DEPARTMENT OF HEALTH
AND HUMAN SERVICES
OFFICE OF PERSONNEL
1996 MSPB LEXIS 1167
November 19, 1996
Adam J. Conti, Esquire, Atlanta, Georgia, for the appellant.
Arthur M. Borrego, Esquire, Atlanta, Georgia, for the agency.
Ana A. Mazzi, Esquire, Washington, D.C., for the petitioner.
Ben L. Erdreich, Chairman
Beth S. Slavet, Vice Chair
Antonio C. Amador, Member
OPINION AND ORDER
This case is before the Board on the Office of Personnel Management's
petition for reconsideration of the Board's September 28, 1994 decision
in Costin v. Department of Health & Human Services, 64 M.S.P.R. 517
(1994), finding, inter alia, that the agency had not complied with the administrative
judge's interim relief order, and dismissing the agency's petition
for review on that basis. In that decision, we further found that the Board lacked
jurisdiction over the appellant's claim, sustained by the administrative
judge in her initial decision (I.D.) of November 30, 1993, that his whistleblowing caused his nonselection for the position of General Equipment Mechanic
and Operator, WG-5401-10 (GEMO). We found that the Board lacked jurisdiction
over this matter because the appellant had not exhausted his remedy before
the Office of Special Counsel (OSC) on this issue. This [*2] is the matter on
which the agency had sought review of the initial decision. This case is also
before the Board on the appellant's motion to reopen this appeal based on new
evidence he acquired on the exhaustion issue, after the Board issued its decision.
As detailed below, we GRANT OPM's request to reopen and reconsider the
interim relief issue, and we find that the agency has complied with
relief order. We, therefore, VACATE, on this ground, our previous dismissal
the agency's petition for review on the promotion issue and we hereby
that petition and the appellant's response to it. Further, we GRANT
appellant's request to reopen our previous decision because he has
evidence that is new and material to the issue of whether we can take
jurisdiction over the promotion issue and we, therefore, VACATE our
finding of lack of jurisdiction to consider this issue. We also AFFIRM
initial decision's finding that the appellant was retaliated against
his whistleblowing. As corrective action we ORDER prospective promotion
WG-10, GEMO position, RESERVING for decision in a separate Opinion
the matter of an award of [*3] back pay. We AFFIRM our previous decision
all other grounds.
The appellant, an Incinerator Operator, WG-9, filed an individual right
action (IRA) appeal alleging that the Department of Health and Human
(HHS or agency) took certain personnel actions against him in retaliation
his having engaged in whistleblowing, as relevant to this decision,
specifically, the agency's failure to select him for the GEMO, WG-10,
The administrative judge found on this issue that the appellant established
that he was denied the GEMO position because of his whistleblowing.
she ordered the agency to take corrective action by retroactively assigning
to that position. The administrative judge also ordered the agency,
if it filed
a petition for review, to effect interim relief, in accordance with
Section 6 of
the Whistleblower Protection Act of 1989 (WPA), 5 U.S.C. @ 7701(b)
Initial Appeal File (IAF), Tab 25. Although not specified, the agency
promote the appellant to the WG-10, GEMO position on an interim basis.
The agency filed a petition for review in which it argued, among other
things, that the appellant had not exhausted [*4] his remedy before
with respect to his contention that the agency's decision not to select
the GEMO position was because of reprisal for whistleblowing. n1For that
the agency asserted, inter alia, that the Board lacked jurisdiction
nonselection. Petition for Review File (PRF), Tab 2 at 9-12.
The appellant opposed the agency's petition for review, arguing that
Board should dismiss it on the grounds that the agency either had not
interim relief, or had done so in bad faith. n1 In support of his argument
regarding interim relief, the appellant submitted evidence showing
agency had detailed him to a Maintenance Mechanic, WG-10, position
and not to
the GEMO position, as ordered by the administrative judge in the initial
decision. According to the appellant, the evidence showed that the
insisted that he continue to work in the detailed position even after
demonstrated that the duties of such position were physically injurious
In our previous decision, we dismissed the agency's petition for review
because we found that the appellant had met his burden of proving that
agency had undertaken its interim relief obligations in bad faith.
We found that
the agency's disregard for the appellant's health and safety in the
position constituted such bad faith. See Costin, 64 M.S.P.R. at 526-28.
After dismissing the agency's petition, we nonetheless noted that the
of jurisdiction may be raised at any time, and we reopened the appeal
whether the Board lacked jurisdiction with regard to the appellant's
whistleblowing caused his nonselection for the GEMO position. We found
appellant had not raised this issue with enough specificity with the
therefore that he had not exhausted his OSC remedy regarding that claim.
the Board's jurisdiction in an IRA appeal is contingent upon the appellant
bringing the matter to the OSC, we dismissed the appeal for lack of
with regard to the nonselection issue. Accordingly, we vacated the
decision with respect to that issue and denied corrective action. See
M.S.P.R. at 528-31; [*6] 5 U.S.C. @@ 1214(a) (3), 1221(a). n2
Four weeks after the Board issued its decision, the appellant filed
to reopen the appeal based on new and material evidence. He submitted
motion a copy of a letter from OSC dated October 17, 1994, in which
Associate Special Counsel for Prosecution states that, contrary to
decision, the appellant did raise the matter of his nonselection for
position with OSC. PRF, Tab 16.
On November 2, 1994, OPM filed a petition for reconsideration of the
September 28, 1994, decision, requesting reconsideration of the Board's
regarding interim relief.
The Board will grant interim relief in IRA appeals.
At the outset, we address the threshold issue of whether interim relief
be awarded in IRA appeals. In Marren v. Department of Justice, 51 M.S.P.R.
(1991), aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Table), the Board held
appeals under the WPA are not directly subject to the provisions [*7]
U.S.C. @@ 7701 or 7702; and thus, the Board lacks jurisdiction to adjudicate
merits of the personnel action at issue in an IRA appeal, and, therefore,
the authority to decide, in conjunction with an IRA appeal, the merits
appellant's allegation of prohibited discrimination. In Marren, the
not reach the question of the entitlement of prevailing IRA appellants
remedy of interim relief provided for in section 6 of the WPA, as an
to 5 U.S.C. @ 7701. See Marren, 51 M.S.P.R. at 641, n.12. Nonetheless,
has previously approved or not questioned the provision of interim
relief in IRA
cases, including in the instant case. See, e.g., Lewis v. Department
Army, 58 M.S.P.R. 325 (1993); Dean v. Department of the Army, 57 M.S.P.R.
We continue to believe that interim relief is available in IRA appeals
expressly so hold. As noted above, under 5 U.S.C. @ 7701(b) (2) (A),
relief would appear to apply only to appeals which are expressly covered
section 7701, due to the language providing for interim relief under
subsection." (See 5 U.S.C. @ 7701(b) (2) (A), "if an employee
[*8] for employment is the prevailing party in an appeal under this
subsection ....") However, to so literally and narrowly read the
isolation would limit or deny interim relief for the very individuals
concern for whom Congress enacted the WPA, the Act under which interim
was provided to most other federal employees. We do not find that this
Congress intended. See Sutherland Stat. Const. @ 60.01 (5th ed. 1992)
statutes [such as the WPA] are to be liberally construed). See also
Department of Veterans Affairs, 58 M.S.P.R. 318, 324 (1993) ("in
WPA, Congress was attempting to expand and enhance the protections
rights afforded to whistleblowers"); 5 U.S.C. @ 1222 (providing
in relevant part
that nothing in 5 U.S.C. @ 1221 or in chapter 23 "shall be construed
any right or remedy available under a provision of statute which is
both this chapter and chapter 23.") Thus, to the extent an interim
is available outside of those provisions, in section 7701(b) (2) (A),
it is not
to be limited by any provision of section 1221 or chapter 23.
We note that the scant legislative history [*9] does not clarify Congress'
precise intent in enacting the interim relief provision, since it largely
reiterates the statutory provision without substantive comment. See
S. Rep. No.
413, 100th Cong., 2d Sess. 35 (1988); H.R. Rep. No. 274, 100th Cong.,
28-29 (1987). However, there is no explicit prohibition of interim
prevailing IRA appellants either in the statute itself or in the legislative
Also of significance is the fact that nothing elsewhere in law, rule,
regulation prohibits the Board from electing to provide interim relief
prevailing IRA appellants and, indeed, the Board has elected to apply
appellate procedures of 5 U.S.C. @ 7701, including the interim relief
to IRA appeals. See 5 C.F.R. @@ 1201.3(b), 1209.3, specifically applying
C.F.R. subpart C to whistleblower appeals, which includes the interim
provisions at 5 C.F.R. @ 1201.115. Cf. Simmons v. Merit Systems Protection
Board, 768 F.2d 323, 326 (Fed. Cir. 1985) (in holding that attorney
section 7701 may be awarded to prevailing disability retirement appellants,
despite the fact that section 7701 is not expressly applicable to such
[*10] the court noted, inter alia, that it is "very significant"
that the MSPB
has elected, by regulation, to apply section 7701 procedures to retirement
Further, as noted by the Supreme Court, it is axiomatic that when construing
a whole host of statutes, there, the Civil Service Reform Act, the
Retirement laws, and the Federal Courts Improvement Act; here, the
Reform Act and the WPA, or even numerous potentially ambiguous provisions
given statute, where Congress in propounding a comprehensive statutory
may have failed to address specifically certain aspects of how the
the various statutory provisions would function in certain situations,
judicial task is to "look to the provisions of the whole law and
to its object
and policy." See Lindahl v. Office of Personnel Management, 470
U.S. 768, 793-94
(1985) (quoting Meyer v. Department of Health & Human Services,
666 F.2d 540,
542 (Ct. Cl. 1981), quoting Richards v. United States, 369 U.S. 1,
As the Court further stated: "when construing these arguably ambiguous
provisions, our duty is to remain faithful to the central congressional
underlying [*11] the enactment of the CSRA." Lindahl, 470 U.S.
Similarly, our focus here is to look to the purpose and intent of Congress
enacting the WPA and its amendments to the CSRA, and to consider all
relevant statutory provisions in the light that makes most sense to
the whole. Considering that interim relief was provided for elsewhere
WPA, that the WPA is remedial, and that there is no legal preclusion
extending the interim relief provisions to prevailing appellants in
find no reason not to continue our established policy and practice
such relief to prevailing IRA appellants. Accordingly, we will grant
relief to prevailing appellants in IRA appeals.
The Board lacks authority to review an agency's undue disruption
In its brief in support of its petition for reconsideration of the interim
relief issue, OPM argues that the Board does not have the authority
even under a "bad faith" standard, an agency's determination
that an appellant's
return to, or presence in, the work environment would be "unduly
light of the United States Court of Appeals for the Federal Circuit's
decision in King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994). We agree
clearly so holds. Accordingly, we overrule our cases holding to the
We believe that a reading of Jerome also shows that the court implicitly
decided that agencies may transfer employees or assign them altered
restricted duties because the court, although obviously aware of it,
Jerome's transfer to another city. See Moore's Manual Federal Practice
Procedure @ 30.03 (1990 ed.) ("the mandate constitutes the
law of the case
only on such issues of law as were actually considered and decided
appellate court, or necessarily to be inferred from the disposition
appeal."). (Italics supplied.) See also discussion in Luckey v.
Miller, 929 F.2d
618, 620-21 (11th Cir. 1991). In doing so, the Jerome court thus, at
implicitly, sanctioned the Board's reading of the interim relief statute
permit agencies to detail, assign and even transfer employees to different
commuting areas as interim relief, if such agencies have made a determination
that it would be unduly disruptive to effect the relief ordered by
administrative judge, and appropriate [*13] pay, compensation and benefits
are provided. Indeed, in reliance upon Jerome, the Board has held that
complies with an interim relief order when it makes a determination
returning an employee to the position designated by the administrative
would cause undue disruption and it provides the employee with the
pay, compensation, and benefits of such designated position during
of the petition for review. See, e.g., Hovanec v. Department of the
M.S.P.R. 340 (1995).
Here, as noted above, the agency detailed the appellant to another WG-10
position during the interim relief period n3 and the appellant does
that he has received all pay, compensation and other benefits of such
While the agency did not use the phrase "undue disruption,"
we find that its
decision not to place the appellant in the GEMO position for reasons
see PRF, Tab 7, in essence, constitutes such a determination and is
to comply with the administrative judge's interim relief order. See,
Robinson v. Department of Veterans Affairs, 67 M.S.P.R. 334, 338 (1995).
n3After the issuance of the Board's final decision in Costin,
M.S.P.R. 517 (1994), the agency notified the appellant that as of October
1994, it would return him to his former position of Incinerator Operator,
WG-5403-09, because the final Board decision mooted the administrative
order to provide interim relief. See PRF, Tab 17, Attachment. We find
agency acted correctly under the circumstances. See McLaughlin v. Office
Personnel Management, 62 M.S.P.R. 536, 551 (1994), aff'd, 47 F.3d 1181
Cir. 1995) (Table). [*14]
Because the agency's petition for review was improperly dismissed for
to comply with the interim relief regulations, and because, as detailed
the merits of the promotion action were improperly not considered because
Board dismissed the matter for lack of jurisdiction, we will review
arguments in its petition for review and the appellant's response to
The appellant's submission of new and material evidence warrants reopening
the dismissal of the promotion issue for lack of Board jurisdiction.
The Board has the authority to reopen or reconsider, on its own motion,
appeals in which it has rendered a final decision to correct its own
to modify its judgment, decree, or order. 5 U.S.C. @ 7701(e) (1) (B);
5 C.F.R. @
1201.117. See Golden v. U.S. Postal Service, 60 M.S.P.R. 268, 272 (1994).
Because the policy of achieving the right result competes with the
favoring finality of decisions, however, the Board and the courts have
consistently held that any reopening and reconsideration must be obtained
a short and reasonable time period. See Civil Aeronautics Board v.
Lines, 367 U.S. 316, 321 (1961); [*15] Dawson v. Merit Systems Protection
Board, 712 F.2d 264, 267 (7th Cir. 1983); Marshall v. Government Printing
Office, 43 M.S.P.R. 346, 350 (1990). The Board's discretionary authority
reopen or reconsider a decision within a "short and reasonable
time period" is,
"absent unusual circumstances ... measured in weeks, not years."
v. Treusdell, 562 F.2d 701, 720 (D.C. Cir. 1977); Gratehouse v. United
512 F.2d 1104, 1109 (Ct. Cl. 1975); Moriarty v. Rhode Island Air National
56 M.S.P.R. 144, 148 (1992).
Here, the appellant requested reopening of his appeal and submitted
supporting evidence in the form of a letter from OSC four weeks after
Board's September 28, 1994, final decision in this case and only nine
OSC wrote the letter. He therefore has satisfied the Board's requirement
any reopening or reconsideration request be made within a short and
Moreover, an important consideration in deciding whether to reopen an
is whether the Board has become aware of new evidence that would warrant
different outcome from that reached in the previous Board decision.
Parkinson v. U.S. Postal [*16] Service, 58 M.S.P.R. 393, 397 (1993),
31 F.3d 1177 (Fed. Cir. 1994) (Table). The letter from OSC was unavailable
the time of the Board's September 28, 1994 decision. The evidence submitted
included a copy of the complaint the appellant submitted to OSC, his
in support of his argument that he had exhausted his OSC remedy with
his nonselection for the GEMO position, and OSC's letter terminating
investigation. See respectively IAF, Tab 8, Ex. Q; Tab 19; Tab 10,
Ex. A. The
Board's decision found that the appellant's affidavit stating that
he raised the
nonselection issue with sufficient specificity was not worthy of belief
it was not supported by OSC's termination letter or the complaint.
appellant submitted the affidavit to the , administrative judge who
evidence sufficient, we will not fault the appellant for not taking
extraordinary further step of asking OSC, prior to the issuance of
decision, for additional evidence on the exhaustion issue. To disregard
October 17, 1994 letter on the ground that the appellant failed to
and submit it previously would wrongly place strict application [*17]
principles of adversarial adjudication above the public interest in
whistleblowers from unlawful retaliatory actions. We will thus consider
letter as new evidence that was unavailable before the record closed
appellant's due diligence. See Fair v. Department of the Navy, 66 M.S.P.R.
489 (1995); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
The letter is also material evidence because it conclusively demonstrates
that, contrary to the Board's September 28, 1994 decision, the appellant
exhausted his OSC remedy with respect to the agency's decision not
to select him
for the GEMO position. See Russo v. Veterans Administration, 3 M.S.P.R.
(1980). Thus, we find that, under the circumstances, the public interest
achieving the correct result--that is, that the Board has jurisdiction
promotion issue--outweighs the government's institutional interest
in administrative adjudications. Cf. Carey v. U.S. Postal Service,
359, 361 (1991) (although evidence did not qualify as new because it
available previously, the Board would reopen the case on its own motion,
interest of [*18] justice, where the evidence was of such weight as
warrant a different outcome, and there were strong equities in favor
We, therefore, conclude that the appellant has demonstrated that the
does have jurisdiction over his nonselection for the GEMO position
exhausted his remedy with the OSC.
Upon review of this claim, we find that the appellant was not selected
the GEMO position based upon retaliation for his whistleblowing activities.
In an individual right of action appeal, an appellant must show by
preponderant evidence that he engaged in whistleblowing activity by
disclosure protected under 5 U.S.C. @ 2302(b) (8). Once he meets this
must prove by preponderant evidence that the disclosure was a contributing
factor in the personnel action that was taken, threatened or not taken
him. If the appellant meets this burden of proof, corrective action
ordered unless the agency demonstrates by clear and convincing evidence
would have taken the same action absent the protected disclosure. See,
Powers v. Department of the Navy, 69 M.S.P.R. 150, 157-58 (1995); Paul
Department of Agriculture, [*19] 66 M.S.P.R. 643, 647 (1995). There
dispute that the appellant made protected disclosures, including disclosures
the news media in August 1990, of alleged unsafe and unsanitary practices
agency's main incinerator at its Clifton Road Facility. Rather, the
concerns whether, because of this, the agency retaliated against him
when he was
not referred, selected and promoted as a result of the February 21,
announcement of the WG-10, GEMO position.
We note that in our earlier decision, we found that the agency had issued
vacancy announcement in December 1990, for a similar temporary GEMO
that the announcement was cancelled on January 8, 1991, without a selection
having been made. We held, relying, in part, upon Slake v. Department
Treasury, 53 M.S.P.R. 207, 215 (1992), that such cancellation was not
personnel action for purposes of an IRA appeal. See Costin, 64 M.S.P.R.
We believe, however, that while cancellation of a vacancy announcement
is not a
personnel action, and while the Board may not order corrective action
respect to it, such cancellation may be considered as part of the circumstances
surrounding [*20] the appellant's nonreferral and nonselection under
vacancy announcement issued on February 21, 1991.
In this regard, the appellant was found qualified for the position announced
in December 1990, and was referred for selection on the certificate
eligibles. See IAF, Tab 21, Ex. 9. As explained at the hearing, the
Director of the Engineering Services Office, Marlene Smith, returned
certificate without making a selection. After this, the agency issued
February 1991 vacancy announcement, reannouncing the position, and
taking into account the knowledge, skills, and abilities factors listed
Qualifications Standards Handbook, X-118C. See Hearing Tape (H.T.)
A, Testimony of China Christian, Administrative Officer, Engineering
Office; H.T. Three, Side B, Testimony of Debra Dorsey, Personnel Management
Specialist. See Vacancy Announcement No. TDA-91-7, IAF, Tab 21, Ex.
The appellant and five other candidates for this position, of the fourteen
individuals who applied, were rated "not qualified" by the
expert" from the Engineering Services Office, Mr. Stephen White,
General Engineer. [*21] See id., Ex. 11. Mr. White, after a request
Personnel officials for a subject matter expert, was designated by
supervisor to serve as the rating official for applicants for this
noted above, the appellant was not among those five individuals listed
certificate of eligibles referred to the selecting official, and, thus,
not have been selected for promotion to the GEMO position. Three other
individuals were selected in March 1991. See id., Ex. 15.
The administrative judge found that the appellant had attended night
and in 1990 he passed the state examination and obtained a Boiler Operator
license; operation of, and knowledge of, boiler equipment were a significant
part of the GEMO position. She further found that the appellant voluntarily
worked at night at a boiler room to gain experience. In this connection,
noted that Raymond Fanning, a Boiler Operator at the agency's Lawrenceville
facility, testified at the hearing that the appellant had worked with
night to gain experience.
In finding that the appellant's disclosures were a contributing factor
nonselection, the administrative judge found that Mr. White had constructive,
[*22] if not actual, knowledge that the appellant had made protected
disclosures because the disclosures were published in the newspapers;
further, that although Mr. White testified that he was unaware of the
appellant's training in boiler operations, and both Mr. White and Debra
of Personnel stated that they were unaware of the appellant's on-the-job
training at the Lawrenceville facility, his application for the vacancy
reflected that he had such experience and training. Thus, she found
agency's failure to consider the relevant statements in the application,
addition to the unrefuted testimony that George Steube, the Director
Engineering Services Office, was upset with the appellant, and the
time of the nonselection to the disclosures, constituted strong circumstantial
evidence that the appellant's whistleblowing activity was a contributing
to his nonselection for the GEMO position. Finally, she found that,
the record is devoid of evidence concerning the experience and qualifications
the three selectees, the agency had not shown by clear and convincing
that it would have taken the same action (presumably nonselecting [*23]
appellant) absent the appellant's whistleblowing activity. See I.D.
Based upon our review of the record pertaining to the appellant's nonreferral
and consequent nonselection for this position, we agree with the administrative
judge that there is sufficient evidence that the appellant's disclosures
contributing factor to his nonreferral. In addition, we agree that
has not shown by clear and convincing evidence that it would not have
the appellant for selection and that it then would not have selected
him for the
GEMO position in the absence of his disclosures.
An appellant may show that his whistleblowing activity was a contributing
factor to a personnel action through circumstantial evidence such as
official taking the action knew of the disclosures and that the personnel
occurred within a period of time so that a reasonable person could
the disclosures were a contributing factor to the personnel action.
v. Department of the Navy, 69 M.S.P.R. at 155 (citing Horton v. Department
the Navy, Nos. 94-3332, 94-3355, slip op. at 7 (Fed. Cir. Sept. 12,
U.S.C. @ 1221(e) (1). Here, the agency [*24] does not challenge the
administrative judge's finding that Mr. White had such constructive
the appellant's protected activity and such a finding is in accord
precedent. See Lewis v. Department of the Army, 63 M.S.P.R. 119 (1994),
48 F.3d 1238 (Fed. Cir.) (Table), cert. denied, 116 S. Ct. 110 (1995);
v. Department of the Army, 63 M.S.P.R. 41 (1994).
Moreover, considering as well the closeness in time between the disclosures
and the nonreferral, and other circumstances surrounding the appellant's
nonreferral, such circumstances are suspicious enough to warrant a
a reasonable person could conclude that the appellant's protected disclosure
a contributing factor in the nonreferral under 5 U.S.C. @ 1221(e) (1).
About four months after the appellant's protected disclosure in the
1990, the agency announced the first GEMO vacancy in December 1990;
appellant applied and was rated as qualified. The agency then cancelled
vacancy. The selecting official did not testify at the hearing n4 and
Administrative Officer, China Christian, testified that the vacancy
cancelled after deciding that none of [*25] the applicants was qualified
the position. This occurred after the appellant had already been rated
qualified. The appellant, as noted above, was rated as unqualified
when the next
vacancy announcement was issued in February 1991.
Further, as the administrative judge found, Mr. Steube informed the
that a boiler operator license was needed for the GEMO position; thereafter,
the appellant went to night school and obtained a class IV license,
attempted to gain as much on-the-job training as he could. Mr. White,
testified that he considered the license to be a "learner's permit"
that a class I license was needed." See H.T. Three, Side B. Neither
announcement, however, specifies a boiler operator's license as a requirement
the GEMO position, and there is no position description for the GEMO
record. The agency's contradictory remarks to the appellant about whether
license was required, coupled with the lack of any documentary evidence
that a license was required, could create the appearance in the mind
reasonable person that the agency was attempting to discourage the
erecting barriers to his advancement that did not exist.
Thus, the appellant has shown by preponderant evidence that the protected
disclosure was a contributing factor to his eventual nonselection.
The fact that
there is no "smoking-gun", direct evidence of a [*27] retaliatory
not dispositive. See Marano v. Department of Justice, 2 F.3d 1137 (Fed.
Further, the agency has not established by clear and convincing evidence
it would have failed to select the appellant in the absence of his
whistleblowing activity. See 5 U.S.C. @ 1221(e) (2); Powers v. Department
Navy, 69 M.S.P.R. at 157-58. In this regard, we note that Mr. White
that he was not aware of the appellant's alleged on-the-job training
but that he
was aware of the appellant's attendance at Vo-Tech school. He explained
rated the appellant not qualified for the GEMO position at the WG-10
because that was a journeyman level position and even if the appellant
certification as a Boiler Operator and was licensed to operate a boiler,
in his view, insufficient experience to encumber a journeyman job.
Three, Side A. Mr. White further explained that boiler operations are
because of the enormous steam pressure in the boiler plant and that
with such hazardous equipment is essential at the WG-10 level, although
not testify that a license was needed for this particular position,
and indeed, the record is unclear in this regard. See H.T. Three, Side
Thus, Mr. White seems to have placed some emphasis on his belief that
WG-10 job was at the journeyman level. Yet, neither vacancy announcement
indicates that it is for a journeyman position. The only reference
that could be
considered as showing that the position is at the journeyman level,
qualification requirement No. 3 in the February 21, 1991, vacancy announcement.
This requires "ability to instruct, supervise and train non-journeyman
and operators," See IAF, Tab 21, Ex. 10. By its terms, however,
provides that this job element is desirable but not mandatory.
Based upon our review of the record as a whole, the agency's evidence
not rise to the level of clear and convincing evidence. The agency
submit any evidence as to the qualifications of the selectees for the
position. Absent comparison evidence that would permit the Board to
whether the agency evaluated the appellant's qualifications differently
those of the nonwhistleblowers who were selected for the position,
evidence is not strong enough to meet the clear and [*29] convincing
Accordingly, we find that the appellant was retaliated against because
whistleblowing. n6 We order as corrective action that he be prospectively
promoted to the WG-10, GEMO position. n7
This is the final order of the Merit Systems Protection Board in this
as to the issues addressed.
We ORDER the agency to prospectively promote the appellant to the WG-10,
position. See Kerr v. National Endowment for the Arts, 726 F.2d 730
1984). The agency must accomplish this action within 20 days of the
date of this
In another case, the Board has pending before it the issue of whether
pay is awardable under circumstances alike in all material respects
to those of
this case. Accordingly, we reserve that issue for further consideration,
will issue a separate Opinion and Order in this appeal pursuant to
in that other case. The separate Opinion and Order will have no effect
order for corrective action. See Forrest v. Department of Agriculture,
M.S.P.R. 539, 543-44 (1996) (reserving a matter for decision and the
a separate Opinion and Order).
We ORDER the appellant to cooperate in good faith in the agency's efforts
prospectively promote him, and to provide all necessary information
requests to help it comply.
We further ORDER the agency to inform the appellant in writing [*31]
all actions taken to comply with the Board's Order and of the date
on which the
agency believes it has fully complied. If not notified, the appellant
the agency about its efforts to comply.
Within 30 days of the agency's notification of compliance, the appellant
file a petition for enforcement with the regional office to resolve
compliance issue or issues unrelated to back pay. The petition should
specific reasons why the appellant believes that there is insufficient
compliance, and should include the dates and results of any communications
the agency about compliance.
NOTICE TO THE APPELLANT REGARDING FEES
You may be entitled to be reimbursed by the agency for your reasonable
attorney fees and costs. To be reimbursed, you must meet the criteria
set out at
5 U.S.C. @@ 7701(g) or 1221(g), and 5 C.F.R. @ 1201.37(a). If you believe
meet these criteria, you must file a motion for attorney fees WITHIN
DAYS OF THE DATE OF THIS DECISION. Your attorney fee motion must be
the regional office or field office that issued the initial decision
NOTICE TO THE APPELLANT REGARDING FURTHER REVIEW RIGHTS [*32]
You have the right to request the United States Court of Appeals for
Federal Circuit to review the Board's final decision in your appeal
if the court
has jurisdiction. See 5 U.S.C. @ 7703(a) (1). You must submit your
the court at the following address:
United States Court of Appeals for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 30 calendar
after receipt of this order by your representative, if you have one,
by you personally, whichever receipt occurs first. See 5 U.S.C. @ 7703(b)(1).