Special Counsel ex rel. Kimberly Barnett v. Department of Homeland Security ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. KIMBERLY BARNETT, CB-1208-15-0009-U-1
Petitioner,
v.
DATE: December 16, 2014
DEPARTMENT OF HOMELAND
SECURITY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Brian T. Critz, Esquire, Washington, D.C., for the petitioner.
Lawrence Berger, Esquire, Glen Cove, New York, for the relator.
Annette M. Buchanan, Esquire, Arlington, Virginia, for the agency.
BEFORE
Mark A. Robbins, Member
ORDER ON STAY REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board stay for 45 days the agency’s removal of Kimberly
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Barnett while OSC completes its investigation of the matter. For the reasons
discussed below, OSC’s request is GRANTED.
ANALYSIS
¶2 Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request any member of the
Merit Systems Protection Board to order a stay of any personnel action for 45
days if OSC determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice. Such a request shall be granted, unless the Board member determines
that, under the facts and circumstances involved, such a stay would not be
appropriate. 5 U.S.C. § 1214(b)(1)(A)(ii). OSC’s stay request need only fall
within the range of rationality to be granted, and the facts must be reviewed in the
light most favorable to a finding of reasonable grounds to believe that a
prohibited personnel practice was (or will be) committed. See Office of Special
Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9
(2010).
¶3 As OSC states, it is a violation of 5 U.S.C. § 2302(b)(8) to threaten to take
a personnel action because an employee made a protected whistleblowing
disclosure and a violation of 5 U.S.C. § 2302(b)(9)(C) to threaten to take a
personnel action because an employee has provided information to OSC. 2 OSC
also asserts that, to establish a prima facie violation under either, it must show
that the employee engaged in protected activity and that the activity was a
contributing factor in the challenged action. See Office of Special Counsel ex rel.
Aran, 115 M.S.P.R. 6, ¶ 7 (describing a prima facie violation of 5 U.S.C.
§ 2302(b)(8) as existing where: (1) the employee made a disclosure of
information that she reasonably believed evidenced any violation of any law,
2
The Whistleblower Protection Enhancement Act of 2012 expanded the scope of the
Board’s authority to include correction of violations of 5 U.S.C. § 2302(b)(9)(C). See
5 U.S.C. § 1221(e)(1); Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9
(2014) (discussing the expansion of the Board’s authority).
3
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety; (2) the
agency official or officials exercising personnel action authority had knowledge
of the employee’s disclosure; (3) there is a taking or failure to take, or a threat to
take or failure to take, a personnel action; and (4) the protected disclosure was a
contributing factor to the action taken).
¶4 In its December 12, 2014, stay request, OSC alleges that Ms. Kimberly
Barnett worked for the Transportation Security Administration (TSA) for more
than 12 years as a Transportation Security Inspector, Explosive Detection Canine
Handler, without being subjected to any disciplinary action. OSC next alleges
that Ms. Barnett disclosed that her supervisor, Mr. Bobby Jones, was falsely
recording the time he was training and utilizing his canine to make it appear as if
he was meeting the agency’s requirements. Ms. Barnett reportedly began by
disclosing the information to Mr. Tom Sheehan, an official within TSA, in
October 2013, but, because he took no corrective action, she later disclosed the
information to OSC, in June 2014. OSC referred her disclosure to the
Department of Homeland Security for investigation the following day.
¶5 In August 2014, Ms. Barnett was involved in a car accident where her
parked vehicle was struck by a bus. She reported the accident to her supervisor,
Mr. Jones. Subsequently, Mr. Sheehan met with Ms. Barnett and accused her of
cursing during the aforementioned conversation with Mr. Jones. In October
2014, TSA proposed Ms. Barnett’s removal for inappropriate conduct and lack of
candor, relating to her alleged cursing and statements about that cursing. TSA
effectuated her removal on November 26, 2014. Based upon these allegations,
OSC asserts that it has reasonable grounds to believe that Ms. Barnett made
protected disclosures, relevant TSA officials were aware of those disclosures, and
the protected disclosures were a contributing factor in her proposed removal.
¶6 Given the deference that generally should be afforded to OSC and the
assertions made in its stay request, I find that there are reasonable grounds to
4
believe that TSA proposed Ms. Barnett’s removal based on her protected
disclosure in violation of 5 U.S.C. §§ 2302(b)(8), (b)(9)(C). 3
ORDER
¶7 Based on the foregoing, I conclude that granting OSC’s stay request is
appropriate. Accordingly, a 45-day stay of Ms. Barnett’s removal is GRANTED.
The stay shall be in effect from December 16, 2014, through and including
January 29, 2015. It is further ORDERED that:
(1) Ms. Barnett shall be reinstated 4 to her former position, at the same
location, with the same duties and responsibilities, and at the same salary
and grade level that she had prior to her termination, effective December
16, 2014;
(2) The agency shall not effect any change in Ms. Barnett’s duties and
responsibilities that is inconsistent with her salary or grade level or impose
upon her any requirement that is not required of other employees of
comparable position, salary, or grade level;
(3) Within 10 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) must be received by the Clerk of the Board and the agency,
together with any evidentiary support, on or before January 14, 2015. See
5 C.F.R. § 1201.136(b). Any comments on such a request that the agency
wants the Board to consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be
3
TSA employees are covered by 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9)(C). 5 U.S.C.
§ 2304(a).
4
The Board has the authority to stay the removal of an employee after the effective date
of the action. See Special Counsel ex rel. Shaw v. U.S. Social Security Administration,
76 M.S.P.R. 21, 24 (1997).
5
received by the Clerk of the Board, together with any evidentiary support,
on or before January 21, 2015.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.