Michael Lucon Favreau v. Department of the Army
Background
- Michael Favreau filed a petition for enforcement seeking compliance with an MSPB Final Order that reversed his removal effective January 1, 2011, and ordered reinstatement with back pay, interest, and other benefits.
- The agency submitted calculations and payments (including electronic transfers) for back pay, premiums, leave payout, and post-reinstatement pay; administrative judge found multiple documentation deficiencies and reopened the record several times.
- Administrative judge (CID) found agency compliance on most items (basic pay, certain premium pays, accrued annual leave payout, offsets) but found noncompliance or inadequate documentation as to interest calculation and overtime for 2012.
- Appellant challenged: (1) completeness/accuracy of post-reinstatement salary and premium payments, (2) interest calculation, (3) overtime calculation method (arguing his individual overtime history should control), (4) entitlement to promotion to lieutenant.
- Board denied Favreau’s petition for review, affirmed the CID, and referred remaining compliance issues (interest and 2012 overtime) to the Office of General Counsel for further processing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of back pay/post‑reinstatement payments | Favreau: agency produced only a DFAS spreadsheet and failed to prove full payment of salary, overtime, night differential, and premium pay for post‑reinstatement pay periods | Agency: Favreau submitted his own LES and DFAS spreadsheet; DFAS documentation and affidavit support payments (some reimbursed later) | Agency compliance upheld for post‑reinstatement pay; documentation and admissions supported payment findings |
| Interest calculation on back pay | Favreau: agency misstated or under‑explained interest paid | Agency: provided calculations but administrative judge found explanation insufficient and noted numeric discrepancy between reported and documented interest paid | Agency not in compliance on interest; further review by OGC required |
| Overtime computation method | Favreau: overtime should be based on his prior law‑enforcement overtime history (not averages) | Agency: used averaging of similarly situated employees for overtime where individual history may not reflect back‑pay period; this method is allowed and reasonable | Use of average overtime upheld for 2011; agency failed to properly document 2012 overtime payments, so noncompliance remains for 2012 |
| Promotion to lieutenant entitlement | Favreau: would have been promoted based on military experience/veterans’ preference; agency hired less‑qualified outside candidate | Agency: no legal entitlement or clear proof he would have been promoted | Denied — speculative; no law or clear evidence requiring promotion during back‑pay period |
Key Cases Cited
- Bruton v. Department of Veterans Affairs, 111 M.S.P.R. 489 (requirement that agency provide detailed calculations and narrative for back pay, benefits, and interest)
- Brady v. Department of the Navy, 55 M.S.P.R. 693 (authorizes averaging of overtime of similarly situated employees when appropriate to restore status quo)
- Bonacchi v. U.S. Postal Service, 46 M.S.P.R. 531 (approving averaging overtime where employee had no overtime history in the relevant position)
- Broadnax v. U.S. Postal Service, 35 M.S.P.R. 219 (Board will not nullify agency’s reasonable back‑pay methodology absent showing it is unreasonable)
- Boese v. Department of the Air Force, 784 F.2d 388 (Fed. Cir. 1986) (promotion in compliance proceeding requires legal entitlement or proof it would have occurred)
- United States v. Testan, 424 U.S. 392 (1976) (principle that one is not entitled to the benefit of a position until appointed)
- Tubesing v. Department of Health & Human Services, 115 M.S.P.R. 327 (agency bears burden to prove compliance with Board orders)