The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. JUDY KACHANES, CB-1208-14-0021-U-1
Petitioner,
v.
DATE: August 20, 2014
DEPARTMENT OF AGRICULTURE,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Alejandra Duarte Dove, Esquire, Washington, D.C., for the petitioner.
Valerie J. Neris-Blankenship, 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), the Office of Special Counsel (OSC)
has requested a 45-day stay of the agency’s indefinite detail, proposed removal,
and constructive removal of Judy Kachanes to allow it to investigate Ms.
Kachanes’s prohibited personnel practice complaint. For the reasons set forth
below, OSC’s request for a stay is GRANTED.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 In its August 15, 2014 stay request, OSC alleges that Ms. Kachanes was a
27-year employee of the agency’s Food Safety and Inspection Service (FSIS),
with no disciplinary history prior to the incidents at issue in its investigation.
OSC further alleges that the agency appointed Ms. Kachanes to a Consumer
Safety Inspector position in McPherson, Kansas, effective September 9, 2012.
Shortly thereafter, Ms. Kachanes allegedly began making various disclosures of
violations of standards concerning the humane slaughter of animals and the
agency’s failure to take appropriate action to correct the violations and prevent
their reoccurrence. OSC alleges that the agency retaliated against Ms. Kachanes
by detailing her for an indefinite period of time, proposing her removal, and
constructively removing her.
¶3 OSC asserts that during Ms. Kachanes’s monitoring of a specialty meat
plant (the plant) on October 18, 2012, she observed that the animals were not
rendered unconscious by the bolts of electricity used to stun them before death, a
violation of the Humane Methods of Slaughter Act of 1978. Consistent with
agency regulations, Ms. Kachanes reported the inhumane slaughter to the
inspector permanently assigned to the plant and asked him to take appropriate
action. OSC contends that the inspector declined to take any of the required
remedial actions, and Ms. Kachanes thereafter reported the incident to various
officials within her chain of command and the FSIS Humane Handling
Ombudsman. OSC alleges that the agency immediately relieved her of her duties
at the plant. After Ms. Kachanes saw no evidence of any corrective action at the
plant, she allegedly contacted both the Secretary of Agriculture and the
Government Accountability Project to report the incident and her belief that the
FSIS had failed to properly respond.
¶4 OSC asserts that Ms. Kachanes’s concerns were confirmed when she
attended a “correlation” at the plant on March 6, 2013, for the purpose of
demonstrating that the plant had addressed and corrected the problems that she
3
had reported. While there, Ms. Kachanes observed further alleged violations of
the slaughter process and reported the new violations to the Ombudsman and the
FSIS officials in her chain of command. On March 14, 2013, the District
Manager placed Ms. Kachanes on a detail from her Consumer Safety Inspector
position in McPherson, Kansas, to the position of Food Inspector in Wellington,
Kansas, “until further notice.” OSC asserts that this was a demotion in duties and
was a physically more demanding position; accordingly, Ms. Kachanes informed
the agency that she was unable to perform the duties of the Food Inspector
position due to medical restrictions that were incompatible with the position. 2 In
response, the District Manager allegedly issued another detail assignment to Noel,
Missouri, “until further notice,” and, for the first time, referred to alleged
performance issues that occurred 5 months prior. OSC asserts that the allegations
of performance issues coincided with Ms. Kachanes’s October 2012 disclosures
concerning the plant and were not mentioned during her mid-year performance
review in February 2013. Ms. Kachanes again submitted medical documentation
concerning her inability to perform in the detailed position, and she did not begin
her detail assignment for physical inability to perform the duties of the position.
OSC alleges that the agency then placed her in an Absent Without Leave (AWOL)
status despite her requests for leave without pay.
¶5 In response to Ms. Kachanes’s March 22, 2013 complaint with the agency’s
Office of the Assistant Secretary for Civil Rights (OCR), 3 on August 21, 2013,
OCR allegedly ordered the FSIS to return Ms. Kachanes to a Consumer Safety
Inspector position in McPherson, Kansas, effective September 25, 2013. Instead,
2
As OSC notes, the Office of Personnel Management (OPM) qualification standards for
the Food Inspection series 1863 include medical requirements whereas the OPM
qualification standards for the Consumer Safety Inspection series 1862 do not.
3
Ms. Kachanes complained to OCR that the detail to the Food Inspector position in
Noel, Missouri, violated the terms of an earlier equal employment opportunity
settlement agreement that resulted in her appointment to the Consumer Safety Inspector
position in McPherson, Kansas.
4
OSC alleges that the agency issued a notice of proposed removal on September
12, 2013, for failure to report to duty as detailed, conduct unbecoming a federal
employee, and absence without leave. OSC alleges that Ms. Kachanes
involuntarily resigned on December 14, 2013, prior to a final decision on the
proposed removal.
ANALYSIS
¶6 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. Special Counsel ex rel.
Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶7 OSC argues that it has reasonable grounds to believe that Ms. Kachanes
made multiple protected disclosures of violations of laws, rules, and regulations
under 5 U.S.C. § 2302(b)(8) concerning the plant’s violation of inhumane
slaughter laws and agency management’s failure to take the appropriate action to
bring the plant into compliance. OSC contends that a disinterested observer in
Ms. Kachanes’s shoes could believe that the information she disclosed evidenced
violations of law, rule, or regulation. OSC argues that the agency officials in Ms.
Kachanes’s chain of command had knowledge of her disclosures at the time of
their decisions to take each of the challenged personnel actions under 5 U.S.C.
§ 2302(a)(2)(A): the decision to detail her indefinitely, propose her removal, and
5
coerce her resignation. 4 OSC alleges that Ms. Kachanes’s whistleblowing activity
was a contributing factor in the agency’s decision to take the covered personnel
actions because her disclosures occurred within a short period of time before each
of the agency’s action. Further, OSC argues that the attendant circumstances
surrounding these actions support a motive to retaliate against her. 5
¶8 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 indefinitely detailed Ms. Kachanes, proposed her removal, and
constructively removed her based on her protected disclosures in violation of
5 U.S.C. § 2302(b)(8).
ORDER
¶9 Based on the foregoing, I conclude that granting OSC’s stay request is
appropriate. Accordingly, a 45-day stay of Ms. Kachanes’s indefinite detail,
proposed removal, and constructive 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. Kachanes shall be reinstated to her position of record as a
Consumer Safety Inspector in McPherson, Kansas, with the same
4
Although Ms. Kachanes resigned prior to OSC’s stay request, 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). An involuntary
resignation is tantamount to a removal and is a “personnel action” under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Pariseau v. Department of the Air Force, 113 M.S.P.R. 370,
¶ 11 (2010). 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).
5
OSC asserts that management behavior outside of the personnel decisions also
suggests a retaliatory motive. Further, OSC cites the agency Inspector General’s May
2013 audit report, which concluded that FSIS inspectors failed to take appropriate
enforcement actions, failed to improve slaughter practices at supervised plants, and
failed to ensure the humane handling of swine, which are conclusions consistent with
Ms. Kachanes’s disclosures.
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duties and responsibilities that she formerly had and at the same
salary and grade level effective August 20, 2014;
(2) 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;
(3) 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.
(4) 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 and served on OSC, together with any
evidentiary support, on or before September 26, 2014.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.