                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SPECIAL COUNSEL                                  DOCKET NUMBER
EX REL. DALE KLEIN,                              CB-1208-16-0023-U-7
              Petitioner,

             v.
                                                 DATE: July 13, 2017
DEPARTMENT OF VETERANS
  AFFAIRS,
            Agency.




          THIS STAY ORDER IS NONPRECEDENTIAL 1

      Sheri S. Shilling, Esquire, Washington, D.C., for the petitioner.

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

      Michael E. Anfang, Esquire, Kansas City, Missouri, for the agency.

      Pamela R. Saunders, Minneapolis, Minnesota, for the agency.


                                      BEFORE

                          Mark A. Robbins, Vice Chairman




1
   A nonprecedential order is one that the Board has determi ned does not add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 Parties may cite nonprecedential orders,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 EXTENSION REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
     requests an extension of the previously granted stay of the agency’s termination
     of Dr. Dale Klein. For the reasons discussed below, OSC’s request is GRANTED
     and the stay is extended through August 11, 2017.

                                    BACKGROUND
¶2         OSC has been investigating Dr. Klein’s reprisal claims against the
     Department of Veterans Affairs (DVA) since April 2016, when DVA notified
     Dr. Klein that he would be separated from his position as a pain management
     physician, effective April 28, 2016, during his probationary period.     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 at 5. OSC filed
     its initial 45-day stay request in Dr. Klein’s case on May 26, 2016, and the
     request was granted on June 1, 2016. U-1 SRF, Tabs 1, 3. OSC subsequently
     requested, and received, additional extensions of the stay while it continued its
     investigation.   DVA consented to OSC’s fourth extension request, which the
     Board granted through May 12, 2017.      Special Counsel ex rel. Dale Klein v.
     Department of Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-6,
     Order on Stay Request (Jan. 6, 2017) (U-6 Stay Order).
¶3         From the outset, OSC and DVA disputed the appropriate duties for
     Dr. Klein to perform while any stay order was in effect. OSC consistently argued
     that Dr. Klein must be returned to his pain management physician duties, 2 while
     DVA at times argued that there were various obstacles to providing such work to
     Dr. Klein.   After further development of the record on this issue, the Board
     granted OSC’s request that DVA assign Dr. Klein pain management work within


     2
       OSC asserted that the termination was not based on substandard care or lack of
     clinical experience. U-1 SRF, Tab 1 at 5, 8-9.
                                                                                        3

     his clinical privileges.   Special Counsel ex rel. Dale Klein v. Department of
     Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-5, Order on Stay
     Request (Nov. 10, 2016); U-6 Stay Order. It appears that events concerning the
     terms of Dr. Klein’s return to pain management duties led to further dispute
     between the parties. DVA maintains that Dr. Klein “has seen no patients despite
     receiving multiple orders from VA managers since November 2016 to do so.”
     Special Counsel ex rel. Dale Klein, MSPB Docket No. CB-1208-16-0023-U-7,
     Stay Request File (U-7 SRF), Tab 4 at 4. On May 31, 2017, DVA proposed his
     removal from service based on two charges: (1) failure to follow orders to begin
     treating patients; and (2) offensive language. U-7 SRF, Tab 1 at 5.
¶4         OSC requests a stay of the May 31, 2017 proposal to remove Dr. Klein
     while it investigates whether the proposed removal was the result of a prohibited
     personnel practice. Id. at 7. OSC asserts that DVA proposed Dr. Klein’s removal
     less than 3 weeks after OSC had issued a prohibited personnel practice report
     finding DVA officials violated 5 U.S.C. § 2302(b)(8) and (b)(9) by terminating
     Dr. Klein’s employment in April 2016, and only 5 weeks after the DVA Office of
     Inspector General (OIG) asked DVA management to comment on OIG’s report
     that “substantiated most of the allegations that Dr. Klein made to the OIG.” Id.
     at 3-5.
¶5         Under the unusual circumstances of this case, 3 OSC’s latest stay request
     was partially granted through July 14, 2017, to allow DVA a full opportunity to
     respond to the latest allegations before ruling on the balance of the stay request.
     U-7 SRF, Tab 2. DVA has filed an opposition to OSC’s request, which has been
     considered along with the entire record in this matter. U-7 SRF, Tab 4.




     3
       The Board has been without a quorum since January 7, 2017, and legislation allowing
     a single Board member to extend a stay was not enacted until June 27, 2017.
                                                                                         4

                                         ANALYSIS
¶6         OSC may request that any member of the Board order a stay of any
     personnel action for 45 days when OSC believes 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.    5 U.S.C. § 1214(b)(1)(A)(i).     The purpose of a
     stay is to maintain the status quo ante and minimize the consequences of an
     alleged prohibited personnel practice while OSC investigates and potentially
     resolves the disputed matter with the employing agency. E.g., Special Counsel ex
     rel. Andersen v.     Department of Justice,        78 M.S.P.R. 675, ¶ 4 (1998);
     Special Counsel ex rel. Shaw v. Social Security Administration , 76 M.S.P.R. 211,
     214 (1997). To that end, an extension of a stay may be granted for any period
     that is considered “appropriate.” 5 U.S.C. § 1214(b)(1)(B). 4
¶7         In evaluating a request for an extension of a stay, the record will be
     reviewed in the light most favorable to OSC and a stay extension request will be
     granted if OSC’s prohibited personnel practice claim is not clearly unreasonable.
     Special Counsel ex rel. Andersen v. Department of Justice, 78 M.S.P.R. 675, ¶ 4.
     However, the Board has recognized congressional intent that stays not extend for
     “prolonged periods of time” and that the Board thus has an obligation to press
     OSC to present corrective action cases in a timely manner. See Special Counsel
     ex rel. Perfetto v. Department of the Navy, 85 M.S.P.R. 92, ¶ 12 (2000).
¶8         In light of DVA’s recent proposed removal, and its temporal proximity to
     the OIG report and OSC’s prohibited personnel practices report, a brief extension
     of the stay will be granted through August 11, 2017, to allow OSC to complete its
     investigation of that action. 5 Given the nature of the charges, it is expected that


     4
       Recently enacted legislation allows an individual Board member to extend a stay
     under 5 U.S.C. § 1214(b)(1)(B) when the Board lacks a quorum. See Pub. L. No.
     115-42, 131 Stat. 883 (June 27, 2017).
     5
       OSC argues that its request should be considered as an initial stay request, not a
     request for an extension of the prior stay, because the proposed removal is a separate
                                                                                             5

      OSC will complete its investigation within that timeframe and then determine
      whether to pursue corrective action. The matter between Dr. Klein and DVA has
      been ongoing for more than 13 months, and based on recent events, the dispute
      appears to be widening rather than moving towards a resolution. Therefore, with
      the completion of the investigation into this latest action, it appears that the
      purpose of the stay will be largely exhausted.
¶9           Although OSC’s request for an extension is being granted, nothing in this
      order, or any prior order in this matter, should be interpreted as authorizing
      Dr. Klein to refuse to comply with a lawful instruction to return to work.
      Dr. Klein’s return to the status quo ante does not invest him with any specia l
      rights to dictate or unilaterally change the terms of his employment.

                                             ORDER
¶10         Based on the foregoing, granting OSC’s request for an extension of the stay
      is appropriate.   Accordingly, a stay of Dr. Klein’s proposed removal and/or
      termination is granted through August 11, 2017. It is further ORDERED that:
            (1)    During the pendency of this stay, DVA shall reinstate Dr. Klein to
                   the status quo ante on the terms and conditions set forth in the orders
                   issued in this matter dated November 10, 2016, and June 29, 2017;
            (2)    Dr. Klein shall cooperate in good faith with DVA’s efforts to
                   reinstate him consistent with this Order;
            (3)    All actions of DVA to effect the proposed removal of Dr. Klein on
                   May 31, 2017, are hereby stayed;



      personnel action. U-7 SRF, Tab 1 at 2 n.1. However, there has been no prejudice to
      Dr. Klein because the period of the extended stay is approximately 1 week longer than
      the 45 days prescribed by statute for an initial stay. Although, under the unique
      circumstances, it has been appropriate to consider these stay requests as a single matter
      involving Dr. Klein and DVA, this should not be construed as a finding that DVA has
      subjected Dr. Klein to only one “personnel action” as that term is defined in 5 U.S.C.
      § 2302(a)(2)(A).
                                                                                  6

     (4)   DVA shall not effect any changes in Dr. Klein’s 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; and
     (5)   Within 5 working days of this Order, DVA shall submit evidence to
           the Clerk of the Board showing that it has complied with this Order.




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