                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BARBARA R. KING,                                DOCKET NUMBER
                   Appellant,                        DA-0752-09-0604-C-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: April 9, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Barbara R. King, San Antonio, Texas, pro se.

           Lawrence Lynch, Joint Base San Antonio, Randoloph, Texas, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The agency has filed a petition for review of the compliance initial
     decision, which found the agency not in compliance with the Board’s prior final
     order reversing the appellant’s reduction in grade and pay.          For the reasons
     discussed below, we GRANT the agency’s petition for review IN PART,


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REVERSE the compliance initial decision IN PART, and REMAND the case to
     the regional office for further adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In a remand initial decision dated October 3, 2012, the assigned
     administrative judge reversed the appellant’s reduction in grade and pay, and
     found that the appellant proved her affirmative defense of whistleblower reprisal.
     MSPB Docket No. DA-0752-09-0604-B-1, Remand Initial Decision (Oct. 3,
     2012). The administrative judge’s remand initial decision became the Board’s
     final order when neither party filed a petition for review.                See 5 C.F.R.
     § 1201.113. On December 18, 2012, the appellant filed a request for damages
     based upon the administrative judge’s order of corrective action, see MSPB
     Docket No. DA-0752-09-0604-P-1, Addendum Appeal File (AAF), 2 and during
     the pendency of that proceeding, the appellant raised allegations of agency
     noncompliance with the Board’s final order, see AAF, Tab 16.                Following a
     hearing, the administrative judge found the agency not in compliance with the
     Board’s final order because, among other things, the agency did not adequately
     explain why it took certain steps in calculating the appellant’s back pay, it did not
     award her an additional $5,000 relocation bonus, and it did not demonstrate that it
     properly calculated      her   Federal   Employees’     Retirement     System    (FERS)
     contributions and Thrift Savings Plan (TSP) contributions. 3 CID at 5-7, 9.


     2
       The administrative judge joined the appellant’s motion for damages and her petition
     for enforcement. AAF, Tab 55, Compliance Initial Decision (CID) at 1 n.1. For the
     purposes of clarity, we are SEVERING the joined appeals and addressing only the
     appellant’s petition for enforcement in this order. The agency’s petition for review of
     the administrative judge’s damages award remains pending and will be addressed in a
     separate order in MSPB Docket No. DA-0752-09-0604-P-1.
     3
       As explained below, after the appellant’s reduction in grade and pay, but prior to the
     administrative judge’s initial decision, the appellant transferred to a different position
     with in the agency. The appellant does not allege that she has been improperly restored
     to a different position of employment following the reversal of the agency’s adverse
     action.
                                                                                          3

¶3        The agency has filed a petition for review arguing that it fully complied
     with the Board’s prior final order by properly calculating the appellant’s back
     pay, and retirement and TSP contributions.         Compliance Petition for Review
     (CPFR) File, Tab 1.       In support of its petition, the agency has supplied a
     declaration from an agency civilian pay analyst, which postdates the initial
     decision, further detailing the way in which it calculated the appellant’s back pay.
     Id. at 11-13. The appellant has filed a response in opposition to the petition for
     review challenging the agency’s reliance on the new declaration and also arguing
     that the agency has failed to demonstrate that she has been restored to the status
     quo ante. CPFR File, Tab 3.

     The agency has demonstrated that it properly calculated the appellant’s back pay
     through August 28, 2011.
¶4        We offer the following brief facts as background to the compliance issues
     addressed on petition for review. The agency reduced the appellant in grade and
     pay from a YA-02 Sexual Assault Prevention & Response Program Manager, to a
     GS-7, Step 10 Relocation Assistance Technician effective July 19, 2009. 4 AAF,
     Tab 17 at 15. Both positions were in Texas. Id. The appellant applied for and
     received a transfer to a GS-11, Step 1 position in California effective October 11,
     2009, and 2 years later, she applied for and received another transfer to a GS-13,
     Step 1 position in Colorado effective August 28, 2011. Id. at 20, 46. At the time
     of the appellant’s July 2009 reduction in grade and pay, her annual salary
     (including locality pay) was $79,762, and her annual salary thereafter did not
     match or exceed this amount until she accepted the GS-13 position in Colorado in
     August 2011. See id. at 15, 46.
¶5        In her compliance initial decision, the administrative judge found that the
     agency failed to adequately explain the manner in which it calculated the

     4
      At the time of her reduction in grade and pay, the appellant’s position was classified
     under the National Security Personnel System (NSPS). NSPS has since been abolished.
     See Arrington v. Department of the Navy, 117 M.S.P.R. 301, ¶¶ 2, 4 (2012).
                                                                                              4

     appellant’s back pay. Specifically, the administrative judge found that the agency
     did not explain why it calculated the appellant’s back pay using the rate of pay
     for a GS-11, Step 10 position as opposed to that of a GS-12, Step 6 position, as
     sought by the appellant. CID at 4. In making this finding, the administrative
     judge explained that the base rate of pay for the appellant’s position when she
     was reduced in grade and pay was established by the now-abolished NSPS and
     that this base rate of pay, $69,278, was equivalent to the base pay rate of GS-12,
     Step 6 position as of 2009. CID at 5. The administrative judge found that the
     agency failed to explain why it used the lower base rate of pay for a GS-11, Step
     10 position, when calculating the appellant’s back pay. CID at 5-6.
¶6         On review, the agency has submitted a declaration from an agency civilian
     pay specialist, which explains that the agency used the 2009 Los Angeles rate of
     pay for a GS-11, Step 10 because that amount, $81,476 (including locality pay),
     was the closest total salary to that of the appellant’s former salary, $79,762,
     without going below this amount. 5 The documents submitted by the agency on
     review reflect that, if the appellant were to be compensated at the 2009 GS-12,
     Step 6 salary level for the Los Angeles area, as suggested by the administrative
     judge, then the appellant’s total salary (including locality pay) would be $87,644,
     or almost $8,000 more than her total salary when the adverse action occurred in
     2009. 6 CPFR File, Tab 1 at 16. Based upon this explanation, we find that the


     5
       Pursuant to agency policy, because the appellant transferred to the California position
     effective October 11, 2009, the agency used the 2009 GS pay scale for Los
     Angeles-Long Beach-Riverside, California to calculate her back pay between July 2009
     and August 2011. CPFR File, Tab 1 at 12.
     6
        The administrative judge did not have the benefit of this exp lanation below.
     Reviewing the documents submitted below in light of this explanation, we note that
     although the base rate of pay for the appellant’s position under NSPS was higher than
     under the GS scale, the locality pay the appellant received under the GS scale was
     greater. Compare AAF, Tab 17 at 15 (showing the appellant’s prior NSPS position had
     a base rate of $70,021 and locality pay of $9,705, for a total salary of $79,726), with id.
     at 21 (showing the appellant’s transfer to a GS-11, Step 10 position with a base rate of
     $64,403 and locality pay of $17,073, for a total salary of $81,476). Although the
                                                                                          5

     agency has adequately explained why it selected the 2009 Los Angeles locality
     GS-11, Step 10 rate of pay versus the GS-12, Step 6 rate to calculate the
     appellant’s back pay, and we find that the agency has demonstrated compliance
     with the Board’s final order regarding how it calculated the appellant’s back pay
     between July 19, 2009, and August 28, 2011. 7 Additionally, because we find that
     the agency correctly calculated the appellant’s back pay during this time, we find
     no reason to conclude that her FERS retirement contributions prior to August 28,
     2011, were improperly calculated.
¶7           Accordingly, we REVERSE the administrative judge’s finding that the
     agency is not in compliance with the Board’s final order insofar as she concluded
     that the agency failed to adequately explain why it used the GS-11, Step 10 rate
     of pay in calculating the appellant’s back pay between July 2009 and August
     2011.     Although we have reached this conclusion based on the explanation
     contained within the agency’s declaration, which was not presented to the
     administrative judge below, the Board has considered, in previous matters of
     compliance with a final Board order, a more complete explanation of an agency’s
     compliance effort offered for the first time on review in the interest of ensuring
     that    compliance   has   been   effected.    See    McDonough      v.   U.S.   Postal
     Service, 60 M.S.P.R. 122, 125-26 (1993). The appellant, moreover, has had an
     opportunity to respond to this information on review, see CPFR File, Tab 3, and
     we find no basis in the record to conclude that the agency erred in its back pay
     calculations prior to August 28, 2011.


     appellant’s base rates of pay may have differed before and after her reduction in grade
     and pay because of the abolishment of NSPS, for the lim ited purpose of demonstrating
     that she received the correct amount of back pay, we find no error with the agency’s
     reliance on the GS-11, Step 10 rate of pay for the Los Angeles-Long Beach-Riverside,
     Californ ia locality.
     7
       The agency’s declaration further reflects that the appellant’s pay rate was increased
     effective January 2010, and that this pay rate was used to calculate her back pay
     through August 2011 because of a wage freeze effective January 2011. CPFR File, Tab
     1 at 12, 17-18.
                                                                                       6

     The appellant has not demonstrated that she is entitled to an additional $5,000
     relocation bonus.
¶8        During the proceedings below, the appellant also alleged that the agency
     failed to pay her the full relocation bonus she would have received had she
     transferred to the California position in October 2009 without being reduced in
     grade and pay. AAF, Tab 1 at 6 (“a lateral transfer would [have] resulted in a
     $10,000 bonus versus the $5,000 bonus received due to taking the assignment as a
     promotion.”). The administrative judge determined that this $5,000 differential
     was part of the back pay award to which the appellant was entitled and that the
     agency was not in compliance with the Board’s final order by failing to award her
     this additional amount. CID at 9. On review, the agency submits that relocation
     bonuses are discretionary and that the appellant has failed to submit any evidence
     that she would have received an additional $5,000 relocation bonus had she not
     been reduced in grade and pay. CPFR File, Tab 1 at 8-9, 36-44.
¶9        Although the Board has held that a bonus awarded in the routine and
     ordinary course of employment may properly be considered part of a back pay
     award, see, e.g., Coffey v. U.S. Postal Service, 77 M.S.P.R. 281, 285 (1998), we
     find no evidence in the record establishing the appellant’s per se entitlement to an
     additional $5,000 relocation bonus under the facts of this case. On review, the
     agency has submitted the Department of Defense’s policy for the award of
     recruitment and relocation bonuses, which reflects that a relocation bonus of “up
     to 25 percent of basic pay may be offered to certain current employees who must
     relocate to accept a position in a different commuting area.” CPFR File, Tab 1 at
     39. The appellant, however, has submitted no evidence establishing a pattern of
     such awards, and we find no basis in the record to conclude that she would have
     received an additional $5,000 relocation bonus but for her wrongful reduction in
     grade and pay. We agree with the agency, moreover, that the appellant has not
     explained how she concluded that she would have received a $10,000 relocation
     bonus had she not been reduced in grade and pay, see CPFR File, Tab 1 at 9;
                                                                                       7

      pursuant to the agency’s relocation bonus program, the appellant would have been
      eligible for a bonus of up to 25 percent of her basic pay, or approximately
      $16,100, see AAF, Tab 1 at 49.          The appellant, however, has offered no
      explanation as to why she believes she would have been entitled to a $10,000
      bonus, as opposed to either the $5,000 relocation bonus she received, or to any
      other, greater amount, up to $16,100.
¶10        We therefore REVERSE the administrative judge’s compliance initial
      decision insofar as it found the agency not in compliance based on the failure to
      award the appellant an additional $5,000 relocation bonus as part of her back pay
      award. See CID at 9.

      We remand the petition for enforcement for further development of whether the
      appellant is currently at the correct step in her GS-13 position.
¶11        In addition to challenging the rate of pay used by the agency in calculating
      her back pay award, the appellant has also alleged that she currently would be at a
      higher step in her GS-13 position had the agency not taken the reduction in grade
      and pay in July 2009.     CPFR File, Tab 3 at 6 (“[the appellant] should have
      entered into service as a GS-13 Step 4 versus a GS-13 Step 1 . . . her current GS-
      13 level [should be changed] from a GS-13 Step 3 to a GS-13 Step 7.”). The
      administrative judge did not address whether the reversal of the appellant’s
      reduction in grade and pay had any effect on the appellant’s current step (and
      corresponding rate of pay), and we are unable to discern from the record whether
      the appellant would be at a higher step in her current GS-13 position had the
      reduction in grade and pay not occurred.        See Joos v. Department of the
      Treasury, 79 M.S.P.R. 342, 348 (1998) (back pay includes all step increases that
      an employee would have received but for the wrongful act).        We accordingly
      REMAND to the administrative judge for further development of the record on
      whether the appellant is currently at the same step had the reduction in grade and
                                                                                             8

      pay not occurred in 2009. 8 See McDonough, 60 M.S.P.R. at 129. Additionally,
      because the appellant’s FERS retirement and TSP contributions between
      August 28, 2011, and the present could be affected if the appellant is entitled to
      be paid at a higher step (and corresponding higher rate of pay) between August
      28, 2011, and the present, we also REMAND to the administrative judge on
      whether the agency can demonstrate that the appellant has received the proper
      FERS retirement and TSP contributions during this time.

      The administrative judge’s remaining findings of agency noncompliance are
      remanded for further development of the record.
¶12         Finally, the administrative judge found that the agency failed to
      demonstrate that it complied with the Federal Retirement Thrift Investment
      Board’s   regulations    concerning the       processing of     the   appellant’s    TSP
      contributions, and that it also failed to demonstrate that it removed all references
      to the reduction in grade and pay from her personnel file.            CID at 7-8.    The
      agency    argues   on   review    that   it   demonstrated    compliance    before   the
      administrative judge below.        CPFR File, Tab 1 at 6-7, 9.           Based on the
      compliance    issues identified     above,    which   are    being remanded      to the
      administrative judge, the appellant’s personnel records and TSP contributions
      may also need to be further corrected or amended. We therefore also REMAND
      these issues to the administrative judge for further development of the issue of
      agency compliance.      On remand, the administrative judge may consider any

      8
        In remanding this issue, we recognize that this determination is complicated by the
      fact that the appellant’s position prior to her reduction in grade and pay was classified
      under NSPS, and that after she accepted the higher-level position in Californ ia, but
      before she transferred to Colorado, NSPS was abolished. The appellant argued below
      that prior to her conversion to NSPS, she held a GS-12 position but that, after NSPS
      was abolished, she was wrongly placed into a GS-11, Step 10 position. AAF, Tab 1 at
      6. While we find that the use of the rate of pay for the GS-11, Step 10 position was
      correct for the limited purposes of calculating the appellant’s back pay, we cannot
      discern from the record whether she would have been placed in a higher step upon her
      transfer to her current position in August 2011 had the 2009 reduction in grade and pay
      never been effected. Remand of this issue is therefore warranted.
                                                                                9

additional information the agency has presented on petition for review, as well as
any other evidence demonstrating its compliance with the Board’s prior final
order.

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




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