                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANTHONY CASTELLANOS,                            DOCKET NUMBER
                 Appellant,                          NY-0752-09-0107-X-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 25, 2014
                 Agency.




                  THIS ORDER IS NONPRECEDENTIAL 1

           Louis D. Stober, Jr., Esquire, Garden City, New York, for the appellant.

           Tiffany O. Lee, Esquire, Washington, D.C., for the agency.


                                           BEFORE

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


                                           ORDER

¶1         The administrative judge issued a recommended decision that the Board
     find, under the Board’s regulations in effect at that time, the agency in
     noncompliance with the initial decision, and the matter was referred to the Board


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     for consideration. 2   See 5 C.F.R. § 1201.183 (Jan. 1, 2012).       For the reasons
     discussed below, we find the agency in partial compliance and order appropriate
     relief.

         DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
¶2            On August 13, 2009, the administrative judge issued an initial decision
     finding that the agency had constructively removed the appellant. MSPB Docket
     No. NY-0752-09-0107-I-1, Initial Appeal File (IAF), Tab 30, Initial Decision
     (ID) at 2. The administrative judge found that the agency coerced the appellant’s
     resignation when it threatened to remove him from his position due to absence
     without leave (AWOL), although the agency knew or should have known that any
     AWOL charge could not have been sustained. ID at 14. The administrative judge
     rejected the appellant’s claim of discrimination, finding that the agency’s actions
     leading to his resignation resulted from incompetence, not discrimination.          ID
     at 15.     The administrative judge ordered the agency to cancel the appellant’s
     resignation and retroactively reinstate him as of August 15, 2006, and pay him
     back pay, with interest, and benefits.     ID at 16.    Neither party petitioned for
     review.
¶3            On September 15, 2010, the appellant filed a petition for enforcement. On
     May 26, 2011, the administrative judge issued a recommendation finding that the
     agency failed to pay the appellant the appropriate amount of back pay, restore his
     annual and sick leave balances, or restore his health insurance.           See MSPB
     Docket No. NY-0752-09-0107-X-1, Compliance Referral File (CRF), Tab 1 at 8.
     Specifically, the administrative judge ordered the agency to explain how it
     computed the back pay; explain the effect, if any, of the agency’s change from the
     GS system to the GL system; and address the appellant’s claim that he would

     2
       Except as otherwise noted in this decision, we have applied the Board’s regulations
     that became effective November 13, 2012. We note, however, that the petition for
     enforcement in this case was filed before that date. The revisions to 5 C.F.R.
     § 1201.183 do not affect our consideration of the merits of this compliance proceeding.
                                                                                        3

     have been promoted to the GL-8 level but for the wrongful personnel action in
     2006.     Id.   The administrative judge also ordered the agency to address the
     appellant’s leave balances and health insurance.         Id. at 8-9.    Finally, the
     administrative judge found the agency in compliance regarding reinstating the
     appellant because she determined that he did not wish to return to work at the
     agency. Id. at 7.
¶4           The parties filed multiple submissions in response to the recommendation.
     The appellant disputed the administrative judge’s finding that he did not wish to
     return to work at the agency and noted that he in fact returned on July 18, 2011.
     See CRF, Tab 7 at 7. He also contended that the agency had not explained its
     back pay calculations, including how it determined his regular salary for each
     year, nor how it determined the appropriate holiday pay, night differential,
     Sunday hours, or overtime pay. Id. at 4-6. He sought a hearing on his placement
     in AWOL status between the effective date the agency first offered him
     reinstatement and his actual date of return. Id. at 8. He asserted that the agency
     did not show that he would not have been promoted to the GS-8 level. Id. at 9.
     Finally, he stated that the agency had not explained how it restored his sick and
     annual leave balances. Id.; see also CRF, Tab 12. In reply, the agency contended
     that it had fully complied with the administrative judge’s recommendation. See,
     e.g., CRF, Tab 9 at 4; CRF, Tabs 14, 15.
¶5           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 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
                                                                                            4

     noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
     ¶ 5 (2010).
     Reinstatement, Return to Work, and Absence Without Leave

¶6         The initial decision reversing the appellant’s constructive removal ordered
     the agency to restore the appellant effective August 15, 2006. See ID at 2. He
     had previously held a position as Correctional Officer, GS-5, step 2. IAF, Tab 1
     at 13; ID at 1. Following the initial decision, the agency offered the appellant a
     November 9, 2009 start date as a Correctional Officer, GL-5, step 2, contingent
     on his attending the next available Introduction to Correctional Techniques
     training. MSPB Docket No. NY-0752-09-0107-C-1, Compliance File (CF), Tab 3
     at Attachment 1.      The agency also required him to undergo a background
     investigation before returning to work. Id. The appellant did not return to work
     on November 9, 2009.
¶7         The agency then offered him a May 24, 2010 start date, contingent on his
     attending Refresher Training. CF, Tab 3 at Attachment 2. The appellant did not
     return to work on that date. See CF, Tab 3 at Attachment 3. The appellant’s
     attorney informed the agency that the appellant did not want to return, fearing
     that he would be harassed, retaliated against, and wrongfully discharged, and
     inquired if the agency would accept his resignation in exchange for a lump sum
     payment. See, e.g., CF, Tab 5 at Exhibits D, E, G, M, O. The attorney also
     objected to the requirements that the appellant attend an orientation and be treated
     as a new employee, which he asserted were at odds with the reinstatement order.
     CF, Tab 5 at Exhibit O. Finally, the appellant asserted, through his attorney, that
     he could not return to work “until and unless we work out all of the monies
     issues.” 3 CF, Tab 5 at Exhibit G.



     3
      It is unclear whether this statement refers to the entire back pay amount, to his salary
     upon his return, or both.
                                                                                         5

¶8          The agency calculated the appellant’s back pay from August 15, 2006, to
      November 7, 2009, the last work day before the first return date offered by the
      agency. CF, Tab 8 at 9; CRF, Tab 14 at 13-97. The appellant challenged this
      calculation, asserting that the back pay period extended until his actual return on
      July 18, 2011, and that the agency had failed to reinstate him as ordered. CRF,
      Tab 7 at 7.
¶9          In her recommendation, the administrative judge rejected the appellant’s
      contention that the agency had failed to reinstate him (and, by implication, his
      challenge to the agency’s determination of the length of the back pay period).
      The administrative judge found that the agency’s admitted error in offering the
      appellant placement as a new employee, rather than as a reinstated employee, was
      “not the reason that the appellant has not returned to work at the agency . . . . the
      appellant preferred not to return to the agency and was seeking—in exchange for
      severing his ties with the agency—a payment in addition to the back pay and
      interest. The appellant had obtained other employment and intended to retain that
      employment.” CF, Tab 19 at 7 (emphasis in original) (internal citations omitted).
¶10         The appellant challenges this finding, asserting that the administrative judge
      improperly considered his statements to the agency about obtaining money in
      exchange for resigning because the statements were made as part of settlement
      discussions or as a settlement offer. CRF, Tab 7 at 2. We agree. The Board will
      not consider statements made during the course of settlement discussions. Frank
      v. Equal Employment Opportunity Commission, 90 M.S.P.R. 458, ¶ 4 n.2 (2001).
      The administrative judge therefore erred in considering these statements. We find
      that this error was harmless, however, because we hold that the appellant should
      have returned to work on the first date offered (November 9, 2009).
¶11         Upon reversing an action, the Board requires the agency to restore the
      appellant as nearly as possible to the status quo ante. Tubesing v. Department of
      Health & Human Services, 112 M.S.P.R. 393, ¶¶ 5-6 (2009).             If the agency
      refuses to do so, it must demonstrate that it has “a strong overriding interest or
                                                                                        6

      compelling reasons for not doing so.” Id., ¶ 6. However, an appellant is not
      entitled to refuse to report for work in every instance in which he disagrees that
      he has been restored to the status quo ante.
¶12         In Cooke v. U.S. Postal Service, 67 M.S.P.R. 401, 408, aff’d, 73 F.3d 380
      (Fed. Cir. 1995), the Board affirmed a removal for AWOL charges stemming
      from the appellant’s refusal to report to a position to which he had been
      improperly reassigned.    The Board held that unless the appellant’s refusal to
      report is “protected by either privilege or a legitimate concern that it would cause
      him irreparable harm,” his “only proper recourse . . . [is] to obey the order
      and . . . challenge its validity on appeal.” Id. In Williams v. Department of the
      Air Force, 89 M.S.P.R. 484 (2001), the Board applied this reasoning to an
      appellant who refused to report to one of two positions offered as a result of a
      settlement agreement.     Although the appellant argued that neither position
      complied with the settlement agreement, the Board held that he was required to
      report to one or the other, and could challenge the suitability of the positions on
      appeal. Id., ¶ 19.
¶13         Applying this reasoning to the instant situation, it is plain that, under our
      case law, the appellant had no justifiable reason to refuse to report for duty on
      November 9, 2009, the first date offered by the agency. Although the appellant
      believed that the conditions imposed (appointment as a new employee, training,
      background check) and the salary offered did not satisfy the agency’s obligation
      to restore him to the status quo ante, see, e.g., CRF, Tab 7 at 6, he has not shown
      that his refusal was protected by privilege or that he had a “legitimate belief that
      reporting [to duty] would cause him irreparable harm,” see Williams, 89 M.S.P.R.
      484, ¶ 19. Any harm he might have suffered could have been “cured during the
      course of” an appeal of the agency’s actions or conditions.            See Cooke,
      67 M.S.P.R. at 408. Accordingly, the appellant should have reported to work,
      performed his assigned duties, and litigated these issues in a petition for
                                                                                           7

      enforcement. 4 See id. at 407; see also Williams, 89 M.S.P.R. 484, ¶ 19. We
      therefore find that the agency reinstated the appellant as ordered; that the
      appellant should have reported to work on November 9, 2009; that the agency
      reasonably carried him as AWOL from that date until when he actually reported
      to work in July 2011; and that the agency correctly determined that the back pay
      period ran from August 15, 2006, to November 7, 2009. 5
      Back Pay

¶14           Having determined that the back pay period ran from August 15, 2006, to
      November 7, 2009, we must examine the agency’s back pay calculations. In her
      compliance recommendation, the administrative judge found the agency
      noncompliant because it failed to explain its back pay calculations. CF, Tab 19
      at 8. After considerable back and forth with the appellant, the agency finally
      submitted its calculations and narrative statement to the Board on July 7 and 11,
      2014. 6    CRF, Tabs 14 and 15.         The appellant did not respond to these
      submissions.
¶15           As stated above, at the time of his constructive removal, the appellant
      occupied a position as a Correctional Officer, GS-5, step 2. IAF, Tab 1 at 13; ID
      at 1.     According to the agency’s back pay filings, it restored the appellant




      4
        Because the appellant returned to work in July 2011, and has not raised any issues
      concerning his placement or payment from that date forward, we find that his challenge
      to the agency’s technical errors is moot, except as discussed above concerning whether
      the agency reinstated him as ordered.
      5
        We deny the appellant’s request for a hearing regarding these issues, see CRF, Tab 12
      at 9. Because we have not considered the appellant’s statements made during
      settlement discussions, there are no contested issues of fact that require a hearing.
      6
         The agency claims that it provided this information to the appellant in
      September 2010. CRF, Tab 14 at 5. Even assuming this to be true, the appellant’s
      repeated complaints to the contrary notwithstanding, the agency did not provide this
      information in comprehensible fashion to the Board until July 2014.
                                                                                    8

effective August 15, 2006, at GL-6, step 2 ($19.86 per hour). 7 CRF, Tab 15 at 7;
see Salaries & Wages, 2006-NY (LEO), U.S. Office of Personnel Management,
http://archive.opm.gov/oca/06tables/html/NY_leo_h.asp. In the first pay period
of 2007, the appellant received a 3.02% adjustment to $20.46 per hour (still
GL-6, step 2). CRF, Tab 15 at 8; see Salaries & Wages, Salary Table 2007-NY
(LEO), U.S. Office of Personnel Management, http://archive.opm.gov/oca/07
tables/html/NY_leo_h.asp. In pay period 8 of 2007, the appellant was promoted
to GL-7, step 3 ($22.73). CRF, Tab 15 at 8. In the first pay period of 2008, the
appellant received a 3.97% adjustment to $23.64 per hour (still GL-7, step 3).
CRF, Tab 15 at 9; see Salaries & Wages, Salary Table 2008-NY (LEO), U.S.
Office    of    Personnel    Management,       http://archive.opm.gov/oca/08tables/
html/NY_leo_h.asp.     In pay period 8 of 2008, the appellant was promoted to
GL-7, step 4 ($24.29 per hour). CRF, Tab 15 at 9. In the first pay period of
2009, the appellant received a 4.20% adjustment to $25.32 per hour (still GL-7,
step 4), where he remained until November 7, 2009, the end of the back pay
period. 8 See CRF, Tab 15 at 10; see Salaries & Wages, Salary Table 2009-NY
(LEO), U.S. Office of Personnel Management, http://archive.opm.gov/oca/
09tables/html/NY_leo_h.asp.      The agency thus paid the appellant a total of
$162,842.40 (which included regular, night differential, holiday, and Sunday
pay), less his outside earnings and various deductions.                CRF, Tab 3
at Attachment 2-1; see also CRF, Tab 6 at 12. Despite the appellant’s charges of
error, these calculations appear correct. Therefore, except for the overtime issue,


7
  The record does not explain why the agency restored the appellant to the GL-6 rather
than the GL-5 level, given that he was a GS-5, step 2 before he resigned (and assuming
some equivalency between grades on the GL and GS pay scales). However, because the
GL-6 level pays more than the appellant earned at the time he resigned, the appellant
benefitted from this decision, and the lack of explanation does not bar a finding of
compliance.
8
  The agency apparently returned the appellant to work on November 9, 2009, at GL-7,
step 4. CRF, Tab 6 at 23.
                                                                                              9

      which we address below, we find that the agency properly computed and paid the
      back pay owed the appellant. 9
      Overtime Pay

¶16         The appellant asserts that he is entitled to the overtime pay he would have
      earned but for his constructive removal. CRF, Tab 7 at 5. The agency contends
      that he was not entitled to overtime pay because he did not work any overtime
      shifts during 2006 and thus “there is no historical basis to determine what, if any,
      overtime shifts the appellant would have worked during this time period.” CRF,
      Tab 10 at 5.     The agency further contends that the appellant could not have
      performed certain overtime shifts because they required specialized training,
      which he lacked. Id.; see also CRF, Tab 14 at 7.
¶17         The Board’s case law provides that overtime pay may be computed based on
      the employee’s prior overtime assignment or upon the overtime assignments of
      similarly situated employees. Brady v. Department of the Navy, 55 M.S.P.R. 693,
      696 (1992). The method selected in a particular case must be the one most likely
      to restore the employee to the status quo ante. The Board has approved the use of
      averaging the hours worked by similarly situated employees in cases where using
      the appellant’s pre-removal work history may not have reflected the period during
      the wrongful separation. Id.
¶18         Here, we find that the agency should have computed the appellant’s
      entitlement to overtime pay by averaging the hours worked by similarly situated
      employees during the back pay period. For two reasons, his 2006 work history,
      upon which the agency relied, does not accurately reflect the hours he likely
      would have worked had he not been constructively removed: first, the appellant


      9
        We also find that the agency satisfied the administrative judge’s order to explain the
      $144.37 discrepancy between the amount the agency originally informed the appellant it
      owed him, and the amount it actually paid; according to the agency, this difference
      resulted from its correction of the OASDI tax withholding. CRF, Tab 3 at 4. The
      appellant has not specifically contested this explanation, and we find no reason to do so.
                                                                                      10

      apparently was injured and unable to work between January 1, and April 24,
      2006; and second, beginning in January 2006, and extending until his resignation
      in August 2006, the agency barred him from its facility and improperly placed
      him on AWOL, thus preventing him from working once he was physically able to
      do so. See ID at 5-7, 10-12. It is disingenuous for the agency to claim that the
      appellant should be penalized for failing to work overtime in 2006 when it was
      the agency that prevented him from coming to work in the first place.
      Accordingly, we find the agency noncompliant on this issue and order it to
      compute and pay the appellant overtime pay during the back pay period by
      averaging the overtime hours worked by similarly situated employees.
¶19         If the agency determines that the employees similarly situated to the
      appellant underwent specialized training and worked particular assignments
      because of that training, the agency shall pay the appellant for the average of
      those hours, unless the agency determines that the training was competitive and
      would not have been granted the appellant if he had applied. The agency must
      provide the Board detailed calculations, as well as a narrative statement. The
      agency shall support its calculations, and any factual determinations as to the
      identity of the similarly situated employees and the availability and award of
      training opportunities, with sworn declarations. Finally, the agency must pay the
      appellant interest on the overtime amount and provide the Board its interest
      calculations and narrative explanation.
      Promotion to GL-8

¶20         The appellant contends that he should have received a promotion to the
      GL-8 grade. CRF, Tab 7 at 8. The agency counters that the GL-8 position is not
      merely a promotion within the same job category of Correctional Officer but is
      the entirely separate position of Senior Officer Specialist, requiring competition.
      CRF, Tab 14 at 7; see also CRF, Tab 14 at 209-20 (job announcements for both
      positions).   The appellant appears to accept the agency’s contention that
                                                                                         11

      promotion to the GL-8 level is not automatic but contends that promotion should
      be granted him because “he missed his opportunity to apply for a GL-8 position
      solely because of the Agency’s improper act of terminating him.” CRF, Tab 7
      at 8.
¶21           We agree with the agency that the appellant was not entitled to promotion to
      GL-8.      The appellant has not contradicted the agency’s assertion that GL-8
      positions are awarded only after open competition. Assuming that to be the case,
      he is not entitled to a promotion because in the absence of law requiring a
      promotion or facts establishing a clear entitlement to a retroactive promotion, an
      employee is not automatically entitled to a promotion upon reinstatement. See
      Harris v. Department of Agriculture, 50 M.S.P.R. 686, 697 (1991). The appellant
      has not identified any law or facts establishing a clear entitlement to retroactive
      promotion to the GL-8 level. Accordingly, we find the agency in compliance as
      to this issue.

      Interest
¶22           The agency states that it paid the appellant $7,107.73 in interest on the back
      pay amount (which, as explained above, is correct but for overtime pay). CRF,
      Tab 3 at Attachment 2-1. The agency did not provide its calculations or any
      explanation of how it determined the interest amount.          We therefore find it
      noncompliant on this issue and order it to submit its calculations and a narrative
      explanation of how it determined the interest.

      Change from GS to GL System
¶23           The administrative judge ordered the agency to explain the effect, if any, of
      the agency’s change from the GS to the GL system. CF, Tab 19 at 8. The agency
      explained that it converted various Bureau of Prisons staff members, including
      the appellant, to the GL system, and that this did not affect pay. CRF, Tab 3 at 5.
      Our review of the 2006 salary tables for the GS and GL pay scales reveals that the
      agency’s assertion is incorrect for grades above 2 (which included the appellant).
                                                                                        12

      For example, in 2006, GS-6, step 2 paid $17.10 per hour, while GL-6, step 2 (the
      appellant’s grade and step) paid $19.86 per hour. Compare Salaries & Wages,
      2006-NY,        U.S.   Office   of   Personnel    Management,     http://archive.opm.
      gov/oca/06tables/html/ny_h.asp, with Salaries & Wages, 2006-NY (LEO), U.S.
      Office     of     Personnel     Management,      http://archive.opm.gov/oca/06tables/
      html/NY_leo_h.asp. However, because the appellant was paid on the higher GL
      scale, the agency’s erroneous assertion has not harmed him.          In fact, he has
      benefitted from the change in pay scale.          We therefore find the agency in
      compliance on this issue.

      Leave Balances
¶24        The agency submitted charts explaining its leave calculations. See CRF,
      Tab 3 at 17-20. The calculations appear correct, and the appellant has not pointed
      to any specific flaw other than the agency’s determination that leave should be
      paid only until the appellant failed to return to work on November 9, 2009. See
      CRF, Tab 12 at 10-11. As explained above, this time period is correct. Because
      the appellant has not specifically rebutted the agency’s leave evidence, see
      Brown, 113 M.S.P.R. 325, ¶ 5, we find the agency in compliance as to restoring
      his sick and annual leave balances.

      Health Insurance
¶25        The administrative judge ordered the agency to address whether it restored
      the appellant’s health insurance. CF, Tab 19 at 8-9. The agency stated that the
      appellant is eligible for health insurance but has not paid the required premiums
      to bring his coverage up to date. CRF, Tab 3 at 5. The agency stated that it twice
      provided the appellant a health benefits election form but that he failed to return
      it to the agency and that his attorney indicated that the appellant did not wish to
      elect health insurance. Id. at 6. The appellant did not address this issue in his
      filings. See, e.g., CRF, Tab 7 at 9 (addressing other all issues). Accordingly, we
      find the agency in compliance on this issue.
                                                                                    13

      Attorney Fees
¶26        The appellant has filed a motion for attorney fees. CRF, Tab 4. Because
      the Board has not yet issued a final order in this compliance referral case, we
      deny the motion as premature. The appellant may file a motion for attorney fees
      with the appropriate regional office after this case concludes.    See 5 C.F.R.
      § 1201.203.

      Further Actions Needed for Compliance
¶27        Within 21 days of the date of this Order, the agency shall submit its
      overtime and interest evidence, as explained above. If the agency fails to do so,
      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).
¶28        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.
