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This case arises from a complaint for disciplinary action filed with the Merit Systems Protection Board (Board) pursuant to 5 U.S.C. � 1215 (1994) in April 1994 by the Office of Special Counsel (OSC). The complaint alleged that Benedict J. Ferro and F. Gerard Heinauer, then Director and Deputy Director, respectively, of the Rome, Italy District office of the U.S. Immigration and Naturalization Service (INS), took prohibited personnel actions against Elaine Aikens in violation of the Whistleblower Protection Act (WPA), 5 U.S.C. � 2302(b)(8) (1994). A hearing was held before the Board’s Chief Administrative Law Judge (CALJ) in November and December 1994. The CALJ found that Ms. Aikens had made several disclosures protected by the WPA, and that, as a result of those disclosures, Mr. Ferro and Mr. Heinauer had taken personnel actions prohibited by the WPA. Special Counsel v. Ferro, Nos. CB-1215-94-0027-T-1 & CB-1215-94-0028-T-1 (M.S.P.B. Dec. 2, 1997). The CALJ determined that the appropriate penalty for both Mr. Ferro and Mr. Heinauer was a one-grade demotion for a minimum of one year, and he ordered the INS to effect the demotions accordingly. The CALJ’s initial decision became the final decision of the Board on April 5, 1999 when the Board denied the petition for review. We affirm-in-part, reverse-in-part, and remand to the Board for reconsideration of the penalty in light of our decision.


In 1991, Ms. Aikens began a three-year tour of duty as the Administrative Officer in the Rome INS office. The CALJ found that, during her time in Rome, Ms. Aikens made three sets of disclosures that were protected under the WPA. First, in August 1991, Ms. Aikens met with INS officials in Washington, D.C. and reported what she believed were violations of federal regulations pertaining to the unauthorized use of government vehicles, improper use of overtime, and the use of contract employees at the INS office in Rome. Second, during a November 1992 EEO seminar at the U.S. Embassy in Rome, Ms. Aikens reported that she had been sexually harassed several years earlier. Finally, in December 1992, Ms. Aikens disclosed to Mr. Heinauer her concerns that Mr. Ferro was misusing his government vehicle because the vehicle had excessive mileage and Mr. Ferro had purchased apparently unnecessary snow chains.

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