                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARCUS D. SMITH,                                DOCKET NUMBERS
                   Appellant,                        AT-0752-05-0901-X-1
                                                     AT-0752-05-0901-X-2
                  v.

     DEPARTMENT OF
       TRANSPORTATION,                               DATE: January 3, 2017
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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     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 t o 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   petiti on
     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
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     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.
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                                          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 actio ns 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 issu ed 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 yo ur
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:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
