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Veneziano v. Dept. of Energy

September 01, 1999


Before Rich, Circuit Judge, *fn1 * Friedman, Senior Circuit Judge, and Schall, Circuit Judge.

The opinion of the court was delivered by: Friedman, Senior Circuit Judge.

Appealed from: Merit Systems Protection Board

This appeal challenges the decision of the Merit Systems Protection Board (the Board) upholding the appellant Veneziano's separation pursuant to a reduction in force. She contends that her retention rights were improperly determined and that she was selected for separation in retaliation for protected conduct. We reject her contentions and affirm the Board's decision.


A. The Value Engineering Report.

Veneziano worked for the Department of Energy (the Department) as a GS-13 engineer in the state of Washington from 1991 until June 1995. On June 12, 1995, she was transferred to the Department's headquarters in Washington, D.C. and promoted to grade GS-14. In October, 1995, Veneziano was assigned to work on value engineering - defined as "[a]n organized effort directed at analyzing the functions of systems, equipment, facilities, services, and supplies for the purpose of achieving the essential functions at the lowest life-cycle cost consistent with required performance, reliability, quality, and safety."

Before Veneziano arrived in Washington, the Office of Management and Budget (OMB) had issued Circular A-131, which required federal agencies "to use value engineering . . . as a management tool, where appropriate, to reduce program and acquisition costs" and to "report the Fiscal Year results of using [value engineering] annually to OMB." The Department, however, was implementing its own "Life Cycle Asset Management" Order, a plan which incorporated value engineering. In August 1995, Antonio Tavares, the director of the Department's Office of Infrastructure Acquisition Services, wrote OMB and, in light of the Department's use of value engineering in the Order, "recommend[ed] that OMB abandon [the Department's Circular A-131] reporting requirements, in the spirit of eliminating activities with no added value to the principle objective." The Department did not file a 1995 value engineering report with OMB.

In March of 1996, Department officials including Veneziano and Tavares - who became Veneziano's supervisor in December 1995 - met with OMB officials to discuss compliance with Circular A-131. According to Veneziano, she sent a memorandum to Tavares before the meeting stating that to "any outside observers . . . , [the Order] will not be considered sufficient to implement [value engineering] as described in the various laws, acts, standards, etc." OMB disagreed with Tavares's interpretation of the Circular and, as a result of the meeting, the Department agreed to file the required fiscal report for 1995. Tavares assigned the preparation of the report to Veneziano.

The OMB Circular also required "[a]gency heads [to] ask the Inspectors General to audit agency value engineering programs to (1) validate the accuracy of the agency reported value engineering savings and (2) assess the adequacy of agency value engineering policies." In June 1996, the Department's Inspector General requested the Department's 1995 value engineering report, on which Veneziano was still working.

In response to the request, Tavares told Veneziano to submit to the Inspector General the data she had gathered for her report. Veneziano, however, refused to do so. In a later memorandum to Tavares in July, 1996, she explained that she so acted because "some of the preliminary data turned out to be flawed" and "[t]his concern was part of [her] strong feelings of discomfort of just faxing to the [Inspector General] what data [she] had so far"; she blamed the inaccurate data on the field offices that submitted it, asserting that many field offices "fabricated" data, "reported cost savings that had no relationship whatsoever to anything resembling" value engineering, or "didn't bother to report their cost savings at all." Without the report or the data, the Inspector General concluded that "[s]ince the Department of Energy has not prepared their fiscal year 1995 value engineering savings report, we were not able to assess the validity of savings reported or the implementation of OMB Circular A-131." Veneziano eventually finished the report and Tavares submitted it to OMB in early July.

A. Veneziano's Performance Rating.

In February 1996, Veneziano received her 1995 performance "Annual rating of record." She was rated "fully successful," which was the third highest of five possible ratings. During the three prior years she had worked in the state of Washington, she had been rated "highly successful," the second highest rating. Her 1995 rating was given by Richard Earl, who had been her supervisor from June 12, 1995 until September 3, when he was reassigned.

Veneziano was given a form showing her "fully successful" rating. She signed the form, indicating that she had "reviewed this performance rating" and that it had "been discussed with" her. Although she could have attached comments, she ...

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