UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY CASTELLANOS,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

NY-0752-09-0107-X-1

DATE: September 25, 2014

THIS ORDER IS NONPRECEDENTIAL1

Louis D. Stober, Jr., Esquire, Garden City, New York, for the appellant.

Tiffany O. Lee, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

ORDER

¶1 The administrative judge issued a recommended decision that the Board 

find, under the Board’s regulations in effect at that time, the agency in 

noncompliance with the initial decision, and the matter was referred to the Board 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

for consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012). For the reasons 

discussed below, we find the agency in partial compliance and order appropriate 

relief.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

¶2 On August 13, 2009, the administrative judge issued an initial decision 

finding that the agency had constructively removed the appellant. MSPB Docket 

No. NY-0752-09-0107-I-1, Initial Appeal File (IAF), Tab 30, Initial Decision 

(ID) at 2. The administrative judge found that the agency coerced the appellant’s 

resignation when it threatened to remove him from his position due to absence 

without leave (AWOL), although the agency knew or should have known that any 

AWOL charge could not have been sustained. ID at 14. The administrative judge 

rejected the appellant’s claim of discrimination, finding that the agency’s actions 

leading to his resignation resulted from incompetence, not discrimination. ID 

at 15. The administrative judge ordered the agency to cancel the appellant’s 

resignation and retroactively reinstate him as of August 15, 2006, and pay him 

back pay, with interest, and benefits. ID at 16. Neither party petitioned for 

review.

¶3 On September 15, 2010, the appellant filed a petition for enforcement. On 

May 26, 2011, the administrative judge issued a recommendation finding that the 

agency failed to pay the appellant the appropriate amount of back pay, restore his 

annual and sick leave balances, or restore his health insurance. See MSPB 

Docket No. NY-0752-09-0107-X-1, Compliance Referral File (CRF), Tab 1 at 8. 

Specifically, the administrative judge ordered the agency to explain how it 

computed the back pay; explain the effect, if any, of the agency’s change from the 

GS system to the GL system; and address the appellant’s claim that he would 

 2 Except as otherwise noted in this decision, we have applied the Board’s regulations 

that became effective November 13, 2012. We note, however, that the petition for

enforcement in this case was filed before that date. The revisions to 5 C.F.R. 

§ 1201.183 do not affect our consideration of the merits of this compliance proceeding.
3

have been promoted to the GL-8 level but for the wrongful personnel action in 

2006. Id. The administrative judge also ordered the agency to address the 

appellant’s leave balances and health insurance. Id. at 8-9. Finally, the 

administrative judge found the agency in compliance regarding reinstating the 

appellant because she determined that he did not wish to return to work at the 

agency. Id. at 7.

¶4 The parties filed multiple submissions in response to the recommendation. 

The appellant disputed the administrative judge’s finding that he did not wish to 

return to work at the agency and noted that he in fact returned on July 18, 2011. 

See CRF, Tab 7 at 7. He also contended that the agency had not explained its 

back pay calculations, including how it determined his regular salary for each 

year, nor how it determined the appropriate holiday pay, night differential, 

Sunday hours, or overtime pay. Id. at 4-6. He sought a hearing on his placement 

in AWOL status between the effective date the agency first offered him 

reinstatement and his actual date of return. Id. at 8. He asserted that the agency 

did not show that he would not have been promoted to the GS-8 level. Id. at 9. 

Finally, he stated that the agency had not explained how it restored his sick and 

annual leave balances. Id.; see also CRF, Tab 12. In reply, the agency contended 

that it had fully complied with the administrative judge’s recommendation. See, 

e.g., CRF, Tab 9 at 4; CRF, Tabs 14, 15.

¶5 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 he 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 
4

noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325, 

¶ 5 (2010).

Reinstatement, Return to Work, and Absence Without Leave

¶6 The initial decision reversing the appellant’s constructive removal ordered 

the agency to restore the appellant effective August 15, 2006. See ID at 2. He 

had previously held a position as Correctional Officer, GS-5, step 2. IAF, Tab 1 

at 13; ID at 1. Following the initial decision, the agency offered the appellant a 

November 9, 2009 start date as a Correctional Officer, GL-5, step 2, contingent 

on his attending the next available Introduction to Correctional Techniques

training. MSPB Docket No. NY-0752-09-0107-C-1, Compliance File (CF), Tab 3 

at Attachment 1. The agency also required him to undergo a background 

investigation before returning to work. Id. The appellant did not return to work 

on November 9, 2009. 

¶7 The agency then offered him a May 24, 2010 start date, contingent on his 

attending Refresher Training. CF, Tab 3 at Attachment 2. The appellant did not 

return to work on that date. See CF, Tab 3 at Attachment 3. The appellant’s 

attorney informed the agency that the appellant did not want to return, fearing 

that he would be harassed, retaliated against, and wrongfully discharged, and

inquired if the agency would accept his resignation in exchange for a lump sum 

payment. See, e.g., CF, Tab 5 at Exhibits D, E, G, M, O. The attorney also 

objected to the requirements that the appellant attend an orientation and be treated 

as a new employee, which he asserted were at odds with the reinstatement order. 

CF, Tab 5 at Exhibit O. Finally, the appellant asserted, through his attorney, that 

he could not return to work “until and unless we work out all of the monies 

issues.” 3

 CF, Tab 5 at Exhibit G.

 3 It is unclear whether this statement refers to the entire back pay amount, to his salary 

upon his return, or both.
5

¶8 The agency calculated the appellant’s back pay from August 15, 2006, to 

November 7, 2009, the last work day before the first return date offered by the 

agency. CF, Tab 8 at 9; CRF, Tab 14 at 13-97. The appellant challenged this 

calculation, asserting that the back pay period extended until his actual return on 

July 18, 2011, and that the agency had failed to reinstate him as ordered. CRF, 

Tab 7 at 7. 

¶9 In her recommendation, the administrative judge rejected the appellant’s 

contention that the agency had failed to reinstate him (and, by implication, his 

challenge to the agency’s determination of the length of the back pay period). 

The administrative judge found that the agency’s admitted error in offering the 

appellant placement as a new employee, rather than as a reinstated employee, was 

“not the reason that the appellant has not returned to work at the agency . . . . the 

appellant preferred not to return to the agency and was seeking—in exchange for 

severing his ties with the agency—a payment in addition to the back pay and 

interest. The appellant had obtained other employment and intended to retain that 

employment.” CF, Tab 19 at 7 (emphasis in original) (internal citations omitted).

¶10 The appellant challenges this finding, asserting that the administrative judge 

improperly considered his statements to the agency about obtaining money in 

exchange for resigning because the statements were made as part of settlement 

discussions or as a settlement offer. CRF, Tab 7 at 2. We agree. The Board will 

not consider statements made during the course of settlement discussions. Frank 

v. Equal Employment Opportunity Commission, 90 M.S.P.R. 458, ¶ 4 n.2 (2001). 

The administrative judge therefore erred in considering these statements. We find

that this error was harmless, however, because we hold that the appellant should 

have returned to work on the first date offered (November 9, 2009). 

¶11 Upon reversing an action, the Board requires the agency to restore the 

appellant as nearly as possible to the status quo ante. Tubesing v. Department of 

Health & Human Services, 112 M.S.P.R. 393, ¶¶ 5-6 (2009). If the agency 

refuses to do so, it must demonstrate that it has “a strong overriding interest or 
6

compelling reasons for not doing so.” Id., ¶ 6. However, an appellant is not 

entitled to refuse to report for work in every instance in which he disagrees that 

he has been restored to the status quo ante.

¶12 In Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 408, aff’d, 73 F.3d 380

(Fed. Cir. 1995), the Board affirmed a removal for AWOL charges stemming 

from the appellant’s refusal to report to a position to which he had been 

improperly reassigned. The Board held that unless the appellant’s refusal to 

report is “protected by either privilege or a legitimate concern that it would cause 

him irreparable harm,” his “only proper recourse . . . [is] to obey the order 

and . . . challenge its validity on appeal.” Id. In Williams v. Department of the 

Air Force, 89 M.S.P.R. 484 (2001), the Board applied this reasoning to an 

appellant who refused to report to one of two positions offered as a result of a 

settlement agreement. Although the appellant argued that neither position 

complied with the settlement agreement, the Board held that he was required to 

report to one or the other, and could challenge the suitability of the positions on 

appeal. Id., ¶ 19. 

¶13 Applying this reasoning to the instant situation, it is plain that, under our 

case law, the appellant had no justifiable reason to refuse to report for duty on 

November 9, 2009, the first date offered by the agency. Although the appellant 

believed that the conditions imposed (appointment as a new employee, training, 

background check) and the salary offered did not satisfy the agency’s obligation 

to restore him to the status quo ante, see, e.g., CRF, Tab 7 at 6, he has not shown 

that his refusal was protected by privilege or that he had a “legitimate belief that 

reporting [to duty] would cause him irreparable harm,” see Williams, 89 M.S.P.R. 

484, ¶ 19. Any harm he might have suffered could have been “cured during the 

course of” an appeal of the agency’s actions or conditions. See Cooke, 

67 M.S.P.R. at 408. Accordingly, the appellant should have reported to work, 

performed his assigned duties, and litigated these issues in a petition for 
7

enforcement. 4 See id. at 407; see also Williams, 89 M.S.P.R. 484, ¶ 19. We 

therefore find that the agency reinstated the appellant as ordered; that the

appellant should have reported to work on November 9, 2009; that the agency 

reasonably carried him as AWOL from that date until when he actually reported 

to work in July 2011; and that the agency correctly determined that the back pay 

period ran from August 15, 2006, to November 7, 2009. 5

Back Pay

¶14 Having determined that the back pay period ran from August 15, 2006, to 

November 7, 2009, we must examine the agency’s back pay calculations. In her 

compliance recommendation, the administrative judge found the agency 

noncompliant because it failed to explain its back pay calculations. CF, Tab 19 

at 8. After considerable back and forth with the appellant, the agency finally 

submitted its calculations and narrative statement to the Board on July 7 and 11, 

2014.

6

 CRF, Tabs 14 and 15. The appellant did not respond to these 

submissions.

¶15 As stated above, at the time of his constructive removal, the appellant 

occupied a position as a Correctional Officer, GS-5, step 2. IAF, Tab 1 at 13; ID

at 1. According to the agency’s back pay filings, it restored the appellant 

 4 Because the appellant returned to work in July 2011, and has not raised any issues 

concerning his placement or payment from that date forward, we find that his challenge 

to the agency’s technical errors is moot, except as discussed above concerning whether 

the agency reinstated him as ordered. 

5 We deny the appellant’s request for a hearing regarding these issues, see CRF, Tab 12

at 9. Because we have not considered the appellant’s statements made during 

settlement discussions, there are no contested issues of fact that require a hearing.

6 The agency claims that it provided this information to the appellant in 

September 2010. CRF, Tab 14 at 5. Even assuming this to be true, the appellant’s 

repeated complaints to the contrary notwithstanding, the agency did not provide this 

information in comprehensible fashion to the Board until July 2014. 
8

effective August 15, 2006, at GL-6, step 2 ($19.86 per hour). 7 CRF, Tab 15 at 7; 

see Salaries & Wages, 2006-NY (LEO), U.S. Office of Personnel Management, 

http://archive.opm.gov/oca/06tables/html/NY_leo_h.asp. In the first pay period 

of 2007, the appellant received a 3.02% adjustment to $20.46 per hour (still 

GL-6, step 2). CRF, Tab 15 at 8; see Salaries & Wages, Salary Table 2007-NY 

(LEO), U.S. Office of Personnel Management, http://archive.opm.gov/oca/07

tables/html/NY_leo_h.asp. In pay period 8 of 2007, the appellant was promoted 

to GL-7, step 3 ($22.73). CRF, Tab 15 at 8. In the first pay period of 2008, the 

appellant received a 3.97% adjustment to $23.64 per hour (still GL-7, step 3). 

CRF, Tab 15 at 9; see Salaries & Wages, Salary Table 2008-NY (LEO), U.S. 

Office of Personnel Management, http://archive.opm.gov/oca/08tables/

html/NY_leo_h.asp. In pay period 8 of 2008, the appellant was promoted to 

GL-7, step 4 ($24.29 per hour). CRF, Tab 15 at 9. In the first pay period of 

2009, the appellant received a 4.20% adjustment to $25.32 per hour (still GL-7, 

step 4), where he remained until November 7, 2009, the end of the back pay 

period. 8

 See CRF, Tab 15 at 10; see Salaries & Wages, Salary Table 2009-NY 

(LEO), U.S. Office of Personnel Management, http://archive.opm.gov/oca/

09tables/html/NY_leo_h.asp. The agency thus paid the appellant a total of 

$162,842.40 (which included regular, night differential, holiday, and Sunday 

pay), less his outside earnings and various deductions. CRF, Tab 3 

at Attachment 2-1; see also CRF, Tab 6 at 12. Despite the appellant’s charges of 

error, these calculations appear correct. Therefore, except for the overtime issue, 

 7 The record does not explain why the agency restored the appellant to the GL-6 rather 

than the GL-5 level, given that he was a GS-5, step 2 before he resigned (and assuming 

some equivalency between grades on the GL and GS pay scales). However, because the 

GL-6 level pays more than the appellant earned at the time he resigned, the appellant 

benefitted from this decision, and the lack of explanation does not bar a finding of 

compliance.

8 The agency apparently returned the appellant to work on November 9, 2009, at GL-7,

step 4. CRF, Tab 6 at 23.
9

which we address below, we find that the agency properly computed and paid the 

back pay owed the appellant. 9

 

Overtime Pay

¶16 The appellant asserts that he is entitled to the overtime pay he would have 

earned but for his constructive removal. CRF, Tab 7 at 5. The agency contends 

that he was not entitled to overtime pay because he did not work any overtime 

shifts during 2006 and thus “there is no historical basis to determine what, if any, 

overtime shifts the appellant would have worked during this time period.” CRF, 

Tab 10 at 5. The agency further contends that the appellant could not have 

performed certain overtime shifts because they required specialized training, 

which he lacked. Id.; see also CRF, Tab 14 at 7.

¶17 The Board’s case law provides that overtime pay may be computed based on 

the employee’s prior overtime assignment or upon the overtime assignments of 

similarly situated employees. Brady v. Department of the Navy, 55 M.S.P.R. 693, 

696 (1992). The method selected in a particular case must be the one most likely 

to restore the employee to the status quo ante. The Board has approved the use of 

averaging the hours worked by similarly situated employees in cases where using 

the appellant’s pre-removal work history may not have reflected the period during 

the wrongful separation. Id. 

¶18 Here, we find that the agency should have computed the appellant’s 

entitlement to overtime pay by averaging the hours worked by similarly situated 

employees during the back pay period. For two reasons, his 2006 work history, 

upon which the agency relied, does not accurately reflect the hours he likely 

would have worked had he not been constructively removed: first, the appellant 

 9 We also find that the agency satisfied the administrative judge’s order to explain the 

$144.37 discrepancy between the amount the agency originally informed the appellant it 

owed him, and the amount it actually paid; according to the agency, this difference 

resulted from its correction of the OASDI tax withholding. CRF, Tab 3 at 4. The 

appellant has not specifically contested this explanation, and we find no reason to do so.
10

apparently was injured and unable to work between January 1, and April 24, 

2006; and second, beginning in January 2006, and extending until his resignation 

in August 2006, the agency barred him from its facility and improperly placed 

him on AWOL, thus preventing him from working once he was physically able to 

do so. See ID at 5-7, 10-12. It is disingenuous for the agency to claim that the 

appellant should be penalized for failing to work overtime in 2006 when it was 

the agency that prevented him from coming to work in the first place. 

Accordingly, we find the agency noncompliant on this issue and order it to 

compute and pay the appellant overtime pay during the back pay period by 

averaging the overtime hours worked by similarly situated employees. 

¶19 If the agency determines that the employees similarly situated to the 

appellant underwent specialized training and worked particular assignments 

because of that training, the agency shall pay the appellant for the average of 

those hours, unless the agency determines that the training was competitive and

would not have been granted the appellant if he had applied. The agency must 

provide the Board detailed calculations, as well as a narrative statement. The

agency shall support its calculations, and any factual determinations as to the 

identity of the similarly situated employees and the availability and award of 

training opportunities, with sworn declarations. Finally, the agency must pay the 

appellant interest on the overtime amount and provide the Board its interest 

calculations and narrative explanation. 

Promotion to GL-8

¶20 The appellant contends that he should have received a promotion to the 

GL-8 grade. CRF, Tab 7 at 8. The agency counters that the GL-8 position is not 

merely a promotion within the same job category of Correctional Officer but is 

the entirely separate position of Senior Officer Specialist, requiring competition. 

CRF, Tab 14 at 7; see also CRF, Tab 14 at 209-20 (job announcements for both 

positions). The appellant appears to accept the agency’s contention that 
11

promotion to the GL-8 level is not automatic but contends that promotion should 

be granted him because “he missed his opportunity to apply for a GL-8 position 

solely because of the Agency’s improper act of terminating him.” CRF, Tab 7 

at 8.

¶21 We agree with the agency that the appellant was not entitled to promotion to 

GL-8. The appellant has not contradicted the agency’s assertion that GL-8 

positions are awarded only after open competition. Assuming that to be the case, 

he is not entitled to a promotion because in the absence of law requiring a 

promotion or facts establishing a clear entitlement to a retroactive promotion, an 

employee is not automatically entitled to a promotion upon reinstatement. See

Harris v. Department of Agriculture, 50 M.S.P.R. 686, 697 (1991). The appellant 

has not identified any law or facts establishing a clear entitlement to retroactive 

promotion to the GL-8 level. Accordingly, we find the agency in compliance as

to this issue.

Interest

¶22 The agency states that it paid the appellant $7,107.73 in interest on the back 

pay amount (which, as explained above, is correct but for overtime pay). CRF, 

Tab 3 at Attachment 2-1. The agency did not provide its calculations or any 

explanation of how it determined the interest amount. We therefore find it 

noncompliant on this issue and order it to submit its calculations and a narrative 

explanation of how it determined the interest.

Change from GS to GL System

¶23 The administrative judge ordered the agency to explain the effect, if any, of 

the agency’s change from the GS to the GL system. CF, Tab 19 at 8. The agency 

explained that it converted various Bureau of Prisons staff members, including 

the appellant, to the GL system, and that this did not affect pay. CRF, Tab 3 at 5. 

Our review of the 2006 salary tables for the GS and GL pay scales reveals that the 

agency’s assertion is incorrect for grades above 2 (which included the appellant). 
12

For example, in 2006, GS-6, step 2 paid $17.10 per hour, while GL-6, step 2 (the 

appellant’s grade and step) paid $19.86 per hour. Compare Salaries & Wages, 

2006-NY, U.S. Office of Personnel Management, http://archive.opm.

gov/oca/06tables/html/ny_h.asp, with Salaries & Wages, 2006-NY (LEO), U.S. 

Office of Personnel Management, http://archive.opm.gov/oca/06tables/

html/NY_leo_h.asp. However, because the appellant was paid on the higher GL 

scale, the agency’s erroneous assertion has not harmed him. In fact, he has 

benefitted from the change in pay scale. We therefore find the agency in 

compliance on this issue.

Leave Balances

¶24 The agency submitted charts explaining its leave calculations. See CRF, 

Tab 3 at 17-20. The calculations appear correct, and the appellant has not pointed 

to any specific flaw other than the agency’s determination that leave should be 

paid only until the appellant failed to return to work on November 9, 2009. See

CRF, Tab 12 at 10-11. As explained above, this time period is correct. Because 

the appellant has not specifically rebutted the agency’s leave evidence, see

Brown, 113 M.S.P.R. 325, ¶ 5, we find the agency in compliance as to restoring 

his sick and annual leave balances.

Health Insurance

¶25 The administrative judge ordered the agency to address whether it restored 

the appellant’s health insurance. CF, Tab 19 at 8-9. The agency stated that the 

appellant is eligible for health insurance but has not paid the required premiums 

to bring his coverage up to date. CRF, Tab 3 at 5. The agency stated that it twice

provided the appellant a health benefits election form but that he failed to return 

it to the agency and that his attorney indicated that the appellant did not wish to 

elect health insurance. Id. at 6. The appellant did not address this issue in his 

filings. See, e.g., CRF, Tab 7 at 9 (addressing other all issues). Accordingly, we 

find the agency in compliance on this issue.
13

Attorney Fees

¶26 The appellant has filed a motion for attorney fees. CRF, Tab 4. Because 

the Board has not yet issued a final order in this compliance referral case, we 

deny the motion as premature. The appellant may file a motion for attorney fees 

with the appropriate regional office after this case concludes. See 5 C.F.R. 

§ 1201.203.

Further Actions Needed for Compliance

¶27 Within 21 days of the date of this Order, the agency shall submit its 

overtime and interest evidence, as explained above. If the agency fails to do so,

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 days of the agency’s 

submission. Failure to submit a response within the 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