                          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: May 13, 2015
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

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

           Russell B. Christensen, and Jennifer D. Ambrose, Esquire, Washington,
             D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     05-0901-C-1, Compliance File, Tab 5, Recommendation Decision (RD) (Sept. 13,
     2012); MSPB Docket No. AT-0752-05-0901-C-2, Compliance File, Tab 4,
     Compliance Initial Decision (C-2 ID) (Feb. 13, 2013). 2 The Board has joined
     these cases because doing so will expedite processing and will not adversely
     affect the interests of the parties. 5 C.F.R. 1201.36(b)(1)-(2). For the reasons
     discussed below, we now find the agency in partial compliance with the Final
     Order and order it to take appropriate action to bring itself into full compliance.

                                      BACKGROUND
     Equal Employment Opportunity Commission (EEOC) Referral and Compensatory
     Damages (MSPB Docket Nos. AT-0752-05-0901-E-1 and AT-0752-05-0901-P-1)
¶2         On April 25, 2012, the Board issued a Final Order adopting the EEOC’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.              Smith v.
     Department of Transportation, MSPB Docket No. AT-0752-05-0901-E-1, Final
     Order (Final Order) at 4 (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 awardin g 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 File, Tab 15,
     Initial Decision (P-1 ID) 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 in itial decision because it
     was issued after the regulations took effect.
                                                                                   3

     First Petition for Enforcement (MSPB Docket Nos. AT-0752-05-0901-C-1 and
     AT-0752-05-0901-X-1)
¶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 cancelling his 30-day suspension, as
     ordered, and failed to submit evidence showing it paid appropriate back pay. RD
     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 cancelled 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. See MSPB Docket No. AT-0752-05-0901-X-1, Compliance Referral
     File (CRF-1), Tab 3 at 4-5; see also 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
     petition for enforcement, 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. See P-1 ID 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 (MSPB Docket Nos. AT-0752-05-0901-C-2 and
     AT-0752-05-0901-X-2)
¶6         On October 25, 2012, the appellant filed a second petition for enforcement
     raising the enforcement claims he had attempted to present in his compensatory
                                                                                         4

     damages case.     On February 13, 2013, the administrative judge issued a
     compliance initial decision finding the agency noncompliant with the Final Order.
     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;
        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 $1,500.00 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 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.
     C-2 ID at 8-9.
¶7         The agency filed a response on May 2, 2013, which the appellant
     challenged. MSPB Docket No. AT-0752-05-0901-X-2, Compliance Referral File
     (CRF-2), Tabs 5-6.      Following a Board order to address the appellant’s
     contentions, the agency filed another submission on March 2, 2015, which the
     appellant again challenged. CRF-2, Tabs 8-9.
¶8         For the reasons explained below, we now find the agency in partial
     compliance in both compliance referral cases.

                                       ANALYSIS
¶9         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
                                                                                       5

      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).
      Cancellation of Suspension

¶10          The administrative judge ordered the agency to cancel the suspension and
      to carry the appellant in a work status rather than in a paid administrative leave
      status during the period of the suspension.     RD at 4.     The agency provided
      evidence that it had done so. CRF-1, Tab 3 at 5, Tab 12 at 4-6. The appellant did
      not challenge this evidence. Accordingly, we find the agency in compliance on
      this issue.
      Back Pay

¶11          The administrative judge ordered the agency to pay the appellant all back
      pay due him and to provide an explanation of its calculations. RD at 3. Pursuant
      to the April 25, 2012 Final Order, the agency also was required to pay interest on
      the back pay amount and to provide appropriate benefits. Final Order at 4.
¶12          The agency submitted several hundred pages documenting various financial
      transactions and personnel records relating to the appellant. See CRF-1,
      Tabs 3-12; see also CRF-2, Tab 8 at 6-27. However, because the agency did not
      provide a narrative statement or explain how the materials related to the back pay
      or interest issues, its documentation is incomprehensible.    The agency’s “data
      dump” does not satisfy the requirement that it provide a clear explanation of its
      compliance     actions    supported    by    documentary      evidence.        See
      Vaughan, 116 M.S.P.R. 319 at ¶ 5.     We therefore find the agency noncompliant
      with its obligation to demonstrate that it paid the appellant appropriate back pay,
                                                                                           6

      with interest, and benefits. To come into compliance, the agency must submit a
      detailed narrative explanation setting forth how it calculated the appellant’s back
      pay; how it calculated interest on this amount; and what benefits it provided the
      appellant (with the exception of sick leave, which has been separately resolved).
      The agency must further provide proof that it paid these amounts. Finally, its
      submission must address not only back pay for the 30-day suspension, but for the
      financial consequences of the suspension, as further discussed below.
      Other Financial and Benefits Issues

            Superior Contribution Increase (SCI)

¶13         The administrative judge found that the agency improperly denied the
      appellant an SCI, the agency equivalent of a quality step increase, due to the
      suspension. C-2 ID at 3. The administrative judge ordered the agency to award
      the appellant an SCI, with interest, and to explain its calculations. C-2 ID at 8.
¶14         In its May 2, 2013 submission, the agency asserted that it had awarded the
      appellant an SCI effective January 8, 2006, and paid him $1,541.00 as a result.
      CRF-2, Tab 5 at 3. The agency stated that this amount reflected an SCI-1, the
      highest possible SCI award to an employee, and that the amount was calculated as
      1.8% of the appellant’s base pay as of January 8, 2006. Id. The appellant did not
      challenge this calculation.
¶15         The agency provided a Standard Form (SF) 50 documenting the award,
      CRF-2, Tab 5, Exhibit A at 1. However, the agency did not provide evidence, in
      the form of a check or Earnings and Leave statement, that it actually paid the
      $1,541.00 to the appellant.     Nor did the agency address whether it paid the
      appellant interest on this amount or how that interest was calculated.
¶16         Following the Board’s order to address the appellant’s claims of
      noncompliance, the agency stated that it had paid this amount, plus interest, and
      provided documents purporting to show such payments.          CRF-2, Tab 8.      The
      documents cited by the agency list the appellant’s $1500.00 retroactive cash
                                                                                        7

      award and his $1,850.75 temporary promotion, see CRF-2, Tab 8 at 6, but do not
      reflect the 2006 SCI. We therefore find the agency noncompliant on this issue.
      The agency must submit proof that it paid the appellant $1,541.00.           If this
      payment took place after the agency’s interest calculations stopped on May, 14,
      2013, 3 it must pay the appellant additional interest from that date and provide an
      explanation of how it calculated that interest.
            Retroactive Cash Award ($1500.00) and Temporary Promotion ($1850.75)

¶17         The administrative judge found that the agency improperly denied the
      appellant a $1500.00 cash award he would have earned but for the suspension and
      ordered the agency to award the appellant this amount, with interest, and to
      explain its calculations. C-2 ID at 3-4, 8. The administrative judge also found
      that the agency improperly refused to extend the appellant’s temporary promotion
      as a result of the suspension and that the value of the extended promotion would
      have been $1,850.75. C-2 ID at 4. The administrative judge ordered the agency
      to pay this amount, with interest. C-2 ID at 8.
¶18         In its May 2, 2013 submission, the agency stated that it had made a lump
      sum payment combining these amounts ($3350.75).          CRF-2, Tab 5 at 4. It is
      unclear whether the agency provided evidence of actual payment; however, the
      appellant does not dispute that he received this amount, see CRF-2, Tab 6 at 6,
      and so we find the agency in compliance with respect to the principal on these
      two payments.
¶19         The agency further stated that it calculated the interest due on this
      combined amount as $1650.70.        CRF-2, Tab 5 at 4. The appellant challenged
      this calculation and the agency’s claim that this amount had been paid. CRF-2,
      Tab 6 at 6.     The agency subsequently submitted a report detailing its interest


      3
        The appellant conceded that the agency paid interest on the $1,541.00 through this
      date and did not challenge the calculation of the interest amount. CRF-2, Tab 9 at 3
      n.2.
                                                                                      8

      calculations (albeit without the required narrative explanation). CRF-2, Tab 8
      at 13-21.     In his response, the appellant did not specifically challenge these
      calculations or that he had received the requisite amount. See CRF-2, Tab 9.
      Accordingly, we find the agency in compliance regarding interest on these
      payments.
            Other Benefits Issues

¶20         The appellant complains that the agency “wholly fails to address the
      requirements of benefits restoration.” CRF-2, Tab 6 at 6, Tab 9 at 8. Because the
      appellant did not respond to the agency’s evidence of purported compliance in the
      first compliance case (MSPB Docket No. AT-0752-05-0901-X-1), and did not
      raise any benefits issues except sick leave in the second compliance case (MSPB
      Docket No. AT-0752-05-0901-X-2), we would ordinarily find that he had waived
      any objections or that he needed to raise them in a separate enforcement
      proceeding.       However, because the agency failed to provide a narrative
      explanation or comprehensible evidence in the first compliance case (MSPB
      Docket No. 0752-05-0901-X-1), we will permit the appellant to raise this claim at
      this late date.    The agency must provide a narrative explanation of benefits
      awarded the appellant in connection with the cancelled suspension and any
      actions flowing from it (i.e., the actions listed in the administrative judge’s
      February 13, 2013 compliance initial decision, C-2 ID at 8-9). The agency does
      not need to provide an explanation of the appellant’s sick leave balance, however,
      because this issue has been resolved as explained below.
      Sick Leave

¶21         The administrative judge ordered the agency to restore to the appellant
      472 hours of sick leave. C-2 ID at 8. The agency stated that it had done so, and
      the appellant did not challenge this statement. CRF-2, Tab 5 at 4. Accordingly,
      we find the agency in compliance on this issue.
                                                                                     9

      Report of Investigation (ROI)

¶22         The administrative judge ordered the agency to “destroy and expunge from
      all records associated with the appellant the Report of Investigation (ROI)
      [relating to his suspension] maintained by the Security Division.” C-2 ID at 8.
      The administrative judge further ordered the agency to “cease the practice of
      divulging the existence or the content of the ROI”—which the appellant alleged
      had caused him to miss out on multiple promotions and other opportunities—and
      to “do all within [the agency’s] power to undo the negative consequences that
      have flowed from its divulgence of the ROI, including but not limited to,
      informing those to [whom] it has divulged the ROI that the suspension has been
      rescinded and was taken as a result of a prohibited personnel practice.” C-2 ID
      at 8-9.
¶23         In its March 2, 2015 submission, the agency provided a signed
      memorandum from Willie Gripper, Director, Joint Security and Hazardous
      Materials Safety Office, to a labor and employment attorney, “acknowledg[ing]”
      that all paper and electronic copies of the ROI had been destroyed. CRF-2, Tab 8
      at 28.    The memorandum stated that Mr. Gripper personally witnessed the
      destruction of the paper document and verified that no electronic copies existed.
      Id.   The appellant contended that this memorandum was insufficient to
      demonstrate that the agency had expunged the document as required by the
      administrative judge’s order, and demanded a sworn declaration as proof. CRF-2,
      Tab 9 at 9. We disagree. The appellant has not pointed to any reason to doubt
      the veracity of the memorandum. We therefore find the agency in compliance
      concerning its obligation to destroy and expunge the ROI from all records
      associated with the appellant.         If, in the future, the appellant discovers
      information that leads him to believe the ROI was not in fact destroyed, he may
      file a new petition for enforcement.
                                                                                       10

¶24           Regarding its obligation to “undo the negative consequences” flowing from
      its free divulgence of the ROI’s existence, the agency stated in its narrative
      response to the initial decision that of the seven agency employees authorized to
      view the ROI (before its destruction), all except one had retired or left the agency
      before the compliance initial decision was issued.      CRF-2, Tab 5 at 5.      The
      agency further identified six security personnel who had been involved in the
      creation or custody of the ROI.        The agency stated that “current personnel
      security specialists who are aware there was once an ROI have been instructed
      not to reference or in any way allude to the fact that there once was an ROI in”
      the appellant’s personnel security file. Id. at 8. The agency did not produce any
      documentary evidence substantiating this assertion, however. Nor did the agency
      address the requirement in the compliance initial decision that it inform
      employees aware of the ROI that the appellant’s suspension had been rescinded
      and was taken as a result of a prohibited personnel practice. Accordingly, we
      find the agency in noncompliance on these issues.
      Promotion to J-Band

¶25           The appellant alleged that he applied for 25 positions in the higher graded
      J-Band but that he was not selected for any of them because the agency had
      notified each selection official of his suspension. After the agency failed to offer
      any evidence rebutting this claim, the administrative judge ordered the agency to
      retroactively promote the appellant to the appropriate level of the J-Band. C-2 ID
      at 9.
¶26           In its May 2, 2013 filing, the agency submitted evidence that it had
      retroactively promoted the appellant to a J-Band Program Manager position
      effective April 15, 2006. CRF-2, Tab 5 at 8. The original selectee had received a
      temporary promotion effective April 16, 2006, and was made the permanent
      manager in August 2006.        Id.   However, rather than giving the appellant a
      temporary promotion from April 15, 2006, to August 2006, and then a permanent
                                                                                          11

      promotion thereafter (as it had done with the selectee), the agency gave him a
      temporary promotion through February 2013, when he apparently was awarded a
      J-Band promotion outside of the compliance process. See id. at 8-9; see also
      CRF-2, Tab 6 at 11 (the appellant was selected for a J-Band position on
      February 10, 2013).      The agency contended that processing the retroactive
      promotion as temporary until his actual promotion “allows the Appellant to
      preserve a true reflection of his work history and experience gained from
      April 2006 to the present.” 4 CRF-2, Tab 5 at 9.
¶27         The appellant challenged this statement.        He asserted that making his
      promotion temporary did not return him to the status quo ante as required by the
      compliance initial decision. CRF-2, Tab 6 at 11. He further asserted that he did
      not understand the agency’s claim that “making his promotion permanent would
      require the removal of records reflecting his details over the years . . . the Agency
      could just as easily have made Appellant’s promotion permanent and simply
      corrected the SF-50s reflecting [Appellant’s] details to indicate the correct pay
      band and salary.” Id. at 12.
¶28         We agree with the appellant. Although the agency claims to be acting in
      the appellant’s best interest, granting him a temporary promotion when the actual
      selectee received a permanent promotion does not provide the appellant the
      benefits he would have received in the absence of the improper suspension.
      Moreover, it is not clear why the agency cannot make his promotion permanent
      from August 2006, (mirroring actual events) while preserving his actual work
      history. Accordingly, the agency must either submit evidence that it has made his
      promotion permanent, or must submit further explanation—including sworn
      declarations from appropriate personnel and any regulations or policies upon
      which it relies—to support its position that it cannot or should not do so.

      4
        The agency asserted, without contradiction, that the total amount of back pay was the
      same whether the retroactive promotion was processed as temporary or permanent.
      CRF-2, Tab 5 at 9.
                                                                                     12

¶29         The agency must also submit a narrative explanation and documentary
      evidence concerning back pay, interest, and benefits resulting from the April 15,
      2006 promotion. To the extent such information may already be in the record, the
      Board was not able to locate or comprehend it due to the lack of explanation.
      The agency must remedy this deficiency to achieve compliance.

      Name and Address of Responsible Agency Official
¶30         The administrative judge ordered the agency to provide the name and
      address of the agency official responsible for compliance.     C-2 ID at 8.   The
      agency responded that the responsible agency officials are Joyce Vasser, Manager
      of the Shared Services Center for the Agency’s Southern Region, and Willie
      Gripper, Director, Joint Security and Hazardous Materials Safety. CRF-2, Tab 5
      at 2-3. Ms. Vasser is responsible for the financial and personnel aspects of the
      compliance process and Mr. Gripper is responsible for the ROI. Id. We find the
      agency in compliance on this issue.

                   FURTHER ACTIONS NEEDED FOR COMPLIANCE
¶31         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 back pay due the appellant for the 30-day
                 suspension period and for the financial consequences of the suspension.
                 The agency must specifically address, among any other relevant
                 financial consequences, the SCI and the appellant’s promotion to the
                 J-Band.   The agency must also submit a narrative explanation and
                 supporting documentation regarding how it calculated and paid interest
                 on these amounts.
            2.      A narrative explanation, supported by documentary evidence,
                 regarding benefits owed the appellant during the back pay period and as
                                                                                          13

                 a result of any financial consequences of the suspension (except for sick
                 leave).
            3.      Sworn declarations from the remaining agency employee authorized
                 to have viewed the ROI and from the six security personnel involved in
                 the creation or custody of the ROI attesting that: (1) they have been
                 instructed not to reference or in any way allude to the fact that there
                 once was an ROI in the appellant’s file; and (2) they were informed that
                 the appellant’s suspension has been rescinded and was taken as a result
                 of a prohibited personnel practice.
            4.      Evidence that the agency made the appellant’s J-Band promotion
                 permanent as of August 2006, in a manner that also preserves his work
                 history; or sworn declarations from appropriate personnel and relevant
                 regulations and policies supporting the agency’s position that it cannot
                 or should not make the promotion permanent as of August 2006.
¶32         If the agency fails to submit this information, 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).
¶33         The appellant shall file a response within 14 days of the agency’s
      submission. Failure to submit a response within the required time period may
      cause the Board to assume the appellant is satisfied and dismiss the petition for
      enforcement.




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