                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. TRINITY M. ALICEA,                      CB-1208-17-0008-U-1
                    Petitioner,

                  v.
                                                     DATE: December 23, 2016
     DEPARTMENT OF DEFENSE,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1

           Shayla Silver-Balbus, Esquire, Oakland, California, for the petitioner.

           Bradley R. Hansen, Esquire, Fort Lee, Virginia, for the agency.


                                           BEFORE

                                   Mark A. Robbins, 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 agency’s probationary termination of
     Trinity Alicea while OSC completes its investigation and legal review of the




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     matter and determines whether to seek corrective action.            F or the reasons
     discussed below, OSC’s request is GRANTED.

                                       BACKGROUND
¶2         In its stay request, dated December 20, 2016, OSC describes the following
     events and allegations:
¶3         On October 19, 2015, the Department of Defense, Defense Commissary
     Agency (DeCA), hired Alicea as a GS-03 Sales Store Checker at Luke Air Force
     Commissary (Commissary), subject to a 1-year probationary period. Sometime
     between January and March 2016, a coworker, referred to in the stay request as
     “John Smith,” revealed to Alicea that he had completed various mandatory
     computer-based on-the-job training (OJT) programs on her behalf and that
     management would require her to sign paperwork certifying that she had
     completed the trainings herself.         Alicea was concerned that signing these
     certificates would constitute falsification of official Government records, and she
     discussed Smith’s revelations with several Commissary coworkers.               Alicea
     alleges that, during these discussions, four coworkers confirmed that Smith
     completed OJTs on their behalf and that a Commissary Supervisory Store
     Associate directed them to falsely certify that they had completed their OJTs .
     Alicea further states that two of these coworkers reported to her that the
     Supervisory Store Associate had threatened discipline, including termination, if
     they refused to sign the certificates.
¶4         Alicea believed that Smith’s completion of her OJT and the false
     certifications were illegal. She also was concerned that she would not receive
     proper training during her probationary period if Smith continued to complete
     OJT on her behalf.        For example, she was not allowed to complete OJT on
     Women, Infants, and Children (WIC) purchases, a type of transaction requiring
     special training. She alleges that, as a result, during her first rating period , from
     October 19, 2015, through June 30, 2016, she accrued two cash variances on a
                                                                                       3

     WIC transaction. She further states that she was never subsequently trained on
     how to properly process WIC purchase, though the Supervisory Store Associate
     required her to sign paperwork certifying that she received remedial training for
     the variances.
¶5         Sometime around March 2016, Alicea first disclosed her concerns to the
     Supervisory Store Associate, who, Alicea alleges, was dismissive and began to
     show hostility toward her, monitoring her more closely during her shifts and
     requiring her to complete tasks—such as scrubbing the walls and floors—not
     within Alicea’s normal work duties. Alicea alleges that, over the next 6 months,
     Smith continued to complete OJT for her and other employees, and on several
     occasions the Supervisory Store Associate directed Alicea to falsely certify that
     she had completed her training.      During this time, Alicea noticed what she
     believed to be additional training improprieties. For example, she states that she
     was sometimes directed to complete her own OJT but was provided the answers
     in advance by management to minimize her time off the floor. Alicea complained
     about these incidents to the Supervisory Store Associate, both in private and in
     staff meetings. In total, Alicea believes she raised her training -related concerns
     to the Supervisory Store Associate roughly 15 times during her 1 year at DeCA.
¶6         On September 30, 2016, the Supervisory Store Associate issued a letter
     terminating Alicea’s appointment effective October 1, 2016, before the end of her
     probationary period. The letter cited Alicea’s failure of a critical element i n her
     performance plan. Specifically, the Supervisory Store Associate found Alicea to
     have had four cash or noncash variances during her first rating period, which
     exceeded the maximum of three variances allowed per rating period.              The
     probationary termination became effective on October 1, 2016.

                                        ANALYSIS
¶7         Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request that any member of
     the U.S. Merit Systems Protection Board order a stay of any personnel ac tion for
                                                                                        4

     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 committed.      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).
¶8         In this case, OSC contends that it has reasonable grounds to believe that
     Alicea’s probationary termination was the result of a prohibited personnel
     practice under 5 U.S.C. § 2302(b)(8).     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).
¶9         Regarding the first element, 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. Tullis v. Department of the Navy, 117 M.S.P.R. 236,
     ¶ 8 (2012).    The standard for evaluating the reasonableness of the belief is
                                                                                       5

      whether a disinterested observer with knowledge 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. (citing
      Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). Here, OSC asserts
      that a disinterested observer in Alicea’s position could have reasonably believed
      that the information she disclosed concerning Smith’s co mpletion of OJT and the
      falsification of training certificates evidenced a violation of law and/or an abuse
      of authority.
¶10         Turning to the second element, OSC explains that the Supervisory Store
      Associate had actual knowledge of the disclosures because Alicea made them
      directly to her on multiple occasions.     OSC further states that, according to
      Alicea, several other employees can attest that they heard Alicea make the
      disclosures to the Supervisory Store Associate in passing or during staff
      meetings. As to the third element, OSC observes that a probationary termination
      is a covered personnel action under 5 U.S.C. § 2302(a)(2)(A), as stated in Sirgo v.
      Department of Justice, 66 M.S.P.R. 261, 267 (1995). Finally, OSC argues that
      the contributing factor element is satisfied under the knowledge/timing test set
      out at 5 U.S.C. § 1221(e)(1), because a personnel action taken within 1 or 2 years
      of a protected disclosures is considered to have occurred within such a period of
      time that a reasonable person could conclude that the disclosure was a factor in
      the personnel action. See Schnell v. Department of the Army, 114 M.S.P.R. 83,
      ¶ 22 (2010).
¶11         Given the assertions made by OSC in its stay request, I find there are
      reasonable grounds to believe that the agency terminated Alicea’s employment
      during her probationary period because of her protected disclosures under
      5 U.S.C. § 2302(b)(8).
                                                                                         6

                                           ORDER
¶12        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
      December 23, 2016, through and including February 6, 2017.              It is further
      ORDERED that:

            (1) During the pendency of this stay, Alicea shall be reinstated to the
            GS-03 Sales Store Checker position she held prior to her probationary
            termination; 2

            (2) The agency shall not effect any changes in Alicea’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; and

            (4) Any request for an 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   further   evidentiary    support,   on    or   before
            January 23, 2017. Any comments on such a request that the agency wants
            the Board to consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be




      2
        As OSC observes, a stay of a probationary termination serves to maintain the
      employee’s probationary period for the duration of the stay. Special Counsel v.
      Department of Veterans Affairs, 45 M.S.P.R. 486, 488 n.* (1990) (citing Special
      Counsel v. Department of Commerce, 23 M.S.P.R. 136, 137 (1984).
                                                                             7

     received by the Clerk of the Board, together with any evidentiary support,
     on or before January 30, 2017.




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