April 2001


Last Updated 12/08/03
  (NOTE: This decision is a follow-up of the October 5, 2000 Recommendation of the MSPB. In that Recommendation, the Judge found that DOE was not in compliance with the Full MSPB's Order of February 3, 2000. He listed actions for DOE to take to comply with that Order. By MSPB regulations, DOE's options were to accept or contest all or some of the Judge's recommended actions. DOE informed MSPB that it accepted all the recommendations, which meant (in practical terms) that Joe Carson had prevailed, although, by MSPB regulations, the Judge's Recommendation had to be reviewed by the Full MSPB to become official.

Joe Carson disagreed with aspects of DOE's implementation of the Judge's recommendation, but they were fairly minor. The Full Board found that DOE had implemented the Judge's Recommendation and dismissed my petition for enforcement as moot. But that doesn't change the fact that DOE is now liable for the attorney fees of Carson's settlement attorney, Ron Zabel, for the period of February 3, 2000 to April 26, 2001, which total about $20,000.00.)


88 MSPR 260 (2001)

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH CARSON, Appellant

versus

DEPARTMENT OF ENERGY, Agency

 

DOCKET NUMBERS

AT-1221-96-0948-X- 1
AT-1221-98-0250-X-1
AT-1221-98-0623-X-1

 

DATE: April 26, 2001

Joseph Carson, Knoxville, Tennessee, pro se.

Gus Goldberger, Washington, D.C., for the agency.

BEFORE

Beth S. Slavet, Chairman
Barbara J. Sapin, Vice Chairman
Susanne T. Marshall, Member

OPINION AND ORDER

This case is before the Board on the appellant's petition for enforcement of the Board's final order in Carson v. Department of Energy, 85 M.S.P.R. 171 (2000). For the reasons set forth below, we find the agency in compliance.

BACKGROUND

The Board's final order directed the agency to cancel the letter of admonishment, cancel the directed reassignment from Oak Ridge, Tennessee to Germantown, Maryland, and return the appellant to the full range of duties and work assignments consistent with his position description and past assignments. 85 M.S.P.R. at 175. On March 2, 2000, the appellant filed a petition for enforcement of the Board's February 3, 2000 order. See Carson v. Department of Energy, MSPB Docket No. AT-1221-96-0250-C-2.(1) Compliance File 2 (CF2), Tab 1. The petition was dismissed without prejudice. CF2, Tab 6. Upon refiling, the appellant alleged that the agency was not in compliance because, after it abolished his former position by a reduction-in-force action, it again directed his reassignment to Germantown, Maryland. Carson v. Department of Energy, MSPB Docket No. AT-1221-98-0250-C-3,(2) Compliance File 3 (CF3), Tab 5 at 3.

The administrative judge rejected the agency's argument that it had treated the appellant no differently than the other employees whose positions with the agency's Office of Environment, Safety and Health (EH) Site Resident Program were abolished.(3) CF3, Tab 14, Recommendation at 7. The administrative judge noted that nine of the 17 employees affected by the abolishment of the EH Site Resident Program were provided jobs within their commuting area and that the agency even acknowledged that there were positions at Oak Ridge to which the appellant might have been reassigned. Id. Further, the administrative judge found unacceptable the agency's offer to allow the appellant to telecommute to Germantown, Maryland, from his home in Knoxville, Tennessee. Accordingly, the administrative judge concluded that the agency had not made a good faith effort to place the appellant in a position within his commuting area. Id. at 8. The administrative judge directed the agency to identify all GS-14 positions in the Oak Ridge, Tennessee, commuting area which are currently vacant or which were vacant and filled on or after the date that the EH Site Resident program was abolished. Id. The administrative judge also directed the agency to assign the appellant to the position that most closely complies with the Board's February 3, 2000 Final Order, notwithstanding that the position so identified is currently filled by another employee. Id. at 8-9.

The agency notified the Board that it would comply with the administrative judge's recommendation but requested a 15-day extension of time to allow for full implementation. Compliance Referral File (CRF) Tab 1. The agency attached a list of the positions in the Oak Ridge, Tennessee commuting area and stated that additional time was necessary to examine the positions to determine whether they were commensurate with the appellant's position description and past assignments. The Board granted the request.(4) CRF, Tab 2. The agency subsequently submitted evidence of its assignment of the appellant to the position of GS-14 Technical Facility Representative (FR) in the Oak Ridge Operations Office (ORO). CRF, Tab 6, Exs. 4, 6 and 8.

The appellant responded that the agency had not complied with the Board's order because the position to which he was assigned is a newly created position, not a vacant or existing position, and he must complete a training period. CRF, Tab 7. He also alleged that the agency improperly rejected his applications for GS-15 positions. The agency responded to the appellant's objections and the appellant moved to strike the agency's allegedly improper response. CRF, Tabs 8 and 9.

ANALYSIS

It is the agency's burden to establish compliance with a final Board order. Spates v. U.S. Postal Service, 70 M.S.P.R. 438, 441 (1996). The Board will excuse precise compliance with the terms of its order, if the agency can establish that overriding circumstances precluded compliance. See, e.g., Currier v. U.S. Postal Service, 72 M.S.P.R. 191, 199 (1996) (abolishment of a position is a compelling reason for not reinstating an appellant to his former position). The Board's order here directed the agency to place the appellant in a position with the full range of duties and work assignments consistent with his position description and past assignments. Carson, 85 M.S.P.R. at 175. While the order does not specifically require the appellant's placement in his former position, it does contemplate placement in a position with the same duties and assignments as those of his former position of EH Site Resident.(5) At the time of the order, however, the appellant had not been affected by the RIF. See CF3, Tab 13, Subtab T;. We find that the agency has demonstrated that overriding circumstances precluded it from placing the appellant in the same type of position that he had previously occupied because the entire EH Site Resident Program was abolished. Under these circumstances, we also find that the agency's assignment of the appellant to the position of GS-14 Technical Facility Representative in ORO constitutes compliance with the Board's order.

The appellant is a professional engineer specializing in occupational and nuclear safety. See Carson v. Department of Energy, MSPB Docket No. AT-1221-98-0623-W-1, Tab 1, Second Declaration of Joseph Carson at 4. The position description of his now abolished former position, safety engineer in the EH Site Resident Program in Oak Ridge, Tennessee, states that the purpose of the position was to serve as the EH oversight presence and authority in the technical areas of general engineering, conduct of operations, maintenance, construction safety, environmental protection, and quality assurance. CRF, Tab 6, Ex. 5.  One of the primary duties of that position was to conduct surveillance at Department of Energy's (DOE) nuclear and non-nuclear facilities and laboratories to evaluate DOE line management's implementation of safety programs. In addition, the incumbent was expected to generate reports to EH management concerning line management's performance in safety-related activities. Id.

The new position to which the appellant has been assigned, Technical Facility Representative (FR), is also located in Oak Ridge, Tennessee and is part of the Environmental Management Program of the Oak Ridge Operations Office. CRF, Tab 6, Ex. 4. One of the purposes of the new position is to serve as line management's on-site technical representative with responsibility for identifying and evaluating environmental, safety and health issues, diagnosing root causes and recommending short-term compensatory measures and ultimate solutions. Id. As was true of the appellant's former position, the appellant will be required to conduct evaluations of facilities and operations from the standpoint of public/worker health and safety, industrial and nuclear safety, and environmental protection. Id. at Subtab 6. The new position, however, may require more responsibility for high hazard facilities. Id. Thus, it appears that the range of duties and work assignments that the appellant can expect in his new position are similar, though not precisely the same, as his former responsibilities and assignments.

The appellant has argued, however, that the agency is not in compliance with the instructions in the Recommendation because it has created a new position for him rather than placing him in an existing or vacant position. In the appellant's view the position is in reality a GS-13 because it requires a qualification period. CRF, Tab 7. The appellant argues further that the Board should reverse the agency's rejection of his application for a GS-15 position in order to restore him to the status quo ante. Id.

Despite the appellant's claim that the agency has placed him in a position inconsistent with the Recommendation, he has not suggested that any of the positions listed as existing or vacant at the time of the abolishment of his former position would be more suitable. Additionally, to the extent that the appellant suggests that the agency created an unnecessary position to subvert the Board's compliance order, the agency's evidence shows the need for an additional FR on a decontamination project at the East Tennessee Technology Park.(6) CRF, Tab.6, Ex.4, Tab 8, Ex.3. Further, the requirement of additional training for the FR position does not, without more, require a finding that the appellant's assignment to this position is improper. Certainly if the assignment were to change the appellant's tenure sp that he would be viewed as a probationer, the assignment would not establish compliance with the Board's February 3, 2000 order. We do not, however, view the training period described by the agency here as equivalent to a probationary period. We expect the agency to make every effort to assist the appellant in completing the training and reject, as speculative, the appellant's assertion that the training program will provide the agency with a pretext for reprisal.(7) See LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (there is a presumption that public officials perform their duties in good faith).

The appellant's additional claim that the agency is in noncompliance because it rejected his applications for GS-15 positions is not appropriately before the Board in this compliance proceeding. The appellant himself stated that he filed an Individual Right of Action appeal with regard to three rejected applications for GS-15 positions.(8) Accordingly, we will not consider the matter here.

ORDER

For the reasons set forth herein, we find the agency in COMPLIANCE and DISMISS the petition for enforcement as moot. This is the final decision of the Merit Systems Protection Board in this enforcement proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(b)(3) (5 C.F.R. 1201.183(b)(3)).

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. 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 60 calendar days afer your receipt of this order. If you have a representative in this case and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. 7703). You may read this law as well as review other related material at our web site, http://www.mspb.gov

FOR THE BOARD:

Robert E. Taylor
Clerk of the Board

Washington, D.C.

ENDNOTES

1. This appeal was consolidated with two other appeals, Carson v. Department of Energy, MSPB Docket Nos. AT-1221-98-0623-C-2 and AT-1221-98-0948-C-2.

2. This appeal was consolidated with two other appeals, Carson v. Department of Energy, MSPB Docket Nos. AT-1221-98-0623-C-3 and AT-1221-98-0948-C-3 .

3. The appellant filed a separate complaint with the Office of Special Counsel alleging that the agency's decision to abolish the EH Site Resident Function and direct his reassignment to Germantown was in retaliation for his whistleblowing. CF3, Tab 13, Subtab B. The administrative judge expressly declined to address the agency's motivation in abolishing the appellant's function and directing his reassignment. Recommendation at 6 n.5.

4. The appellant objected to the agency's request for an extension of time. CRF, Tabs 4 and 5. It appears, however, that the appellant's objection to the request was not received prior to the Board's grant of the extension. Moreover, assuming that the Board had received the appellant's objection prior to granting the extension, we find that the objections lack merit. The appellant's suggestion that he would be prejudiced by an extension of` time because it would limit his 20-day time period in which to respond to the agency's submission on compliance is based on a misinterpretation of 5 C.F.R. 1201.183(a)(7). See CRF, Tab 4. In any event, the appellant's objection is moot because he has responded to all of the agency's submissions on compliance. While the appellant is correct that 5 C.F.R. 1201.183(a)(2) requires the agency to submit the name of the agency official charged with complying with the Board's order, the agency's failure to supply the name does not in and of itself require that the Board deny an extension of time request.

5. The administrative judge noted that the Board's final order of February 3, 2000 did not specifically order the appellant be returned to the status quo ante. CF3, Tab 14, Rec. at n.4. Nevertheless, he discussed the agency's obligation to comply with a status quo ante order or show that overriding circumstances precluded reinstatement according to the terms of Board's order.

6. The appellant requested that the Board reject the agency's response to his arguments of noncompliance on the basis that the Board did not specifically request the response and the regulations do not provide for such a response. CRF, Tab 9. The Board has held, however, that it is permissible for an agency to offer a supplemental explanation of its compliance efforts. McDonough v. U.S.. Postal Service, 60 M.S.P.R. 122, 125 (1993).

7. Given the cost of the training it is in the agency's interest to ensure that the appellant successfully completes it. CRF, Tab 8, Subtab 3. Additionally, the leader of the FR Group states that to his knowledge all of the individuals who have entered the FR training program have successfully completed it. Id. The appellant is well aware of his appeal rights in any event.

8. Carson v. Department of Energy, AT-1221-01-0025-W-1

 

 

Questions or comments? Contact Joseph P. Carson, P.E.