Work on Supervisor’s House With No Promotion

A carpenter with the Army said he was promised by his supervisor that if he would help him with personal home improvement projects, he would promote the carpenter. When he was not promoted, the carpenter filed a complaint under the Whistleblower Protection Act but he loses before the MSPB and a federal court.

In a tough break for an appellant who believed he was a whistleblower, an Army employee failed to persuade the appeals court to overturn the Board decision on his retaliation appeal. (Young v. Department of the Army, C.A.F.C. No. 06-3107 (non precedent), 9/11/06) The facts are as described by the court in its opinion.

Young was a carpenter with the Army. After an injury, he was reassigned to a safety technician position. He claims that his supervisor asked him to do various personal home improvement projects and chores and in return he promised he would promote Young to a higher grade. However, the supervisor testified that while Young had helped him with a few personal chores, but he did so voluntarily with no promise of promotion.

No promotion was forthcoming so Young alerted his upper level supervisors and the agency Inspector General office about the alleged promise of promotion in return for personal services by Young. He apparently also wrote his Senator complaining of his non-promotion and this led to an audit. The audit resulted in Young’s promotion. Young retired some 8 months later. (pp. 1-2)

Young eventually went to the Merit Systems Protection Board with an individual right of action appeal under the Whistleblower Protection Act. He argued that the agency should have promoted him about nine years earlier than it did, but had failed to do so in retaliation for his allegations about his supervisor. (p. 2) Obviously, if he was successful, he would be able to increase his “high-three” and therefore his retirement annuity amount would be adjusted upward.

The Board concluded that it had jurisdiction because Young had made non-frivolous allegations of protected whistleblowing. However, it declined to grant relief because Young could not meet his burden of proof. He did not convince the Board that the WPA protected his disclosures. Further, any protected disclosure that might have occurred was not proved to be a contributing factor in the agency’s failure to promote Young. (p. 3)

The court agreed with the Board that no protected disclosure occurred in this case: “…the Board resolved conflicting testimony from Young and Spencer based on their respective credibility and found that no promise of promotion in exchange for personal services occurred. Young thus had no reasonable basis for believing that such a promise had been made.” No protected disclosure, no relief required. (p. 3)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.