                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. COLEEN ELMERS,                          CB-1208-15-0007-U-1
                   Petitioner,

                  v.
                                                     DATE: December 1, 2014
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1
           Malvina Hryniewicz, Esquire, Washington, D.C., for the petitioner.

           Nadine Scott, Esquire, Seattle, Washington, 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 termination of Coleen
     Elmers while OSC completes its investigation and legal review of the matter and



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     determines whether to seek corrective action. For the reasons discussed below,
     OSC’s request is GRANTED.

                                         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 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. 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) there is a taking or failure to take, or a threat to
     take or failure to take, a personnel action; and (4) the protected disclosure was a
     contributing factor to the action taken.     See Office of Special Counsel ex rel.
     Aran, 115 M.S.P.R. 6, ¶ 7.
¶4         In its November 26, 2014 stay request, OSC alleges that Coleen Elmers is
     serving a 2-year probationary period as a Nurse Manager with the Department of
     Veterans Affairs (VA). Among other things, OSC also alleges that Ms. Elmers
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     filed a complaint with the VA Office of Inspector General in July 2014,
     concerning a fraudulently altered performance evaluation, and that just 3 months
     later, in October 2014, her supervisor rated her performance as unsatisfactory,
     charging her with lack of candor, failure to follow instructions, and inappropriate
     behavior for a management official, resulting in notice that she was being
     terminated. Accordingly, OSC asserts that it has reasonable grounds to believe
     that Ms. Elmers’s disclosures were protected, relevant agency officials were
     aware of those disclosures, and the protected disclosure was a contributing factor
     to her termination.
¶5         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 proposed Ms. Elmers’s termination based on her protected disclosure
     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 Ms. Elmers’s proposed termination is
     GRANTED. The stay shall be in effect from December 1, 2014, through and
     including January 14, 2015. It is further ORDERED that:
           (1) Ms. Elmers shall be reinstated 2 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 termination, as of November 28,
           2014;
           (2) The Department of Veterans Affairs shall not effect any change in
           Ms. Elmers’s duties and responsibilities that is inconsistent with her salary


     2
       According to OSC’s stay request, Ms. Elmers’s termination was scheduled for
     November 28, 2014, just before the issuance of this decision. Nevertheless, 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).
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     or grade level or impose upon her any requirement that is not required of
     other employees of comparable position, salary, or grade level;
     (3) Within 10 working days of this Order, the Department of Veterans
     Affairs 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 December 30, 2014.
     See 5 C.F.R. § 101.136(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 6, 2015.




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