                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. GLENN SCHWARZ,                          CB-1208-17-0022-U-1
                   Petitioner,

                  v.
                                                     DATE: June 30, 2017
     DEPARTMENT OF THE NAVY,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1

           Malvina Winston, Washington, D.C., for the petitioner.

           Cheri L. Cannon, Esquire, Washington, D.C., for the relator.

           Malcolm G. Schaefer, Cherry Point, North Carolina, 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 reinstatement of Mr. Schwarz’s
     removal while OSC completes its investigation and legal review of the ma tter 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

                                        BACKGROUND
¶2           In its June 28, 2017 stay request, OSC alleges that it has reasonable grounds
     to believe that on June 8, 2017, the Department of the Navy (Navy) reinstated
     Mr. Schwarz’s removal, which previously had been held in abeyance pursuant to
     a settlement agreement, as a result of a prohibited personnel practice. 2         OSC
     alleges that Mr. Schwarz made disclosures beginning in September 2013 through
     his chain of command and in a disclosure complaint to OSC on June 9, 2015, that
     employees were improperly testing aircraft fueling equipment and fuel and
     improperly and hazardously disposing of jet fuel.            OSC states that, after it
     referred Mr. Schwarz’s disclosures for further investigation to the Secretary of
     the Navy, an investigation by the Navy Inspector General substantiated the
     disclosures. In particular, OSC contends that a Navy report found that employees
     did not properly test aircraft fueling equipment or jet fuel, thereby creating a
     safety risk, and that by not properly testing jet fuel, employees wasted
     Government resources by unnecessarily discarding thousands of gallons of jet
     fuel.
¶3           OSC also contends that on June 8, 2017, the Navy issued Mr. Schwarz a
     notice of reinstatement of removal for failing to comply with the performance and
     conduct     standards   of   the   settlement   agreement.      OSC   maintains   that
     Mr. Schwarz’s protected disclosures and activities were a contributing factor in
     the decision to reinstate his removal because it was issued 9 months after he filed
     his prohibited personnel practices complaint and 15 months after OSC publicized


     2
      OSC states that on September 10, 2016, Mr. Schwarz filed a complaint of prohibited
     personnel practices alleging whistleblower reprisal, which was resolved via a
     November 22, 2016 settlement agreement in which the Navy agreed to hold
     Mr. Schwarz’s removal in abeyance for 2 years subject to his compliance with certain
     performance and conduct standards.
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     the results of the agency’s investigation and identified Mr. Schwarz as the
     whistleblower. OSC also maintains that other circumstantial evidence supports
     an inference of contributing factor.

                                            ANALYSIS
¶4         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
     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).
¶5         To establish a prima facie case of whistleblower retaliation, OSC must
     show that the employee made a protected disclosure or engaged in protected
     activity that was a contributing factor in the challenged personnel action. See id.,
     ¶ 7; see also Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 9
     (2014). A disclosure is protected under 5 U.S.C. § 2302(b)(8) if the individual
     has a reasonable belief that the information being disclosed evidences a violation
     of 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.
     Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). The standard for
     evaluating the reasonableness of the belief is whether a disinterested observer
     with knowledge of the essential facts known to and readily ascertainable to the
     employee could reasonably conclude that the actions of the Government evidence
     one of these types of wrongdoing. Id.
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¶6           It appears that Mr. Schwarz reasonably believed that he was disclosing a
     substantial and specific danger to public health or safety and a violation of law,
     rule, or regulation when he disclosed that employees were improperly testing
     aircraft fueling equipment and fuel and improperly and hazardously disposing of
     jet fuel.     Based on OSC’s assertions, the Navy report substantiated that the
     appellant’s disclosures amounted to violations of Navy rules and created a safety
     risk.   It also appears that Mr. Schwarz participated in protected activities, as
     defined by 5 U.S.C. § 2302(b)(9)(C) and (b)(9)(A)(i), by cooperating with and
     disclosing information to OSC and filing complaints with OSC.
¶7           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 disclosure or activity and the personnel action occurred within a
     period of time such that a reasonable person could conclude that the disclosure
     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).     According to OSC, it is reasonable to infer that the responsible
     officials had knowledge of Mr. Schwarz’s disclosures based upon the Navy’s
     report that was made public and OSC’s press release, both of which identified
     Mr. Schwarz as the whistleblower.        OSC further contends that the agency was
     aware of Mr. Schwarz’s prohibited personnel practices complaint because it
     participated in a mediation regarding that complaint and the agency referenced
     Mr. Schwarz’s communications with OSC in its notice of reinstatement of his
     removal.
¶8           OSC further indicates that the notice of reinstatement occurred within
     9 months after Mr. Schwarz filed his prohibited personnel practices complaint.
     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).           In addition, OSC contends that attendant
     circumstances suggest that Mr. Schwarz’s protected disclosures and/or activities
                                                                                          5

      were a contributing factor in the decision to reinstate his removal. In particular,
      OSC alleges that the removal notice directly referenced his communications with
      OSC and the agency’s reasons for reinstating the removal action are weak and
      lack a nexus to Government efficiency.
¶9          Considering the deference that generally should be afforded to OSC in the
      context of an initial stay request, and the assertions made in its stay request, there
      are reasonable grounds here to believe that the Navy reinstated Mr. Schwarz’s
      removal based on his protected disclosures and protected activity in violation of
      5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), and (b)(9)(C).

                                            ORDER
¶10         Based on the foregoing, granting OSC’s stay request would be appropriate.
      Accordingly, a 45-day stay of Mr. Schwarz’s removal is GRANTED. The stay
      shall be in effect from June 30, 2017, through and including August 13, 2017. It
      is further ORDERED that:
            (1)    During the pendency of this stay, Mr. Schwarz shall be reinstated to
                   the position he held prior to the notice of reinstatement of the
                   removal action and the Navy shall not effect his removal ;
            (2)    The agency shall not effect any changes to Mr. Schwarz’s duties or
                   responsibilities that are inconsistent with his salary or grade level, or
                   impose upon him any requirement that 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, 3 must be

      3
       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.
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           received by the Clerk of the Board and the agency, together with any
           further evidentiary support, on or before July 28, 2017; and
     (5)   Any comments on such a request that the Navy wants the Board to
           consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be received by
           the Clerk of the Board on or before August 4, 2017.




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