                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GARY S. SCHNELL,                                DOCKET NUMBER
                   Appellant,                        CH-1221-07-0700-X-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 21, 2014
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gary S. Schnell, Sparta, Wisconsin, pro se.

           Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         This compliance proceeding was initiated by the appellant’s petition for
     enforcement of the Board’s final decision in his individual right of action appeal
     that granted him corrective action and ordered his retroactive promotion to an
     appropriate GS-12 position. Schnell v. Department of the Army, 114 M.S.P.R. 83

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     (2010). For the reasons stated below, we find that the agency is in compliance
     with the Board’s order and dismiss the petition for enforcement.

                                     BACKGROUND
¶2        On review of the parties’ responses to the initial recommendation of the
     administrative judge that the Board enforce its order, the Board found that the
     agency failed to provide an adequate explanation of the basis for the appellant’s
     placement in an Environmental Engineer, GS-12, position or sufficient evidence
     to show that it paid him the back pay with interest to which he was entitled.
     MSPB Docket No. CH-1221-07-0700-X-1 (X-1), Remand Order (June 16, 2011).
     Accordingly, the Board remanded the case for the taking of additional evidence
     concerning these issues. Remand Order.
¶3        On remand, the administrative judge held a hearing concerning the
     appropriateness of the appellant’s placement and the sufficiency of the
     appellant’s award of back pay with interest. The agency presented witnesses at
     the hearing, and both parties provided additional documentary evidence. In her
     recommendation, the administrative judge determined that the Environmental
     Engineer, GS-12, position was substantially equivalent in scope and status to the
     duties of the appellant’s former position, 2 as well as to the temporary Facility
     Operations Specialist position to which he was denied a promotion.          MSPB
     Docket No. CH-1221-07-0700-B-1 (B-1), Remand Recommendation (Oct. 18,
     2011). The decision discusses at length various other positions that the appellant
     alleged to be more appropriate placements, but found no merit in his arguments.
     Remand Recommendation at 14-20.
¶4        The administrative judge also found that the agency failed to demonstrate
     that the appellant received the correct interest on his back pay in light of errors

     2
      The appellant has long contended that his former position of Supervisory Quality
     Assurance Specialist should have been classified at the GS-12 level. See X-1,
     Compliance Referral File (CRF), Tab 4 at 4; Schnell, 114 M.S.P.R. 83, ¶ 10.
                                                                                      3

     the agency made that were discussed, but not fully explained, by its witnesses at
     the hearing. Remand Recommendation at 10. Finally, the administrative judge
     determined that, because the agency conceded that the appellant was working in
     an inappropriate position during the part of the back pay period when the
     National Security Personnel System (NSPS) was in effect, the agency should
     replace his level “2” performance rating for that period with a “3” fully
     successful rating. Remand Recommendation at 20-23. The administrative judge
     thus recommended that the Board order the agency to (1) demonstrate that it
     provided the appellant appropriate back pay and interest, and (2) increase the
     appellant’s performance rating to level "3" for his performance to and including
     January 16, 2011. Remand Recommendation at 23.
¶5        In its response the agency agreed to comply with the administrative judge’s
     recommendation. MSPB Docket No. CH-1221-07-0700-X-2 (X-2), CRF, Tab 3
     at 1. In its initial submission, the agency submitted evidence that it was taking
     immediate steps to make the recommended change in the appellant’s performance
     rating during the period of the NSPS. Id. at 6. The agency stated that, because of
     the impact of the higher rating on the appellant’s back pay, a recalculation of the
     appellant’s back pay and interest was required and would result in a delay of its
     evidence concerning the award. Id. at 1.
¶6        In his response to the recommendation, the appellant agreed with the
     administrative judge’s finding that the agency had not demonstrated that its award
     of back pay and interest was appropriate. X-2, CRF, Tab 4 at 2. In particular, he
     argued that the agency should have calculated his back pay and interest on a
     continuous time line, rather than breaking it into segments. Id. The appellant
     also agreed that the agency’s performance rating addressed by the administrative
     judge was erroneous but contended that his rating should have been at the highest
     level, rather than at the fully successful level, as found by the administrative
     judge. Id. at 7. Finally, the appellant disagreed with the administrative judge
     that the agency properly placed him in the Environmental Engineer, GS-12,
                                                                                      4

     position, and in support of his petition for review he submitted argument and
     additional evidence to support his position. Id. at 2-8, 9-29, 45-88.
¶7        In a second submission, the agency addressed the appellant’s award of back
     pay and interest with narrative explanations and evidence concerning its
     calculations that supplemented and corrected the back pay and interest spread
     sheets that it had previously provided to the administrative judge. X-2, CRF,
     Tab 5.    The appellant then submitted a response to the agency in which he
     reiterated his arguments concerning the appropriateness of his job placement, his
     performance rating, and the need for a continuous calculation of back pay and
     interest. X-2, CRF, Tab 6.
¶8        After receipt of the parties’ responses, the Board issued an order noting that
     the agency’s second response showed the same amounts of back pay and interest
     as its previous submissions despite the raising of the appellant’s performance
     rating during the NSPS period. X-2, CRF, Tab 8. The Board ordered the agency
     to explain why it had not made the recalculations of back pay and interest that it
     stated would be required because of the rating change.         Id.   The agency in
     response stated it had not made the changes because of evidence that it submitted
     showing a re-creation of the NSPS rating and pay pool for the appellant would
     significantly reduce his pay below what he already received, i.e., that using the
     pay system that preceded the NSPS was to the appellant’s advantage. X-2, CRF,
     Tab 11. The appellant has not disputed the agency’s determination. X-2, CRF,
     Tab 12.

                               ANALYSIS AND FINDINGS

     The agency has paid the appellant the appropriate amount of back pay
     and interest.
¶9         The agency’s evidence shows that the appellant was paid back pay for the
     difference between the GS-11 and GS-12 pay levels during the back pay period
     beginning on October 31, 2006, and ending on January 15, 2011. The back pay
     was paid in three installments totaling $18,217.44, with a correction of an
                                                                                             5

      additional $4.88, for a total back pay award of $18,222.32. 3 X-2, CRF, Tab 5,
      Exhibits 8, 9. The three major payments were: (1) $1,678.24 on June 3, 2010,
      for the period from October 31, 2006, through September 29, 2007; (2) $6,976.80
      on January 27, 2011, for the period from January 3, 2010, through January 15,
      2011; and (3) $9,562.40 on February 24, 2011, for the period from September 30,
      2007, through January 2, 2010. Id., Exhibit 8. The agency’s evidence shows the
      appellant’s back pay by pay period.        Id., Exhibits 1-6.   The appellant has not
      denied receipt of the agency’s payments or specifically disputed the correctness
      of the amounts paid. While the appellant implicitly disputes these amounts in
      making his claim that he should have received a higher performance rating for the
      NSPS period, we find no merit in this claim. 4
¶10         The appellant has challenged the correctness of the amount of interest paid
      on these amounts. The agency submitted spread sheets showing how the interest
      was computed on the second and third of the above-referenced back pay
      payments.    B-1, Compliance Remand File, Tab 6, Exhibit 1.            For the second
      payment, the spread sheet shows the daily compounding of interest from the
      initial pay date of the covered period to the date on which back pay for the period
      was paid, resulting in an interest payment of $136.84. Id. at 10-11. For the third
      payment, the spread sheet shows the daily compounding of interest from the
      covered period’s initial pay date to the date on which back pay for the period was
      paid, resulting in an interest payment of $828.82. Id. at 7-8. For the interest on
      the first of the above payments, the agency presented at the hearing the testimony
      of Casey Prunier, a Lead Civilian Pay Technician. B-1, Hearing Transcript (HT)

      3
       The back pay correction that the appellant received after the principal payments was
      based on an additional eight hours of work by the appellant during the first of the three
      back pay periods less a collected debt. See X-2, CRF, Tab 5, Exhibit 9.
      4
        A witness for the agency persuasively testified that the higher rating under the NSPS
      that the appellant seeks would not have been the equivalent of the rating that he
      received for the preceding period under the previous appraisal plan because of
      differences in the two plans. B-1, Hearing Transcript at 100-104.
                                                                                              6

      at 8-10. Ms. Prunier testified that interest was compounded daily using the Office
      of Personnel Management’s formula for interest rates from the initial payment
      date for the pay period ending November 11, 2006, until the back pay payment
      date of June 3, 2010, resulting in an interest payment of $311.38. These amounts
      (including a subsequent adjustment to $145.03 of the $136.84 interest on the
      second back pay payment) total $1,285.23 in interest paid. 5
¶11         The appellant’s objection to the agency’s interest payments is based on his
      contention that the interest should not be broken into segments but should be
      computed continuously from the date of the first back payment due until the date
      of the last such payment due. X-2, CRF, Tab 4 at 2, Tab 6 at 1. While this rule
      would apply if there were a single back pay payment, it does not apply in the
      appellant’s case where the agency made three different back pay payments for
      different periods of time and on three different dates.           The agency properly
      computed the interest on each of the payments from the date the appellant would
      first have received the pay involved until the date of the appellant’s payment of
      the total back pay for the period involved, after which no further interest would
      have accrued, provided the interest was paid within 30 days after that payment
      date. See 5 U.S.C. § 5596(b)(2); 5 C.F.R. § 550.806(a)(1), (2). The appellant’s
      interest payments were made within 30 days after the accrual stop dates:              the
      interest on the first period payment was paid on June 5, 2010; the combined
      interest for the second and third period payments was made in the pay period
      ending on February 12, 2012. X-2, CRF, Tab 5, Exhibits 5, 6.
¶12         Thus, we find that the agency has shown that it has paid the appellant the
      amount of back pay with interest to which he is entitled.



      5
        According to Ms. Prunier, the increased amount of interest came from changing the
      accrual stop date on the second back pay payment to reflect the fact that the interest for
      the second and third back pay payments was paid as one sum in the pay period ending
      February 12, 2012. See X-2, CRF, Tab 5, Exhibits 6, 9.
                                                                                        7

    The agency’s placement of the appellant in the Environmental Engineer, GS-12,
    position complied with the Board’s decision.
¶13       In her recommendation, the administrative judge found that the agency
      placed the appellant in a position, Environmental Engineer, GS-12, that was
      substantially equivalent in scope and status to the position he would have
      received absent his whistleblowing. Remand Recommendation, Tab 1 at 11-14.
      The administrative judge set out the appellant’s position description in her
      decision, and her conclusion is amply supported by its contents.           Remand
      Recommendation at 11-13. The administrative judge noted that the major duty of
      the   appellant’s   position   is   developing   and   implementing   environmental
      compliance policy at Fort McCoy and that the appellant is the point of contact for
      regulatory inspections of the site. The administrative judge found that, in view of
      the appellant’s responsibilities, the lack of supervisory authority does not prevent
      his position from having the scope and status of his former, first-line supervisory
      position, which he contended should have been classified at the GS-12 level. In
      both jobs, the administrative judge pointed out, the appellant was responsible for
      giving other people detailed and highly technical advice about what they are
      supposed to do.      Remand Recommendation at 13.         The administrative judge
      determined that, in the absence of evidence that the appellant does not actually
      perform the duties of his position, the agency’s placement of the appellant was
      appropriate. Remand Recommendation at 13-14.
¶14         The appellant now seeks review of the finding of the administrative judge
      concerning his placement.       He contends that his position has a lower status
      because of the number of levels of supervision between it and the Director. X-2,
      CRF, Tab 4 at 2-3. While this may be a factor in some cases, it is not relevant
      here in view of the responsibilities of the appellant’s position that give it the
      required equivalent status. For the same reason, the administrative judge also
      rightly found that the absence of a supervisory role was not dispositive. Remand
      Recommendation at 13.
                                                                                           8

¶15         The appellant’s principal contention is that he does not actually perform the
      most significant duties of his position. X-2, CRF, Tab 4 at 3-4. However, he
      has not pointed to any specific evidence in the record before the administrative
      judge that shows she erred in finding that he did not occupy a sham position. 6 In
      seeking review of her determination, the appellant has identified duties of the
      position description that he states he has not performed: developing significant
      environmental compliance policies and procedures, resolving conflicts between
      environmental     and   other   requirements,   making    environmental     feasibility
      determinations for construction projects, or serving as a contract officer
      representative.   Id.   However, these are only some of the varied higher level
      responsibilities of his position.   As the administrative judge noted, an agency
      witness testified that the appellant’s former Environmental Protection Specialist,
      GS-11, job was upgraded to the GS-12 level by adding additional program duties
      which he does not specifically contend he does not perform. X-2, CRF, Tab 1
      at 13; HT at 86-87. These include engineering oversight of drinking and waste
      water systems and managing storm water permit applications.                 See B-1,
      Compliance Remand File, Tab 6, Agency Exhibits 12, 13.
¶16         The appellant has submitted spreadsheets that he developed concerning his
      work activities and also his annual self-assessment to support his assertion that
      his position is not equivalent in scope and status to the position he would have
      had. X-2, CRF, Tab 4, Exhibits A, B. The spreadsheets list what the appellant
      states are his work activities, but they provide little concrete information and
      do not expressly cast doubt on the administrative judge’s finding.          Id., Tab 4
      at 9-14.   The self-appraisal addresses the appellant’s performance of his

      6
        Prior to the Board’s remand for a hearing, the appellant made conclusory allegations
      that his position was not equivalent to a GS-12 position, but merely doubled his
      workload at the GS-11 level. MSPB Docket No. CH-1221-07-0700-C-1, Compliance
      File, Tab 14 at 1. However, on remand the appellant failed to introduce any evidence at
      the hearing to give concrete support to this claim although a stated purpose of the
      remand was to take additional evidence on the issues concerning his placement.
                                                                                        9

      recognized work objectives and shows that the appellant has performed some of
      the GS-12 duties added to his position. Id. at 17-27. The appraisal also includes
      comments of his supervisors which indicate that the appellant failed to perform
      various duties, not that he had no responsibility for their performance.         Id.
      at 18-19, 21- 22, 25-26. Thus, to the extent that the appellant does not perform
      some of the duties of his position, this stems from his failure to carry out his
      assigned tasks, not the agency’s failure to assign him sufficient responsibilities.
      The appellant therefore fails to rebut the administrative judge’s finding that he
      was not placed in a sham position, and we find that his placement by the agency
      in the Environmental Engineer, GS-12, position was appropriate.
¶17        For the reasons discussed above, we find that the agency is in compliance
      with the Board’s decision and DISMISS the petition 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)).

                        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 fees
      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.
                                                                                 10

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional     information     is    available    at    the     court’s    website,
www.cafc.uscourts.gov. Of particular relevance is the court’s "Guide for Pro Se
Petitioners and Appellants," which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           11

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
