that it has properly calculated and paid the appellant the appropriate
amount of overtime back pay with interest.
BACKGROUND
¶2 The appellant, an Air Traffic Control Specialist, sustained an on-the-job
injury on March 25, 2011, and the Office of Workers’ Compensation Programs
(OWCP) accepted his claim for traumatic injury. Bennett v. Department of
Transportation, MSPB Docket No. NY-0752-14-0073-I-2, Refiled Appeal File,
Tab 21, Initial Decision (ID) at 2-3. Effective November 9, 2013, the agency
removed the appellant from Federal service due to his continuing unavailability
for duty, noting that he had not reported for regular, full-time duty since his
3
March 25, 2011 injury. ID at 1, 12-13. The appellant appealed his removal to the
Board, and in a July 29, 2016 initial decision, the administrative judge reversed
the removal and ordered the agency to reinstate him effective November 9, 2013,
and provide him appropriate back pay with interest and restored benefits . ID
at 27, 38. Neither party petitioned for review of the initial decision, which
became final on September 2, 2016. ID at 40.
¶3 On January 23, 2017, the appellant filed a petition for enforcement arguing
that the agency had failed to properly calculate and pay his back pay award, failed
to restore certain leave, and failed to give him a chance to “buy back” his OWCP
leave. Bennett v. Department of Transportation, MSPB Docket No. NY-0752-14-
0073-C-1, Compliance File (C-1 CF), Tab 1. The agency argued that the
appellant was not entitled to back pay for the period he received OWCP
benefits—November 9, 2013, through February 17, 2015—and provided
affidavits reflecting, in relevant part, that it would pay the appellant for
approximately 232 hours of overtime for 2015 and 153.5 hours of overtime for
2016 based on the overtime hours he actually worked in the year prior to his
injury. C-1 CF, Tab 7 at 5, 10-11, 13
¶4 In a March 10, 2017 interim order, the administrative judge held that,
contrary to the agency’s contention, the appellant was entitled to the back pay and
benefits for the period he was receiving OWCP benefits, less deductions that
ordinarily would have been taken, including an offset for any OWCP wage
replacement benefits he actually received, since the agency had failed to submit
concrete and positive evidence establishing that the appellant was not ready,
willing, and able to perform the duties of his position during that time. C-1 CF,
Tab 12 at 1-2. The administrative judge explicitly stated that the appellant’s back
pay for this period “should include all additional pay, such as overtime, Sunday
pay, night differential and holiday pay that he would have received had he worked
during this time period.” Id. at 2 (citing Powe v. U.S. Postal Service,
108 M.S.P.R. 130 (2008)). Accordingly, the administrative judge ordered the
4
agency to pay the appellant the appropriate amount of back pay for the time
period from November 9, 2013, through February 17, 2015, and dismissed the
appeal without prejudice for a period of 60 days to give the agency time to
comply with the interim order. Id. at 2; C-1 CF, Tab 13.
¶5 Upon the automatic refiling of the petition for enforcement, the appellant
narrowed the scope of his enforcement challenges to the following allegations of
noncompliance: (1) the agency failed to correctly calculate his overtime back
pay; (2) the agency failed to him pay $9,000 in bonus awards for 2015; and
(3) the agency failed to give him the opportunity to “buy back” his OWCP leave.
C-2 CF, Tab 6 at 6-8. In an August 1, 2017 compliance initial decision, the
administrative judge granted the appellant’s petition in part and found the agency
in noncompliance to the extent it failed to pay him $6,000 in bonus payments he
would have received but for the improper removal. CID at 4-6. The
administrative judge denied the appellant’s petition for enforcement to the extent
he claimed that the agency failed to correctly calculate the overtime hours in his
back pay award, finding that the agency’s decision to pay the appellant overtime
based on his pre-removal overtime hours was not unreasonable. CID at 3-4. The
administrative judge also denied the appellant’s petition for enforcement to the
extent he argued that the agency failed to afford him an opportunity to buy back
leave, finding that the appellant failed to establish that he was entitled to do so.
CID at 5-6.
¶6 On September 20, 2017, after requesting and receiving an extension of time
to file, the appellant petitioned for review of the compliance initial deci sion,
arguing that the administrative judge erred in finding that the agency correctly
calculated the overtime hours in his back pay award. 2 CPFR, Tab 1. In the
October 26, 2022 Order, the Board found that the agency’s use of the appellant’s
2
The appellant did not challenge in his compliance petition for review the
administrative judge’s findings that he was entitled to $6,000 in bonus pay as part of his
back pay award or that he was not entitled to buy back any leave. CPFR File, Tab 1.
5
historical overtime hours to calculate his overtime back pay award was reasonable
but that the agency failed to present clear and understandable evidence that its
overtime back pay calculations were accurate. Order, ¶¶ 8-13. Accordingly, the
Board affirmed the compliance initial decision except as modified to find that the
agency’s failure to present clear and understandable information regarding its
overtime back pay calculation constituted an additional basis of agency
noncompliance. Id., ¶¶ 1, 13. The Board ordered the agency to submit evidence
and a narrative statement of compliance within 60 days, including evidence
demonstrating that it properly calculated the appellant’s pre-removal overtime
hours and that the back pay awarded to the appellant reflected that calculation.
Id., ¶ 14.
¶7 On December 23, 2022, the agency submitted a narrative statement and a
sworn declaration from a Payroll Program Specialist explaining that the
“confusion” regarding the overtime hours in the back pay award occurred as a
result of the agency entering hours into timecards as decimals in Excel (base 100)
and the payroll services interpreting those entries as clock hours and minutes
(base 60), i.e., the agency input 1.26 to signify 1 hour and 16 minutes, but payroll
services interpreted this figure as 126 minutes (or 2 hours 6 minutes). CRF,
Tab 3 at 4-5, 7-8. The agency stated, however, that this issue was identified and
corrected in 2017, so the overtime calculation and back pay calculations made at
the time were correct, and provided a copy of an email from the Supervisory
Human Resources Specialist stating that the appellant’s “payment is correct.” Id.
at 5, 9.
¶8 In response, the appellant argued that the agency’s December 23, 2022
compliance submission failed to demonstrate that it properly calculated and paid
him the appropriate amount of overtime hours for the full back pay period from
November 9, 2013, through November 6, 2016. CRF, Tab 4 at 4 -6. The appellant
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also argued that he was entitled to the outstanding overtime back pay plus interest
and attorney’s fees in connection with his petition for enforcement. 3 Id. at 6-7.
ANALYSIS
¶9 When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the 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); King v. Department of the Navy,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board ’s order
by a preponderance of the evidence. 4 Vaughan, 116 M.S.P.R. 319, ¶ 5; 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.$6,000 Bonus Award
¶10 As described above, the administrative judge found that the agency was not
in compliance with the Board’s final order in the underlying appeal because it had
failed to pay the appellant $6,000 in bonus pay as part of his back pay award.
CID at 4-5. The agency’s submissions show that it has now made this payment.
CRF, Tab 2. In particular, as set forth above, the agency stated and provided
3
The appellant’s request for attorney fees in connection with these compliance
proceedings is premature because the Board has not yet issued a final decision on
compliance. See Galatis v. U.S. Postal Service, 109 M.S.P.R. 651, ¶ 14 (2008);
5 C.F.R. § 1201.203(d) (requiring a motion for attorney fees to be filed as soon as
possible after a final decision of the Board but no later than 60 days after the date on
which a decision becomes final).
4
A preponderance of the evidence is the degree of relevant evidence t hat 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).
7
evidence reflecting that the agency paid the appellant a $6,000 lump sum on
August 15, 2017. CRF, Tab 2. As the appellant has not responded to the
agency’s assertions and evidence of compliance, the Board assumes that he is
satisfied. See Baumgartner v. Department of Housing and Urban Development,
111 M.S.P.R. 86, ¶ 9 (2009). Accordingly, we find that the agency has complied
with its outstanding obligation to pay the appellant the $6,000 in bonus pay he
would have received during the back pay period had the removal not occurred.
Overtime Pay
¶11 Overtime back pay may be computed based on either the appellant’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers v. Department of Army,
123 M.S.P.R. 31, ¶ 13 (2015). Although the appellant is not entitled to receive a
windfall, he is entitled to be restored to the status quo ante, and the agency must
use the method of computation most likely to achieve this goal. Id. The Board
will not nullify the method used by the agency to calculate overtime back pay in
the absence of a showing that the method was unreasonable or unworkable. Id.¶12 Here, the agency stated that it calculated the appellant’s overtime back pay
award based on the hours of overtime he worked during the year prior to his
March 25, 2011 injury and determined on that basis that he was entitled to
approximately 232 hours of overtime per year. C-1 CF, Tab 7 at 5-6, C-2 CF,
Tab 7 at 5. The only evidence the agency provided regarding the number of hours
of overtime back pay the agency paid the appellant is a February 7, 2017 affidavit
completed by the Payroll Program Specialist attesting that the appellant received
the following overtime back pay:
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Period Overtime hours Overtime Pay
1/11/2015 – 6/13/2015 76 hours 10 min. $9,357.33
6/14/2015 – 1/9/2016 155 hours 40 min. $19,594.97
1/10/2016 – 6/11/2016 93 hours 10 min. $11,837.10
6/12/2016 – 10/15/2016 60 hours 20 min. $7,783.85
C-1 CF, Tab 7 at 10-11. Thus, the agency’s evidence reflects that the appellant
received back pay for approximately 232 hours of overtime in 2015 and
approximately 153.5 hours of overtime for 2016, for a total of 385 hours and
20 minutes of overtime for the period from January 11, 2015, through October 15,
2016.
¶13 As noted above, both the administrative judge and the Board found that the
agency’s decision to calculate the appellant’s overtime back pay using his
overtime history was not unreasonable. Order, ¶¶ 8-10; CID at 4. However, the
Board found that the agency had failed to present clear and understandable
evidence showing that its overtime back pay calculations were accurate. Order,
¶¶ 11-13. Specifically, the Board found that the agency failed to provide any
evidence confirming that the appellant previously worked 232 hours of overtime
per year and noted that the records submitted by the appellant show that he
worked 215 hours of overtime in 2015, rather than 232. Id., ¶¶ 12-13. The Board
additionally found that the Management Support Specialist’s statements that she
used the overtime hours the appellant worked in each pay period the year prior to
his injury and applied these hours to both 2015 and 2016 conflicted with the
Payroll Program Specialist’s affidavit, which stated that the appellant was entitled
to only 153 hours of overtime for 2016 and to different amounts of overtime for
the January-to-June period of each year. Id. at ¶ 13. Furthermore, the Board
noted that, at the time the agency submitted this evidence, the agency believed
that it was not required to pay the appellant back pay for the period he was
9
receiving OWCP benefits (November 9, 2013, through February 17, 2015) and
therefore applied the appellant’s historical overtime hours only to 2015 and 2016.
Id., ¶ 13 n.2. However, as the Board observed, the administrative judge
subsequently ruled that the agency was required to pay the appellant back pay,
including overtime pay, for the period he was receiving OWCP benefits, minus an
offset for any OWCP wage replacement benefits he actually received. Id.¶14 In its statement of compliance responding to the Board’s finding of
noncompliance in connection with its overtime calculations, the agency stated
that the “confusion” with its back pay calculations arose as a result of converting
unspecified timecard entries from decimal hours to clock hours and minutes but
that the appellant nonetheless received the correct amount of back pay. CRF,
Tab 3 at 5, 9. This submission fails to address the deficiencies identified in the
Board’s Order and does not satisfy the agency’s obligation to demonstrate
compliance by preponderant evidence.
¶15 First, the agency has still not provided clear and understandable evidence
supporting its determination that the appellant was entitled to 232 hours of
overtime per year of the back pay period based on the overtime hours he actually
worked prior to his injury. The agency has previously represented that it
determined the appellant’s overtime back pay award based on the hours of
overtime he worked in the 1 year before his March 25, 2011 injury. C -1 CF,
Tab 7 at 5, 13. The Board previously construed this statement to mean the
overtime hours worked in 2010. Order, ¶¶ 8-10, 12, 14. It appears, however, that
the agency may have been referring to the 12-month period immediately
preceding his removal, i.e., March 25, 2010, through March 24, 2011, rather than
the year 2010. Regardless of which of these 12-month periods the agency used to
calculate the appellant’s overtime back pay entitlement based on his overtime
history, it must submit evidence supporting its determination that the appellant
actually worked 232 hours of overtime during that period.
10
¶16 Second, the agency has not stated or provided any evidence showing that it
has properly calculated and paid the appellant the appropriate amount of overtime
back pay for the entire back pay period, including November 9, 2013, through
February 17, 2015, as expressly required by the administrative judge’s interim
order, or October 16, 2016, through the date of his reinstatement. 5 The unsworn
and unsupported email from the Supervisory Human Resources Specialist stating
that the appellant’s “payment is correct,” CRF Tab 3 at 9, does not establish that
the appellant has received the correct amount of overtime back pay, see Adamsen
v. Department of Agriculture, 116 M.S.P.R. 331, ¶ 17 (2011) (finding an unsworn
unsupported statement not to be probative of the matter asserted). The agency
must provide evidence showing that it has satisfied its obligation to calculate and
pay the appellant the overtime back pay to which he is entitled for the entire back
pay period.
¶17 Third, the agency has failed to provide clear and understandable evidence
accounting for the apparent conflict between the Management Support
Specialist’s affidavit stating that the appellant’s historical overtime data was
applied to both 2015 and 2016 and the Payroll Program Specialist’s affidavit
stating that the appellant was entitled to only 153 hours of overtime for 2016 and
to 17 hours of overtime less for the January-to-June period in 2015 than the same
time period in 2016. Although the agency’s December 23, 2022 compliance
submission contends that the “confusion” in its prior back pay calculations
resulted from a conversion error, the agency does not explicitly state which
numbers were affected by the error or explain how the error actually affected any
particular number. CRF, Tab 3. Thus, it is unclear if the purported conversion
error affected the agency’s calculations regarding the appellant’s overtime back
5
The appellant states that he returned to work on November 6, 2016, although there
does not appear to be any evidence in the record confirming this date. CRF, Tab 4 at 5.
If the agency does not provide evidence confirming the end date of the back pay period,
the Board will assume the appellant’s statement is correct.
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pay for 2015 and 2016 and, even if it did, the agency’s submission does not
provide sufficient information for the Board to find that the overtime hours paid
to the appellant for these years were correct. Moreover, we note that the 17-hour
difference between the 76 hours 10 minutes of overtime paid to the appellant for
the January-to-June period in 2015 and the 93 hours 10 minutes of overtime paid
to him for the same period in 2016 appears to be accounted for by, at least in part,
the agency’s apparent failure to pay the appellant overtime back pay for the
period he was receiving OWCP benefits, rather than solely due to the purported
conversion error. If the agency maintains that its prior calculations regarding the
appellant’s overtime entitlement in 2015 and 2016 are correct, it must provide a
clear and understandable explanation, supported by evidence, addressing how it
derived those numbers and why there are differences between the overtime hours
for the same periods in 2015 and 2016.
ORDER
¶18 Accordingly, we ORDER the agency to submit, within 21 calendar days of
the date of this order, satisfactory evidence of compliance with the Board’s
Order. Specifically, the agency must submit evidence and a detailed narrative
establishing the following by preponderant evidence:
(1) that the agency has properly calculated based on the
appellant’s overtime history the number of overtime hours he is
entitled to per year of the back pay period, including evidence
establishing that the appellant in fact worked 232 hours of
overtime in the 12-month period preceding his injury or in 2010;
(2) that the agency has properly calculated the appellant’s
entitlement to overtime back pay for the entire back pay period,
including the period when he was receiving OWCP benefits
(November 9, 2013, through February 17, 2015) and from
October 16, 2016, through the date of his return to work; and
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(3) if the agency determines that the appellant is entitled to
additional overtime back pay, that it has paid him the appropriate
overtime back pay, minus appropriate deductions and offsets,
with interest, which shall accrue through a date not more than
30 days before the date on which the payment is made, see
5 U.S.C. § 5596(b)(2)(B)(i).
¶19 Furthermore, we ORDER the agency to submit, within 21 calendar days of
this order, the name, title, grade, address, and email address of the agency official
or officials charged with complying with the Board’s order and provide evidence
showing that it has informed such official or officials in writing of the potential
sanction for noncompliance as set forth in 5 U.S.C. § 1204(a)(2) and (e)(2)(A),
even if the agency asserts that it has fully complied with the Board’s order. 6
5 C.F.R. § 1201.183(a)(2). If the agency fails to identify the agency official or
officials charged with complying with the Board’s Order, the Board will presume
that the highest ranking appropriate agency official who is not appointed by the
President by and with the consent of the Senate is charged with compliance. Id.¶20 The appellant may respond to the agency’s response to this Order within
21 calendar days of the date of service of the agency’s submission. If the
appellant does not respond to the agency’s submission regarding compliance
6
We acknowledge that, in response to the administrative judge’s acknowledgment
order, the agency identified five “responsible agency officials”: a Lead Human
Resources Specialist, a Senior Technical Specialist, the Payroll Program Specialist, a
Supervisor of Benefits within the Interior Business Center, and the Management
Support Specialist. C-1 CF, Tab 7 at 4-5. However, it is unclear which of these
individuals, if any, is charged with complying with the Board’s Order to properly
calculate and pay the appellant’s overtime back pay with interest. See 5 U.S.C.
1204(a)(2); 5 C.F.R. § 1201.183(a)(2). Pursuant to 5 U.S.C. 1204(e)(2)(A), the Board
may order that any employee charged with complying with its order, other than an
employee appointed by the President by and with the advice and consent of the Senate,
shall not be entitled to receive payment for service as an employee during any period
that the order has not been complied with. Accordingly, the agency must identify the
responsible agency official or officials charged with—and with the authority to—
comply with the Board’s Order to calculate and pay the appellant the appropriate
amount of overtime back pay with interest.
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within 21 calendar days, the Board may assume that he is satisfied and dismiss
the petition for enforcement.
¶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
the remaining issues in this petition for enforcement, a final order subject to
judicial review will be issued.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.