1. Which party has the burden of proof in this case? Which level of proof will be used? At the Coral Gables VA Medical Center, the position for Gardener Leader PD#086550, WL-5003-08, Engineering & Construction Dept. FAC was posted with an opening date of June 12, 2006, and closing date of June 30, 2006. Mr. Mike Box, lead gardener at the U.S. Air Command in Miami, Florida, and Mr. James Mitchell, tractor operator at the Coral Gables VA Medical Center, were selected to be interviewed by a three-person panel.

The panel ranked Mr. Box No. 1. Mr. Box was offered the position, and he accepted.

On September 15, 2006, Mr. Mitchell filed the following Grievance:

Employee’s statement of grievance:

I am aggrieved due to violation of the following article of the Master Agreement:

Article 22—Merit Promotion Disposition of Case:

The resolution I am seeking includes:

Upgrade to WL-8 salary or salary equivalent to the WL-8 in the WG pay scale.

In a letter dated October 6, 2006, Mr. Pat Moore, director, Facility Management Services, provided the Agency’s response which was:

1. On September 19, 2006, I met with you and your Union Representative, Tom Ryan, to discuss the grievance regarding

‘‘violation of the following article of the Master Agreement: Article 22’’ you filed on September 15, 2006. This meeting was held in order to hear your grievance and give you an opportunity to present any information that would be relevant.

2. The HR Department has reviewed the recruitment action carefully in conjunction with pertinent VA staffing policies and procedures and Article 22 of the Master Agreement. They have determined that a procedural error was made when Mr. Box was referred for the gardener leader position.

Mr. Box was a transfer candidate to a higher graded position. As such, he should have been in the third area of consideration for promotion candidates but had been referred along with the promotion candidates from the first area of consideration.