The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. STEVEN MCDANIEL, CB-1208-23-0006-U-1
Petitioner,
v.
DATE: April 10, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Dustin Seth Frankel, Esquire, Washington, D.C., for the petitioner.
Katherine W. Krems, Esquire, Washington, D.C., for the relator.
Theodore M. Miller, Seattle, Washington, 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 for 45 days the probationary termination of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Mr. McDaniel while OSC completes its investigation and legal review of the
matter and determines whether to seek corrective action. For the reasons
discussed below, OSC’s request is GRANTED.
BACKGROUND
¶2 In its April 6, 2023 stay request, OSC alleges that it has reasonable grounds
to believe that, on September 6, 2022, the Department of Veterans Affairs (VA)
terminated Mr. McDaniel from his position as Chief of Police at the Walla Walla,
Washington medical center, during his probationary period, due to a prohibited
personnel practice. Stay Request File (SRF), Tab 1 at 5-6. OSC alleges that
Mr. McDaniel engaged in a protected activity on May 5, 2022, when he disclosed
to the VA Office of Inspector General (OIG) that a subordinate officer had
engaged in sexual activity while on duty with a resident of a housing community
for homeless veterans and their families, which was run by the VA Medical
Center (VAMC). Id. at 6, 10-11. OSC states that, upon investigation, OIG
sustained the allegations of misconduct against the acc used officer. Id. at 6.
Then, on or around June 9, 2022, OSC alleges that Mr. McDaniel made a
protected disclosure when he based the proposed removal of the accused officer
on the sexual misconduct, which was reviewed by the VAMC Director, who was
the deciding official in that action. Id. at 7, 10-11.
¶3 OSC contends that, on September 6, 2022, 2 the VA terminated
Mr. McDaniel’s appointment for having entered the medical center after hours on
April 14, 2022, while allegedly under the influence of alcohol. Id. at 8, 12.
OSC maintains that Mr. McDaniel’s protected disclosures and activities were a
contributing factor in the decision to terminate his appointment because the
VAMC Director was aware of Mr. McDaniel’s disclosure and activity, and within
a few months of Mr. McDaniel’s reporting the allegations to OIG and including
2
OSC incorrectly stated that the date of Mr. McDaniel’s probationary termination was
September 6, 2023. SRF, Tab 1 at 8.
3
them in his proposed removal of the accused officer, the VAMC Director
approved his termination. Id. at 11-12. OSC also maintains that other
circumstantial evidence supports an inference that Mr. McDaniel’s protected
activity and disclosure were a contributing factor in his termination. Id. at 12-14.
Finally, OSC contends that the allegations of misconduct against Mr. McDaniel
mischaracterized and omitted material evidence. Id. at 8-9, 13-14. In sum, OSC
asserts that it has reasonable grounds to believe that the termination of
Mr. McDaniel was a prohibited personnel practice under 5 U.S.C. §§ 2302(b)(8)
and (b)(9)(C).
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).
Deference is given to OSC’s initial determination, and a stay will be denied only
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).
¶5 To establish a prima facie case of whistleblower reprisal, 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 Special
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Counsel ex rel. Aran., 115 M.S.P.R. 6, ¶ 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 knowle dge
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.
¶6 Pursuant to OSC’s stay request, it appears that Mr. McDaniel participated in
a protected activity, as defined by 5 U.S.C. § 2302(b)(9)(C), by disclosing to the
OIG that a subordinate officer engaged in sexual activity while on duty with a
resident of a housing community for homeless veterans and their families, which
was run by the VA. SRF, Tab 1 at 6, 10-11. Furthermore, based on OSC’s
assertions, it appears that Mr. McDaniel reasonably believed that he was
disclosing a violation of law, rule, or regulation, under 5 U.S.C. § 2302(b)(8),
when he based the accused officer’s proposed removal on the proven allegations
of sexual misconduct, which was reviewed by the VAMC Director. Id. at 6,
10-11.
¶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, the VAMC Director had knowledge of
Mr. McDaniel’s protected disclosure and activity because he was the deciding
5
official in the accused officer’s removal action, and thus reviewed the disclosure,
as it was the basis of the removal action. SRF, Tab 1 at 11-12.
Furthermore, OSC contends that, given his position as Director, the VAMC
Director would have likely received a copy of the OIG report which identified
Mr. McDaniel as the source of the OIG referral. Id. at 11. As for the timing
prong, the Board has recognized that a personnel action taken within
approximately 1 to 2 years of an appellant’s protected disclosures satisfies the
knowledge/timing test. See Mastrullo, 123 M.S.P.R. 110, ¶ 21. OSC asserts that
Mr. McDaniel’s probationary termination occurred within 4 months of his report
to OIG and within 3 months of the notice of proposed removal of the accused
officer. SRF, Tab 1 at 6-8, 10-12.
¶8 In addition, OSC contends that attendant circumstances su ggest that
Mr. McDaniel’s protected disclosure and/or activity was a contributing factor in
the decision to terminate him during his probationary period. Id. at 12-14.
In particular, OSC alleges that the VAMC Director linked Mr. McDaniel’s
probationary termination to his protected disclosure and activity, “speculating”
that the officers mistrusted Mr. McDaniel because of the sexual misconduct
investigation. Id. at 12-13. According to OSC, this is corroborated by the VA’s
interim Associate Director of Operations, who stated that the VAMC Director
wanted to terminate Mr. McDaniel for poor officer moral e, not because of any
alleged intoxication. Id. Furthermore, as noted, OSC alleges that several key
pieces of evidence were omitted from the report of the investigation into
Mr. McDaniel’s alleged misconduct, which appears to exonerate him from the
conduct for which he was supposedly terminated. Id. at 13-14.
¶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,
I find that there are reasonable grounds to bel ieve that the VA terminated
Mr. McDaniel’s appointment based on his protected disclosure and protected
activity in violation of 5 U.S.C. § 2302(b)(8) and (b)(9)(C).
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ORDER
¶10 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45-day stay of Mr. McDaniel’s probationary termination is
GRANTED. The stay shall be in effect from April 10, 2023, through and
including May 24, 2023. It is further ORDERED that:
(1) During the pendency of this stay, the relator shall be placed in the
position the relator held prior to the termination of his appointment
on September 6, 2022;
(2) The agency shall not effect any changes in the relator’s duties or
responsibilities that are inconsistent with the relator’s salary or grade
level, or impose upon the relator 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 wit h
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) 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 May 9, 2023; and
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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 May 16, 2023.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.