noting that “[retroactive] promotion . . . [is] inap- propriate if the employee would have been only one of several qualified candidates for the promotion, but the factual record did not clearly establish that the employee would have been selected for promotion”
How later courts described this case
- noting that “[retroactive] promotion . . . [is] inap- propriate if the employee would have been only one of several qualified candidates for the promotion, but the factual record did not clearly establish that the employee would have been selected for promotion”
- discussing the FBPA’s “requirement that a wrongfully discharged employee make reasonable efforts to mitigate damages”
- noting that "[t]his formula appears to be fair and apt"
- At best, to assume he would have been promoted is speculative.
Written by the judges who cited it.
The opinion
BISSELL, Circuit Judge,
dissenting-in-part.
I respectfully dissent from Part B of the opinion. I would reverse the Board and apply the generalized overtime calculation approved by this court in Spezzaferro v. FAA, 807 F.2d 169, 171, 173-74 (Fed Cir.1986). It is only proper that the formula for calculating back pay for FAA employees during the same time frame be consistently applied and not subject to the whim of the agency depending on which calculation will produce the least cost to the agency.