Special Counsel ex rel. Karla Saunders v. Small Business Administration ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. KARLA SAUNDERS, CB-1208-14-0020-U-1
Petitioner,
v.
DATE: August 20, 2014
SMALL BUSINESS
ADMINISTRATION,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Gregory Giaccio, Esquire, Washington, D.C., for the petitioner.
Robert Stone Porter, IV and Vincent Melehy, Esquire, Silver Spring,
Maryland, for the relator.
Christopher J. McClintock, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
ORDER ON STAY REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(A)(i), the Office of Special Counsel
(OSC) has requested a 45-day stay of the agency’s proposed removal of Karla
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Saunders to allow it to investigate Ms. Saunders’s prohibited personnel practice
complaint. 2 For the reasons set forth below, OSC’s request for a stay is
GRANTED.
BACKGROUND
¶2 In its August 15, 2014, stay request, OSC alleges that Ms. Saunders served
as a Supervisory Human Resources Specialist with the agency and had 32 years of
federal service. OSC further alleges that Ms. Saunders has filed two previous
complaints of whistleblower reprisal with OSC within the last 4 years, and that
most recently Ms. Saunders filed a complaint with OSC challenging her proposed
removal on the basis of whistleblower reprisal and her participation in several
protected activities. Specifically, OSC asserts that the agency proposed Ms.
Saunders’s removal from federal service on charges of conduct unbecoming a
supervisor, failure to cooperate with an official investigation, lack of candor, and
equal employment opportunity retaliation within a year of her making protected
disclosures to the agency’s Office of Inspector General (OIG).
¶3 OSC alleges that Ms. Saunders made protected disclosures predating her
proposed removal in 2010 and 2011, when she disclosed to several agency
officials that they failed to provide performance standards and annual
performance evaluations, and again in 2013 and 2014, when she disclosed to the
OIG that the agency’s current Chief Human Capital Officer (CHCO) directed
several staff members to provide an advantage to an applicant for employment in
violation of 5 U.S.C. § 2302(b)(6) by assisting the applicant to rewrite a
substandard submission. OSC further alleges that Ms. Saunders has engaged in a
protected activity under 5 U.S.C. § 2302(b)(9)(C) by participating in several prior
2
The agency has responded in opposition to OSC's stay request. However, unlike the
situation where OSC requests the extension of a stay that has already been granted, the
Board's regulations do not require that an agency be provided with an opportunity to
comment on the initial stay request. 5 C.F.R. § 1201.136(a), (b). Thus, I have not
considered the agency's response to OSC's stay request.
3
OSC investigations and that her filing an employment discrimination lawsuit in
federal court is also a protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii). OSC
contends that Ms. Saunders’s protected disclosures and activities were
contributing factors in her proposed removal because they occurred within a short
period of time prior to the proposed adverse action and the proposing and
deciding officials were generally aware of her protected disclosures and activities
through personal and constructive knowledge.
ANALYSIS
¶4 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).
¶5 OSC asserts that a prima facie violation of 5 U.S.C. § 2302(b)(8) exists
where: (1) the employee made a protected disclosure; (2) the official(s) who
recommended or took the personnel action had actual or constructive knowledge
of the protected disclosure; (3) a personnel action was threatened or taken; and
(4) the protected disclosure was a contributing factor in the personnel action. See
Office of Special Counsel ex rel. Aran, 115 M.S.P.R. 6, ¶ 7. OSC further asserts
that, pursuant to the Whistleblower Protection Enhancement Act of 2012
(WPEA), Pub. L. No. 112-199, 126 Stat. 1465, a prima facie violation of 5 U.S.C.
4
§ 2302(b)(9)(C) exists where: (1) the employee participated in a protected
activity by cooperating with or disclosing information to the Inspector General of
an agency or the Office of Special Counsel; (2) the official(s) who recommended
or took the personnel action had actual or constructive knowledge of the protected
activity; (3) a personnel action was threatened or taken; and (4) the protected
activity was a contributing factor in the personnel action. See, e.g., Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014) (discussing effects
of 5 U.S.C. § 1221(e)(1) on 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9)(A)(i), (B), (C)
and (D)). 3
¶6 OSC asserts that Ms. Saunders made a protected disclosure of a violation of
law under 5 U.S.C. § 2302(b)(8) when she reported to the OIG that the CHCO
improperly directed agency employees to assist an applicant, thereby providing
the applicant with an unfair advantage in violation of 5 U.S.C. § 2302(b)(6).
OSC also asserts that Ms. Saunders engaged in a protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when she participated in prior OSC investigations and that the
proposing and deciding officials were both personally and constructively aware
of Ms. Saunders’s protected disclosures and activities. In support of this latter
assertion, OSC contends that Ms. Saunders discussed her disclosures with several
coworkers who were supervised by the proposing and deciding officials and that
there are several references to Ms. Saunders’s protected disclosures and activities
in the documentation supporting the agency’s notice of proposed removal. OSC
3
Although the WPEA created a new section, 5 U.S.C. § 2302(b)(9)(A)(ii), the Board’s
individual right of action jurisdiction does not extend to claims under this section, and
the elements of proof for such a claim are different from those under sections
2302(b)(8) and 2302(b)(9)(C). See 5 U.S.C. § 1221(e); Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). Because I find that OSC has
established a prima facie violation of both 5 U.S.C. § 2302(b)(8) and (b)(9)(C), I need
not consider whether OSC has established a prima facie violation of
5 U.S.C. § 2302(b)(9)(A)(ii). See Special Counsel v. Department of Transportation, 70
M.S.P.R. 520, 522 n.* (1996) (finding it unnecessary to consider an alleged prohibited
personnel practice claim under 5 U.S.C. § 2302(b)(11) because there was sufficient
support for granting the stay based on the 5 U.S.C. § 2302(b)(8) claim).
5
also alleges that a proposed removal is a threat of a personnel action. 4 Finally,
OSC argues that Ms. Saunders’s protected disclosures and activities were
contributing factors in her proposed removal because they occurred within a short
period of time before her proposed removal and because the attendant
circumstances surrounding her proposed removal suggest a motive to retaliate
against her.
¶7 Given the deference that should be afforded to OSC and the assertions made
in its stay request, I find that there are reasonable grounds to believe that the
agency proposed Ms. Saunders’s removal based on her protected disclosure in
violation of 5 U.S.C. § 2302(b)(8) and her protected activity in violation of
5 U.S.C. § 2302(b)(9)(C).
ORDER
¶8 Based on the foregoing, I conclude that granting OSC’s stay request is
appropriate. Accordingly, a 45-day stay of Ms. Saunders’s proposed removal is
GRANTED. The stay shall be in effect from August 20, 2014, through and
including October 3, 2014. It is further ORDERED that:
(1) Ms. Saunders shall be reinstated to her former position at the same
location with the same duties and responsibilities that she formerly
had and at the same salary and grade level effective August 20, 2014;
(2) The Small Business Administration shall not effect any change in
Ms. Saunders’s duties and responsibilities which is inconsistent with
her salary or grade level or impose upon her any requirement which
4
Although the agency imposed Ms. Saunders’s removal prior to OSC’s stay request of
the proposed removal, the language of the statute permits the stay of a personnel action
if the Special Counsel has reasonable grounds to believe that the action “was taken, or
is to be taken, as a result of a prohibited personnel practice.”
5 U.S.C. § 1214(b)(1)(A)(i). Thus, the Board has the authority to stay the removal of
an employee after the effective date of the action. See Special Counsel v. Department
of Transportation, 59 M.S.P.R. 552, 555 (1993).
6
is not required of other employees of comparable position, salary, or
grade level;
(3) Within 10 working days of this Order, the Small Business
Administration 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
September 19, 2014. 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 received by the Clerk of the Board, together
with any evidentiary support, on or before September 26, 2014.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.