MSPB Decision on 10/05/00 in Carson's favor
Last Updated 05/22/01
Gus Goldberger. Esquire, Washington, D.C., for the agency
On March 2, 2000, the appellant filed a petition for enforcement with the Board seeking to enforce the Board's final order in Carson v. Department of Energy, MSPB Docket Nos. SL-1221-94-0179-B-1, AT-1221-98-0250-W-1, AT-1221-96-0948-W-3, AT-1221-98-0623-W-1, SL 1221-94-0179-C-2, AT-1221-96-0948-C-1, AT-1221-98-0250-C-1 and AT-1221-98-0623-C-1 (Feb. 3, 2000). In that decision, the Board dismissed both the agency's and appellant's petitions for review of the initial decision that found that the agency retaliated against the appellant based on his whistleblowing in a December 19, 1997 letter of admonishment, a reassignment and the removal of critical duties from his job assignments (surveillances) in mid-1997. See Carson v. Department of Energy, MSPB Docket Nos. AT-1221-96-0948-W-3, AT-1221-98-0250-W-1 and AT-1221-98-0623-W-1 (Initial Decision, Apr. 29, 1999)(1).
The agency has moved to dismiss the petition for enforcement as untimely filed. 5 C.F.R. 1201.182(a) provides that a party may petition the Board to enforce a final decision, provided that, inter alia, such petition is filed "promptly." See 5 C.F.R. 1201.182(a). "Promptly" is defined as within 30 days of service of the agency's notice that it has complied with the Board's's final decision. See id.; Bingaman v. Department of Treasury, 127 F.3d 1431, 1439 (Fed.Cir.1997). The Board's Final Order was dated February 3, 2000, and the petition for enforcement was filed on March 2, 2000. Therefore, the petition for enforcement was timely filed.
What the agency really appears to be complaining about with respect to timeliness is that the appellant filed "additional allegations of noncompliance" with two large binders of documents attached on August 29, 2000. The appellant's "additional allegations" and supporting documents were filed, however, in response to the Board's Order dated August 23, 2000, instructing the appellant to identify his llew allegations of noncompliance, if any. Thus, the appellant's response was timely filed.(2)
The Board has the authority to enforce its final order. 5 U.S.C.1204(a)(2). The agency must prove that it is in compliance with the decision. See Zuniga v. U.S. Postal Service, 56 M.S.P.R. 572, 575 (1993).
5 U.S.C. 1221(g)(l)(A) provides that if the Board orders corrective action under in an individual right of action (IRA) appeal, as it did in this case, such corrective action may include "(i) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred." The Board ordered precisely this. Having found that the agency had directed the appellants reassignment to Germantown, Maryland, in retaliation for his whistleblowing activity, the Board ordered:
Carson v. Department of Energy, MSPB Docket No. AT- 1221-96-0948-W-3 (Feb. 3, 2000).
The agency now states, however, that it cannot comply with that Order because, due to "legitimate management reasons," it abolished the appellant's function in Oak Ridge, Tennessee.(3) Because the appellant's position was abolished, the agency again directed his reassignment to Germantown, Maryland.(4)
The appellant contends that, assuming that the agency had legitimate motives in abolishing his position, the agency should have given the appellant another position at the same grade and pay and with similar duties, in Oak Ridge, Tennessee, rather than giving him another management directed reassignment to Germantown, Maryland, the very management action which, in addition to others, the Board found to have been in retaliation for whistleblowing activity. I agree with the appellant.
There is a paucity of cases dealing with an agency's inability to precisely comply with a Board order for corrective action in whistleblowing cases, but a review of Board case law relating to an agency's inability to comply with a Board order that an employee be restored to the status quo ante is instructive.
In deciding whether an agency has complied with a status quo ante order, the Board must determine whether an agency has placed the employee as nearly as possible to his previous situation, including his former facility, within the terms of the Board's order. See, e.g., Stabile v. Defense Commissary Agency, 76 M.S.P.R. 658, 663 (1997); Holtgrew v Federal Deposit Insurance Corporation, 57 M.S.P.R. 307, 311-13 (1993); see generally Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed.Cir.1984).
If the agency reassigned an appellant and cannot demonstrate reinstatement to the status quo ante, the reassignment may still be found permissible if the agency can show that overriding circumstances precluded reinstatement according to the terms of the final Board order. See Stabile, 76 M.S.P.R. at 663.
In response to the petition for enforcement, the agency has presented evidence to show that the Office of Environment, Safety and Health (EH) Site Resident program -- the office where the appellant had been employed prior to the agency's retaliatory actions against him -- was abolished. The abolishment was nationwide, involving 17 Site Resident personnel at seven field offices in seven states. The agency's response reflects that the agency initiated action to abolish the EH Site Resident program on or about July 6, 1999, approximately two months after the Initial Decision finding that the agency had retaliated against the appellant.
Assuming without deciding that the agency's decision to abolish the EH Site Resident program nationwide was not taken for reasons personal to the appellant(5), such a decision would constitute an "overriding circumstance," which might justify not putting the appellant back into the same position he held prior to the agency's unlawful retaliation. See, e.g., Galliart v. Department of the Treasury, 84 M.S.P.R. 15, 19-21 (1999), aff'd, No. 00-3063 (Fed. Cir. Apr. 6, 2000) (an appellant can be given a management directed reassignment when overriding circumstances preclude reinstatement in the same commuting area).
The fact that the agency's decision to abolish its EH Site Resident program might have been bona fide does not end the inquiry, however, since it might have been possible for the agency to have assigned the appellant to a position of like grade, pay, and duties within the Oak Ridge, Tennessee, commuting area. As stated previously, as the victim of retaliation for whistleblowing activity, the appellant is entitled to corrective action which places him as nearly as possible to the position he would have been in had the prohibited personnel practice not occurred. This is particularly true in this case since allowing the agency to reassign the appellant to Germantown, Maryland, would permit the agency to accomplish the very retaliatory action they sought to take against him in the first place, frustrating Congress' intent in enacting the Whistleblower Protection Act.(6)
On August 14, 2000, I ordered the agency to explain the management reasons for the difference in treatment which the appellant received from other affected employees. The agency argues that the appellant was treated no differently than other employees. However, the agency's own evidence submitted in its response to the petition for enforcement belies that assertion. The agency provided a chart of all employees affected by the decision to abolish the EH Site Resident program. Compliance file, Tab 13, Subtab F. The chart shows that nine of the 17 employees affected were provided jobs within their commuting area. The agency does not explain why it was able to provide jobs within the commuting area for more than half of the affected employees, but was not able to do so for the appellant.
Although the agency has the burden of proving compliance with the Board's's final order, the agency has failed to prove that there were no positions within the Oak Ridge, Tennessee, commuting area at the appellant's grade level. Indeed, the agency failed to even prove that it had made a good faith effort to place the appellant within the commuting area. The appellant, on the other hand, presented a letter from G. Leah Dever, Manager of the Oak Ridge Operation's Office, which acknowledges that there were, in fact, GS-14 positions at Oak Ridge to which the appellant might have been assigned.(7)
The agency also argues that it would have permitted the appellant to "telecommute" with Germantown, Maryland, from his Knoxville, Tennessee, home. I do not consider such an arrangement to be as near as possible to working for the agency at its Oak Ridge, Tennessee, facility. A telecommuter who never has face to face interaction with supervisors or coworkers is, in my view, severely handicapped in accomplishing assigned tasks. The agency has not show, moreover, that the appellant's job in Gelmantown, Maryland, would meet the conditions for successful telecommuting. See Conditions for Successful Telecommuting Arrangements, <http://www.opm.gov/wrkfam/telecomm/success.htm>.
Because the agency has failed to prove that it could not have placed the appellant in a position at his grade level within the Oak Ridge, Tennessee, commuting area. I find that the agency is not in compliance with the Board's Final Order. Since more than half of the similarly situated employees were placed within their commuting area, and the record reflects that there were vacant GS-14 positions to which the appellant might have been assigned, I find that directing the appellant's reassignment to Germantown, Maryland, is not placing him "as nearly as possible" in the position he would have been in but for the unlawful retaliation. Accordingly, the petition for enforcement is GRANTED.
I recommend that the Board enforce its Final Decision if the agency does not immediately take the following action to bring itself into compliance with the Board's Final Decision:
The agency must 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 Resident program was abolished. The agency must assign the appellant to the position so identified which most closely complies with the Board's February 3, 2000 Final Order. The agency must take this action even if the position which most closely complies with the Board's Final Order is currently filled by another employee.
Richard W. Vitaris
If the agency decides to take the actions required by the recommendation, it must submit to the Clerk of the Board, within 15 days after the issuance of the recommendation, evidence that it has taken those Actions.
If the agency decides not to take any of the actions required by the recommendation, it must file a brief supporting its nonconcurrence in the recommendation. The brief must be filed with the Clerk of the Board within 30 days after the recommendation is issued and must identify by name, title, and grade the agency official responsible for the failure to take the actions required by the recommendation for compliance.
If the agency decides to take one or more, but not all, actions required by the recommendation, it must submit both evidence of the actions it has taken and, with respect to the actions that it has not taken, a brief supporting its disagreement with the recommendation. The evidence and brief must be filed with the Clerk of the Board within 30 days after issuance of the recommendation and identify by name, title, and grade the agency official responsible for the failure to take the actions required by the recommendation for compliance.
The appellant may respond to any submission for the agency described above, by filing a brief with the Clerk of the Board within 20 days of the date of service of the agency's submission. The appellant's brief may contain a request that the Board review any finding of the agency's compliance.
The address of the Clerk of the Board is:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.,
Washington, DC 20419
Any submission to the Board that lacks a statement that the submission has either been mailed or hand-delivered to the opposing party will be rejected and returned.
1. The appellant has requested a hearing and that he should be permitted discovery. The Board's regulations do not provide that a party submitting a petition for enforcement has a right to a hearing. Vaughan v. U.S. Postal Service, 77 M.S.P.R. 541, 549 (1998). I am satisfied that the record is sufficiently developed to adjudicate the appellant's petition for enforcement at this level. The agency was ordered to present evidence and argument to show that it complied with the Board's Final Order. That evidence is fully susceptible to evaluation without a hearing and/or discovery.
2. Although styled "Additional Allegations of Noncompliance," the appellant did not raise any new allegations at all. Rather, he reiterated his allegation -- which I have found meritorious -- that directing his reassignment from Oak Ridge, Tennessee, to Germantown, Maryland, did not comply with the Board's Final Order. What was new, was the two binders worth of documentary evidence the appellant offered to support his petition for enforcement. The appellant was fully within his rights to submit evidence to support his claim since, as stated previously, there is no right to a hearing in a petition for enforcement See note 1, supra. On September 21, 2000, the appellant filed a motion to supplement the record, in which he attempted to raise a new allegation of noncompliance. The appellant's motion to supplement the record and add yet another allegation of noncompliance is DENIED. The purpose behind my August 23, 2000 Order directing the appellant to identify all of his additional allegations of noncompliance, if any, was precisely to avoid this type of piecemeal litigation.
3. The agency requested an extension of time to file its response on the petition for enforcement because the parties were attempting to reach a global settlement agreement regarding this petition for enforcement and other matters pending before the Board and the Office of Special Counsel. I informed the parties that the motion would be granted by e-mail, stating that it would be formally granted later. The agency's motion for an extension of time is GRANTED. The agency's response was received and considered.
4. I am not convinced that the abolishment of the appellant's function is even relevant to the compliance issue because the Board's Final Order did not order that the appellant be restored to the status quo ante; rather, it ordered that he be given the full range of duties and work assignments consistent with his position description and past assignments. The agency could and, in my view, should have satisfied this obligation by placing the appellant in a different position within the Oak Ridge, Tennessee, commuting area, such as one of the vacant positions within the Operations Office. See note 6, infra, and accompanying text. Assuming, however, that the Board's Final Order was tantamount to a status quo ante remedy, I find that the agency has failed to restore the appellant as nearly as possible to the status quo ante.
5. The record reflects that the appellant has filed a separate complaint with the Office of Special Counsel (OSC) alleging that the agency's decision to abolish the EH Site Resident Function and again direct his reassignment to Germantown, Tennessee, was in retaliation for his whistleblowing activity. Compliance File, Tab 13, Subtab B. I am not addressing the issue of the agency's motivation in abolishing the appellant's function and directing his reassignment. That question must await the OSC's investigation and/or subsequent litigation. Rather, I am confining my analysis to the issue of whether the agency has complied with the Board's's Final Order.
6. The legislative history of the Whistleblower Protection Act indicates that the intent of Congress was to provide a broad bulwark to protect federal employees from any reprisal following disclosures of waste, fraud, abuse or threats to public health and safety through good faith whistleblowing. The legislative history also establishes that Congress was aware that whistleblowers faced a variety of retaliatory actions and sought to protect them from any retaliation. 135 Cong.Rec. S2779, 80 (daily ed. March 16, 1989) (statements by Sen. Levin).
7. Ms. Dever states she would not consider placing the appellant into such a position because it "is fundamentally unfair to the [other] employees who expect to have the opportunity to compete for any such position." Compliance File, Tab 5, Subtab 28. Apparently, no consideration was given to the unfairness to the appellant to geographically reassign him.
Questions or comments? Contact Joseph P. Carson, P.E.