                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL LUCON FAVREAU,                          DOCKET NUMBER
                 Appellant,                          SF-0752-11-0273-C-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: December 15, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           David P. Clisham, Esquire, San Francisco, California, for the appellant.

           Douglas W. Hales and David Michael Tucker, Fort Hunter Liggett,
             California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                            ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     granted in part his petition for enforcement. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the c ase; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.       Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     referring the petition for enforcement to the Board’s Office of General Counsel
     for additional processing and issuance of a final decision. See 5 C.F.R.
     § 1201.183(c).

                                      BACKGROUND
¶2        On April 22, 2014, the appellant filed a petition for enforcement of the
     Board’s Final Order in Favreau v. Department of the Army, MSPB Docket
     No. SF-0752-11-0273-I-1, which affirmed the initial decision reversing the
     appellant’s removal for failure to maintain a basic condition of employment .
     Compliance File (CF), Tab 1; Favreau v. Department of the Army, MSPB Docket
     No. SF-0752-11-0273-I-1, Final Order at 3-12 (Feb. 21, 2014) (hereinafter Final
     Order). The Board had ordered the agency to provide the appellant with
     appropriate relief, including the payment of back pay with interest and other
     benefits. Id. at 13-14. The administrative judge initially dismissed the petition
     for enforcement without prejudice to allow the parties to confer over the issues
     raised in the petition. CF, Tab 9. The petition for enforcement was automatically
     refiled. Refiled Compliance File (RCF), Tab 2.
¶3        The administrative judge ordered the agency to present proof that it had
     complied with the Board’s final decision or had good reason for noncompliance
                                                                                       3

     or for incomplete or partial compliance. RCF, Tab 10. Following receipt of the
     parties’ responses, RCF, Tabs 11-13, the administrative judge determined that the
     agency had yet to demonstrate that it was in compliance with the Board’s Final
     Order and issued a May 12, 2015 order reopening the record, RCF, Tab 14. In
     that order, the administrative judge identified numerous areas where the agency’s
     submission was deficient. Id. at 2-7. Following receipt of the parties’ subsequent
     responses, RCF, Tabs 15-16, the administrative judge found that several disputes
     remained, and on January 13, 2016, he issued another order reopening the record
     and requiring the agency to file complete responses for all issues identified as
     problematic in the May 12, 2015 order, RCF, Tab 17.          The parties submitted
     additional filings, and the record closed on March 21, 2016. RCF, Tabs 18-23.
     The administrative judge granted the petition for enforcement in part, finding that
     the agency was not in compliance with some of the requirements set forth in the
     Board’s Final Order. RCF, Tab 24, Compliance Initial Decision (CID) at 4-13.
     The appellant filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The agency responded and, while acknowledging some remaining discrepancies
     in the appellant’s back pay, declined to file a cross-petition. PFR File, Tab 3 at
     11.

                                        ANALYSIS
¶4         The agency bears the burden of proof on the issue of its compliance with a
     Board order. Tubesing v. Department of Health & Human Services, 115 M.S.P.R.
     327, ¶ 5 (2010).     For the agency to be found in compliance regarding the
     provision of back pay, interest on back pay, and benefits, the agency must provide
     a detailed and clear explanation of the calculations that it made in determining the
     amount due the appellant. The agency must clearly set forth the following: the
     gross amount due the appellant and how that amount was determined; the amount
     and reason for all deductions, reductions, and offsets from the gross am ount due
     the appellant; the source and amount of all checks or electronic payments already
                                                                                        4

     received by the appellant and provide evidence that such checks or electronic
     payments were received; and the amount of interest due the appellant and how
     that amount was calculated.        Bruton v. Department of Veterans Affairs,
     111 M.S.P.R. 489, ¶ 17, vacated on other grounds, 112 M.S.P.R. 313 (2009). The
     agency also must clearly set forth its calculations relating to the appellant’s sick
     and annual leave balances; Thrift Savings Plan account, including both those of
     the appellant and of the agency; and any other benefits of employment the
     appellant would have received but for the agency’s unwarranted personnel action.
     Id. Finally, the agency must take the appropriate steps to restore the appellant’s
     health insurance benefits and to provide evidence that it has done so. Id. In
     addition to the calculations, the agency must provide a clear and detailed
     narrative explanation of its calculations so that the Board may understand the
     calculations and verify that they are correct. Id. The agency also must provide
     an explanation of all codes and abbreviations used in its documentation. Id.

     Back Pay, Premium Pay, Differential Pay, and Interest Payments
¶5        The appellant was removed from his position effective January 1, 2011, and
     the Board ordered him restored as of that date.       Final Order at 2, 13.      The
     administrative judge found that the appellant received by electronic funds transfer
     the proper amount of back pay exclusive of overtime for the following periods:
     $10,199.52 for January 1 through February 26, 2011, and $63,194.34 for February
     27, 2011, through February 25, 2012. CID at 4. The sums he received included
     night differential, Sunday premium pay, and holiday premium pay.           Id.   The
     administrative judge found that the appellant’s basic pay rate was $24.90 per hour
     and that he was not eligible for any step increases during the back pay period. Id.
     The administrative judge likewise found that the agency was in compliance for
     the payment of the appellant’s salary post-reinstatement between January 26 and
     April 30, 2012, when he was again removed. CID at 6.
¶6        The administrative judge denied the appellant’s request to receive back pay
     for the period immediately preceding January 1, 2011, when he was reassigned to
                                                                                         5

     the duties of a security guard and, as a result, did not receive opportunities to earn
     overtime, shift differentials, and premium pay. CID at 5; RCF, Tab 23 at 3. The
     administrative judge determined that the Final Order only required that the
     appellant receive back pay effective January 1, 2011, the date of his removal.
     CID at 5.
¶7          The administrative judge found that the agency was not in compliance with
     the Board’s order regarding the amount of interest it had paid the appellant. CID
     at 5-6. The administrative judge found the agency’s explanation as to how it
     calculated interest to be insufficient and additionally noted that the agency’s
     documentation regarding interest payments showed that it actually paid the
     appellant $1,865.77, rather than the $1,902.47 it stated that it paid him. Id.
¶8          On review, the appellant argues that the agency was not in compliance for
     the payment of his salary during the post-reinstatement period prior to his second
     removal, February 26 through April 30, 2012. He argues that the compliance
     initial decision is based solely on a spread sheet prepared from time sheets by the
     Defense Finance and Accounting Service (DFAS), rather than from payroll
     records. PFR File, Tab 1 at 4. The appellant asserts that the agency submitted no
     evidence that he was paid the full amount of his salary and benefits for the 5 pay
     periods during that time. Id. He further asserts that the agency’s documentation
     submitted on February 29, 2016, RCF, Tab 20, shows that he was not paid night
     differential, overtime, and Sunday and holiday premium pay, PFR File, Tab 1 at
     5-7.
¶9          As the agency explains, however, the appellant himself submitted copies of
     his Leave and Earnings Statements for the post-reinstatement pay periods when
     he filed his petition for enforcement. PFR File, Tab 3 at 4; CF, Tab 1 at 23-32.
     Moreover, he admitted in his March 21, 2016 pleading that the “the spread sheet
     covering year 2012” showed that he was paid for the 5 pay periods, and he
     included a copy of the DFAS spread sheet in his pleadings. RCF, Tab 23 at 2, 16.
     DFAS documentation also shows that he received night differential and Sunday
                                                                                          6

      premium pay for these pay periods, although reimbursement did not occur until
      May 19, 2012. 2 RCF, Tab 20 at 81-82.

      Accrued Annual Leave
¶10        The administrative judge found that the agency calculated the appellant’s
      payment for accrued annual leave properly and paid him for the leave.
      CID at 6-7.   The administrative judge explained that the agency submitted
      documentation demonstrating that it paid the appellant $6,922.20, and that it later
      properly deducted the same amount of money from his back pa y award to prevent
      an overpayment. Id.; RCF, Tab 20 at 82, 90. The appellant did not take issue
      with the calculations whereby the agency reached the gross payment for leave,
      but he asserts on review that the agency twice deducted his payments for
      Medicare; Federal and state income taxes; and Old Age, Survivor and Disability
      Insurance from the lump-sum payout, first when he was initially paid, and later,
      when the agency deducted the gross amount of his payment for accrued annual
      leave from his back pay award. PFR File, Tab 1 at 7. As the agency points out,
      however, it was required by regulation to recover from any back pay award “a
      lump-sum payment for annual leave (i.e., gross payment before any deductions).”
      5 C.F.R. § 550.805(e)(2)(iv) (emphasis added). The appellant’s argument is thus
      unavailing.

      Offsets for Special Pay
¶11        The administrative judge found that the agency twice took offsets from
      payments to the appellant, and these offsets were proper. First, he found that the
      appellant was paid twice for four pay periods that fell within the back pay

      2
        The appellant’s attempt to discredit the accuracy of the DFAS spread sheet is
      unavailing. The agency explains that when the appellant originally received the spread
      sheet during a separate, but related appeal, Favreau v. Department of the Army, MSPB
      Docket No. SF-0752-12-0547-I-6, Initial Decision (June 7, 2016), it was accompanied
      by supporting documents, including an affidavit from the civilian pay branch chief who
      supervised the audit of his back pay. PFR File, Tab 3 at 5. The agency provided the
      affidavit for the record in the instant appeal. RCF, Tab 20 at 66-72.
                                                                                        7

      period. 3 CID at 7-8. The first payment of $7,568.98, which covered the four pay
      periods, was made on March 19, 2012, and identified as “Special Pay.” RCF, Tab
      20 at 71, 73. The second payment of $5,782.74 was made on May 17, 2012, and
      was part of a larger payment identified as “Gross Back Pay.” Id. at 71, 80, 82.
      On April 5, 2012, the agency offset a back pay award payment by $7,568.98 for
      “Special Pay.” Id. at 77. The administrative judge found that this offset was a
      proper one and explained in detail why it had been taken.          CID at 7.    The
      administrative judge explained that the second offset arose from a special
      payment that had been made to the appellant on May 7, 2012, when late
      submission of a time sheet caused him to miss the normal pay cycle. CID at 8;
      RCF, Tab 20 at 71, 78-79.         The administrative judge explained that later the
      automated payroll system reduced his May 17, 2012 pay by $736.86 because he
      already had received those funds. CID at 8; RCF, Tab 20 at 71, 82. Although the
      appellant reiterates on review his argument that the offsets were improper , PFR
      File, Tab 1 at 7-9, the record evidence cited above supports the administrative
      judge’s finding that the offsets were valid ones.

      Calculation of Overtime Pay
¶12        Board law allows agencies to calculate back pay for overtime based on
      either an employee’s prior overtime assignments, or the overtime assignments for
      similarly situated individuals.     Brady v. Department of the Navy, 55 M.S.P.R.
      693, 696 (1992). The method selected in any particular case must be the one
      most likely to restore the employee to the status quo ante. Id. When using the
      employee’s preremoval work history may not accurately reflect the period for
      which back pay has been awarded, the Board has allowed awards based on
      averaging of hours worked by similarly situated employees. Id. For example, in
      Bonacchi v. U.S. Postal Service, 46 M.S.P.R. 531, 535-36 (1990), an employee


      3
       These were the pay periods ending January 15, January 25, February 12, and February
      26, 2011. CID at 7; RCF, Tab 20 at 73-74, 80-82.
                                                                                      8

      had been demoted to a position in which he previously had not been employed,
      and there was no overtime history in that position. Id. at 535. The Board thus
      approved the averaging of the overtime hours worked by similarly situated
      employees. Id. at 536.
¶13        The administrative judge here upheld the agency’s decision to calculate the
      amount of overtime pay based on the average number of overtime hours worked
      by the appellant’s colleagues in the agency’s Law Enforcement Branch.        CID
      at 10-11. The administrative judge explained that the appellant did not submit
      any evidence showing that he would have earned overtime while performing
      security guard duties—the duties to which he had been assigned immediately
      prior to his removal—equivalent to the overtime he earned earlier while
      performing law enforcement duties. CID at 10. Alternatively, the administrative
      judge found, the appellant failed to demonstrate that he would have been assigned
      law enforcement duties during all or a part of the back pay period had he not been
      removed. Id. The administrative judge found the agency in compliance with the
      Final Order for payment of overtime hours for 2011, but not for 2012, because the
      agency had failed to properly document the payment of overtime for that year.
      CID at 10-11; see Bruton, 111 M.S.P.R. 489, ¶ 17.
¶14        The appellant reiterates his claim that the agency should have based its
      calculations on the overtime he earned while assigned to law enforcement duties
      in the past, and not on employee averages, because he engaged in law
      enforcement duties even while officially assigned to duties as a security guard.
      He further asserts that the agency’s own accounting regulations require that “any
      overtime the employee would have earned during the period of wrongful
      suspension or separation should be included in the back pay.” PFR File, Tab 1
      at 9-10 (citing the Department of Defense Financial Management Regulation
      (DOD FMR) 7000.14-R, ¶ 060504D).         The regulation that the appellant cites,
      however, also states that “[t]he method of computing overtime incident to a back
      pay award due an employee may be based on the average number of overtime
                                                                                           9

      hours worked by fellow employees occupying similar positions during the same
      period.” DOD FMR 7000.14-R, ¶ 060504D. Moreover, the Board will not nullify
      the method that the agency selects for calculating back pay in the absence of a
      showing that it was unreasonable or unworkable.          Broadnax v. U.S. Postal
      Service, 35 M.S.P.R. 219, 226 (1987).          The appellant has not made such a
      showing, and his assumption, that he would have been restored to his previous
      law enforcement duties during the back pay period, is speculative. We will not
      disturb the administrative judge’s findings.

      Promotion to Lieutenant
¶15        An employee is entitled to a promotion in a compliance proceeding only
      when some provision of law mandates it or when the appellant is able to somehow
      “clearly establish” that he would, in fact, have been promoted.            Boese v.
      Department of the Air Force, 784 F.2d 388, 390 (Fed. Cir. 1986); Jones v.
      Department of the Interior, 70 M.S.P.R. 182, 187-88 (1996). “The established
      rule is that one is not entitled to the benefit of a position until he has been
      appointed to it.”   United States v. Testan, 424 U.S. 392, 402 (1976).          The
      administrative judge found that the appellant did not show that he wa s entitled to
      a promotion to lieutenant, as he had claimed.       CID at 11-12; RCF, Tab 12 at
      13-16. The appellant asserted that he would have been promoted had the agency
      given proper weight to his military experience and/or veterans’ preference status.
      RCF, Tab 12 at 13. He also argued that, during the back pay period, the agency
      hired an outside individual with qualifications inferior to his own. Id. at 14-15.
¶16        The appellant reasserts these arguments on review.          PFR File, Tab 1
      at 10-11. Any claims he makes apply only to the back pay period, and they are
      speculative at best. To the extent that the appellant’s claims here pertain to the
      back pay period, he has not shown that he would have been selected had he
      applied for the position that the agency filled. He also has not identified any
                                                                                            10

      legal authority mandating his placement in a higher-graded position during that
      period of time. His argument therefore is unavailing.

      Conclusion
¶17         Accordingly, we affirm the administrative judge’s findings in the
      compliance initial decision. 4     Outstanding issues of compliance remain with
      respect to the agency’s calculation of interest and the agency’s calculation of
      overtime in 2012. See CID at 5-6, 10-11. The agency submitted evidence and
      argument on these issues on June 29 and October 28, 2016, under MSPB Docket
      No. SF-0752-11-0273-X-1, which is currently pending in the Board’s Office of
      General Counsel. The appellant’s petition for enforcement will therefore be
      referred to the Board’s Office of General Counsel, and, depending on the nature
      of the submissions, an attorney with the Office of General Counsel may contact
      the parties to further discuss the compliance process. The parties are required to
      cooperate with that individual in good faith.           Because the purpose of the
      proceeding is to obtain compliance, when appropriate, an Office of General
      Counsel attorney or paralegal may engage in ex parte communications to, among
      other things, better understand the evidence of compliance and/or any objections
      to that evidence. Thereafter, the Board will issue a final decision fully addressing
      the appellant’s petition for review of the compliance initial decision and setting
      forth his further appeal rights and the right to attorney fees, if applicable.

                                             ORDER
¶18         The appellant may respond to the agency’s June 29 and October 28 , 2016
      submissions within 20 days of the date of this Order. 5 C.F.R. § 1201.183(a)(8).
      If the appellant does not respond to the agency’s evidence of compliance, the


      4
        The compliance initial decision includes findings that the appellant d id not challenge
      on review concerning restoration of forfeited annual leave and a time-off award, CID at
      8-9, payment of the appellant’s uniform allowance, CID at 12-13, and the rescission of
      the removal and reinstatement, CID at 13.
                                                                                       11

      Board may assume that he is satisfied with the agency’s actions and dismiss the
      petition for enforcement.
¶19        The appellant’s response should be filed in the compliance referral matter
      currently pending in the Board’s Office of General Counsel , MSPB Docket No.
      SF-0752-11-0273-X-1. All subsequent filings should refer to MSPB Docket No.
      SF-0752-11-0273-X-1 and should be faxed to (202) 653-7130 or mailed to the
      following address:
                                     Clerk of the Board
                             U.S. Merit Systems Protection Board
                                    1615 M Street, N.W.
                                   Washington, D.C. 20419

      Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
      (https://e-appeal.mspb.gov) in accordance with the Board’s regulation at
      5 C.F.R. § 1201.14.
¶20        The agency is reminded that if it fails to provide adequate evidence of
      compliance, the responsible agency official and the agency’s representative may
      be required to appear before the Office of the General Counsel of the Merit
      Systems Protection Board to show cause why the Board should not impose
      sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(a).
      The Board’s authority to impose sanctions includes the authority to order that the
      responsible agency official “shall not be entitled to receive payment for service as
      an employee during any period that the order has not been complied
      with.” 5 U.S.C. § 1204(e)(2)(A).
¶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
                                                                                 12

the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.




FOR THE BOARD:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
