DEPARTMENT OF HEALTH

AND HUMAN SERVICES

Agency,

and

OFFICE OF PERSONNEL

MANAGEMENT

Petitioner

1996 MSPB LEXIS 1167

November 19, 1996

[*1]

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.

OPINION:

BEFORE

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 (OPM'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 the interim relief order. We, therefore, VACATE, on this ground, our previous dismissal of the agency's petition for review on the promotion issue and we hereby consider that petition and the appellant's response to it. Further, we GRANT the appellant's request to reopen our previous decision because he has submitted evidence that is new and material to the issue of whether we can take jurisdiction over the promotion issue and we, therefore, VACATE our previous [*2 ] finding of lack of jurisdiction to consider this issue. We also AFFIRM the initial decision's finding that the appellant was retaliated against based upon his whistleblowing. As corrective action we ORDER prospective promotion to the WG-10, GEMO position, RESERVING for decision in a separate Opinion and Order, the matter of an award of [*3] back pay. We AFFIRM our previous decision on all other grounds.

BACKGROUND

The appellant, an Incinerator Operator, WG-9, filed an individual right of action (IRA) appeal alleging that the Department of Health and Human Services (HHS or agency) took certain personnel actions against him in retaliation for his having engaged in whistleblowing, as relevant to this decision, specifically, the agency's failure to select him for the GEMO, WG-10, position. The administrative judge found on this issue that the appellant established that he was denied the GEMO position because of his whistleblowing. Accordingly, she ordered the agency to take corrective action by retroactively assigning him 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) (2) (A). Initial Appeal File (IAF), Tab 25. Although not specified, the agency was to 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 the OSC with respect to his contention that the agency's decision not to select him for the GEMO position was because of reprisal for whistleblowing. n1For that reason, the agency asserted, inter alia, that the Board lacked jurisdiction over the nonselection. Petition for Review File (PRF), Tab 2 at 9-12. The appellant opposed the agency's petition for review, arguing that the Board should dismiss it on the grounds that the agency either had not effected interim relief, or had done so in bad faith. n1 In support of his argument regarding interim relief, the appellant submitted evidence showing that the 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 agency insisted that he continue to work in the detailed position even after he demonstrated that the duties of such position were physically injurious to him. [*5]

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 the 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 detailed 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 issue of jurisdiction may be raised at any time, and we reopened the appeal to address whether the Board lacked jurisdiction with regard to the appellant's claim that whistleblowing caused his nonselection for the GEMO position. We found that the appellant had not raised this issue with enough specificity with the OSC and therefore that he had not exhausted his OSC remedy regarding that claim. Because the Board's jurisdiction in an IRA appeal is contingent upon the appellant first bringing the matter to the OSC, we dismissed the appeal for lack of jurisdiction with regard to the nonselection issue. Accordingly, we vacated the initial decision with respect to that issue and denied corrective action. See Costin, 64 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 a motion to reopen the appeal based on new and material evidence. He submitted with his motion a copy of a letter from OSC dated October 17, 1994, in which the Associate Special Counsel for Prosecution states that, contrary to the Board's decision, the appellant did raise the matter of his nonselection for the GEMO position with OSC. PRF, Tab 16.

On November 2, 1994, OPM filed a petition for reconsideration of the Board's September 28, 1994, decision, requesting reconsideration of the Board's finding regarding interim relief.

ANALYSIS

The Board will grant interim relief in IRA appeals.

At the outset, we address the threshold issue of whether interim relief may be awarded in IRA appeals. In Marren v. Department of Justice, 51 M.S.P.R. 632 (1991), aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Table), the Board held that IRA appeals under the WPA are not directly subject to the provisions [*7] of 5 U.S.C. @@ 7701 or 7702; and thus, the Board lacks jurisdiction to adjudicate the merits of the personnel action at issue in an IRA appeal, and, therefore, lacks the authority to decide, in conjunction with an IRA appeal, the merits of an appellant's allegation of prohibited discrimination. In Marren, the Board did not reach the question of the entitlement of prevailing IRA appellants to the remedy of interim relief provided for in section 6 of the WPA, as an amendment to 5 U.S.C. @ 7701. See Marren, 51 M.S.P.R. at 641, n.12. Nonetheless, the Board 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 of the Army, 58 M.S.P.R. 325 (1993); Dean v. Department of the Army, 57 M.S.P.R. 296 (1993).

We continue to believe that interim relief is available in IRA appeals and we expressly so hold. As noted above, under 5 U.S.C. @ 7701(b) (2) (A), interim relief would appear to apply only to appeals which are expressly covered under section 7701, due to the language providing for interim relief under "this subsection." (See 5 U.S.C. @ 7701(b) (2) (A), "if an employee or applicant [*8] for employment is the prevailing party in an appeal under this subsection ....") However, to so literally and narrowly read the statute in isolation would limit or deny interim relief for the very individuals out of concern for whom Congress enacted the WPA, the Act under which interim relief was provided to most other federal employees. We do not find that this is what Congress intended. See Sutherland Stat. Const. @ 60.01 (5th ed. 1992) (remedial statutes [such as the WPA] are to be liberally construed). See also Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318, 324 (1993) ("in enacting the WPA, Congress was attempting to expand and enhance the protections and appeal 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 to limit any right or remedy available under a provision of statute which is outside of both this chapter and chapter 23.") Thus, to the extent an interim relief remedy 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., 1st Sess. 28-29 (1987). However, there is no explicit prohibition of interim relief for prevailing IRA appellants either in the statute itself or in the legislative history. Also of significance is the fact that nothing elsewhere in law, rule, or regulation prohibits the Board from electing to provide interim relief to prevailing IRA appellants and, indeed, the Board has elected to apply the appellate procedures of 5 U.S.C. @ 7701, including the interim relief provision, to IRA appeals. See 5 C.F.R. @@ 1201.3(b), 1209.3, specifically applying 5 C.F.R. subpart C to whistleblower appeals, which includes the interim relief 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 fees under section 7701 may be awarded to prevailing disability retirement appellants, despite the fact that section 7701 is not expressly applicable to such appeals, [*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 cases). 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 Civil Service Retirement laws, and the Federal Courts Improvement Act; here, the Civil Service Reform Act and the WPA, or even numerous potentially ambiguous provisions of a given statute, where Congress in propounding a comprehensive statutory scheme may have failed to address specifically certain aspects of how the mechanism of the various statutory provisions would function in certain situations, the 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, 11 (1962)). As the Court further stated: "when construing these arguably ambiguous provisions, our duty is to remain faithful to the central congressional purposes underlying [*11] the enactment of the CSRA." Lindahl, 470 U.S. at 792. Similarly, our focus here is to look to the purpose and intent of Congress in enacting the WPA and its amendments to the CSRA, and to consider all of the relevant statutory provisions in the light that makes most sense to interpreting the whole. Considering that interim relief was provided for elsewhere in the WPA, that the WPA is remedial, and that there is no legal preclusion to our extending the interim relief provisions to prevailing appellants in IRAs, we find no reason not to continue our established policy and practice of providing such relief to prevailing IRA appellants. Accordingly, we will grant interim relief to prevailing appellants in IRA appeals.

The Board lacks authority to review an agency's undue disruption determination.

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 to review, 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 disruptive," in light of the United States Court of Appeals for the Federal Circuit's [*12] decision in King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994). We agree that Jerome clearly so holds. Accordingly, we overrule our cases holding to the contrary.

We believe that a reading of Jerome also shows that the court implicitly decided that agencies may transfer employees or assign them altered or restricted duties because the court, although obviously aware of it, let stand Jerome's transfer to another city. See Moore's Manual Federal Practice and Procedure @ 30.03[5] (1990 ed.) ("the mandate constitutes the law of the case only on such issues of law as were actually considered and decided by the appellate court, or necessarily to be inferred from the disposition on 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 least implicitly, sanctioned the Board's reading of the interim relief statute to 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 the administrative judge, and appropriate [*13] pay, compensation and benefits are provided. Indeed, in reliance upon Jerome, the Board has held that an agency complies with an interim relief order when it makes a determination that returning an employee to the position designated by the administrative judge would cause undue disruption and it provides the employee with the appropriate pay, compensation, and benefits of such designated position during the pendency of the petition for review. See, e.g., Hovanec v. Department of the Interior, 67 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 not dispute that he has received all pay, compensation and other benefits of such position. 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 of safety, see PRF, Tab 7, in essence, constitutes such a determination and is sufficient to comply with the administrative judge's interim relief order. See, e.g., 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, 64 M.S.P.R. 517 (1994), the agency notified the appellant that as of October 16, 1994, it would return him to his former position of Incinerator Operator, WG-5403-09, because the final Board decision mooted the administrative judge's order to provide interim relief. See PRF, Tab 17, Attachment. We find that the agency acted correctly under the circumstances. See McLaughlin v. Office of Personnel Management, 62 M.S.P.R. 536, 551 (1994), aff'd, 47 F.3d 1181 (Fed. Cir. 1995) (Table). [*14]

Because the agency's petition for review was improperly dismissed for failure to comply with the interim relief regulations, and because, as detailed below, the merits of the promotion action were improperly not considered because the Board dismissed the matter for lack of jurisdiction, we will review the agency's arguments in its petition for review and the appellant's response to such arguments.

The appellant's submission of new and material evidence warrants reopening of 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 errors or 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 policy favoring finality of decisions, however, the Board and the courts have consistently held that any reopening and reconsideration must be obtained within a short and reasonable time period. See Civil Aeronautics Board v. Delta Air 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 to reopen or reconsider a decision within a "short and reasonable time period" is, "absent unusual circumstances ... measured in weeks, not years." See Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C. Cir. 1977); Gratehouse v. United States, 512 F.2d 1104, 1109 (Ct. Cl. 1975); Moriarty v. Rhode Island Air National Guard, 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 the Board's September 28, 1994, final decision in this case and only nine days after OSC wrote the letter. He therefore has satisfied the Board's requirement that any reopening or reconsideration request be made within a short and reasonable time period. Moreover, an important consideration in deciding whether to reopen an appeal is whether the Board has become aware of new evidence that would warrant a different outcome from that reached in the previous Board decision. See Parkinson v. U.S. Postal [*16] Service, 58 M.S.P.R. 393, 397 (1993), aff'd, 31 F.3d 1177 (Fed. Cir. 1994) (Table). The letter from OSC was unavailable at 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 affidavit in support of his argument that he had exhausted his OSC remedy with respect to his nonselection for the GEMO position, and OSC's letter terminating its 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 because it was not supported by OSC's termination letter or the complaint. Because the appellant submitted the affidavit to the , administrative judge who found his evidence sufficient, we will not fault the appellant for not taking the extraordinary further step of asking OSC, prior to the issuance of the Board's decision, for additional evidence on the exhaustion issue. To disregard OSC's October 17, 1994 letter on the ground that the appellant failed to obtain it and submit it previously would wrongly place strict application [*17] of principles of adversarial adjudication above the public interest in protecting whistleblowers from unlawful retaliatory actions. We will thus consider the OSC letter as new evidence that was unavailable before the record closed despite the appellant's due diligence. See Fair v. Department of the Navy, 66 M.S.P.R. 485, 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. 345, 349 (1980). Thus, we find that, under the circumstances, the public interest in achieving the correct result--that is, that the Board has jurisdiction over the promotion issue--outweighs the government's institutional interest in finality in administrative adjudications. Cf. Carey v. U.S. Postal Service, 50 M.S.P.R. 359, 361 (1991) (although evidence did not qualify as new because it was available previously, the Board would reopen the case on its own motion, in the interest of [*18] justice, where the evidence was of such weight as to warrant a different outcome, and there were strong equities in favor of the employee).

We, therefore, conclude that the appellant has demonstrated that the Board does have jurisdiction over his nonselection for the GEMO position because he exhausted his remedy with the OSC.

Upon review of this claim, we find that the appellant was not selected for 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 making a disclosure protected under 5 U.S.C. @ 2302(b) (8). Once he meets this burden, he must prove by preponderant evidence that the disclosure was a contributing factor in the personnel action that was taken, threatened or not taken against him. If the appellant meets this burden of proof, corrective action must be ordered unless the agency demonstrates by clear and convincing evidence that it would have taken the same action absent the protected disclosure. See, e.g., Powers v. Department of the Navy, 69 M.S.P.R. 150, 157-58 (1995); Paul v. Department of Agriculture, [*19] 66 M.S.P.R. 643, 647 (1995). There is no dispute that the appellant made protected disclosures, including disclosures to the news media in August 1990, of alleged unsafe and unsanitary practices at the agency's main incinerator at its Clifton Road Facility. Rather, the dispute 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, 1991 vacancy announcement of the WG-10, GEMO position.

We note that in our earlier decision, we found that the agency had issued a vacancy announcement in December 1990, for a similar temporary GEMO position but that the announcement was cancelled on January 8, 1991, without a selection having been made. We held, relying, in part, upon Slake v. Department of the Treasury, 53 M.S.P.R. 207, 215 (1992), that such cancellation was not a personnel action for purposes of an IRA appeal. See Costin, 64 M.S.P.R. at 530. We believe, however, that while cancellation of a vacancy announcement is not a personnel action, and while the Board may not order corrective action with respect to it, such cancellation may be considered as part of the circumstances surrounding [*20] the appellant's nonreferral and nonselection under the 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 of eligibles. See IAF, Tab 21, Ex. 9. As explained at the hearing, the Deputy Director of the Engineering Services Office, Marlene Smith, returned the certificate without making a selection. After this, the agency issued the February 1991 vacancy announcement, reannouncing the position, and specifically taking into account the knowledge, skills, and abilities factors listed in OPM Qualifications Standards Handbook, X-118C. See Hearing Tape (H.T.) Three, Side A, Testimony of China Christian, Administrative Officer, Engineering Services Office; H.T. Three, Side B, Testimony of Debra Dorsey, Personnel Management Specialist. See Vacancy Announcement No. TDA-91-7, IAF, Tab 21, Ex. 10. The appellant and five other candidates for this position, of the fourteen individuals who applied, were rated "not qualified" by the "subject matter expert" from the Engineering Services Office, Mr. Stephen White, a Supervisory General Engineer. [*21] See id., Ex. 11. Mr. White, after a request from Personnel officials for a subject matter expert, was designated by his supervisor to serve as the rating official for applicants for this position. As noted above, the appellant was not among those five individuals listed on the certificate of eligibles referred to the selecting official, and, thus, could 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 school 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, she noted that Raymond Fanning, a Boiler Operator at the agency's Lawrenceville facility, testified at the hearing that the appellant had worked with him at night to gain experience.

In finding that the appellant's disclosures were a contributing factor to his 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; and further, that although Mr. White testified that he was unaware of the appellant's training in boiler operations, and both Mr. White and Debra Dorsey 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 that the agency's failure to consider the relevant statements in the application, in addition to the unrefuted testimony that George Steube, the Director of the Engineering Services Office, was upset with the appellant, and the closeness in time of the nonselection to the disclosures, constituted strong circumstantial evidence that the appellant's whistleblowing activity was a contributing factor to his nonselection for the GEMO position. Finally, she found that, inasmuch as the record is devoid of evidence concerning the experience and qualifications of the three selectees, the agency had not shown by clear and convincing evidence that it would have taken the same action (presumably nonselecting [*23] the appellant) absent the appellant's whistleblowing activity. See I.D. 7-8. 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 were a contributing factor to his nonreferral. In addition, we agree that the agency has not shown by clear and convincing evidence that it would not have referred 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 that the official taking the action knew of the disclosures and that the personnel action occurred within a period of time so that a reasonable person could conclude that the disclosures were a contributing factor to the personnel action. See Powers v. Department of the Navy, 69 M.S.P.R. at 155 (citing Horton v. Department of the Navy, Nos. 94-3332, 94-3355, slip op. at 7 (Fed. Cir. Sept. 12, 1995)); 5 U.S.C. @ 1221(e) (1). Here, the agency [*24] does not challenge the administrative judge's finding that Mr. White had such constructive knowledge of the appellant's protected activity and such a finding is in accord with Board precedent. See Lewis v. Department of the Army, 63 M.S.P.R. 119 (1994), aff'd, 48 F.3d 1238 (Fed. Cir.) (Table), cert. denied, 116 S. Ct. 110 (1995); Mausser 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 finding that a reasonable person could conclude that the appellant's protected disclosure was 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 summer of 1990, the agency announced the first GEMO vacancy in December 1990; the appellant applied and was rated as qualified. The agency then cancelled the vacancy. The selecting official did not testify at the hearing n4 and the Administrative Officer, China Christian, testified that the vacancy was cancelled after deciding that none of [*25] the applicants was qualified for the position. This occurred after the appellant had already been rated as qualified. The appellant, as noted above, was rated as unqualified when the next vacancy announcement was issued in February 1991. [*26] Further, as the administrative judge found, Mr. Steube informed the appellant that a boiler operator license was needed for the GEMO position; thereafter, the appellant went to night school and obtained a class IV license, and also attempted to gain as much on-the-job training as he could. Mr. White, however, testified that he considered the license to be a "learner's permit" and opined that a class I license was needed." See H.T. Three, Side B. Neither vacancy announcement, however, specifies a boiler operator's license as a requirement of the GEMO position, and there is no position description for the GEMO in the record. The agency's contradictory remarks to the appellant about whether a license was required, coupled with the lack of any documentary evidence showing that a license was required, could create the appearance in the mind of a reasonable person that the agency was attempting to discourage the appellant by 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 motive is not dispositive. See Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993).

Further, the agency has not established by clear and convincing evidence that 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 of the Navy, 69 M.S.P.R. at 157-58. In this regard, we note that Mr. White testified 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 that he rated the appellant not qualified for the GEMO position at the WG-10 level because that was a journeyman level position and even if the appellant possessed certification as a Boiler Operator and was licensed to operate a boiler, he had, in his view, insufficient experience to encumber a journeyman job. See H.T. Three, Side A. Mr. White further explained that boiler operations are hazardous because of the enormous steam pressure in the boiler plant and that experience with such hazardous equipment is essential at the WG-10 level, although he did not testify that a license was needed for this particular position, [*28] and indeed, the record is unclear in this regard. See H.T. Three, Side A. Thus, Mr. White seems to have placed some emphasis on his belief that the 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, is qualification requirement No. 3 in the February 21, 1991, vacancy announcement. This requires "ability to instruct, supervise and train non-journeyman mechanics and operators," See IAF, Tab 21, Ex. 10. By its terms, however, the announcement provides that this job element is desirable but not mandatory.

Based upon our review of the record as a whole, the agency's evidence does not rise to the level of clear and convincing evidence. The agency failed to submit any evidence as to the qualifications of the selectees for the GEMO position. Absent comparison evidence that would permit the Board to determine whether the agency evaluated the appellant's qualifications differently from those of the nonwhistleblowers who were selected for the position, the agency's evidence is not strong enough to meet the clear and [*29] convincing test. n5

Accordingly, we find that the appellant was retaliated against because of his whistleblowing. n6 We order as corrective action that he be prospectively promoted to the WG-10, GEMO position. n7 [*30]

ORDER

This is the final order of the Merit Systems Protection Board in this appeal as to the issues addressed.

We ORDER the agency to prospectively promote the appellant to the WG-10, GEMO position. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must accomplish this action within 20 days of the date of this decision.

In another case, the Board has pending before it the issue of whether back pay is awardable under circumstances alike in all material respects to those of this case. Accordingly, we reserve that issue for further consideration, and we will issue a separate Opinion and Order in this appeal pursuant to our decision in that other case. The separate Opinion and Order will have no effect on this order for corrective action. See Forrest v. Department of Agriculture, 70 M.S.P.R. 539, 543-44 (1996) (reserving a matter for decision and the issuance of a separate Opinion and Order).

We ORDER the appellant to cooperate in good faith in the agency's efforts to prospectively promote him, and to provide all necessary information the agency requests to help it comply.

We further ORDER the agency to inform the appellant in writing [*31] of 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 should ask the agency about its efforts to comply.

Within 30 days of the agency's notification of compliance, the appellant may file a petition for enforcement with the regional office to resolve any disputed compliance issue or issues unrelated to back pay. The petition should contain specific reasons why the appellant believes that there is insufficient compliance, and should include the dates and results of any communications with 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 you meet these criteria, you must file a motion for attorney fees WITHIN 35 CALENDAR DAYS OF THE DATE OF THIS DECISION. Your attorney fee motion must be filed with the regional office or field office that issued the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING FURTHER REVIEW RIGHTS [*32]

You have the right to request the United States Court of Appeals for the 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 request to 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 days after receipt of this order by your representative, if you have one, or receipt by you personally, whichever receipt occurs first. See 5 U.S.C. @ 7703(b)(1).