UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARCUS D. SMITH,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBERS 

AT-0752-05-0901-X-1

AT-0752-05-0901-X-2

DATE: January 3, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Elaine L. Fitch, Esquire, Washington, D.C., for the appellant.

Jennifer D. Ambrose, Esquire, and Russell B. Christensen, Washington, 

D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The administrative judge issued two decisions—a recommendation and a

compliance initial decision—finding the agency noncompliant with the April 25, 

2012 Final Order in the underlying removal appeal. MSPB Docket No. AT-0752-

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

05-0901-C-1, Compliance File (CF-1), Tab 5; MSPB Docket No. AT-0752-05-

0901-C-2, Compliance File (CF-2), Tab 4.2 Following referral to the Board, the 

Board joined the petitions for enforcement. For the reasons discussed below, we 

now find the agency in compliance and DISMISS the petitions for enforcement. 

This is the final decision of the Merit Systems Protection Board in this 

compliance proceeding. Title 5 of the Code of Federal Regulations,

section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). 

BACKGROUND

Referral from the Equal Employment Opportunity Commission (EEOC) and 

Compensatory Damages

¶2 On April 25, 2012, the Board issued a Final Order adopting the Equal 

Employment Opportunity Commission’s finding that the agency retaliated against 

the appellant for his protected equal employment opportunity activity. The Board 

ordered the agency to cancel the appellant’s 30-day suspension, restore him to 

duty effective August 1, 2005, and provide him appropriate back pay, with 

interest, and benefits. MSPB Docket No. AT-0752-05-0901-E-1, EEOC Referral 

File (EEOC), Tab 2 at 4; Smith v. Department of Transportation, MSPB Docket 

No. AT-0752-05-0901-E-1, Final Order (Apr. 25, 2012). The Board also 

forwarded the appellant’s compensatory damages claim to the appropriate 

regional office for adjudication. Id. On August 24, 2012, the administrative 

judge issued an initial decision in the compensatory damages case awarding the 

appellant $175,000 in nonpecuniary compensatory damages and $1,122.84 in 

pecuniary damages. MSPB Docket No. AT-0752-05-0901-P-1, Compensatory 

Damages (CD) File, Tab 15, Initial Decision at 2. Neither party petitioned for 

review of that decision. 

 

2

The first decision was a recommendation because it was issued under the Board’s 

pre-November 2012 regulations; the second decision was an initial decision because it 

was issued after the revised regulations took effect. 
3

First Petition for Enforcement

¶3 On May 29, 2012, the appellant filed a petition for enforcement of the 

April 25, 2012 Final Order. On September 13, 2012, the administrative judge 

issued a recommendation finding the agency noncompliant. The administrative 

judge found that the agency had improperly placed the appellant in paid 

administrative leave status rather than canceling his 30-day suspension, as 

ordered, and failed to submit evidence showing it paid appropriate back pay. 

CF-1, Tab 5, Recommendation at 3. The case was referred to the Board’s Office 

of General Counsel to obtain compliance. 

¶4 On September 27, 2012, the agency filed evidence of purported compliance. 

Specifically, the agency stated that it canceled the appellant’s 30-day suspension, 

as ordered; restored him to duty effective August 1, 2005; expunged all 

references to the suspension from his records; placed him in work status rather 

than paid administrative leave for the period during which the suspension had 

been in effect; and paid him appropriate back pay, with interest, and benefits. 

MSPB Docket No. AT-0752-05-0901-X-1, Compliance Referral File (CRF-1),

Tab 3 at 4-5; see CRF-1, Tabs 4-12. 

¶5 The appellant did not file a response. However, as part of his compensatory 

damages appeal, which was pending at the same time as the compliance referral 

matter, the appellant raised various claims of agency noncompliance with the 

April 25, 2012 Final Order, including claims that the agency failed to pay him 

appropriate back pay and interest. CD File, Tab 15 at 12. The administrative 

judge declined to address these claims as part of the compensatory damages 

appeal and informed the appellant he could file a separate petition 

for enforcement. 

Second Petition for Enforcement

¶6 On October 25, 2012, in response to the administrative judge’s order, the 

appellant filed a second petition for enforcement raising the enforcement claims 
4

he had attempted to present in his compensatory damages case. On February 13, 

2013, the administrative judge issued a compliance initial decision finding the 

agency noncompliant with the Final Order. CF-2, Tab 4, Compliance Initial 

Decision. The administrative judge ordered the agency to perform the 

following actions: 

1. Submit the name and address of the responsible agency official;

2. Retroactively award the appellant, with interest, a Superior 

Contribution Increase (SCI);

3. Pay the appellant $1,850.75, with interest and any other benefits 

that would have accrued had his temporary promotion properly 

been extended 90 days;

4. Pay the appellant a $1,500 cash award, with interest;

5. Restore 472 hours of sick leave;

6. Destroy and expunge from all records associated with the 

appellant the Report of Investigation (ROI) maintained by the 

agency’s Security Division, and “do all within its power to undo 

the negative consequences that have flowed from its divulgence 

of the ROI”; and

7. Retroactively promote the appellant to the appropriate level of the 

J-Band. 

Compliance Initial Decision at 8-9. 

Remaining Issues

¶7 The Board has issued multiple orders and held several telephone 

conferences narrowing the issues in these cases. E.g., CRF-1, Tabs 7, 10, 17. On 

November 8, 2016, the Board’s Office of General Counsel held a telephone 

conference with the parties during which the parties agreed that all issues had 

been resolved except one: the question of when the appellant should have been 

paid his 2007 Organizational Success Increase (OSI). CRF-1, Tab 37 at 4 (the 

appellant asserting that the agency remains noncompliant on this single issue). 

Accordingly, we find the agency in compliance on all other issues and address the 

2007 OSI below. 
5

ANALYSIS

¶8 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 

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

¶ 5 (2010). 

¶9 Here, the parties agree that as part of his back pay, the appellant was 

properly paid a 2.7% OSI, which amounted to $302.40, in January 2007. CRF-1,

Tab 37 at 4. However, the parties dispute how the OSI was paid out. The 

appellant contends that because the OSI was effective January 7, 2007, it should 

have been paid as part of his paycheck for pay period 2 (which began January 7, 

2007). Id. Instead, it was actually calculated and paid as of January 30, 2007, 

which fell in pay period 3. Thus, the appellant’s back pay from pay period 3

forward reflects an additional $50.40 due to the OSI. Id. at 4-5. The appellant 

contends that the increase should have been paid in pay period 2 and that the 

agency therefore owes him $50.40 plus interest. Id. at 6. 

¶10 The agency does not dispute these dates, but asserts that the 2007 OSI was 

properly paid to the appellant as of January 30, 2007, (in pay period 3) because 

the same payment method was used for every other employee. CRF-1, Tab 38 

at 4-5. The agency submitted documents showing that for all eligible employees, 

the 2007 OSI was effective January 7, 2007, but not paid out until January 30, 

2007. CRF-1, Tab 36 at 11, 14. The appellant does not appear to dispute that his 

2007 OSI was paid in the same manner as for all other eligible employees. 
6

CRF-1, Tab 37 at 2 (“[T]he fact that the 2007 OSI was not paid to other 

employees until mid-PP3 is irrelevant.”). Rather, he asserts that he should have 

been paid differently because his OSI came as a result of his back pay. Id. 

¶11 We disagree. The purpose of back pay is to place the employee in the 

financial position he would have occupied in the absence of the improper 

personnel action. See House, 98 M.S.P.R. 530, ¶ 9. Here, it is plain from the 

agency’s documents—and the appellant does not dispute—that had he received

the 2007 OSI contemporaneously, it would have been calculated and paid exactly 

like those of other employees, and indeed exactly as the agency calculated and 

paid it as part of his back pay. We see no error in the agency’s determination that 

the appellant’s back pay should mirror, as nearly as possible, the payment he 

would have received absent the improper personnel action. Accordingly, we find 

the agency in compliance on this issue and dismiss the petitions for enforcement. 

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fe es 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You 

must file your attorney fees motion with the office that issued the initial decision 

on your appeal.
7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is: 

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to: 

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your 

receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time. 

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate U.S. district court. 

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court 

no later than 30 calendar days after your receipt of this order. If you have a 

representative in this case, and your representative receives this order before you 
8

do, then you must file with the district court no later than 30 calendar days after 

receipt by your representative. If you choose to file, be very careful to file on 

time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board