Marcus D. Smith v. Department of Transportation
Background
- Board adopted EEOC finding that DOT retaliated against Marcus D. Smith; ordered cancellation of a 30‑day suspension, restoration to duty effective Aug 1, 2005, back pay with interest, and benefits; compensatory damages were later awarded.
- Appellant filed multiple petitions for enforcement alleging the agency failed to comply with the Final Order (nonpayment/explanation of back pay, interest, benefits, unpaid awards, promotion effects, and retention/divulgence of a Report of Investigation (ROI)).
- Administrative judge issued two compliance decisions finding noncompliance and ordering corrective actions (e.g., SCI award, cash award, temporary promotion value, restoration of sick leave, expungement of ROI, retroactive J‑Band promotion).
- Agency submitted voluminous financial/personnel records but frequently failed to provide narrative explanations tying documents to required payments or calculations; some discrete items (cancellation of suspension, sick‑leave restoration, lump sum payment for cash award and temporary promotion) were shown as complied with.
- Board found partial compliance: agency must provide detailed narratives, proof of payments and interest calculations, sworn declarations regarding ROI handling and notification, and either evidence of making appellant’s J‑Band promotion permanent (as of Aug 2006) or sworn justifications why not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency cancelled suspension and placed appellant in work status | Suspension not properly cancelled; appellant remained on paid leave | Agency produced records showing cancellation and work‑status placement | Complied — agency satisfied this requirement |
| Whether agency paid back pay, interest, and benefits and explained calculations | Agency failed to pay appropriate back pay/interest and did not explain calculations | Agency produced many documents but no clear narrative tying them to calculations; claimed payments in filings | Noncompliant — agency must submit narrative, calculation methods, and proof of payments for back pay, interest, and benefits |
| Whether agency paid SCI and interest ($1,541) | SCI withheld due to suspension; appellant entitled to SCI plus interest | Agency issued SF‑50 indicating award but initially provided no proof of payment; later claimed payment plus interest but record unclear | Noncompliant — agency must prove payment of $1,541 and any additional interest owed |
| Whether agency paid $1,500 cash award and $1,850.75 temporary promotion value and interest | Entitled to retroactive cash award and extension of temporary promotion value | Agency represented it paid combined lump sum and calculated interest | Partially complied — principal paid (appellant conceded); interest calculation accepted as paid |
| Whether agency expunged ROI and remedied divulgence consequences | ROI remained or was improperly divulged, causing lost opportunities; agency must expunge and undo consequences | Agency produced memorandum certifying destruction and pledged nonreference; identified personnel changes | Mixed — ROI destruction found compliant; agency failed to document that personnel were notified the suspension was rescinded or that they were instructed not to reference the ROI; noncompliant on notification/undue divulgence remedy |
| Whether retroactive J‑Band promotion was made permanent as ordered | Appellant sought retroactive permanent promotion (from Aug 2006) to restore status quo ante | Agency retroactively applied a temporary promotion until Feb 2013, claiming it preserves work history and yields same back pay total | Noncompliant — agency must either make promotion permanent as of Aug 2006 or submit sworn declarations and policy support showing why it cannot |
Key Cases Cited
- House v. Department of the Army, 98 M.S.P.R. 530 (explains relief: place appellant in status quo ante)
- Vaughan v. Department of Agriculture, 116 M.S.P.R. 319 (agency bears burden to prove compliance and must provide explanatory narrative plus documentary support)
- Brown v. Office of Personnel Management, 113 M.S.P.R. 325 (appellant may rebut compliance with specific, nonconclusory assertions)