April 2001
Last Updated 12/08/03
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(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.) |
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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
DATE: April 26, 2001 Joseph Carson, Knoxville, Tennessee, pro se. Gus Goldberger, Washington, D.C., for the
agency. BEFORE Beth S. Slavet, Chairman 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 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 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
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Questions or comments? Contact Joseph P. Carson, P.E.