                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. COLEEN ELMERS,                          CB-1208-15-0007-U-2
                   Petitioner,

                  v.
                                                     DATE: January 12, 2015
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.



              THIS STAY ORDER IS NONPRECEDENTIAL 1

           Julie Figueira, Esquire, Washington, D.C., for the petitioner.

           Nadine Scott, Esquire, Seattle, Washington, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                               ORDER ON STAY REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
     requests a 45-day extension of the previously-granted stay of the agency’s



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     termination of petitioner, Coleen Elmers.        For the reasons discussed below,
     OSC’s request is GRANTED, and the stay is extended through February 28, 2015.

                                     BACKGROUND
¶2         On November 26, 2014, OSC filed an initial request for a 45-day stay of
     the proposed termination of Ms. Elmers, a Nurse Manager with the Department of
     Veterans Affairs (the agency). MSPB Docket No. CB-1208-15-0007-U-1, Stay
     Request File (SRF), Tab 1. On November 28, 2014, before the Board acted on
     OSC’s initial stay request, the agency effectuated the probationary termination of
     Ms. Elmers. 2 See SRF, Tab 5 at 1-2, 4.
¶3         On December 1, 2014, Member Mark A. Robbins granted OSC’s initial
     45-day stay request and ordered the reinstatement of Ms. Elmers, finding that
     OSC’s factual allegations provided reasonable grounds to believe that the agency
     proposed Ms. Elmers’s termination based on a protected disclosure in violation of
     5 U.S.C. § 2302(b)(8). 3 SRF, Tab 2. On December 29, 2014, OSC filed a timely
     request to extend the stay for an additional 45 days.          MSPB Docket No.
     CB-1208-15-0007-U-2, Stay Request Extension File (SREF), Tab 1. To date, the
     agency has not filed a response in opposition to the extension request.

                                        ANALYSIS
¶4         A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued in order to
     maintain the status quo ante while OSC and the agency involved resolve the
     disputed matter. Special Counsel v. Department of Transportation, 74 M.S.P.R.
     155, 157 (1997). The purpose of the stay is to minimize the consequences of an
     alleged prohibited personnel practice.     Id.    In evaluating a request for an

     2
      Ms. Elmers was reportedly serving a 2-year probationary period, set to expire on
     December 1, 2014. See SRF, Tab 1 at 1.
     3
       The initial stay request was to remain in effect from December 1, 2014, through
     January 14, 2014. SRF, Tab 2 at 3. Any request for extension was due on or before
     December 30, 2014, and any agency comment on such a request was due on or before
     January 6, 2015. Id. at 4.
                                                                                            3

     extension of a stay, the Board will review the record in the light most favorable to
     OSC and will grant a stay extension request if OSC’s prohibited personnel
     practice claim is not clearly unreasonable. Id. at 158.
¶5            In its initial stay request and the request for extension currently before the
     Board, OSC alleges that Ms. Elmers filed a complaint with the agency’s Office of
     Inspector General in July 2014 concerning a fraudulently-altered performance
     evaluation, and that her supervisory chain became aware of the same. SRF, Tab 1
     at 2-3, 5-6; SREF, Tab 1 at 6-7, 9-10. OSC further alleges that in October 2014,
     Ms. Elmers’ performance was rated as unsatisfactory, and she was charged with
     lack of candor, failure to follow instructions, and inappropriate behavior for a
     management official. SRF, Tab 1 at 3-4; SREF, Tab 1 at 8. This reportedly
     resulted in Ms. Elmers’ November 28, 2014 probationary termination. SRF, Tab
     1 at 1-2; SREF, Tab 1 at 7-8. Accordingly, OSC alleges that it has a reasonable
     belief    that   the   agency   terminated   Ms.   Elmers    in   retaliation   for   her
     whistleblowing. E.g., SREF, Tab 1 at 6 (citing 5 U.S.C. § 2302(b)(8)).
¶6            OSC asserts that there has been no material change in the evidentiary
     record and that it requires additional time to continue the investigation. SREF,
     Tab 1 at 6, 12. Specifically, OSC maintains that it has requested documentation
     from the agency and it will require more time to review that which the agency
     provides in response.      Id. at 12.   Furthermore, OSC indicates that it requires
     additional time to conduct interviews with several agency officials and to
     possibly visit the agency’s Mann-Grandstaff facility for an on-site inquiry. Id.
     To date, the agency has not filed any opposition to OSC’s request for an
     extension of the stay. Under the specific circumstances of this case and in light
     of the fact that the evidentiary record supporting OSC’s initial stay request has
     not changed since Member Robbins granted the initial stay, we find it appropriate
     to extend the stay until February 28, 2015. See Special Counsel ex rel. Waddell
     v. Department of Justice, 103 M.S.P.R. 372, ¶ 5 (2006).
                                                                                   4

                                        ORDER
¶7        Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 45-day extension of the stay is
     hereby GRANTED. It is hereby ORDERED that:
             (1) The terms and conditions of the stay issued on December 1, 2014,
                are extended through and including February 28, 2015;
             (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 a further 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 evidentiary support, on or before
                February 13, 2015. See 5 C.F.R. § 1201.136(b). Any comments on
                such a request that the agency wishes the Board to consider pursuant
                to 5 U.S.C. § 1214(b)(1)(C) must be received by the Clerk of the
                Board, together with any evidentiary support, before February 20,
                2015. See 5 C.F.R. § 1201.136(b).




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