                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. MICHELLE BELGARD,                       CB-1208-15-0008-U-1
                   Petitioner,

                  v.
                                                     DATE: December 10, 2014
     DEPARTMENT OF JUSTICE,
                 Agency.



                THIS STAY ORDER IS NONPRECEDENTIAL 1
           Martha Sheth, Esquire, Washington, D.C., for the petitioner.

           Chung-Hi Yoder, Esquire, Washington, D.C., 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 removal of Dr. Michelle
     Belgard 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                        ANALYSIS
¶2         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 a 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 Office of Special Counsel ex
     rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶3         As OSC states, to establish a prima facie violation of 5 U.S.C.
     § 2302(b)(8), it must demonstrate that: (1) the employee made a disclosure of
     information that she reasonably believed evidenced any violation of any 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; (2) the
     agency official or officials exercising personnel action authority had knowledge
     of the employee’s disclosure; (3) a personnel action was threatened or taken; and
     (4) the protected disclosure was a contributing factor in the personnel action. See
     Office of Special Counsel ex rel. Aran, 115 M.S.P.R. 6, ¶ 7.
¶4         In its December 9, 2014 stay request, OSC alleges that Dr. Michelle
     Belgard was appointed by the Department of Justice, Federal Bureau of Prisons,
     as a physician in July 2013. OSC also alleges that shortly after her appointment,
     Dr. Belgard began disclosing concerns to her supervisors about conditions she
     observed and that she subsequently disclosed her supervisors’ failure to
     adequately address those concerns. OSC alleges that, after Dr. Belgard began
     making her disclosures, her supervisor gave her a low performance evaluation
     and removed duties from her responsibility. OSC further alleges that Dr. Belgard
                                                                                           3

     was removed from her position in July 2014 for “unacceptable conduct.” 2 OSC
     asserts that it has reasonable grounds to believe that Dr. Belgard made protected
     disclosures, relevant agency officials were aware of those disclosures, and the
     protected disclosures were a contributing factor in her removal.
¶5         Given the deference that is generally afforded to OSC and the assertions
     made in its stay request, I find that there are reasonable grounds to believe that
     the agency removed Dr. Belgard based on her protected disclosures in violation
     of 5 U.S.C. § 2302(b)(8).

                                            ORDER
¶6         Based on the foregoing, I conclude that granting OSC’s stay request is
     appropriate. Accordingly, a 45-day stay of Dr. Belgard’s removal is GRANTED.
     The stay shall be in effect from December 10, 2014, through and including
     January 23, 2015. It is further ORDERED that:
           (1) Dr. Belgard shall be reinstated to her former position, at the same
           location, with the same duties and responsibilities, and at the same salary
           and grade level that she had prior to her removal.
           (2) The Department of Justice shall not effect any change in Dr. Belgard’s
           duties and responsibilities that is inconsistent with her salary or grade level
           or impose upon her any requirement that is not required of other employees
           of comparable position, salary, or grade level;




     2
       In its stay request, OSC refers to the agency’s July 2014 action as either a “removal”
     or a “probationary removal.” I am unable to determine with certainty from the facts
     alleged by OSC whether the agency’s action constituted the removal of a tenured
     employee or the termination of a probationary employee. I need not determine the
     precise nature of the agency’s action, however, in order to act on OSC’s stay request.
     The use of the term “removal” in this Order should not be construed as a finding that
     the agency’s action constituted a removal under 5 U.S.C. chapter 75, subchapter II.
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     (3) Within 10 working days of this Order, the Department of Justice shall
     submit evidence to the Clerk of the Board showing that it has complied
     with this Order;
     (4) 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 January 8, 2015. See
     5 C.F.R. § 1201.136(b). 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, together with any evidentiary support,
     on or before January 15, 2015.




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