Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL DOCKET NUMBER

EX REL. DALE KLEIN, CB-1208-16-0023-U-4

Petitioner,

v.

DATE: September 13, 2016

DEPARTMENT OF VETERANS

AFFAIRS,

Agency.

THIS STAY ORDER IS NONPRECEDENTIAL ∗

Sheri S. Shilling, Esquire, Washington, D.C., for the petitioner.

Loretta Poston, Esquire, Tampa, Florida, for the relator.

G.M. Jeff Keys, Esquire, Saint Louis, Missouri, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

∗

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

termination of Dr. Dale Klein’s appointment. For the reasons discussed below,

we GRANT OSC’s request IN PART and extend the stay through

November 10, 2016, but we DENY OSC’s request to order the agency to reassign

Dr. Klein to a pain management physician position in Columbia or Kansas City,

Missouri.

BACKGROUND

¶2 On May 26, 2016, OSC requested a stay of the termination of Dr. Klein’s

appointment to complete its investigation and legal review of his prohibited

personnel practices complaint and determine whether to seek corrective action.

Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB

Docket No. CB-1208-16-0023-U-1, Stay Request File (U-1 SRF), Tab 1. OSC

also requested an order returning Dr. Klein to his position and duties as a pain

management physician at the Poplar Bluff Medical Center during the period of

the stay. Id. The Board granted OSC’s request for a stay through July 15, 2016,

but denied OSC’s request to order the Department of Veterans Affairs (DVA) to

return Dr. Klein to his duties and responsibilities as a physician. U-1 SRF, Tab 3.

¶3 On June 9, 2016, OSC filed a motion to modify the order granting the initial

stay request by ordering that Dr. Klein be returned to his position as a pain

management physician. Special Counsel ex rel. Dale Klein v. Department of

Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-2, Stay Request File

(U-2 SRF), Tab 1. In the alternative, OSC requested that the Board order DVA to

assign Dr. Klein to “mutually agreed upon duties that are ordinarily performed by

physicians at the Poplar Bluff [Medical Center].” Id. at 11-12. On

June 11, 2016, DVA filed a response to OSC’s motion stating that the Poplar

Bluff Medical Center’s pain management clinic has been closed and explaining

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the difficulties in reopening the clinic during the 45-day period of the stay. U-2

SRF, Tab 2. On June 20, 2016, the Board denied OSC’s motion for a

modification of the initial stay order. U-2 SRF, Tab 3.

¶4 On June 30, 2016, OSC filed a request to extend the stay for an additional

60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs,

MSPB Docket No. CB-1208-16-0023-U-3, Stay Request File (U-3 SRF), Tab 1.

OSC also renewed its request that the Board order Dr. Klein to be returned to his

position of record. Id. Alternatively, OSC requested an order placing Dr. Klein

in a “substantially similar physician position” or another physician position for

which he is qualified. Id. at 2, 6-8. In response, DVA asserted that the Popular

Bluff Medical Center did not have a present need for a physician with Dr. Klein’s

skills and privileges. U-3 SRF, Tab 2 at 4. In particular, DVA reiterated that the

pain management clinic had closed and there was no need for an anesthesiologist

at the Poplar Bluff Medical Center, which is not a full-service hospital and does

not perform invasive surgical procedures. Id.

¶5 The Board granted OSC’s request for a stay through September 13, 2016,

but denied its request for an order returning Dr. Klein to his position as a pain

management physician to the extent the position no longer exists. U-3 SRF,

Tab 3. The Board, however, ordered DVA to provide a detailed accounting of its

search for vacant positions and modified assignments with physician duties

within the local commuting area to which it could temporarily reassign Dr. Klein.

Id. at 7-8. In response, the agency identified three vacancies at the Poplar Bluff

Medical Center, two primary care physician positions and one urgent care

physician position. U-3 SRF, Tab 6 at 3. DVA argued that, while Dr. Klein met

the minimum requirements to be considered for appointment to these positions, he

did not have the clinical or diagnostic skills and experience necessary for them

because he specializes in pain management and anesthesiology. Id. at 3, 8.

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¶6 On August 26, 2016, OSC filed a timely request to extend the stay for an

additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans

Affairs, MSPB Docket No. CB-1208-16-0023-U-4, Stay Request File (U-4 SRF),

Tab 1. The agency has filed a timely response. U-4 SRF, Tab 2. OSC has filed a

reply. U-4 SRF, Tab 3.

ANALYSIS

¶7 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).

¶8 In its first request for extension, OSC asserted that DVA had failed to

respond to its requests for information and documents pursuant to 5 C.F.R. § 5.4.

U-3 SRF, Tab 1 at 3. OSC further maintained that, after DVA responded, it

would need additional time to schedule and conduct witness interviews or, if

necessary, request additional information. Id. OSC asserts that, on July 19,

2016, after the Board granted its first request for an extension, DVA partially

responded to its request for information and documents by providing the

documents in the evidence file supporting Dr. Klein’s termination, which

previously had been informally provided to OSC. U-4 SRF, Tab 1 at 3.

¶9 In its second request for extension currently before us, OSC asserts that an

additional 60 days is necessary because electrically stored responsive information

is still outstanding and DVA has informed OSC that it will be weeks before it will

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be able to provide such information. Id. Thus, OSC maintains that the

evidentiary record has not materially changed since OSC filed its initial stay

request. Id. at 6. DVA does not dispute that it has not fully responded to OSC’s

requests for information, though it disputes the proper method for locating

responsive electronic information. U-4 SRF, Tab 2 at 2-3.

¶10 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 materially

changed since the Board granted the initial stay, we find it appropriate to extend

the stay until November 10, 2016. See Special Counsel ex rel. Waddell v.

Department of Justice, 103 M.S.P.R. 372, ¶ 5 (2006).

¶11 In addition to its stay request, OSC also requests that the Board order that

DVA temporarily reassign Dr. Klein to a vacant pain management physician

position located in either Columbia or Kansas City, Missouri. U-4 SRF, Tab 1

at 7-8. A stay granted pursuant to 5 U.S.C. § 1214(b) is issued as a means of

minimizing the adverse consequences of a prohibited personnel practice,

providing time for a full investigation and settlement negotiations and

safeguarding the status quo ante while the interested parties prepare their cases

for presentation to the Board. Special Counsel v. Department of Veterans Affairs,

60 M.S.P.R. 40, 41 (1993). If OSC has met its burden, the employee is usually

placed in the same position he held before the agency’s allegedly improper

actions. Special Counsel v. Department of the Interior, 68 M.S.P.R. 266, 269

(1995). The Board has, however, recognized that an agency may show a

compelling reason for not returning an employee to the duties and responsibilities

of his position during the pendency of a stay. See, e.g., Special Counsel v.

Department of Transportation, 72 M.S.P.R. 104, 108 (1996).

¶12 Here, DVA asserts that Dr. Klein cannot be returned to duty in his former

position because it closed the pain clinic. U-1 SRF, Tab 2 at 4. Further, DVA

contends that there are no vacant positions within Dr. Klein’s specialties at the

Poplar Bluff Medical Center and it would be inappropriate to assign him to any of

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the three vacant positions at Poplar Bluff Medical Center, which are in primary or

urgent care settings, settings in which Dr. Klein has no prior experience. U-3

SRF, Tab 6 at 3-4, 8. OSC contends that, because DVA cannot locate an

appropriate physician position in the local commuting area, the Board should

order DVA to temporarily reassign Dr. Klein to an available pain management

physician position in either Columbia or Kansas City, Missouri. U-4 SRF, Tab 1

at 7-8. DVA responds that Dr. Klein would need to obtain appropriate credentials

from these facilities prior to performing any clinical duties. U-4 SRF, Tab 2 at 5.

It further asserts that there is no guarantee that he would be granted such

credentials because the decision whether to grant a physician clinical privileges is

made by officials at the local medical center, the fact that one facility has granted

particular clinical privileges to an individual physician does not guarantee that

another facility will grant the same privileges, and the overall scope of the

clinical services provided by the medical centers in Columbia and Kansas City,

Missouri, is broader than the scope of services provided at the Poplar Bluff

Medical Center. Id. at 3-5.

¶13 At this time, we will not order DVA to reassign Dr. Klein to either pain

management position in Columbia or Kansas City, Missouri, to the extent that

Dr. Klein does not have clinical privileges at these medical centers and agency

officials at the Poplar Bluff Medical Center have no authority to grant Dr. Klein

the clinical privileges required for him to perform medical procedures within his

specialties at these locations. Nor will we order DVA to reassign Dr. Klein to

any of the three vacant positions identified at Poplar Bluff Medical Center

because such positions appear to lie outside of Dr. Klein’s expertise and OSC has

not disputed DVA’s contentions that, given Dr. Klein’s skills and experience as

an anesthesiologist and pain management specialist, it would not be appropriate

to place him in a primary care or urgent care physician position.

¶14 However, DVA should continue to search for and assign Dr. Klein to any

appropriate physician position within his skills and experience should such a

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position become available within the local commuting area during the pendency

of the stay. To the extent that OSC believes that the agency has failed to comply

with the terms and conditions of this Order as set forth below, OSC may petition

the Board for enforcement of this Order and may recommend appropriate

sanctions to be imposed for the agency’s noncompliance. See 5 C.F.R. part 1201,

subpart F.

ORDER

¶15 Pursuant to 5 U.S.C. § 1214(b)(1)(B), an extension of the stay is hereby

granted, and we ORDER as follows:

(1) The stay issued on June 1, 2016, is extended through and including

November 10, 2016, on the terms and conditions that (a) DVA will

reinstate Dr. Klein to the status quo ante, but is not required to reassign

him to the vacant primary care or urgent care physician positions

located at Poplar Bluff Medical Center or to the vacant pain

management physician positions in Columbia or Kansas City, Missouri;

(b) DVA shall not affect any change to Dr. Klein’s salary, grade level,

or duty station, or impose upon him any requirement that is not

required of other employees of a comparable grade level; and (c) DVA

shall assign Dr. Klein to a physician position within his skills and

experience to the extent one becomes available within the local

commuting area during the pendency of the stay;

(2) Within 5 working days of this Order, DVA shall submit evidence to the

Clerk of the Board showing that it has complied with this Order; and

(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 October 26,

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.

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§ 1214(b)(1)(C) must be received by the Clerk of the Board, together

with any evidentiary support, on or before November 2, 2016. See

5 C.F.R. § 1201.136(b).

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.