                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. ELSTON L. STEPHENSON,                   CB-1208-17-0016-U-1
                   Petitioner,

                  v.
                                                     DATE: April 13, 2017
     DEPARTMENT OF THE NAVY,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1
           Elisabeth R. Brown, Esquire, Oakland, California, for the petitioner.

           Geoffrey D. Chun, San Diego, California, for the agency.


                                           BEFORE

                              Mark A. Robbins, Vice Chairman


                               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 agency’s probationary termination of
     Elston Stephenson 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.

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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         The following allegations of fact are set forth more fully in OSC’s stay
     request. Mr. Stephenson joined the agency as a Safety and Occupational Health
     Specialist in February 2016, with approximately 20 years of experience in that
     field. Stay Request File (SRF), Tab 1 at 5-6. The agency designed his position to
     help the Fleet Readiness Center Southwest (FRCSW) achieve and maintain its
     certification under an international health and safety standard and improve the
     organization’s safety program. Id. at 6. Over a period of time, he expressed a
     number of safety concerns regarding inadequate fall protections to the FRCSW
     Safety Program Director and others. Id.
¶3         On August 4, 2016, Mr. Stephenson informed the Safety Program Director
     as well as the Safety and Regulatory Compliance Director that the FRCSW had
     experienced five recent falls, causing a variety of injuries. Id. He recommended
     to those individuals that the Commander of FRCSW identify fall protections as
     the highest safety priority. Id. On August 5, 2016, Mr. Stephenson also alerted
     officials at the Fleet Readiness Centers Command (COMFRC) about one of those
     recent falls, when an individual fell from an F-18 aircraft, broke his clavicle, and
     required overnight hospitalization. Id. at 7. In doing so, he expressed concerns
     of a systemic safety threat and explained that he already had brought the issue to
     the FRCSW Safety Program Director and the Safety and Regulatory Compliance
     Director. Id.
¶4         By August 9, 2016, Mr. Stephenson alerted officials at CO MFRC that
     FRCSW officials had failed to comply with an Occupational Safety and Health
     Administration (OSHA) requirement that the agency report the aforementioned
     hospitalization, despite his reminders that they should do so. SRF, Tab 1 at 7,
     Tab 3 at 130; see 29 C.F.R. § 1904.39(a)(2) (requiring that an employer report the
     in-patient hospitalization of an employee due to a work-related incident to OSHA
     within 24 hours). That same day, an official with COMFRC sent an inquiry to an
     official with FRCSW in an email containing Mr. Stephenson’s August 5 message
                                                                                              3

     about the recent falls.        SRF, Tab 1 at 7-8.        That FRCSW official responded,
     adding the FRCSW Safety and Regulatory Compliance Director to the email
     chain, who then responded by disputing Mr. Stephenson’s claims and concerns.
     Id. at 8.
¶5          On August 10, 2016, OSHA received an anonymous complaint from
     employees at the FRCSW concerning inadequate fall protections. Id. at 9. OSHA
     notified the FRCSW of the complaint the following day. Id.
¶6          On August 12, 2016, the FRCSW Safety and Regulatory Compliance
     Director submitted a write-up to a human resources official to justify
     Mr. Stephenson’s removal.          Id.     Among other things, this write-up includes
     language expressly identifying Mr. Stephenson’s contacts with COMFRC and
     what the FRCSW Safety and Regulatory Compliance Director believed was his
     anonymous complaint to OSHA as grounds for his removal. Id. at 10-11. On
     August 16, 2016, the FRCSW Safety Program Director provided a similar
     write-up. Id. at 11-12. The agency then removed Mr. Stephenson on August 17,
     2016. Id. at 5.
¶7          Separate from his disclosures concerning fall protections and OSHA
     reporting requirements, Mr. Stephenson also filed a July 28, 2016 complaint with
     agency leadership, requesting an Inspector General investigation. Id. at 12. The
     complaint identified hostile work environment and equal employment opportunity
     issues stemming from a previously investigated matter involving the FRCSW
     Safety Program Director and his reported sharing of sexually explicit material
     with subordinates.     Id.       Mr. Stephenson informed the FRCSW Safety and
     Regulatory Compliance Director on or around August 5, 2016, that he had made
     this complaint, and she shared it with others just before submitting her write -up
     to justify Mr. Stephenson’s removal. Id. at 13.
¶8          On April 11, 2017, OSC filed the instant stay request, arguing that it has
     reasonable   grounds      to     believe    that   the   agency’s   decision   to   remove
     Mr. Stephenson was reprisal for whistleblowing, a prohibited personnel practice
                                                                                         4

      under 5 U.S.C. § 2302(b)(8). Id. at 5. OSC is requesting the Board to stay the
      agency’s removal action for 45 days while OSC continues to investigate the
      matter. Id. On April 12, 2017, the agency filed a response to OSC’s stay request.
      SRF, Tab 3.

                                         ANALYSIS

¶9          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 t hat 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). The
      Board has the authority to stay a probationary termination after its effective date
      if it determines that OSC has reasonable grounds to believe the action was taken
      as a result of a prohibited personnel practice. Special Counsel ex rel. Rigdon v.
      Department of the Army, 98 M.S.P.R. 110, ¶ 13 (2004).
¶10         To establish a prima facie violation of 5 U.S.C. § 2302(b)(8), OSC must
      demonstrate that:    (1) the employee made a protected disclosure; (2) the
      official(s) who recommended, took, or threatened the personnel action had actual
      or constructive knowledge of the protected disclosure; (3) a personnel action was
      taken or not taken, or threatened to be taken or not taken; and (4) the protected
      disclosure was a contributing factor in the challenged personnel action. Office of
      Special   Counsel    ex   rel.   Hopkins   v.   Department     of   Transportation ,
      90 M.S.P.R. 154, ¶ 4 (2001).       Regarding the first element, a disclosure is
                                                                                                 5

      protected under 5 U.S.C. § 2302(b)(8) if the individual has a reasonable belief
      that the information being disclosed evidences any 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.                 Bradley v.
      Department of Homeland Security, 123 M.S.P.R. 547, ¶ 7 (2016).
¶11         Based on the facts set forth above, I find that OSC has reasonable grounds
      to believe that the agency improperly removed Mr. Stephenson in retaliation for a
      protected disclosure.         Mr. Stephenson appears to have made a protected
      disclosure by revealing that the agency violated a regulation that required
      reporting a workplace injury to OSHA. 2 See 29 C.F.R. § 1904.39(a)(2). He may
      have also made others, including protected disclosures of a substantial and
      specific danger to public health or safety when he repeatedly reported fall
      protection    deficiencies.       Based       on   OSC’s    assertions,   it   appears   that
      Mr. Stephenson’s disclosures were a contributing factor in his termination.
      See Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995) (recognizing
      that a probationary termination is a personnel action). At a minimum, the facts
      alleged by OSC suggest that the FRCSW Safety and Regulatory Compliance
      Director and the FRCSW Safety Program Director learned of Mr. Stephenson’s
      disclosures and recommended his termination just days later, satisfying the
      knowledge/timing test. 3 See Ayers v. Department of the Army, 123 M.S.P.R. 11,
      ¶¶ 25-26 (2015) (observing that the appellant met his burden to prove
      contributing factor when agency officials knew about the protected disclosure and
      removed      the   appellant    within    a    year   of   the   disclosure,   meeting   the
      knowledge/timing test).


      2
        The agency concedes that this may constitute a protected disclosure. SRF, Tab 3
      at 14, 20.
      3
        Despite arguing that Mr. Stephenson’s disclosures did not contribute to his removal,
      the agency appears to concede that the knowledge/timing test is satisfied. SRF, Tab 3
      at 23-25.
                                                                                         6

¶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 engaged in a prohibited personnel practice described in 5 U.S.C.
      § 2302(b)(8).

                                           ORDER
¶13        Based on the foregoing, I conclude that granting OSC’s stay request would
      be appropriate.   Accordingly, a 45-day stay of the agency’s probationary
      termination action is GRANTED. The stay shall be in effect from April 13, 2017,
      through and including May 27, 2017. It is further ORDERED that:
            (1)   During the pendency of this stay, Mr. Stephenson shall be reinstated
                  to the GS-12 Safety and Occupational Health Specialist position he
                  held prior to his probationary termination;
            (2)   The agency shall not effect any changes in Mr. Stephenson’s duties
                  or responsibilities that are inconsistent with his salary or grade level,
                  or impose upon him 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; and
            (4)   Ordinarily, a request for an extension of a 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, no later than 15 days before the expiration of the
                  stay. Any comments on such a request that the agency want s 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, together
                  with any evidentiary support, no later than 8 days before the
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           expiration of the stay.   However, the Board currently lacks the
           quorum necessary to grant an extension of the stay.




FOR THE BOARD:                         ______________________________
                                       Jennifer Everling
                                       Acting Clerk of the Board
Washington, D.C.
