                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SPECIAL COUNSEL                                 DOCKET NUMBER
EX REL. DALE KLEIN,                             CB-1208-16-0023-U-3
              Petitioner,

             v.
                                                DATE: July 18, 2016
DEPARTMENT OF VETERANS
  AFFAIRS,
            Agency.




          THIS STAY ORDER IS NONPRECEDENTIAL *
      Elizabeth Q. McMurray, Esquire, and Sheri S. Shilling, Esquire,
        Washington, D.C., for the petitioner.

      Loretta Poston, Esquire, Tampa, Florida, for the relator.

      G.M. Jeff Keys, Esquire, St. Louis, Missouri, for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                              ORDER ON STAY REQUEST

¶1        Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
     has requested a 60-day extension of the previously granted 45-day stay of the
     agency’s termination of Dr. Dale Klein’s appointment. For the reasons discussed
     below, we GRANT OSC’s request and extend the stay through September 13,
     2016, but we DENY OSC’s request to order the agency to return Dr. Klein to the
     duties and responsibilities of a pain management physician at the Department of
     Veterans Affairs (DVA) Poplar Bluff Medical Center during the stay. However,
     we ORDER the agency to provide a detailed accounting to the Board and OSC to
     establish that it has searched for vacant positions and modified assignments with
     physician duties within the local commuting area to which it can place the
     appellant and that it considered him for any such vacancies.

                                     BACKGROUND
¶2        On May 26, 2016, OSC requested a stay of the termination of Dr. Klein’s
     appointment to complete its investigation and legal review of his prohibited
     personnel practices complaint and determine whether to seek corrective action.
     Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB
     Docket No. CB-1208-16-0023-U-1, Stay Request File (U-1 SRF), Tab 1. OSC
     also requested an order returning Dr. Klein to his position and duties as a pain
     management physician at the Poplar Bluff Medical Center during the period of
     the stay. Id. The Board granted OSC’s request for a stay through July 15, 2016,
     but denied OSC’s request to order DVA to return Dr. Klein to his duties and
     responsibilities as a physician. U-1 SRF, Tab 3.
¶3        On June 9, 2016, OSC filed a motion to modify the order granting the initial
     stay request by ordering that Dr. Klein be returned to his position as a pain
     management physician.     Special Counsel ex rel. Dale Klein v. Department of
     Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-2, Stay Request File
     (U-2 SRF), Tab 1. In the alternative, OSC requested that the Board order DVA to
                                                                                      3

     assign Dr. Klein to “mutually agreed upon duties that are ordinarily performed by
     physicians at the Poplar Bluff [Medical Center].”      Id. at 11-12.   On June 11,
     2016, DVA filed a response to OSC’s motion stating that the Poplar Bluff
     Medical Center’s pain management clinic has been closed and explaining the
     difficulties in reopening the clinic during the 45-day period of the stay. U-2 SRF,
     Tab 2. On June 20, 2016, the Board denied OSC’s motion for a modification of
     the initial stay order.
¶4         On June 30, 2016, OSC filed a timely request to extend the stay for an
     additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans
     Affairs, MSPB Docket No. CB-1208-16-0023-U-3, Stay Request File (U-3 SRF),
     Tab 1. The agency has filed a timely response. U-3 SRF, Tab 2.

                                        ANALYSIS
¶5         A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued 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 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. The Board may grant the extension for any period that
     it considers appropriate.    5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel.
     Waddell v. Department of Justice, 105 M.S.P.R. 208, ¶ 3 (2007).
¶6         In its request for an extension, OSC asserted that DVA had failed to
     respond to its requests for information and documents pursuant to 5 C.F.R. § 5.4.
     U-3 SRF, Tab 1 at 3, 10. After the agency responds, OSC may need to schedule
     and conduct witness interviews and, if necessary, request additional information
     based on these interviews. Id. After assessing the evidence, OSC may require
     additional time to attempt an informal resolution of the complaint, prepare a
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     report, or close the case, depending on the development of the evidentiary record.
     Id. OSC represents that the evidentiary record has not materially changed since it
     filed its initial stay request because DVA has failed to respond to its requests for
     documents and information. Id. at 6. OSC further requests that the Board order
     DVA to return Dr. Klein to his position as a pain management physician or assign
     him to a substantially similar physician position for which he is qualified. Id.
     at 6-9.
¶7            In response, the agency states that it opposes OSC’s request for a stay
     extension but it only presents argument regarding OSC’s request that Dr. Klein be
     restored to his former position. U-3 SRF, Tab 2 at 4-5. DVA has not rebutted
     OSC’s assertions that it has failed to respond to requests for information and
     documents. Id. Although DVA states that it “does not believe that Dr. Klein will
     ultimately be entitled to any relief for his claims of whistleblower retaliation,” id.
     at 4, it has not submitted any evidence or argument that casts any doubt upon the
     analysis in the Board’s June 1, 2016 order explaining why OSC set forth
     sufficient grounds to stay the termination action pursuant to 5 U.S.C. § 1214.
     Under the circumstances, we will extend the stay of the termination action for
     60 days.
¶8            The parties continue to dispute the appropriate duties for Dr. Klein to
     perform during the stay. The Board has held that the purpose of a stay is to
     preserve the status quo ante, not simply the status quo, and therefore, if a stay is
     appropriate, the employee must generally be placed in the same position he held
     before the agency’s allegedly improper actions.            Special Counsel ex rel.
     Perfetto v. Department of the Navy, 85 M.S.P.R. 454, ¶ 17 (2000). Further, the
     placement of an employee on administrative leave generally does not constitute a
     return     to   the   status   quo   ante.   Special   Counsel   v.   Department    of
     Transportation, 72 M.S.P.R. 104, 107 (1996). Nevertheless, compelling reasons
     may justify an employee not returning to his former duties as part of a return to
                                                                                        5

      the status quo ante.   Id. at 108.   A mere anticipation of an undue disruption,
      however, does not constitute such a compelling reason. Id.
¶9          Dr. Klein is alleged to be a board-certified anesthesiologist and pain
      management specialist. U-3 SRF, Tab 1 at 3. OSC asserts that, in connection
      with DVA’s initial agreement to “informally stay” his termination for 30 days,
      DVA assigned him to report to the finance director and to work in an office in a
      separate building from the clinical center. Id. at 4. OSC states that he was given
      a data‑entry assignment and other administrative tasks, but DVA has refused to
      return him to his former position or to assign him any clinical duties.          Id.
      According to Dr. Klein, failure to engage in clinical practice for “an extended
      period of time” could place him at risk for losing his board certifications and also
      could affect his ability to obtain medical malpractice insurance if he left
      Government service. Id. at 5.
¶10         After the Board granted OSC’s initial stay request but found that DVA
      was not required to return Dr. Klein to his duties and responsibilities as a
      physician, the agency notified Dr. Klein that he should report for duty as soon as
      possible and resume the administrative duties he was performing during the
      informal, temporary stay. U‑1 SRF, Tab 6. The agency maintains that its Poplar
      Bluff Medical Center lacks “any present need or use for a physician with his
      skills and privileges.” U-3 SRF, Tab 2 at 4. The agency has explained that this
      facility “is not a full-service hospital that performs invasive surgical procedures”
      and specifically has no need for an anesthesiologist. Id. The agency asserts that
      it would have to reorganize the facility, recreate the closed pain management
      clinic, and begin scheduling patients at the clinic for the duration of the 60-day
      stay extension. Id. The agency maintains this “will do absolutely nothing to
      promote the [DVA]’s mission of providing quality professional health care to our
      veterans,” id., and could unnecessarily result in veterans seeking health care
                                                                                       6

      being “bounced from one provider to another” while this matter is litigated,
      U-2 SRF, Tab 2 at 3.
¶11         OSC states that DVA’s claim that it cannot find any appropriate physician
      duties for Dr. Klein “warrants further scrutiny.” U-3 SRF, Tab 1 at 8. OSC notes
      that DVA has not questioned Dr. Klein’s clinical competency or patient care, but
      rather has cited only the lack of work at the Poplar Bluff Medical Center as the
      reason for not returning him to clinical duties during the stay. Id. OSC suggests
      that, as an alternative to returning him to his former duties at that facility, the
      Board could order the agency to reassign Dr. Klein to another nearby DVA
      facility where he could provide pain management care during the stay. Id. In
      response to OSC’s prior motion to modify the initial stay request, the agency
      claimed that there are no pain management clinical duties available for Dr. Klein
      to perform at the Poplar Bluff Medical Center and that he has not been granted
      required privileges to perform other clinical functions and procedures. U-2 SRF,
      Tab 2 at 3-4.   In its pending request, OSC notes that, in addition to his pain
      management privileges, Dr. Klein is a board-certified anesthesiologist who is
      qualified to provide anesthesia for procedures that require patients to be sedated.
      U-3 SRF, Tab 1 at 4. DVA has responded that the Poplar Bluff Medical Center
      has no need for an anesthesiologist and “is not a full-service hospital that
      performs invasive surgical procedures.” U-3 SRF, Tab 2 at 4.
¶12        At this time, we will not order the agency to return Dr. Klein to clinical
      duties that no longer exist at the Poplar Bluff Medical Center during the 60-day
      period of the extended stay. However, based on the current record, we cannot
      determine whether other physician duties for which the appellant is qualified are
      available at the center or any nearby agency facility. The DVA hereby is required
      to provide detailed evidence to establish that it has made an exhaustive search
      within the local commuting area for vacant positions or modified assignments
      with physician duties to which it can place the appellant and that it considered
      him for any such vacancies. To the extent that OSC believes that the agency has
                                                                                         7

      failed to comply with the terms and conditions of this stay order as set forth
      below, OSC may petition the Board for enforcement of this order and may
      recommend appropriate sanctions to be imposed for the agency’s noncompliance.
      See 5 C.F.R. part 1201, subpart F.

                                           ORDER
¶13        Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
      hereby granted, and we ORDER as follows:
        (1) The stay issued on June 1, 2016, is extended through and including
            September 13, 2016, on the terms and conditions that (a) DVA will
            reinstate Dr. Klein to the status quo ante but is not required to return him to
            his duties and responsibilities as a pain management physician at the Poplar
            Bluff Medical Center to the extent they no longer exist; and (b) DVA
            shall not affect any change to Dr. Klein’s salary, grade level, or duty
            station, or impose upon him any requirement that is not required of other
            employees of a comparable grade level;
        (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) Within 20 working days of this order, the agency shall provide a detailed
            accounting to the Board and OSC to prove that it has searched for vacant
            positions with physician duties within the local commuting area to which it
            can place the appellant and that it considered him for any such vacancies.
            The agency must provide a complete list of all such vacancies, including
            the duties of those positions, and whether or not it believes the appellant
            qualifies for those jobs, giving specific reasons in support of its
            conclusions. Likewise, the agency must provide detailed evidence to show
            that it considered modified assignments of positions with physician duties,
            within the local commuting area, for which the appellant qualifies. The
            agency’s evidence must contain affidavits from responsible agency
                                                                             8

     officials confirming that an exhaustive search was done and that all
     vacancies, as well as all modified assignments, were considered.
  (4) 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 August 26, 2016.
     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, on or before September 2, 2016. See 5 C.F.R. § 1201.136(b).




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