                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TONYA EVETTE RHODES,                            DOCKET NUMBER
                  Appellant,                         AT-0752-12-0316-X-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 13, 2015
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Valorie Reilly, Saint Petersburg, Florida, for the appellant.

           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. SF-0752-12-0316-C-1, Compliance File (CF),
     Tab 11, Compliance Initial Decision (CID). For the reasons discussed below, we


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     now 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,
     Tab 47, Initial Decision (ID) at 16. The decision required the agency to pay her
     appropriate back pay and benefits. ID at 16. 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 percent 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 2-4,
     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 held that the agency failed to
     adequately explain its back pay calculations, including how it calculated the back
     pay period and interest amounts. CID at 3. The administrative judge further held
     that the agency failed to provide evidence to show that it made appropriate
     transfers to the appellant’s TSP account and FEGLI.       CID at 3.    Finally, the
     administrative judge found that the agency admitted that it might have
     erroneously submitted a debt notice to the Office of Personnel Management
     (OPM) regarding the appellant’s FEHB plan and had not provided evidence that it
                                                                                           3

     corrected such error. CID at 3. The administrative judge ordered the agency to
     take the following actions:
           1. Set forth the gross back pay amount and explain how the amount
               was calculated;
           2. Set forth the amount and reason for all deductions;
           3. Set forth the source and amount of all payments and proof that
               they were received;
           4. Set forth the amount of interest due on the back pay and how that
               amount was calculated;
           5. Explain any discrepancies between the agency’s calculations and
               the appellant’s earnings and leave (E&L) statements;
           6. Provide evidence that it transferred money withheld for FEGLI to
               the appropriate entity;
           7. Provide evidence that it made appropriate TSP payments on the
               appellant’s behalf; and
           8. Provide evidence that it corrected any erroneous debt notice
               transmitted to OPM.
     CID at 4-5.
¶5         Neither party filed a petition for review. On January 13, 2014, the agency
     filed evidence of purported compliance, to which the appellant responded on
     January 31, 2014. 2 See MSPB Docket No. AT-0752-12-0316-X-1, Compliance
     Referral File (CRF), Tabs 1, 3. For the reasons explained below, we now find the
     agency in partial compliance.




     2
       Following these submissions, the case was referred to a Board Office of General
     Counsel (OGC) attorney for attempted settlement. In February 2015, after the parties
     failed to reach an 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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                                          ANALYSIS
¶6         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
¶7         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 E&L statements. CID at 4-5.
¶8         The     agency   submitted   evidence   attempting to   comply with    these
     requirements.    Specifically, the agency explained that the back pay period ran
     from February 15, 2012, (the effective restoration date), through March 30, 2012
     (the day before the appellant’s disability retirement took effect). CRF, Tab 1 at
     5; see CF, Tab 3, Exhibit F at 175. The agency explained how it calculated the
     appellant’s back pay—by multiplying her hourly rate by the number of hours she
     would have worked—and provided evidence that it paid the calculated amounts in
     several different installments.    CRF, Tab 1 at 5-6, 20-27.      The agency also
     explained its interest calculations. Id. at 8, 71-73.
¶9         The appellant challenged the agency’s calculations in part, contending that
     the agency failed to explain whether it:          (1) accounted for any required
                                                                                       5

      within-grade increase (WIGI) during the back pay period, and (2) included in the
      back pay the 20 hours per month mandatory overtime she asserts she would have
      worked during the back pay period. CRF, Tab 3 at 9-10, 13. The agency did not
      submit a response addressing these issues, and we are unable to determine from
      its narrative and documents whether it considered them. Accordingly, we find the
      agency noncompliant concerning these issues.       To come into compliance, the
      agency must submit evidence regarding the appellant’s entitlement to a WIGI and
      to overtime pay.      If the agency determines that its previous calculations were
      incorrect, then it must pay the appellant interest on the amount outstanding.
¶10        Other than these WIGI and overtime pay issues and the FEGLI, TSP, and
      FEHB withholding issues discussed below, the appellant did not point to any
      specific problems with the back pay analysis. However, she offered a general
      challenge to the form of the agency’s narrative explanation and evidence. She
      asserted that the agency’s narrative explanation of its calculations was inadequate
      because it was not in affidavit form.      CRF, Tab 3 at 8.     We agree that the
      agency’s explanations are inadequate as to the WIGI and overtime issues, as
      explained above, and as to the three withholding issues, as explained below. We
      otherwise reject the appellant’s challenge because she has not pointed to any
      specific flaw in the agency’s calculations. See Brown, 113 M.S.P.R. 325 at ¶ 5.
      The agency’s narrative explanation is clear as to the overall back pay and interest
      calculations and is supported by documentary evidence. That is sufficient where,
      as here, the appellant has not identified specific contradictions or oversights but
      merely speculates that the calculations might not be correct.

      FEGLI
¶11        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 5.   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
                                                                                      6

      employee “dies during the intervening period or suffered dismemberment
      entitling [her to] benefits” during the back pay period. CRF, Tab 1 at 9. The
      appellant challenged this assertion, and the agency did not provide any legal
      citations for it. CRF, Tab 1 at 76, Tab 3 at 14. However, it appears the agency is
      referring to 5 C.F.R. § 870.404(e), which covers both basic and optional FEGLI
      contributions and provides:
            Effective October 21, 1972, when there is an official finding that an
            employee was suspended or fired erroneously, no withholdings are
            made from the back pay.        Exception: if death or accidental
            dismemberment occurs during the period between the employee’s
            removal and the finding that the agency action was erroneous,
            premiums are withheld from the back pay awarded.
¶12        This provision appears to support the agency’s contention that it was not
      permitted to withhold basic or optional FEGLI contributions from the appellant’s
      back pay. However, the E&L statement submitted by the agency for the back pay
      period appears to contradict its claim that it did not withhold FEGLI
      contributions.    The agency’s Breakdown of June 15, 2013 Payment and
      Deductions—which covered February 16, 2012, to March 30, 2012, see CRF, Tab
      1 at 5—lists “FEGLI Options A, B, C” as “-48.36,” CRF, Tab 1 at 21-22; see
      CRF, Tab 1 at 6-7 (the agency’s deduction chart lists FEGLI A, B, C deductions
      from the June 13, 2013 payment). 3          Accordingly, we find the agency
      noncompliant on this issue. To be compliant, the agency must clearly explain
      whether it withheld optional FEGLI contributions from the appellant’s back pay,
      and how much.         If the agency determines that it improperly withheld
      contributions, the agency must demonstrate that it refunded to the appellant any
      withheld amounts, plus interest. 4


      3
        Both the E&L and the narrative statement appear to show that the agency properly
      did not withhold basic insurance contributions from the back pay payment. See CRF,
      Tab 1 at 7, 21-22.
      4
        The Board does not have jurisdiction over matters pertaining to OPM’s decisions
      respecting FEGLI entitlements.    Richards v. Office of Personnel Management,
                                                                                                 7

      TSP
¶13         The agency acknowledged that it was required to contribute an amount
      equal to 1 percent of the appellant’s salary to her TSP account for each pay period
      during the back pay period. CRF, Tab 1 at 6. The agency conceded that it did
      not do so.        Instead, after finding that it “could not verify” that the required
      amounts were received by the TSP, the agency mailed the appellant a check for an
      amount equal to the 1 percent contribution during the four pay periods at issue
      ($92.86).    Id.    The appellant challenged both the calculation of the 1 percent
      contribution and the agency’s decision to provide it to her directly rather than
      submit it to the TSP.         CRF, Tab 3 at 8-9.       We agree and find the agency
      noncompliant on both counts.
¶14         The agency did not explain how it calculated the 1 percent contribution.
      Moreover, any such calculation would be suspect in light of our finding that the
      agency may have failed to account for a WIGI and mandatory overtime during the
      back pay period.         Accordingly, the agency must recalculate the 1 percent
      contributions after it determines whether the appellant was entitled to a WIGI and
      to mandatory overtime and must submit a narrative explanation of its
      calculations. 5
¶15         The agency also erred in paying the 1 percent contribution directly to the
      appellant rather than depositing it into her TSP fund.            Absent the appellant’s
      consent, direct payment is inadequate to establish compliance because it does not


      97 M.S.P.R. 291, ¶ 6 (2004). However, the issue in this compliance case is not the
      appellant’s entitlement to FEGLI but whether the agency was required to withhold
      contributions from her back pay and submit them to the appropriate entity. Because
      this is an issue of compliance with a Board final order, we may address it. See Lua v.
      Office of Personnel Management, 102 M.S.P.R. 108, ¶ 8 (2006).
      5
        It is not clear whether the appellant asserts that she is entitled to more than a 1 percent
      contribution. In any event, we find that she is not, based on the documentary evidence
      in the compliance file showing that upon restoration she elected to use the contribution
      election on file at the time of her removal, which was limited to the 1 percent agency
      contribution. CF, Tab 3 at 110-13.
                                                                                         8

      provide her the tax benefits she would have received and the interest she would
      have accrued had the funds been deposited into her TSP account. See Tubesing v.
      Department of Health and Human Services, 115 M.S.P.R. 327, ¶¶ 17-20 (2010)
      (discussing the agency obligation to meet regulatory requirements regarding TSP
      contributions).   To come into compliance, therefore, the agency must provide
      proof that it made the appropriate contributions to the appellant’s TSP account.

      Erroneous Debt Notice to OPM
¶16        The appellant asserted that the agency erroneously charged her with a debt
      and sent a debt notice to OPM, which began trying to collect the debt from her.
      CF, Tab 1 at 2.    The administrative judge ordered the agency to provide an
      explanation and to submit evidence that it corrected any erroneous debt notice
      transmitted to OPM. CID at 5.
¶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 had already paid
      her for this leave when it removed her. CRF, Tab 1 at 5. The second payment
      resulted in a debt of $6,800.63 (gross). See id. at 9. The agency maintained that
      this debt was valid. Id.
¶18        The agency further explained that it had 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). See id. at 9, 65; see also 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.
¶19        Finally, the agency stated that, during its review of the back pay issues, it
      discovered that it had inadvertently failed to deduct employee and agency
      retirement contributions from the payment issued to the appellant on June 15,
      2013 (which covered the hours worked during the back pay period, although as
      noted above, this may have erroneously excluded any WIGI and overtime due
                                                                                        9

      her). CRF, Tab 1 at 5, 9. The agency stated that it was attempting to correct this
      error and that the appellant would receive a notice of indebtedness for her
      retirement contributions.   Id. at 9.    The agency did not submit any evidence
      showing that this issue has been resolved.
¶20        The    appellant   contended       that   the   agency’s   explanations   were
      incomprehensible and sought to have any debt waived. CRF, Tab 3 at 11-12. We
      disagree. The agency clearly explained that the appellant owes two debts: one
      arising from an erroneous overpayment related to her annual leave, the other from
      the agency’s inadvertent failure to withhold employee retirement contributions
      from her back pay payment.              However, the appellant asserts, without
      contradiction, that her collective bargaining agreement required the agency to
      provide her notice and an opportunity to request that the debt be waived but that
      the agency failed to provide either. CRF, Tab 3 at 13. The agency must address
      this issue in its next compliance submission.
¶21        The agency also clearly explained the origin of the debt notice the appellant
      received from OPM as arising from erroneous deductions for FEHB premiums.
      However, we agree with the appellant that the agency has not provided sufficient
      evidence that it corrected this issue. Specifically, the agency must show that, in
      addition to canceling the FEHB debt, it refunded to the appellant any amounts it
      deducted, with interest. The agency provided evidence that it refunded FEHB
      amounts withheld from her back pay, CRF, Tab 1 at 6, 38, but did not address
      whether it paid interest on this amount or whether it was required to make any
      refund for the period between April 1, 2012, and May 5, 2013, see CF, Tab 8 at 7
      (explaining that the debt accrued over 26 pay periods, beginning with the back
      pay period (February 15, 2012, to March 30, 2012) and extending until the
      appellant was “transferred” onto OPM’s rolls as a disability retirement annuitant
      on May 5, 2013).
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      Sanctions
¶22        The appellant seeks sanctions against the responsible agency official
      pursuant to 5 U.S.C. §§ 1204(a)(2) and (e)(a)(2) and 5 C.F.R. § 1201.183(c).
      Because the agency has submitted evidence of partial compliance, it would be
      inappropriate to impose sanctions.    See Tubesing, 115 M.S.P.R. 327 at ¶ 21;
      Eikenberry v. Department of the Interior, 39 M.S.P.R. 119, 121 (1988).
      Likewise, we reject the appellant’s request for an independent auditor paid for by
      the agency. CRF, Tab 3 at 16. At this time, the remaining compliance issues do
      not appear complex enough to warrant such an appointment.

                  FURTHER ACTIONS NEEDED FOR COMPLIANCE
¶23        Within 21 days of the date of this Order, the agency shall submit
      the following:
            1. A narrative explanation, supported by documents and/or affidavits
               as appropriate, regarding the appellant’s entitlement to a WIGI
               and overtime pay during the back pay period.        If the agency
               determines that the appellant is entitled to either, it must submit
               evidence of payment, including interest.    Any interest payment
               must likewise be accompanied by a narrative explanation and
               documentation regarding how it was calculated.
            2. A narrative explanation, supported by documents and/or affidavits
               as appropriate, explaining whether it withheld optional FEGLI
               contributions from the appellant’s back pay, and how much. If
               the agency determines that it improperly withheld contributions,
               then it must provide evidence that it refunded to the appellant any
               withheld amounts, plus interest. Any interest payment must be
               accompanied by a narrative explanation and documentation
               regarding how it was calculated.
                                                                                        11

            3. A narrative explanation of how it calculated the appellant’s 1
               percent TSP contributions, which also must account for any
               amounts owed her for a WIGI and overtime during the back pay
               period.     The explanation must be supported by documentary
               evidence or affidavits. The agency also must provide evidence
               that it deposited the appropriate amounts into the appellant’s
               TSP fund.
            4. 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.
            5. Evidence, accompanied by a narrative explanation, showing that
               the agency refunded to the appellant any amounts deducted, with
               interest, for the FEHB debt. The agency should address whether
               it:   (1) paid interest on the FEHB amounts refunded for pay
               periods between February 15, 2012, and March 30, 2012; and
               (2) refunded and paid interest on any amounts withheld between
               April 1, 2012, and May 5, 2013.
            6. The agency must inform the Board whether the responsible
               agency official is still Michelle Campbell, Director of HRC
               Jackson, Mississippi. If not, the agency is directed to submit the
               name and title of the new responsible agency official.
      If the agency fails to submit this information, then 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).
¶24        The appellant shall file a response within 14 days of the agency’s
      submission of compliance. Failure to submit a response within the required time
                                                                               12

period may cause the Board to assume she is satisfied and dismiss the petition for
enforcement.




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