The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. DIANE RECTOR, CB-1208-16-0012-U-2
Petitioner,
v.
DATE: March 7, 2016
NATIONAL CREDIT UNION
ADMINISTRATION,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL *
Leslie K. Williamson, Esquire, and Malvina Winston, Esquire,
Washington, D.C., for the petitioner.
Peter B. Broida, Esquire, Arlington, Virginia, for the relator.
Scott E. Schwartz, Esquire, Alexandria, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER ON STAY REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests a 60-day extension of the previously granted stay of the agency’s
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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removal of the relator, Diane Rector. For the reasons discussed below, OSC’s
request is GRANTED, and the stay is extended through May 13, 2016.
BACKGROUND
¶2 On January 29, 2016, Chairman Susan Tsui Grundmann granted OSC’s
initial request for a 45-day stay of Ms. Rector’s removal. MSPB Docket
No. CB-1208-16-0012-U-1, Stay Request File (SRF), Tab 6. On February 25,
2016, OSC filed a timely request to extend the stay for an additional 60 days.
MSPB Docket No. CB-1208-16-0012-U-2, Stay Request Extension File (SREF),
Tab 1. The agency has filed a timely response, SREF, Tab 3, and Ms. Rector has
filed a reply, SREF, Tab 2.
ANALYSIS
¶3 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 (2007).
¶4 In its initial stay request, OSC alleged that Ms. Rector disclosed to her
second-level supervisor that she believed he had a conflict of interest regarding
some of his job duties, and advised him to discuss the matter with the agency’s
Office of General Counsel. SRF, Tab 1 at 6-7. Shortly thereafter, the agency
disqualified Ms. Rector’s second-level supervisor from the duties implicated in
this alleged conflict of interest. Id. at 7. Afterwards, the agency subjected
Ms. Rector to several performance-based personnel actions, including a lowered
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performance evaluation and placement on a performance improvement plan. Id.
The agency then proposed Ms. Rector’s removal, during the pendency of which
OSC sought a stay of the removal, which Chairman Grundmann granted for a
period of 45 days. SRF, Tabs 1, 6.
¶5 In its request for an extension, OSC asserts that, 4 days after the Board
granted the initial stay request, it reassigned this case to another attorney, who
has begun, but has not yet completed, her investigation into this matter. SREF,
Tab 1 at 2-3. OSC asserts that it is currently drafting a request for information
and documents under 5 C.F.R. § 5.4, which it plans to issue within the
next 2 weeks. SREF, Tab 1 at 2. After the agency responds, OSC may need to
schedule and conduct witness interviews, and if necessary, request additional
information based on these interviews. Id. After assessing the evidence, OSC
will require additional time to attempt an informal resolution, prepare a report, or
close the case as appropriate. Id. OSC represents that there has been no change
in the evidentiary record during the initial stay period. Id. at 3. Under the
specific circumstances of this case and in light of the fact that the evidentiary
record supporting OSC’s initial stay request has not changed since
Chairman Grundmann granted the initial stay, we find it appropriate to extend the
stay until May 13, 2016. See Special Counsel ex rel. Waddell v. Department of
Justice, 103 M.S.P.R. 372, ¶ 5 (2006).
¶6 The agency has filed a limited opposition to the stay extension request.
SREF, Tab 3. Specifically, it argues that a proposed removal is not a “personnel
action” within the meaning 5 U.S.C. § 2302(a)(2)(A), and is therefore not subject
to the Board’s stay authority under 5 U.S.C. § 1214(b)(1). SREF, Tab 3 at 3-5.
We disagree.
¶7 Under 5 U.S.C. § 1214(b)(1)(A), a Board member has the authority to order
a stay of any personnel action 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. A removal is a personnel action
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under 5 U.S.C. § 2302(a)(2)(A), and there is no question that a proposal to
remove constitutes a threat to take a personnel action under section 2302(b)(8).
Under the circumstances of this case, the proposed removal constitutes “an action
under chapter 75 of this title or other disciplinary or corrective action”
under 5 U.S.C. § 2302(a)(2)(A)(iii) and therefore is a personnel action subject to
the Board’s stay authority. See 5 U.S.C. § 1214(b)(1)(A); cf. Special Counsel v.
Internal Revenue Service, 65 M.S.P.R. 146 (1994) (granting a stay of the
agency’s placement of an employee on administrative leave while a notice of
proposed removal was pending). Thus, the proposed removal is in the nature of a
chapter 75 action and one falling within the coverage of 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Caddell v. Department of Justice, 52 M.S.P.R. 529, 532
(1992) (“[O]ther” disciplinary or corrective action must be in the nature of a
chapter 75 action to fall within the coverage of 5 U.S.C. § 2302(a)(2)(A)(iii)).
¶8 Moreover, a stay of Ms. Rector’s proposed removal is necessary to achieve
the purpose of a stay, that is, to preserve the status quo ante and minimize the
adverse consequences of a prohibited personnel practice while the dispute is
being resolved. Special Counsel v. Department of Veterans Affairs, 60 M.S.P.R.
40, 41 (1993). Although there may be some circumstances that would permit less
than a complete return to the status quo, the agency has not suggested any here.
The proposal notice is part and parcel of a chapter 75 action and is therefore
encompassed in this stay order.
¶9 The agency also argues that directives 2 and 3 of the initial stay order are
inconsistent. These directives read as follows:
(2) Ms. Rector shall remain in her current position, at the same
location, with the same duties and responsibilities, and at the same
salary and grade level;
(3) The agency shall not effect any change in Ms. Rector’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.
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SRF, Tab 6, ¶ 12. The agency seeks clarification as to whether it may reassign
time-sensitive duties currently assigned to Ms. Rector and assign her other work
consistent with her grade and salary. SREF, Tab 3 at 6.
¶10 The Board’s regulations do not provide for a request for clarification of the
Stay Order outside of enforcement proceedings. See generally 5 C.F.R.
§§ 1201.134-.136. If OSC believes that the agency is not in compliance with the
Board’s Order, it will so inform the agency and may file a petition for
enforcement with the Board if necessary. 5 C.F.R. § 1201.182(b).
ORDER
¶11 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby GRANTED. It is hereby ORDERED that:
(1) The terms and conditions of the stay issued on January 29, 2016, are
extended through and including May 13, 2016;
(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 a further extension of the 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 April 28, 2016.
See 5 C.F.R. § 1201.136(b). Any comments on such a request that the
agency wishes the Board to consider pursuant to 5 U.S.C. § 1214(b)(1)(C)
must be
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received by the Clerk of the Board, together with any evidentiary support,
before May 5, 2016. See 5 C.F.R. § 1201.136(b).
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.