The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. ZERINA SPALDING, CB-1208-22-0016-U-1
Petitioner,
v.
DATE: July 28, 2022
DEPARTMENT OF THE TREASURY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Julie R. Figueira, Esquire and Paul David Metcalf, Jr., Esquire,
Washington, D.C., for the petitioner.
Corlie McCormick, Jr., Esquire, Crofton, Maryland, for the relator.
Danae K. Remmert, Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Member
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 Ms. Spalding’s proposed removal for 45 days while
OSC completes its investigation and legal review of the matter and determines
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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whether to seek corrective action. For the reasons discussed below, OSC’s
request is GRANTED.
BACKGROUND
¶2 In its July 25, 2022 stay request, OSC states that it has reasonable grounds
to believe that on March 16, 2022, the Department of the Treasury (the agency)
proposed to remove Ms. Spalding from her position with the U.S. Mint in
violation of 5 U.S.C. § 2302(b)(1) and (b)(8). Stay Request File (SRF), Tab 1
at 5, 8. OSC alleges that, on December 13, 2019, Ms. Spalding sent an
anonymous email to the agency’s Anti-Harassment Coordinator detailing
instances of what she believed to be unlawful or improper favoritism toward
white employees. Id. at 6. In the email, a copy of which OSC provides as an
attachment to its stay request, the author alleged that some white employees at the
agency received “differing treatment” and that agency leadership would “pick and
choose what’s equal.” Id. at 21. The author identified examples of “differing
treatment,” including instances in which two agency employees hung nooses in
U.S. Mint facilities and one of the employees was not disciplined while the other
employee was ultimately awarded financial compensation in a settlement
agreement. Id. The email author also alleged that an employee was given an
unfair advantage when the employee was permitted to serve in a detail beyond the
time limit, agency officials ignored ethics violations committed by another
employee, and certain employees were given favorable teleworking agreements
and advantages in promotion decisions. Id.
¶3 According to OSC, the email was later forwarded to the agency’s Office of
the Inspector General (OIG), and the OIG initiated an investigation to determine
the identity of the email sender. Id. at 7. After OIG received subpoenaed email
and IP address records linking the anonymous email to Ms. Spalding’s home
address, Ms. Spalding initially denied knowledge of the anonymous email during
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an interview with OIG investigators, but later admitted that she was the author of
the anonymous email during a subsequent interview in February 2022. Id. at 8.
¶4 OSC states that the agency proposed Ms. Spalding’s removal from Federal
service on March 16, 2022, based on a charge of lack of candor. Id. According
to OSC, although the agency initially agreed to mediation through OSC and to
stay further processing of Ms. Spalding’s removal for 30 days beyond the end of
mediation, the agency issued a removal decision on July 1, 2022, just 2 weeks
after mediation ended, and on July 15, 2022, the agency informed OSC that it
would not extend the stay on the removal decision and removed Ms. Spalding,
effective immediately. Id. OSC contends that there are reasonable grounds to
believe that the agency proposed Ms. Spalding’s removal in retaliation for her
opposition to practices made unlawful by title VII in violation of 5 U.S.C.
§ 2302(b)(1)(A), and in retaliation for her protected whistleblowing disclosures in
violation of 5 U.S.C. § 2302(b)(8), and requests that the Board retroactively stay
the proposed removal for a period of 45 days. Id. at 1, 9-10, 12-13, 19.
ANALYSIS
¶5 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 Special Counsel ex
rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
Deference is given to OSC’s initial determination, and a stay will be denied only
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when the asserted facts and circumstances appear to make the stay request
inherently unreasonable. Special Counsel v. Department of Veterans Affairs,
50 M.S.P.R. 229, 231 (1991).
¶6 Under 5 U.S.C. § 2302(b)(1)(A), it is a prohibited personnel practice for
any employee who “has authority to take, direct others to take, recommend, or
approve any personnel action,” to discriminate against any employee or applicant
for employment on the basis of race, color, religion, sex, or national origin in
violation of title VII. Illegal discrimination under title VII includes retaliation
against an employee based on her opposition to discrimination. 42 U.S.C.
§ 2000e-16(a); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 36-37
(2015). OSC states that Ms. Spalding sent the anonymous email in an effort to
identify and oppose discrimination and favoritism based on race that was
unlawful under title VII. SRF, Tab 1 at 9-11. OSC further asserts that within
1 month of a report identifying Ms. Spalding as the author of this email, the
agency proposed her removal and there is a causal link between her email
opposing unlawful discrimination and her proposed removal. Id. at 11-12. 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’s
proposal to remove Ms. Spalding is the result of a prohibited personnel practice
under 5 U.S.C. § 2302(b)(1)(A). 2
2
OSC also contends that, even though the disclosures contained in Ms. Spalding’s
anonymous email alleged racial discrimination that might be protected under title VII,
the email also independently alleged wrongdoing within the categories of 5 U.S.C.
§ 2302(b)(8), and thus the email is protected regardless of whether it also evidenced
activity remediable under title VII. SRF, Tab 1 at 16. Because I am granting the stay
based on an alleged prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(A) in
connection with Ms. Spalding’s proposed removal, I need not consider whether to grant
the stay based on 5 U.S.C. § 2302(b)(8). See, e.g., 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).
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ORDER
¶7 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45-day stay of Ms. Spalding’s proposed removal is GRANTED.
The stay shall be in effect from July 28, 2022, through and including
September 10, 2022. It is further ORDERED that:
(1) During the pendency of this stay, Ms. Spalding shall be reinstated to
her former position at the same location, with the same duties and
responsibilities, and at the same salary and grade level that she had
prior to her removal;
(2) The agency shall not effect any changes in Ms. Spalding’s duties or
responsibilities that are inconsistent with her salary or grade level, or
impose upon her any requirement which 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 and 5 C.F.R.
§ 1201.136(b), must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
August 26, 2022; and
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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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(5) Any comments on such a request that the agency wants the Board to
consider, pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b), must be received by the Clerk of the Board on or
before September 2, 2022.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.