Zerina Spalding v. Department of the Treasury ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. ZERINA SPALDING, CB-1208-22-0016-U-4
Petitioner,
v.
DATE: December 27, 2022
DEPARTMENT OF THE TREASURY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Julie R. Figueira, Esquire, Malvina Winston, Esquire, and Paul David
Metcalf, Jr., Esquire, Washington, D.C., for the petitioner.
Corlie McCormick, Jr., Esquire, Crofton, Maryland, for the relator.
Ralph C. Conte, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 an extension of the previously granted stay of the proposed removal
issued by the Department of the Treasury (agency) while OSC completes its
investigation and legal review of the matter and determines whether to seek
corrective action. For the reasons discussed below, OSC’s request is GRANTED.
BACKGROUND
¶2 On July 28, 2022, Member Limon granted OSC’s request for a 45-day stay
of the proposed removal of Ms. Spalding based on a charge of misconduct .
Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB-1208-22-0016-U-1, Order on Stay Request (July 28, 2022). OSC
subsequently requested, and the Board granted, two additional extensions of the
stay. 2 The current stay issued on November 9, 2022, is in effect through
January 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the
Treasury, MSPB Docket No. CB-1208-22-0016-U-3, Order on Stay Request
(Nov. 9, 2022) (U-3 Order on Stay Request).
¶3 On December 22, 2022, OSC filed a timely consent request to extend the
stay through January 23, 2023. Special Counsel ex rel. Zerina Spalding v.
Department of the Treasury, MSPB Docket No. CB-1208-22-0016-U-4, Stay
Request File (U-4 SRF), Tab 1. OSC requests a 14-day extension to the existing
stay in order to account for the fact that the current stay extension request and
agency response deadlines fall on weekend days and occur during the winter
holiday season. Id. at 2. Specifically, OSC requests that the following deadlines
2
By order dated September 9, 2022, the Board extended the stay through November 9,
2022. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB
Docket No. CB-1208-22-0016-U-2, Order on Stay Request (Sept. 9, 2022). By order
dated November 9, 2022, the Board extended the stay through January 8, 2023. Special
Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No.
CB-1208-22-0016-U-3, Order on Stay Request (Nov. 9, 2022).
3
should apply to extend the stay order: (1) the existing stay should be extended
through and including January 23, 2023; (2) any request for an additional
extension by OSC should be due on or before January 9, 2023; and (3) the
agency’s response to any extension request should be due on or before
January 16, 2023. Id. at 2-3.
ANALYSIS
¶4 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, 5 (2007) (noting that a
separate determination must be made on the length of the requested stay). Under
the circumstances, and in light of the fact that the agency consents to the
extension, we find it appropriate to extend the stay through January 23, 2023.
ORDER
¶5 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the requested extension of the stay is
hereby GRANTED, and it is ORDERED as follows:
(1) The stay issued on November 9, 2022, is extended through and
including January 23, 2023, on the terms and conditions set forth in
that Order;
(2) The agency shall not effect any changes in Ms. Spalding’s duties or
responsibilities that are inconsistent with her salary or grade level, or
4
impose upon her any requirement that is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) and 5 C.F.R. § 1201.136(b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before January 9, 2023; and
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b) must be received by the Clerk of the Board on or
before January 17, 2023. 3
FOR THE BOARD: /s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
3
Although OSC requests January 16, 2023, as the due date for an agency to comment
on any request, that day is a Federal holiday. See 5 C.F.R. § 1201.23 (providing that, if
a filing deadline falls on a weekend or Federal holiday, the filing period includes the
next business day).