UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TONYA EVETTE RHODES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0752-12-0316-X-1

DATE: September 25, 2015

THIS ORDER IS NONPRECEDENTIAL1

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 

removal appeal. MSPB Docket No. AT-0752-12-0316-C-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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

nonprecedential order finding the agency in partial compliance. Rhodes v. 

Department of Veterans Affairs, MSPB Docket No. AT-0752-12-0316-X-1, Order 

(Apr. 13, 2015); Compliance Referral File (CRF), Tab 5. For the reasons 

discussed below, we again 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 

(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 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% 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 3-4, 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 determined that the agency failed 

adequately to explain its back pay calculations, including how it calculated the 

back pay period and interest 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 admitted it may have erroneously 
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submitted a debt notice to the Office of Personnel Management (OPM) regarding 

the appellant’s FEHB plan and had not provided evidence that it corrected such 

error. Id. Neither party filed a petition for review. 

¶5 On January 13, 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 pertinent part, to take the following steps to 

bring itself into full compliance: 

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 agency 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 refunded 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 employee retirement contribution overpayments. 

 2 Following these submissions, the case was referred 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 did not submit any further 

documents into the record during settlement discussions. 
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5. Submit evidence that the agency refunded any amounts owed, with 

interest, for the FEHB debt. 

Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 10-11; CRF, Tab 5

at 10-11. 

¶6 Following this order, both parties filed submissions. CRF, Tabs 7, 9-10. 

For the reasons explained below, we again find the agency in partial compliance

and order 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, 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 

¶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 shown on the appellant’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 pay 
5

period and concerning whether the agency properly withheld amounts relating to 

the appellant’s FEGLI, TSP, and FEHB. Rhodes, MSPB Docket No. AT-0752-

12-0316-X-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 the 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 this 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 agency in compliance on this issue, 

with the exception of the interest payment. The agency must submit evidence that 

it paid the required 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 pay 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-0752-12-0316-X-1, 

Order at 5; CRF, Tab 5 at 5. We therefore will not consider the appellant’s new 

claims regarding her back pay. 
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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 suffered 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-0752-12-0316-X-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 this contribution was improperly withheld, to refund it 

with interest. Rhodes, MSPB Docket No. AT-0752-12-0316-X-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, we find the agency noncompliant on this 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 appropriate 
7

amounts into the appellant’s TSP account. Rhodes, MSPB Docket No. AT-0752-

12-0316-X-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-0752-12-0316-

X-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 appellant 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 training 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 been credited with the appropriate breakage.

Debt Notices

1. Annual Leave Debt

¶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 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 the 
8

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

evidence 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-0752-12-0316-X-1, Order at 9, 11; CRF, Tab 5

at 9, 11. 

¶18 The agency subsequently 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 she 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-0752-12-0316-X-1, Order at 9; CRF, Tab 5 at 9. 

Because the agency has provided the required waiver notice, we find it in 

compliance on this issue. 

2. Retirement Contributions Debt

¶19 In our prior order, we 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 worked during the back pay period). Rhodes, 

MSPB Docket No. AT-0752-12-0316-X-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 applicable notice and 

opportunity to request waiver of this debt mandated by her collective bargaining 

agreement. Rhodes, MSPB Docket No. AT-0752-12-0316-X-1, Order at 11; CRF, 

Tab 5 at 11.

¶20 The agency stated that it informed the appellant of the waiver procedure 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. FEHB 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-0752-12-0316-X-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 appropriate 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 outstanding 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 

credited $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 that 
10

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 provide 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 for 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 

compliance 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 

proceedings. 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 Order, 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 explanation 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 must 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 account was credited with 

appropriate breakage. 

4. Evidence that the agency expressly notified the appellant of the amount 

owed for retirement contributions 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 explanation 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 outstanding. The 

narrative explanation must 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 achieved. If the agency fails to submit the 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 calendar 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 responses within the 
12

required time period may cause the Board to assume the appellant is satisfied and 

dismiss the petition for enforcement.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board