                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. KENNETH DELANO,                         CB-1208-15-0001-U-1
                   Petitioner,

                  v.
                                                     DATE: October 9, 2014
     DEPARTMENT OF THE ARMY,
                 Agency.



                 THIS STAY ORDER IS NONPRECEDENTIAL 1

           Martha Sheth, Esquire, Washington, D.C., for the petitioner.

           Michael T. Pritchard, Esquire, Fairfax, Virginia, for the relator.

           Seamus Kevin Barry, Esquire, Fort Belvoir, Virginia, for the agency.


                                           BEFORE

                                  Mark A. Robbins, Member


                               ORDER ON STAY REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(A)(i), the Office of Special Counsel
     (OSC) has requested a 45-day stay of the agency’s proposed removal of Kenneth
     Delano to allow it to investigate Mr. Delano’s prohibited personnel practice


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     complaint.     For the reasons set forth below, OSC’s request for a stay
     is GRANTED.

                                        BACKGROUND
¶2          In its October 6, 2014 stay request, OSC alleges that Mr. Delano served as
     a Police Officer with the Directorate of Emergency Services at Fort A.P. Hill,
     Virginia. 2 OSC further alleges that, in August 2013, Mr. Delano disclosed to the
     Department of Defense’s Inspector General (IG) that two agency officers
     received Law Enforcement Availability Pay (LEAP) to which they were not
     entitled by law. OSC contends that Mr. Delano informed agency management
     that he had made the IG complaint.
¶3          OSC alleges that, on March 3, 2014, Mr. Delano discovered while he was
     driving that his patrol vehicle was damaged. According to OSC, the damage was
     most likely caused by poor road conditions due to inclement weather. OSC states
     that the agency assigned an officer to investigate the damage to Mr. Delano’s
     patrol vehicle, but that the officer never completed the investigation. Rather, on
     April 15, 2014, the police chief assigned one of the officers whom Mr. Delano
     had reported to the IG to complete the investigation.
¶4          OSC contends that, in July 2014, the agency proposed Mr. Delano’s
     removal based on charges of lack of candor and discourtesy to a fellow officer.
     OSC states that, in support of the lack of candor charge, the agency specified that
     Mr. Delano had lacked candor in his sworn statements to the agency officer
     during the investigation of the March 3, 2014 incident involving Mr. Delano’s
     patrol vehicle.    OSC alleges that the deciding official sustained both of the
     charges, and that the agency removed Mr. Delano from federal service on
     September 5, 2014.

     2
       The facts set forth in this Order are those alleged by OSC’s counsel in its stay request.
     The facts are supported by a declaration prepared by OSC’s counsel, who avers that he
     has personal knowledge of the contents of Mr. Delano’s OSC complaint file and that the
     facts alleged in the stay request are true and correct.
                                                                                     3

¶5         OSC contends that a stay of Mr. Delano’s proposed removal is appropriate
     while it completes its investigation because there are reasonable grounds on
     which to believe that Mr. Delano’s proposed removal is a result of his protected
     activity and is therefore prohibited under 5 U.S.C. § 2302(b)(8). 3

                                         ANALYSIS
¶6         OSC “may request any member of the Merit Systems Protection Board to
     order a stay of any personnel action for 45 days if the [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.”           5 U.S.C.
     § 1214(b)(1)(A)(i). Such a request “shall” be granted “unless . . . such a stay
     would not be appropriate.” 5 U.S.C. § 1214(b)(1)(A)(ii). The statute thus sets up
     a presumption that OSC’s request for an initial stay will be granted, and it makes
     OSC the lead actor in securing provisional relief when, in OSC’s judgment, an
     agency may have committed a prohibited personnel practice. OSC’s stay request
     need merely fall within the “range of rationality” to be granted, and the facts
     should be viewed in the light which is most favorable to a finding of reasonable
     grounds to believe that a prohibited personnel practice was (or will be)
     committed. Special Counsel ex rel. Aran v. Department of Homeland Security,
     115 M.S.P.R. 6, ¶ 9 (2010); Special Counsel ex rel. Perfetto v. Department of the
     Navy, 83 M.S.P.R. 169, ¶ 11 (1999).         Deference is given to OSC’s initial
     determination, and a stay will be denied only when the asserted facts and
     circumstances appear to make the stay request inherently unreasonable. Special
     Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991).
¶7         Here, OSC asserts that the agency proposed a personnel action against
     Mr. Delano because of his whistleblowing under 5 U.S.C. § 2302(b)(8). Under


     3
       OSC states that Mr. Delano has limited his OSC complaint to a challenge of the
     agency’s proposed removal and that he has not challenged or elected any remedy in
     regard to his actual removal.
                                                                                             4

     section 2302(b)(8), an agency may not take or threaten to take certain personnel
     actions against an employee because of a protected whistleblowing disclosure.
     Generally, a prima facie violation of 5 U.S.C. § 2302(b)(8) exists when:
     (1) the employee made a disclosure that he reasonably believes is protected;
     (2) the official(s) who recommended, took, or threatened the personnel action had
     knowledge of the protected disclosure; (3) a personnel action was taken or not
     taken or threatened to be taken or not taken; and (4) the protected disclosure was
     a contributing factor in the challenged personnel action. See Office of Special
     Counsel ex rel. Hopkins v. Department of Transportation, 90 M.S.P.R. 154, ¶ 4
     (2001).     OSC contends that prima facie evidence supports each of these four
     elements.
¶8         First, OSC claims that Mr. Delano engaged in an activity covered by
     section 2302(b)(8) when he disclosed to the IG that two agency officers were
     improperly receiving LEAP compensation. Second, OSC contends that Fort A.P.
     Hill management knew of Mr. Delano’s protected activity when it proposed his
     removal because Mr. Delano had informed management that he was responsible
     for the IG complaint. Third, OSC states that the agency’s proposed removal of
     Mr. Delano is a threat of a personnel action. 4 Fourth, and finally, OSC contends
     that the contributing factor element is satisfied based on knowledge and timing
     alone because agency management knew of Mr. Delano’s disclosure to the IG and
     proposed Mr. Delano’s removal within the following year. As further evidence of
     contributing factor, OSC states that attendant circumstances surrounding Mr.
     Delano’s proposed removal suggest a motive to retaliate against him.                   In


     4
       Although the agency imposed Mr. Delano’s removal prior to OSC’s stay request of the
     proposed removal, the language of the statute permits the stay of a personnel action if
     the Special Counsel has reasonable grounds to believe that the 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).
     Thus, 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).
                                                                                        5

      particular, OSC alleges that Mr. Delano’s disclosure to the IG led to the loss of
      $25,000 in annual pay to the two officers implicated and to the revelation that
      management had improperly awarded them LEAP compensation. OSC contends
      that it is therefore reasonable to infer that Mr. Delano’s disclosure caused
      resentment and embarrassment to the affected officers and to Fort A.P. Hill
      management.      OSC further alleges that the agency’s decision to switch
      investigators during the investigation of the incident involving Mr. Delano’s
      patrol car to someone who likely harbored a personal bias against Mr. Delano
      suggested retaliatory motive.
¶9          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 Mr. Delano’s removal based on his protected disclosure in
      violation of 5 U.S.C. § 2302(b)(8).

                                            ORDER
¶10         Based on the foregoing, I conclude that granting OSC’s stay request is
      appropriate. Accordingly, a 45-day stay of Mr. Delano’s proposed removal is
      GRANTED.      The stay shall be in effect from October 9, 2014, through and
      including November 22, 2014. It is further ORDERED that:
         (1) Mr. Delano shall be reinstated to his former position at the same location
         with the same duties and responsibilities that he formerly had and at the same
         salary and grade level effective October 9, 2014;
         (2) The Department of the Army shall not affect any change in Mr. Delano’s
         duties and responsibilities which is 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;
                                                                               6

  (3) Within 10 working days of this Order, the Department of the Army 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 November 7,
  2014. 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
  November 14, 2014.




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