UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

TONYA EVETTE RHODES, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT

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DATE: September 25, 2015



### THIS ORDER IS NONPRECEDENTIAL 1

Tonya Evette Rhodes , Brandon, Florida, pro se. 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

rem oval appeal. MSPB Docket No. AT

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- 1, Compliance File (CF), Tab 11 , Compliance Initial Decision (CID) . On April 13, 2015, we issued a

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential or ders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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 Bo ard as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).2

nonprecedential order finding the agency in partial compliance. Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT

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- 1, Order (Apr. 13, 2015); Compliance Referral File (CRF), Tab 5. For the reasons
discussed b elow, we again find the agency in partial compliance and order i t to take appropriate a ction to bring itself into full compliance.

DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On March 15, 2013, the administrative judge issued an initial decision

r eversing the appellant’s removal and requiring the agency to restore her effective February 15, 2012. MSPB Docket No. AT

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- 1, Initial Appeal File (IAF), Tab 47 , Initial Decision at 16. The decision required the agency to pay her appropriate back pay and benefits. Id. Neither party filed a petition for review,
and the initial decision b ecame 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% Thrift S avings Plan (TSP) contributions; and failed to withhold money from her back pay for Federal Employee Group Life Insurance (FEGLI) premiums. CF, Tab 1 at 3

- 4 , Tab 10

at 4, 7. ¶4 On December 10, 2013, the administra tive judge issued a compliance initial
d ecision finding the agency noncom pliant with the March 15, 2013 initial
d ecision. CID . The administrative judge determined that the agency failed adequately to explain its back pay calculations, including how it calculated the back pay period and interes t amounts. CID at 3. The administrative judge further
found that the agency failed to provide evidence to show that it made appropriate transfers to the appellant’s TSP account and FEGLI. Id. Finally, the administrative judge found that the agency admi tted it may have erroneously3

submitted a debt notice to the Office of Personnel Management (OPM) rega rding the appellant’s FEHB plan and had not provided evidence that it corrected such

error. Id. Nei ther party filed a petition for review. ¶5 On January 1 3, 2014, the agency filed evidence of purported compliance, to which the appellant responded on January 31, 2014. 2 CRF , Tabs 1, 3. On April 13, 2015, the Board issued a nonprecedential order finding the agency in partial compliance and ordering it , in pe rtinent part, to take the following steps t o bring itself into full compli a n ce: 1. Submit a narrative explanation regarding the appellant’s entitlement to a
within

- grade increase ( WIGI ) and overtime pay during the back pay period. Submit evidence that the agen cy paid any amounts owing,
with interest.
2. Submit a narrative explanation regarding whether the agency withheld optional FEGLI contributions from the appellant’s back pay, and how
much. If necessary, submit evidence that the agency refu nded any amounts withheld, plus interest.
3. Submit a narrative explanation regarding how the agency calculated its 1% TSP contributions, accounting for any amounts owed for a WIGI and overtime. Provide evidence that the agency deposited the appropriate
amounts in the appellant’s TSP fund.
4. Submit evidence that the agency provided the appellant any applicable notice and opportunity to request waiver of the debts arising from the
annual leave and e mployee retirement contribution overpayments.

2 Following these submissions, the case was re ferred to an Office of General Counsel (OGC) attorney for attempted settlement. In February 2015, after the parties failed to reach agreement, the case was transferred to a different OGC attorney for a recommended disposition on the merits. The parties d id not submit any further documents in to the record during settlement discussions.4

5. Submit evidence that the agency refunded any amounts ow ed, with interest, for the FEHB debt.
Rhodes , MSPB Docket No. AT

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- 1, Order at 10

- 11; CRF , Tab 5

at 10

- 11. ¶6 Following this order, both parties filed submissions. CRF , Tabs 7, 9

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. For the reasons explain ed below, we again find the agency in partial compliance
and orde r it to submit evidence of full compliance

.

ANALYSIS ¶7 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, i n 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
bu rden 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 noncomplia nce.” Brown v. Office of Personnel Management
, 113 M.S.P.R. 325 , ¶ 5 (2010).
Back Pay and Interest ¶8 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 s hown on the appella nt’s Leave and Earning statements. CID at 3

- 4.
In our April 13, 2015 order, we found the agency compliant on this issue except concerning whether the agency accounted for the appellant’s alleged entitlements

to a WIGI and 20 hours per month mandatory overtime during the back pay5

period and concerning whether the agency properly withheld amounts relating to the appellant’s FEGLI, TSP, and FEHB

. Rhodes , MSPB Docket No. AT

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- 1, Order at 5; CRF, Tab 5 at 5. ¶9 In its May 1, 2015 response, the agency asserted that the appellant was not entitled to a WIGI during the back pay period ( February 15 to March 30, 2012) because she received a step increase on August 28, 2011, to GS

- 12 step 4, and was required to wait 2 years to be eligible for another increase. CRF, Tab 7 at 4. The appellant did not contest this assertion. Accordingly, we find t he agency in compliance on this issue. ¶10 As to the overtime issue, the agency asserted that it determined that the appellant was entitled to 30 hours of overtime pay during the back pay period. Id

. The agency calculated this amount as $1,632.30 (gross) and provided evidence
that it had paid th is amount, less taxes and deductions , on April 19, 2014

. Id

. at 4

- 5, 19 . The agency stated that it had not paid interest on this amount but had requested that the Defense Finance and Accounting Services (DFAS) calculate and pay the interest. Id

. at 5. The appellant did not contest these assertions.
CRF , Tab 10 at 4. Accordingly, we find the agen cy in compliance on this issue, with the exception of the interest payment. The agency must submit evidence that it paid the r equired interest. ¶11 The appellant contended that the agency was not in compliance with its back pay obligations because it did not properly credit her annual leave or permit
her to “cash in” her leave. Id

. It is unclear how these allegations relate to the agency’s back pay obligations. Regardless, we found in our previous order that the agency was in compliance with its back p ay obligations except for the WIGI and overtime issues discussed above and the withholding issues (FEGLI, TSP, and FEHB) discussed below. Rhodes , MSPB Docket No. AT

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- 1, Order at 5; CRF, Tab 5 at 5. We therefore will not consider the appella nt’ s new claims regarding her back pay.6

Federal Employees Group Life Insurance ¶12 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 4. 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 employee “dies during the intervening period or s uffered dismemberment entitling [her to] benefits” during the back pay period. CRF, Tab 1 at 9. In our April 13, 2015 order, we determined that the agency’s position was supported by 5 C.F.R. § 870.404 (e) and appeared to apply to both basic and optional FEGLI
contributions. Rhodes , MSPB Docket No. AT

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- 1, Order at 5

- 6 ; CRF, Tab 5 at 5

- 6. We noted, however, that it appeared the agency nonetheless had withheld an optional FEGLI contribution of $48.36 from the appellant’s back pay. We ordered the agency to explain whether it had withheld this contribution and, if it determined that thi s contribution was improperly withheld, to refund it
with interest. Rhodes , MSPB Docket No. AT

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- 1, Order at 10; CRF, Tab 5 at 10

. ¶13 The agency conceded that it withheld this amount, but stated that it was unsure whether this withholding was correct and had submitted a “remedy ticket.” CRF, Tab 7 at 5. Because the agency has not submitted the information required by our prior order, w e find the agency noncompliant on thi s issue

. Thrift Savings Plan ¶14 The agency acknowledged that it failed to contribute an amount equal to 1% of the appellant’s salary to her TSP account for each pay period during the back pay period. CRF, Tab 1 at 6. Instead, the agency mailed the appellant a check for an amount equal to the 1% contribution during the four pay periods at issue ($92.86). Id. In our April 13, 2015 order, we found the agency noncompliant
both as to calculating the 1% contribution, and as to depositing the appropriate7

amounts into the appellant’s TSP account. Rhodes , MSPB Docket No. AT

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- 1, Order at 7

- 8; CRF, Tab 5 at 7

- 8. We ordered the agency to explain its calculations and provide evidence that it deposited the appropriate amounts into the appellant’s TSP account. Rhodes , MSPB Docket No. AT

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- 1, Order at 11 ; CRF, Tab 5 at 11

. ¶15 The agency subsequently explained that it calculated the 1% TSP contribution based on 1% of the appellant’s basic pay , in accordance with guidance provided by the TSP . CRF, Tab 7 at 5, 34, 36. The agency stated that it had submitted a remedy ticket for this amount to be deposited in the appellant’s
TSP fund. Id

. at 6. The agency also stated that it intended to recoup the $92.86 it previously paid to the appellant in error (when it paid the a ppellant directly instead of depositing this amount in her TSP account). Id

. ¶16 The appellant contended that the agency should not be permitted to recoup the $92.86 paid in error because “allowing [her] to incur a debt due to internal
miscalculation and tr aining errors are [sic] mean

- spirited and does not place appellant in a positive position.” CRF, Tab 10 at 5. We disagree. The agency paid this amount in error and is permitted to recoup it. The appellant is not entitled to a windfall. The agency must , however, provide evidence that it deposited this amount into the appellant’s TSP account and that her TSP account
has bee n credited with the appropriate breakage

. Debt Notice s 1. Annual Leave Debt ¶17 In its January 13, 2014 submission, the agency explained t hat it erroneously

p aid 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 already had paid the appellant for this leave when it removed her. CRF, Tab 1 at 5. The second payment resulted in a debt of $6,800.63 (gross). Id

. at 9. The agency maintained
that this debt was valid. Id. In our April 13, 2015 order, we found that the8

agency satisfactorily explained the origin of this debt, but failed to submit

e vidence that it provided the appellant any applicable notice and opportunity to request waiver of this debt mandated by her collective bargaining agreement.
Rhodes , MSPB Docket No. AT

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- 1, Order at 9, 11; CRF, Tab 5

at 9 , 11

. ¶18 The agency sub sequently submitted evidence that it had twice advised the appellant that she could request waiver of this debt. CRF, Tab 7 , 47, 50. The appellant did not challenge this evidence. Instead, she stated that she did not request waiver of the debt because s he did not believe she should owe any money. CRF, Tab 10 at 5. As we previously found, however, this debt appears accurate.
Rhodes , MSPB Docket No. AT

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- 1, Order at 9; CRF , Tab 5 at 9. Because the agency has provided the required waiver no tice, w e find it in compliance on this issue.
2. Retirement Contributions Debt ¶19 In our prior order, w e found that the agency satisfactorily explained that the appellant owed a debt for employee and agency retirement contributions that the agency erroneously failed to deduct from the payment issued to the appellant on June 15, 2013 (which covered hours wor ked during the back pay period). Rhodes
, MSPB Docket No. AT

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- 1, Order at 9; CRF, Tab 5 at 9. As with the debt arising from double payment of the appellant’s annual leave, we ordered the agency to submit evidence that it provided her any app licable notice and opportunity to request waiver of this debt mandated by her collective bargaining agreement. Rhodes , MSPB Docket No. AT

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- 1, Order at 11; CRF,
Tab 5 at 11. ¶20 The agency stated that it informed the appellant of the waiver proce dure for
the retirement contributions debt at the same time it informed her of the waiver procedure for the annual leave debt. CRF, Tab 7 at 6. However, the two waiver notices submitted by the agency relate only to the annual leave debt resolved
above. Id

. at 47, 50. We therefore find the agency noncompliant on this issue.9

The agency must submit evidence that it expressly notified the appellant of the
amount owed for retirement contributions and that it informed her how to seek
waiver of this debt.
3. F EHB Premiums ¶21 Finally, the agency explained that it 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). CRF
, Tab 1 at 9, 65; see 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. We ordered the agency to provide evidence that (1) it paid the appellant interest on the FEHB amounts refunded for the back pay period ( February 15 to March 30, 2012), and (2) it refunded and paid interest on the FEHB amounts withheld between April 1,
2012 , and May 5, 2013. Rhodes , MSPB Docket No. AT

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- 1, Order at 11; CRF, Tab 5 at 11

. ¶22 Regarding the amount refunded during the back pay period ($793.92), the agency stated that it had not paid interest but had submitted a remedy ticket requesting that DFAS calculate and pay interest. CRF, Tab 7 at 6. To be deemed compliant, the agency must submit evidence that a ppropriate interest has
been paid. ¶23 As to the amounts withheld between April 1, 2012 , and May 5, 2013, the agency stated that it credited these amounts to the appellant’s outstandi ng annual
leave debt. Id

. at 7, 74, 77. The documentation submitted by the agency does not clearly demonstrate that these amounts were credited to the appellant’s debt
, however . For instance, the agency’s documents appear to show that the agency
credite d $176.91 in each pay period for 16 pay periods. See id

. at 75. However, according to our understanding of the agency’s previous explanations, the agency erroneously withheld FEHB premiums for 22 pay periods between April 1, 2012 , and May 5, 2013. Moreover, the agency’s previous documentation showed that10

the FEHB premiums were $198.48 per pay period, not $176.91 per pay period (the amounts apparently credited to the appellant’s debt) . The agency must explain these discrepancies and provid e a full and comprehensible accounting of how it applied these amounts to the appellant’s annual leave debt

. Other Issues ¶24 The appellant appears to contend that the agency’s repeated failures to provide adequate proof of compliance are in retaliation fo r her prior equal employment opportunity activity. CRF, Tab 10 at 6. The Board may adjudicate retaliation claims in the context of a compliance decision. Jimenez v. U.S. Postal
Service , 58 M.S.P.R. 520 , 525 (1993). Here, however, there is no indication that the agency is deliberately refusing to comply. On the contrary, the agency twice has produced evidence of partial compliance, and its failure to achieve full complianc e appears to be due to the complex calculations required and its reliance on DFAS to process its requests. ¶25 The appellant requests $25,000 in compensatory damages. CRF, Tab 10

at 6. The Board lacks authority to award compensatory damages in compliance

p roceedings. Cunningham v. Department of Veterans Affairs
, 91 M.S.P.R. 523 , ¶ 3 (2002).

Further Actions Needed for Compliance ¶26 Within 21 calendar days of the date of this Ord er, the agency shall submit
the following:
1. Evidence that it paid the appropriate amount of interest on the 30 hours of overtime pay. This evidence shall include a narrative expl anation of
how the interest was calculated.
2. An explanation regarding whether the optional FEGLI contribution of $48.36 was properly withheld and, if it was not, evidence that this amount was refunded, with interest. The interest calculation m ust be supported by a narrative explanation.11

3. Evidence that the agency deposited the appropriate TSP contributions into the appellant’s TSP account and that the accoun t was credited with appropriate breakage.
4. Evidence that the agency expressly notified the appellant of the amount
owed for retirement contribution s and her options about seeking waiver
of this debt.
5. Evidence that the agency paid the appropriate amount of interest on the $793.92 refunded for FEHB premiums erroneously withheld during the back pay period. This evidence shall include a narrative expl anation of
how the interest was calculated.
6. A narrative explanation regarding how the FEHB premiums erroneously
withheld between April 1, 2012 , and May 5, 2013, were applied to the appellant’s outstanding annual leave debt. This explanation must
indicate , at a minimum, which pay periods were affected by the erroneous withholdings; the amount erroneously withheld in each pay period; when amounts were credited against the annual leave debt, and how much; and how much annual leave debt remains outsta nding. The narrative explanation m ust be supported by documentary evidence. ¶27 If the agency’s submission does not fully address all the issues required, the agency shall submit biweekly reports detailing its progress and efforts until full compliance is a chieved. If the agency fails to submit th e required information or the biweekly reports , 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). ¶28 The appellant shall file a response within 14 calenda r days of the agency’s
submission . The appellant shall file a response within 14 calendar days to any biweekly report by the agency that contains substantive evidence of compliance (as opposed to merely a progress report) . Failure to submit response s wit hin the12

required time period may cause the Board to assume the appellant is satisfi ed and dismiss the petition for enforcement.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board