Special Counsel ex rel. Glenn Schwarz v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. GLENN SCHWARZ, CB-1208-17-0022-U-1
Petitioner,
v.
DATE: June 30, 2017
DEPARTMENT OF THE NAVY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Malvina Winston, Washington, D.C., for the petitioner.
Cheri L. Cannon, Esquire, Washington, D.C., for the relator.
Malcolm G. Schaefer, Cherry Point, North Carolina, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
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 reinstatement of Mr. Schwarz’s
removal while OSC completes its investigation and legal review of the ma tter and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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determines whether to seek corrective action. For the reasons discussed below,
OSC’s request is GRANTED.
BACKGROUND
¶2 In its June 28, 2017 stay request, OSC alleges that it has reasonable grounds
to believe that on June 8, 2017, the Department of the Navy (Navy) reinstated
Mr. Schwarz’s removal, which previously had been held in abeyance pursuant to
a settlement agreement, as a result of a prohibited personnel practice. 2 OSC
alleges that Mr. Schwarz made disclosures beginning in September 2013 through
his chain of command and in a disclosure complaint to OSC on June 9, 2015, that
employees were improperly testing aircraft fueling equipment and fuel and
improperly and hazardously disposing of jet fuel. OSC states that, after it
referred Mr. Schwarz’s disclosures for further investigation to the Secretary of
the Navy, an investigation by the Navy Inspector General substantiated the
disclosures. In particular, OSC contends that a Navy report found that employees
did not properly test aircraft fueling equipment or jet fuel, thereby creating a
safety risk, and that by not properly testing jet fuel, employees wasted
Government resources by unnecessarily discarding thousands of gallons of jet
fuel.
¶3 OSC also contends that on June 8, 2017, the Navy issued Mr. Schwarz a
notice of reinstatement of removal for failing to comply with the performance and
conduct standards of the settlement agreement. OSC maintains that
Mr. Schwarz’s protected disclosures and activities were a contributing factor in
the decision to reinstate his removal because it was issued 9 months after he filed
his prohibited personnel practices complaint and 15 months after OSC publicized
2
OSC states that on September 10, 2016, Mr. Schwarz filed a complaint of prohibited
personnel practices alleging whistleblower reprisal, which was resolved via a
November 22, 2016 settlement agreement in which the Navy agreed to hold
Mr. Schwarz’s removal in abeyance for 2 years subject to his compliance with certain
performance and conduct standards.
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the results of the agency’s investigation and identified Mr. Schwarz as the
whistleblower. OSC also maintains that other circumstantial evidence supports
an inference of contributing factor.
ANALYSIS
¶4 Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request that any member of
the Merit Systems Protection Board 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 Special Counsel ex
rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶5 To establish a prima facie case of whistleblower retaliation, OSC must
show that the employee made a protected disclosure or engaged in protected
activity that was a contributing factor in the challenged personnel action. See id.,
¶ 7; see also Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9
(2014). A disclosure is protected under 5 U.S.C. § 2302(b)(8) if the individual
has a reasonable belief that the information being disclosed evidences a violation
of law, 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.
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). The standard for
evaluating the reasonableness of the belief is whether a disinterested observer
with knowledge of the essential facts known to and readily ascertainable to the
employee could reasonably conclude that the actions of the Government evidence
one of these types of wrongdoing. Id.4
¶6 It appears that Mr. Schwarz reasonably believed that he was disclosing a
substantial and specific danger to public health or safety and a violation of law,
rule, or regulation when he disclosed that employees were improperly testing
aircraft fueling equipment and fuel and improperly and hazardously disposing of
jet fuel. Based on OSC’s assertions, the Navy report substantiated that the
appellant’s disclosures amounted to violations of Navy rules and created a safety
risk. It also appears that Mr. Schwarz participated in protected activities, as
defined by 5 U.S.C. § 2302(b)(9)(C) and (b)(9)(A)(i), by cooperating with and
disclosing information to OSC and filing complaints with OSC.
¶7 The contributing factor element may be established through the
knowledge/timing test, i.e., that the official taking the personnel action knew of
the protected disclosure or activity and the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor. See Mastrullo v. Department of Labor, 123 M.S.P.R.
110, ¶ 18 (2015); Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446,
¶ 7 (2014). According to OSC, it is reasonable to infer that the responsible
officials had knowledge of Mr. Schwarz’s disclosures based upon the Navy’s
report that was made public and OSC’s press release, both of which identified
Mr. Schwarz as the whistleblower. OSC further contends that the agency was
aware of Mr. Schwarz’s prohibited personnel practices complaint because it
participated in a mediation regarding that complaint and the agency referenced
Mr. Schwarz’s communications with OSC in its notice of reinstatement of his
removal.
¶8 OSC further indicates that the notice of reinstatement occurred within
9 months after Mr. Schwarz filed his prohibited personnel practices complaint.
See Mastrullo, 123 M.S.P.R. 110, ¶ 21 (recognizing that a personnel action taken
within approximately 1 to 2 years of an appellant’s protected disclosures satisfies
the knowledge/timing test). In addition, OSC contends that attendant
circumstances suggest that Mr. Schwarz’s protected disclosures and/or activities
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were a contributing factor in the decision to reinstate his removal. In particular,
OSC alleges that the removal notice directly referenced his communications with
OSC and the agency’s reasons for reinstating the removal action are weak and
lack a nexus to Government efficiency.
¶9 Considering the deference that generally should be afforded to OSC in the
context of an initial stay request, and the assertions made in its stay request, there
are reasonable grounds here to believe that the Navy reinstated Mr. Schwarz’s
removal based on his protected disclosures and protected activity in violation of
5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), and (b)(9)(C).
ORDER
¶10 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45-day stay of Mr. Schwarz’s removal is GRANTED. The stay
shall be in effect from June 30, 2017, through and including August 13, 2017. It
is further ORDERED that:
(1) During the pendency of this stay, Mr. Schwarz shall be reinstated to
the position he held prior to the notice of reinstatement of the
removal action and the Navy shall not effect his removal ;
(2) The agency shall not effect any changes to Mr. Schwarz’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him 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), as amended by Pub L. No. 115-42, 3 must be
3
As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
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received by the Clerk of the Board and the agency, together with any
further evidentiary support, on or before July 28, 2017; and
(5) Any comments on such a request that the Navy wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be received by
the Clerk of the Board on or before August 4, 2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.