                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. KELLY HALE,                             CB-1208-18-0002-U-1
                   Petitioner,

                  v.
                                                     DATE: October 5, 2017
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1
           Shayla Silver-Balbus, Esquire, Oakland, California, for the petitioner.

           Mark Pasekoff, Esquire, Washington, D.C., for the relator.

           Jason C. Green, Dallas, Texas, for the agency.


                                           BEFORE

                              Mark A. Robbins, Vice Chairman


                               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 proposed removal of Dr. Kelly Hale



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     while OSC completes its investigation and legal review of the matter and
     determines whether to seek corrective action. For the reasons di scussed below,
     OSC’s request is GRANTED.

                                      BACKGROUND
¶2         In its October 4, 2017 stay request, OSC alleges that it has reasonable
     grounds to believe that the agency has proposed Dr. Hale’s removal in reprisal for
     his protected activity under 5 U.S.C. § 2302(b)(8) and (b)(9)(C).             Special
     Counsel ex rel. Kelly Hale v. Department of Veterans Affairs , MSPB Docket No.
     CB-1208-18-0002-U-1, Stay Request File (SRF), Tab 1. In support of its stay
     request, OSC alleges the following facts. 2
¶3         Dr. Hale is a GS-15 Staff Dentist with the agency’s Montana Health Care
     System (MHCS)’s Billings Community Based Outpatient Clinic (BCBOC) , the
     only one of twelve clinics within MHCS to offer dental services . BCBOC opened
     in July 2014, shortly after Dr. Hale was hired, and it experienced operational
     deficiencies and setbacks from the start including equipment that malfunctioned
     and patient chairs that were not suitable for wheelchair patients.                Clinic
     equipment    and   physical   setups   were not    Occupational    Safety &       Health
     Administration and Health Insurance Portability and Accountability Act
     compliant and violated Centers for Disease Control and Prevention guidelines and
     agency policies. Other dangerous situations included the transporting of infected
     instruments through a public hallway, posing health risks to patients, and the
     substitution of tap water for sterile water in violation of policy. MHCS and clinic
     staff members interviewed by OSC 3 and who testified before an agency

     2
      OSC’s recitation of the facts is supported by the declarat ion of its counsel.    SRF,
     Tab 1, Attachment A.
     3
       OSC acknowledges that the agency granted it an informal stay for 21 days which was
     subsequently extended, during which time it reviewed documentary evidence and began
     interviewing witnesses, but that the agency indicated that it would not extend the
     informal stay further.
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     Administrative Investigative Board (AIB) stated that BCBOC’s dental program
     suffered and continues to suffer from a lack of supervisory oversight and
     leadership.     Shortcomings were attributed to MCHS’s longstanding history of
     improper oversight, including supervision of the clinic by a Chief of Dental
     Services who was not on-site and Dr. Hale’s lack of supervisory authority of the
     dental staff.    An internal review of the clinic in March 2017 also identified
     failings and recommended that the clinic close until good leadership and standard
     operating procedures were put in place.
¶4         Under these conditions, Dr. Hale began to raise concerns about the clinic’s
     use of a paper form to refer patients for nonagency consults rather than entering
     the information in the agency’s Computerized Patient Record System (CPRS), as
     required by agency policy. According to Dr. Hale, the Chief of Dental Services
     instructed the staff to use the paper form and told Dr. Hale not to ask any more
     questions about it.
¶5         On December 9, 2015, Dr. Hale disclosed to OSC three matters involving
     the actions of the Chief of Dental Services in directing subordinate employees to
     engage in practices that violated agency directives and risked veteran patients’
     health, including requiring the use of the paper form for referrals for consults
     rather than entering the information into the CPRS. Dr. Hale believed that the
     Chief’s directions resulted in the clinic’s violating statute 4 and regulation, 5
     compromising treatment, and endangering patient health.       After OSC referred
     Dr. Hale’s disclosures to the Secretary of the Department of Veterans Affairs, the
     agency investigated Dr. Hale’s disclosures.    The Office of Medical Inspection
     (OMI) assembled and led an agency team to conduct the investigation, after


     4
        44 U.S.C. § 3102(a) requires the agency to maintain complete, accurate, timely,
     clinically-pertinent, and readily accessible patient health records.
     5
       VHA Directive 2010-027 generally mandates that the Department of Veterans Affairs
     create appointments that meet the patient’s needs with no undue waits or delays.
                                                                                        4

     which a report was prepared which concluded that there were violations of agency
     policy that posed a substantial and specific danger to public health and safety.
     The report also recommended that the use of the paper consult forms be
     immediately stopped, that all referrals for nonagency dental care be entered into
     CPRS, that the accountability of the Chief of Dental Services be determined, and
     that appropriate educational, administrative, or disciplinary action be taken.
     Shortly thereafter, the Chief resigned to assume a staff dentist position. During a
     subsequent visit to BCBOC by the Acting Chief of Staff at MCHS, Dr. Hale
     identified himself as the OSC whistleblower.
¶6         Less than 2 weeks later, the MHCS Director chartered an AIB into
     allegations of employee and patient mistreatment by Dr. Hale. The charter letter
     contained five allegations of misconduct. Based on a “limited chart review,” the
     AIB sustained four allegations.     On July 5, 2017, the Acting Chief of Staff
     proposed Dr. Hale’s removal based on three charges, abuse of patients,
     disrespectful language or conduct to other employees, and endangering the safety
     or of causing injury to someone on Department of Veterans Affairs’ premises.
     Each charge described a single incident, and the              third included four
     incidental findings.

                                        ANALYSIS
¶7         Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request that any member of
     the Merit Systems Protection Board 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
                                                                                         5

      prohibited personnel practice was (or will be) committed. See Special Counsel
      ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶8          It is a violation of 5 U.S.C. § 2302(b)(8) to take or fail to take, or threaten
      to take or fail to take, a personnel action against an e mployee because of any
      disclosure of information which the employee reasonably believes evidences a
      violation of law, rule or regulation, or gross mismanagement, a gross waste of
      funds, an abuse of authority, or a substantial and specific danger to public health
      or safety. To demonstrate a prima facie violation of 5 U.S.C. § 2302(b)(8), OSC
      must demonstrate the following: (1) the employee made a protected disclosure;
      (2) the official(s) who recommended or took the personnel action had actual or
      constructive knowledge of the protected 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. It is a violation of 5 U.S.C. § 2302(b)(9)(C) to take or threaten to take a
      personnel action against an employee for cooperating with or disclosing
      information to OSC.
¶9          It appears that Dr. Hale reasonably believed that he was disclosing a
      substantial and specific danger to public health and safety, specifically, that using
      the paper form adversely impacted patient care; a violation of law, rule, or
      regulation, 44 U.S.C. § 3102(a) and agency regulations; and a potential gross
      waste of funds in that patients who were denied nonagency services received
      unnecessary mileage and per diem reimbursements. Based on OSC’s assertions,
      the OMI report substantiated that Dr. Hale’s disclosures revealed violations of
      agency policy that created a safety risk. It also appears that Dr. Hale participated
      in protected activities as defined by 5 U.S.C. § 2302(b)(9) by cooperating with
      and disclosing information to OSC.
¶10         Based on OSC’s allegation in its stay request, the proposal to remove
      Dr. Hale constitutes a threatened “personnel action” as defined in 5 U.S.C.
                                                                                        6

      § 2302(a)(2)(A). That definition includes, in pertinent part, an action taken under
      chapter 75 of title 5. 5 U.S.C. §§ 2302(a)(2)(A)(iii), 7512(1).
¶11         Finally, the contributing factor element may be established through the
      knowledge/timing test, i.e., that the official taking the personnel action knew of
      the protected activity and the personnel action occurred within a period of time
      such that a reasonable person could conclude that the protected activity was a
      contributing factor.   See Mastrullo v. Department of Labor, 123 M.S.P.R. 110,
      ¶ 18 (2015); Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7
      (2014). OSC contends that the Acting Chief of Staff, the proposing official, had
      actual knowledge of Dr. Hale’s disclosures before July 5, 2017, when he issued
      the proposal notice. After the OMI report was issued on October 31, 2016, and
      before the time the Chief of Dental Services resigned, 3 days later, the two
      discussed the report’s findings. And, during a meeting several weeks later, the
      appellant identified himself to the Acting Chief of Staff as the OSC
      whistleblower.    OSC further indicates that the proposal notice was issued
      11 months after the appellant first complained to the Chief of Dental Services and
      7 months after the appellant made his disclosure to OSC.            See Mastrullo,
      123 M.S.P.R. 110, ¶ 21 (recognizing that a personnel action taken within
      approximately 1 to 2 years of an appellant’s protected disclosures satisfies the
      knowledge/timing test).
¶12         Considering the deference that generally should be afforded to OSC in the
      context of an initial stay request, there are reasonable grounds to believe that the
      agency threatened to take a personnel action against Dr. Hale based on his
      protected activity in violation of 5 U.S.C. § 2302(b)(8), (b)(9)(C) when it
      proposed his removal.

                                           ORDER
¶13         Based on the foregoing, granting OSC’s stay request would be appropriate.
      Accordingly, a 45-day stay of the appellant’s proposed removal is granted. The
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stay shall be in effect from October 5, 2017, through and including November 18,
2017. It is further ORDERED that:
      (1)   Dr. Hale shall remain in his position;
      (2)   The    agency shall not       effect   any changes   in    his    duties   or
            responsibilities that are inconsistent with his salary or grade level, or
            impose upon him any requirement which is not required of other
            employees of comparable position, salary, or grade level;
      (3)   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;
      (4)   Any request for an extension of this stay pursuant to 5 U.S.C.
            § 1214(b)(1)(B), as amended by Pub. L. No. 115-42, 6 and 5 C.F.R.
            § 1201.136(b) must be received by the Clerk of the Board and the
            agency, together with any further evidentiary support, on or before
            November 3, 2017; and
      (5)   Any comments on such a request that the agency wants the Board to
            consider      pursuant   to   5 U.S.C.   § 1214(b)(1)(C)    and    5 C.F.R.
            § 1201.136(b) must be received by the Clerk of the Board on or
            before November 10, 2017.




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




6
 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
