Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs ( 2016 )


Menu:
  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    SPECIAL COUNSEL                                 DOCKET NUMBER
    EX REL. DALE KLEIN,                             CB-1208-16-0023-U-5
    Petitioner,
    v.
    DATE: November 10, 2016
    DEPARTMENT OF VETERANS
    AFFAIRS,
    Agency.
    THIS STAY ORDER IS NONPRECEDENTIAL *
    Sheri S. Shilling, Esquire, Washington, D.C., for the petitioner.
    Loretta Poston, Esquire, Tampa, Florida, for the relator.
    G.M. Jeff Keys, Esquire, Saint Louis, Missouri, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    *
    A nonprecedential order is one that the Board has determined does not add
    significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative judges are not
    required to follow or distinguish them in any future decisions. In contrast, a
    precedential decision issued as an Opinion and Order has been identified by the Board
    as significantly contributing to the Board’s case law. See 
    5 C.F.R. § 1201.117
    (c).
    2
    ORDER ON STAY REQUEST
    ¶1         Pursuant to 
    5 U.S.C. § 1214
    (b)(1)(B), the Office of Special Counsel (OSC)
    requests a 60-day extension of the previously granted stay of the agency’s
    termination of Dr. Dale Klein’s appointment. For the reasons discussed below,
    we GRANT OSC’s request and extend the stay through January 12, 2017. We
    further GRANT OSC’s request that the Department of Veterans Affairs (DVA)
    temporarily reassign Dr. Klein to a pain management physician position in
    Columbia, Missouri, during the pendency of the stay, provided that he is granted
    the necessary clinical privileges.
    BACKGROUND
    ¶2         On May 26, 2016, OSC requested a stay of the termination of Dr. Klein’s
    appointment to complete its investigation and legal review of his prohibited
    personnel practices complaint and determine whether to seek corrective action.
    Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB
    Docket No. CB-1208-16-0023-U-1, Stay Request File (U-1 SRF), Tab 1. OSC
    also requested an order returning Dr. Klein to his position and duties as a pain
    management physician at the Poplar Bluff Medical Center during the period of
    the stay. 
    Id.
     The Board granted OSC’s request for a stay through July 15, 2016,
    but denied OSC’s request to order DVA to return Dr. Klein to his duties and
    responsibilities as a physician. U-1 SRF, Tab 3.
    ¶3         On June 9, 2016, OSC filed a motion to modify the order granting the initial
    stay request by ordering that Dr. Klein be returned to his position as a pain
    management physician.      Special Counsel ex rel. Dale Klein v. Department of
    Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-2, Stay Request File
    (U-2 SRF), Tab 1. In the alternative, OSC requested that the Board order DVA to
    assign Dr. Klein to “mutually agreed upon duties that are ordinarily performed by
    physicians at the Poplar Bluff [Medical Center].”           
    Id. at 11-12
    .      On
    June 11, 2016, DVA filed a response to OSC’s motion stating that the
    3
    Poplar Bluff Medical Center’s pain management clinic had closed and explaining
    the difficulties in reopening the clinic during the 45-day period of the stay. U-2
    SRF, Tab 2.      On June 20, 2016, the Board denied OSC’s motion for a
    modification of the initial stay order. U-2 SRF, Tab 3.
    ¶4        On June 30, 2016, OSC filed a request to extend the stay for an additional
    60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs,
    MSPB Docket No. CB-1208-16-0023-U-3, Stay Request File (U-3 SRF), Tab 1.
    OSC also renewed its request that the Board order Dr. Klein to be returned to his
    position of record. 
    Id.
     Alternatively, OSC requested an order placing Dr. Klein
    in a “substantially similar physician position” or another physician position for
    which he is qualified.    
    Id. at 2, 6-8
    .    In response, DVA asserted that the
    Popular Bluff Medical Center did not have a present need for a physician with Dr.
    Klein’s skills and privileges. U-3 SRF, Tab 2 at 4. In particular, DVA reiterated
    that the pain management clinic had closed and there was no need for an
    anesthesiologist at the Poplar Bluff Medical Center, which is not a full-service
    hospital and does not perform invasive surgical procedures. 
    Id.
    ¶5        The Board granted OSC’s request for a stay through September 13, 2016,
    but denied its request to order Dr. Klein’s return to his position as a pain
    management physician to the extent the position no longer exists.       U-3 SRF,
    Tab 3. The Board, however, ordered DVA to provide a detailed accounting of its
    search for vacant positions and modified assignments with physician duties
    within the local commuting area to which it could temporarily reassign Dr. Klein.
    
    Id. at 7-8
    . In response, the agency identified three vacancies at the Poplar Bluff
    Medical Center, two primary care physician positions and one urgent care
    physician position. U-3 SRF, Tab 6 at 3. DVA argued that, while Dr. Klein met
    the minimum requirements to be considered for appointment to these positions, he
    did not have the clinical or diagnostic skills and experience necessary for them
    because he specializes in pain management and anesthesiology. 
    Id. at 3, 8
    .
    4
    ¶6         On August 26, 2016, OSC filed a request to extend the stay for an
    additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans
    Affairs, MSPB Docket No. CB-1208-16-0023-U-4, Stay Request File (U-4 SRF),
    Tab 1.    OSC requested that the Board order DVA to temporarily reassign
    Dr. Klein to an available pain management physician position in either Columbia
    or Kansas City, Missouri, because DVA had indicated that there were no vacant
    positions within Dr. Klein’s specialties in the local commuting area. U-4 SRF,
    Tab 1 at 7-8. DVA responded that Dr. Klein would need to obtain appropriate
    credentials from these facilities prior to performing any clinical duties, and there
    was no guarantee he would be granted such credentials because the decision
    whether to grant credentials is made by officials at the local medical center.
    U-4 SRF, Tab 2 at 3-5. DVA further asserted that the fact that one facility has
    granted particular clinical privileges to an individual physician did not guarantee
    that another facility would grant the same privileges, and noted that the overall
    scope of the clinical services provided by these medical centers was broader than
    the scope of services provided at the Poplar Bluff Medical Center. 
    Id.
    ¶7         The Board granted OSC’s request for a stay through November 10, 2016,
    but denied its request for an order reassigning Dr. Klein to a pain management
    physician position in Columbia or Kansas City, Missouri, to the extent that
    Dr. Klein did not have clinical privileges at those medical centers and agency
    officials at the Poplar Bluff Medical Center did not have the authority to grant
    Dr. Klein the clinical privileges required for him to perform medical procedures
    within his specialties at those locations. U-4 SRF, Tab 4. The Board, however,
    ordered DVA to continue to search for and assign Dr. Klein to any appropriate
    physician position within his skills and experience should such a position become
    available within the local commuting area during the pendency of the stay. 
    Id.
    ¶8         On October 26, 2016, OSC filed a timely request to extend the stay for an
    additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans
    5
    Affairs, MSPB Docket No. CB-1208-16-0023-U-5, Stay Request File (U-5 SRF),
    Tab 1. The agency has filed a timely response. U-5 SRF, Tab 2.
    ANALYSIS
    ¶9         A stay granted pursuant to 
    5 U.S.C. § 1214
    (b)(1) is issued to maintain the
    status quo ante while OSC and the agency involved resolve the disputed matter.
    Special Counsel v. Department of Transportation, 
    74 M.S.P.R. 155
    , 157 (1997).
    The purpose of the stay is to minimize the consequences of an alleged prohibited
    personnel practice. 
    Id.
     In evaluating a request for an extension of a stay, the
    Board will review the record in the light most favorable to OSC and will grant a
    stay extension request if OSC’s prohibited personnel practice claim is not clearly
    unreasonable. 
    Id. at 158
    . The Board may grant the extension for any period that
    it considers appropriate.   
    5 U.S.C. § 1214
    (b)(1)(B); Special Counsel ex rel.
    Waddell v. Department of Justice, 
    105 M.S.P.R. 208
    , ¶ 3 (2007).
    ¶10        In this third request for extension, OSC asserts that the electronically stored
    information it requested from DVA is still outstanding, but DVA had indicated
    that it expected to mail such information on October 26, 2016. U-5 SRF, Tab 1
    at 3. OSC further asserts that, once it receives the electronic discovery, it will
    need time to review it, issue any additional requests for information, and
    complete witness interviews. 
    Id.
     DVA concedes that OSC’s investigation is not
    yet complete. U-5 SRF, Tab 2 at 2. Under the specific circumstances of this case
    and in light of the fact that the evidentiary record supporting OSC’s initial stay
    request has not materially changed since the Board granted the initial stay, we
    find it appropriate to extend the stay until January 12, 2017. See Special Counsel
    ex rel. Waddell v. Department of Justice, 
    103 M.S.P.R. 372
    , ¶ 5 (2006).
    ¶11        In addition to its stay request, OSC also requests that the Board order DVA
    to allow Dr. Klein to go through the privileging process to determine whether he
    can obtain the privileges necessary for him to be reassigned to a vacant pain
    management position in Kansas City or Columbia, Missouri. U-5 SRF, Tab 1
    6
    at 5. Alternatively, OSC requests that the Board order DVA to assign Dr. Klein
    to certain pain management functions it contends are currently being performed at
    the Poplar Bluff Medical Center. 
    Id. at 6
    . DVA responds that it does not object
    to temporarily detailing Dr. Klein to serve as a Pain Management Specialist at the
    Harry S. Truman VA Medical Center in Columbia, Missouri, during the pendency
    of the stay to work “in a consultant role to examine and treat patients referred to
    him within the scope of the clinical privileges that may be granted to him by that
    facility.” U-5 SRF, Tab 2 at 2. DVA further asserts that it will take time for
    Dr. Klein to obtain clinical privileges at that facility, and so, in the interim, it will
    allow Dr. Klein to perform clinical work as a pain management consultant within
    the scope of his clinical privileges at the Poplar Bluff facility while he awaits
    approval of his privileges. 
    Id.
     DVA notes, however, that the frequency of pain
    management consultant requests may be limited because Poplar Bluff no longer
    maintains a full-time pain management clinic. 
    Id.
    ¶12         A stay granted pursuant to 
    5 U.S.C. § 1214
    (b) is issued as a means of
    minimizing the adverse consequences of a prohibited personnel practice,
    providing time for a full investigation and settlement negotiations, and
    safeguarding the status quo ante while the interested parties prepare their cases
    for presentation to the Board. Special Counsel v. Department of Veterans Affairs,
    
    60 M.S.P.R. 40
    , 41 (1993). If OSC has met its burden, the employee usually is
    placed in the same position he held before the agency’s allegedly improper
    actions. Special Counsel v. Department of the Interior, 
    68 M.S.P.R. 266
    , 269
    (1995). In light of the foregoing and the parties’ apparent agreement concerning
    the appropriate duties for Dr. Klein to perform during the pendency of the stay,
    we grant OSC’s requested relief and order DVA to temporarily reassign Dr. Klein
    to a pain management physician position in Columbia, Missouri, during the
    pendency of the stay, provided that Dr. Klein is granted the necessary clinical
    privileges.
    7
    ORDER
    ¶13        Pursuant to 
    5 U.S.C. § 1214
    (b)(1)(B), an extension of the stay is hereby
    granted, and we ORDER as follows:
    (1) The stay issued on June 1, 2016, is extended through and including
    January 12, 2017, on the terms and conditions that (a) DVA will
    reinstate Dr. Klein to the status quo ante and shall immediately
    assign him clinical pain management consultant work within the
    scope of his clinical privileges at the Poplar Bluff facility, while he
    awaits approval of his request for clinical privileges at the Harry S.
    Truman VA Medical Center; (b) DVA shall not affect any change to
    Dr. Klein’s salary, grade level, or duty station, or impose upon him
    any requirement that is not required of other employees of a
    comparable grade level; and (c) DVA shall process Dr. Klein’s
    request for clinical privileges at the Harry S. Truman VA Medical
    Center in Columbia, Missouri, and to the extent the requisite
    privileges are granted, temporarily reassign him to a Pain
    Management Physician position at the Harry S. Truman VA Medical
    Center in Columbia, Missouri, during the pendency of the stay.
    (2) Within 5 working days of the date of this Order, DVA shall submit
    evidence to the Clerk of the Board that it has complied with this
    Order; and
    (3) Any request for a further extension of the stay pursuant to 
    5 U.S.C. § 1214
    (b)(1)(B) must be received by the Clerk of the Board and the
    agency, together with any evidentiary support, on or before
    December 28, 2016. See 
    5 C.F.R. § 1201.136
    (b). Any comments on
    such a request that the agency wishes the Board to consider pursuant
    to 
    5 U.S.C. § 1214
    (b)(1)(C) must be received by the Clerk of the
    8
    Board, together with any evidentiary support, on or before January 4,
    2017. See 
    5 C.F.R. § 1201.136
    (b).
    FOR THE BOARD:                         ______________________________
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Filed Date: 11/10/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021