                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. JUDY KACHANES,                          CB-1208-14-0021-U-1
                   Petitioner,

                  v.
                                                     DATE: August 20, 2014
     DEPARTMENT OF AGRICULTURE,
                 Agency.



                 THIS STAY ORDER IS NONPRECEDENTIAL 1

           Alejandra Duarte Dove, Esquire, Washington, D.C., for the petitioner.

           Valerie J. Neris-Blankenship, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman


                               ORDER ON STAY REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
     has requested a 45-day stay of the agency’s indefinite detail, proposed removal,
     and constructive removal of Judy Kachanes to allow it to investigate Ms.
     Kachanes’s prohibited personnel practice complaint. For the reasons set forth
     below, OSC’s request for a stay 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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         In its August 15, 2014 stay request, OSC alleges that Ms. Kachanes was a
     27-year employee of the agency’s Food Safety and Inspection Service (FSIS),
     with no disciplinary history prior to the incidents at issue in its investigation.
     OSC further alleges that the agency appointed Ms. Kachanes to a Consumer
     Safety Inspector position in McPherson, Kansas, effective September 9, 2012.
     Shortly thereafter, Ms. Kachanes allegedly began making various disclosures of
     violations of standards concerning the humane slaughter of animals and the
     agency’s failure to take appropriate action to correct the violations and prevent
     their reoccurrence. OSC alleges that the agency retaliated against Ms. Kachanes
     by detailing her for an indefinite period of time, proposing her removal, and
     constructively removing her.
¶3         OSC asserts that during Ms. Kachanes’s monitoring of a specialty meat
     plant (the plant) on October 18, 2012, she observed that the animals were not
     rendered unconscious by the bolts of electricity used to stun them before death, a
     violation of the Humane Methods of Slaughter Act of 1978.         Consistent with
     agency regulations, Ms. Kachanes reported the inhumane slaughter to the
     inspector permanently assigned to the plant and asked him to take appropriate
     action.   OSC contends that the inspector declined to take any of the required
     remedial actions, and Ms. Kachanes thereafter reported the incident to various
     officials within her chain of command and the FSIS Humane Handling
     Ombudsman. OSC alleges that the agency immediately relieved her of her duties
     at the plant. After Ms. Kachanes saw no evidence of any corrective action at the
     plant, she allegedly contacted both the Secretary of Agriculture and the
     Government Accountability Project to report the incident and her belief that the
     FSIS had failed to properly respond.
¶4         OSC asserts that Ms. Kachanes’s concerns were confirmed when she
     attended a “correlation” at the plant on March 6, 2013, for the purpose of
     demonstrating that the plant had addressed and corrected the problems that she
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     had reported. While there, Ms. Kachanes observed further alleged violations of
     the slaughter process and reported the new violations to the Ombudsman and the
     FSIS officials in her chain of command.         On March 14, 2013, the District
     Manager placed Ms. Kachanes on a detail from her Consumer Safety Inspector
     position in McPherson, Kansas, to the position of Food Inspector in Wellington,
     Kansas, “until further notice.” OSC asserts that this was a demotion in duties and
     was a physically more demanding position; accordingly, Ms. Kachanes informed
     the agency that she was unable to perform the duties of the Food Inspector
     position due to medical restrictions that were incompatible with the position. 2 In
     response, the District Manager allegedly issued another detail assignment to Noel,
     Missouri, “until further notice,” and, for the first time, referred to alleged
     performance issues that occurred 5 months prior. OSC asserts that the allegations
     of performance issues coincided with Ms. Kachanes’s October 2012 disclosures
     concerning the plant and were not mentioned during her mid-year performance
     review in February 2013. Ms. Kachanes again submitted medical documentation
     concerning her inability to perform in the detailed position, and she did not begin
     her detail assignment for physical inability to perform the duties of the position.
     OSC alleges that the agency then placed her in an Absent Without Leave (AWOL)
     status despite her requests for leave without pay.
¶5        In response to Ms. Kachanes’s March 22, 2013 complaint with the agency’s
     Office of the Assistant Secretary for Civil Rights (OCR), 3 on August 21, 2013,
     OCR allegedly ordered the FSIS to return Ms. Kachanes to a Consumer Safety
     Inspector position in McPherson, Kansas, effective September 25, 2013. Instead,

     2
       As OSC notes, the Office of Personnel Management (OPM) qualification standards for
     the Food Inspection series 1863 include medical requirements whereas the OPM
     qualification standards for the Consumer Safety Inspection series 1862 do not.
     3
       Ms. Kachanes complained to OCR that the detail to the Food Inspector position in
     Noel, Missouri, violated the terms of an earlier equal employment opportunity
     settlement agreement that resulted in her appointment to the Consumer Safety Inspector
     position in McPherson, Kansas.
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     OSC alleges that the agency issued a notice of proposed removal on September
     12, 2013, for failure to report to duty as detailed, conduct unbecoming a federal
     employee, and absence without leave.           OSC alleges that Ms. Kachanes
     involuntarily resigned on December 14, 2013, prior to a final decision on the
     proposed removal.

                                        ANALYSIS
¶6        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. Special Counsel ex rel.
     Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶7        OSC argues that it has reasonable grounds to believe that Ms. Kachanes
     made multiple protected disclosures of violations of laws, rules, and regulations
     under 5 U.S.C. § 2302(b)(8) concerning the plant’s violation of inhumane
     slaughter laws and agency management’s failure to take the appropriate action to
     bring the plant into compliance. OSC contends that a disinterested observer in
     Ms. Kachanes’s shoes could believe that the information she disclosed evidenced
     violations of law, rule, or regulation. OSC argues that the agency officials in Ms.
     Kachanes’s chain of command had knowledge of her disclosures at the time of
     their decisions to take each of the challenged personnel actions under 5 U.S.C.
     § 2302(a)(2)(A): the decision to detail her indefinitely, propose her removal, and
                                                                                        5

     coerce her resignation. 4 OSC alleges that Ms. Kachanes’s whistleblowing activity
     was a contributing factor in the agency’s decision to take the covered personnel
     actions because her disclosures occurred within a short period of time before each
     of the agency’s action.    Further, OSC argues that the attendant circumstances
     surrounding these actions support a motive to retaliate against her. 5
¶8         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 indefinitely detailed Ms. Kachanes, proposed her removal, and
     constructively removed her based on her protected disclosures in violation of
     5 U.S.C. § 2302(b)(8).

                                           ORDER
¶9         Based on the foregoing, I conclude that granting OSC’s stay request is
     appropriate.    Accordingly, a 45-day stay of Ms. Kachanes’s indefinite detail,
     proposed removal, and constructive removal is GRANTED. The stay shall be in
     effect from August 20, 2014, through and including October 3, 2014. It is further
     ORDERED that:
           (1)      Ms. Kachanes shall be reinstated to her position of record as a
                    Consumer Safety Inspector in McPherson, Kansas, with the same

     4
       Although Ms. Kachanes resigned prior to OSC’s stay request, the language of the
     statute permits the stay of a personnel action if the Special Counsel has reasonable
     grounds to believe that the action “was taken, or is to be taken, as a result of a
     prohibited personnel practice.”     5 U.S.C. § 1214(b)(1)(A)(i).     An involuntary
     resignation is tantamount to a removal and is a “personnel action” under 5 U.S.C.
     § 2302(a)(2)(A)(iii). See Pariseau v. Department of the Air Force, 113 M.S.P.R. 370,
     ¶ 11 (2010). The Board has the authority to stay the removal of an employee after the
     effective date of the action. See Special Counsel v. Department of Transportation, 59
     M.S.P.R. 552, 555 (1993).
     5
       OSC asserts that management behavior outside of the personnel decisions also
     suggests a retaliatory motive. Further, OSC cites the agency Inspector General’s May
     2013 audit report, which concluded that FSIS inspectors failed to take appropriate
     enforcement actions, failed to improve slaughter practices at supervised plants, and
     failed to ensure the humane handling of swine, which are conclusions consistent with
     Ms. Kachanes’s disclosures.
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           duties and responsibilities that she formerly had and at the same
           salary and grade level effective August 20, 2014;
     (2)   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;
     (3)   Any request for an extension of this 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
           September 19, 2014.
     (4)   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 received by
           the Clerk of the Board and served on OSC, together with any
           evidentiary support, on or before September 26, 2014.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
