Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL DOCKET NUMBER
EX REL. DALE KLEIN, CB-1208-16-0023-U-3
Petitioner,

v.
DATE: July 18, 2016
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.

THIS STAY ORDER IS NONPRECEDENTIAL *
Elizabeth Q. McMurray, Esquire, and Sheri S. Shilling, Esquire,
Washington, D.C., for the petitioner.

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

G.M. Jeff Keys, Esquire, St. Louis, Missouri, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member

*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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ORDER ON STAY REQUEST

¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
has requested a 60-day extension of the previously granted 45-day stay of the
agency’s termination of Dr. Dale Klein’s appointment. For the reasons discussed
below, we GRANT OSC’s request and extend the stay through September 13,
2016, but we DENY OSC’s request to order the agency to return Dr. Klein to the
duties and responsibilities of a pain management physician at the Department of
Veterans Affairs (DVA) Poplar Bluff Medical Center during the stay. However,
we ORDER the agency to provide a detailed accounting to the Board and OSC to
establish that it has searched for vacant positions and modified assignments with
physician duties within the local commuting area to which it can place the
appellant and that it considered him for any such vacancies.

BACKGROUND
¶2 On May 26, 2016, OSC requested a stay of the termination of Dr. Klein’s
appointment to complete its investigation and legal review of his prohibited
personnel practices complaint and determine whether to seek corrective action.
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. OSC
also requested an order returning Dr. Klein to his position and duties as a pain
management physician at the Poplar Bluff Medical Center during the period of
the stay. Id. The Board granted OSC’s request for a stay through July 15, 2016,
but denied OSC’s request to order DVA to return Dr. Klein to his duties and
responsibilities as a physician. U-1 SRF, Tab 3.
¶3 On June 9, 2016, OSC filed a motion to modify the order granting the initial
stay request by ordering that Dr. Klein be returned to his position as a pain
management physician. Special Counsel ex rel. Dale Klein v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-2, Stay Request File
(U-2 SRF), Tab 1. In the alternative, OSC requested that the Board order DVA to
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assign Dr. Klein to “mutually agreed upon duties that are ordinarily performed by
physicians at the Poplar Bluff [Medical Center].” Id. at 11-12. On June 11,
2016, DVA filed a response to OSC’s motion stating that the Poplar Bluff
Medical Center’s pain management clinic has been closed and explaining the
difficulties in reopening the clinic during the 45-day period of the stay. U-2 SRF,
Tab 2. On June 20, 2016, the Board denied OSC’s motion for a modification of
the initial stay order.
¶4 On June 30, 2016, OSC filed a timely request to extend the stay for an
additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans
Affairs, MSPB Docket No. CB-1208-16-0023-U-3, Stay Request File (U-3 SRF),
Tab 1. The agency has filed a timely response. U-3 SRF, Tab 2.

ANALYSIS
¶5 A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation, 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice, 105 M.S.P.R. 208, ¶ 3 (2007).
¶6 In its request for an extension, OSC asserted that DVA had failed to
respond to its requests for information and documents pursuant to 5 C.F.R. § 5.4.
U-3 SRF, Tab 1 at 3, 10. After the agency responds, OSC may need to schedule
and conduct witness interviews and, if necessary, request additional information
based on these interviews. Id. After assessing the evidence, OSC may require
additional time to attempt an informal resolution of the complaint, prepare a
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report, or close the case, depending on the development of the evidentiary record.
Id. OSC represents that the evidentiary record has not materially changed since it
filed its initial stay request because DVA has failed to respond to its requests for
documents and information. Id. at 6. OSC further requests that the Board order
DVA to return Dr. Klein to his position as a pain management physician or assign
him to a substantially similar physician position for which he is qualified. Id.
at 6-9.
¶7 In response, the agency states that it opposes OSC’s request for a stay
extension but it only presents argument regarding OSC’s request that Dr. Klein be
restored to his former position. U-3 SRF, Tab 2 at 4-5. DVA has not rebutted
OSC’s assertions that it has failed to respond to requests for information and
documents. Id. Although DVA states that it “does not believe that Dr. Klein will
ultimately be entitled to any relief for his claims of whistleblower retaliation,” id.
at 4, it has not submitted any evidence or argument that casts any doubt upon the
analysis in the Board’s June 1, 2016 order explaining why OSC set forth
sufficient grounds to stay the termination action pursuant to 5 U.S.C. § 1214.
Under the circumstances, we will extend the stay of the termination action for
60 days.
¶8 The parties continue to dispute the appropriate duties for Dr. Klein to
perform during the stay. The Board has held that the purpose of a stay is to
preserve the status quo ante, not simply the status quo, and therefore, if a stay is
appropriate, the employee must generally be placed in the same position he held
before the agency’s allegedly improper actions. Special Counsel ex rel.
Perfetto v. Department of the Navy, 85 M.S.P.R. 454, ¶ 17 (2000). Further, the
placement of an employee on administrative leave generally does not constitute a
return to the status quo ante. Special Counsel v. Department of
Transportation, 72 M.S.P.R. 104, 107 (1996). Nevertheless, compelling reasons
may justify an employee not returning to his former duties as part of a return to
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the status quo ante. Id. at 108. A mere anticipation of an undue disruption,
however, does not constitute such a compelling reason. Id.
¶9 Dr. Klein is alleged to be a board-certified anesthesiologist and pain
management specialist. U-3 SRF, Tab 1 at 3. OSC asserts that, in connection
with DVA’s initial agreement to “informally stay” his termination for 30 days,
DVA assigned him to report to the finance director and to work in an office in a
separate building from the clinical center. Id. at 4. OSC states that he was given
a data‑entry assignment and other administrative tasks, but DVA has refused to
return him to his former position or to assign him any clinical duties. Id.
According to Dr. Klein, failure to engage in clinical practice for “an extended
period of time” could place him at risk for losing his board certifications and also
could affect his ability to obtain medical malpractice insurance if he left
Government service. Id. at 5.
¶10 After the Board granted OSC’s initial stay request but found that DVA
was not required to return Dr. Klein to his duties and responsibilities as a
physician, the agency notified Dr. Klein that he should report for duty as soon as
possible and resume the administrative duties he was performing during the
informal, temporary stay. U‑1 SRF, Tab 6. The agency maintains that its Poplar
Bluff Medical Center lacks “any present need or use for a physician with his
skills and privileges.” U-3 SRF, Tab 2 at 4. The agency has explained that this
facility “is not a full-service hospital that performs invasive surgical procedures”
and specifically has no need for an anesthesiologist. Id. The agency asserts that
it would have to reorganize the facility, recreate the closed pain management
clinic, and begin scheduling patients at the clinic for the duration of the 60-day
stay extension. Id. The agency maintains this “will do absolutely nothing to
promote the [DVA]’s mission of providing quality professional health care to our
veterans,” id., and could unnecessarily result in veterans seeking health care
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being “bounced from one provider to another” while this matter is litigated,
U-2 SRF, Tab 2 at 3.
¶11 OSC states that DVA’s claim that it cannot find any appropriate physician
duties for Dr. Klein “warrants further scrutiny.” U-3 SRF, Tab 1 at 8. OSC notes
that DVA has not questioned Dr. Klein’s clinical competency or patient care, but
rather has cited only the lack of work at the Poplar Bluff Medical Center as the
reason for not returning him to clinical duties during the stay. Id. OSC suggests
that, as an alternative to returning him to his former duties at that facility, the
Board could order the agency to reassign Dr. Klein to another nearby DVA
facility where he could provide pain management care during the stay. Id. In
response to OSC’s prior motion to modify the initial stay request, the agency
claimed that there are no pain management clinical duties available for Dr. Klein
to perform at the Poplar Bluff Medical Center and that he has not been granted
required privileges to perform other clinical functions and procedures. U-2 SRF,
Tab 2 at 3-4. In its pending request, OSC notes that, in addition to his pain
management privileges, Dr. Klein is a board-certified anesthesiologist who is
qualified to provide anesthesia for procedures that require patients to be sedated.
U-3 SRF, Tab 1 at 4. DVA has responded that the Poplar Bluff Medical Center
has no need for an anesthesiologist and “is not a full-service hospital that
performs invasive surgical procedures.” U-3 SRF, Tab 2 at 4.
¶12 At this time, we will not order the agency to return Dr. Klein to clinical
duties that no longer exist at the Poplar Bluff Medical Center during the 60-day
period of the extended stay. However, based on the current record, we cannot
determine whether other physician duties for which the appellant is qualified are
available at the center or any nearby agency facility. The DVA hereby is required
to provide detailed evidence to establish that it has made an exhaustive search
within the local commuting area for vacant positions or modified assignments
with physician duties to which it can place the appellant and that it considered
him for any such vacancies. To the extent that OSC believes that the agency has
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failed to comply with the terms and conditions of this stay order as set forth
below, OSC may petition the Board for enforcement of this order and may
recommend appropriate sanctions to be imposed for the agency’s noncompliance.
See 5 C.F.R. part 1201, subpart F.

ORDER
¶13 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby granted, and we ORDER as follows:
(1) The stay issued on June 1, 2016, is extended through and including
September 13, 2016, on the terms and conditions that (a) DVA will
reinstate Dr. Klein to the status quo ante but is not required to return him to
his duties and responsibilities as a pain management physician at the Poplar
Bluff Medical Center to the extent they no longer exist; and (b) DVA
shall not affect any change to Dr. Klein’s salary, grade level, or duty
station, or impose upon him any requirement that is not required of other
employees of a comparable grade level;
(2) 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;
(3) Within 20 working days of this order, the agency shall provide a detailed
accounting to the Board and OSC to prove that it has searched for vacant
positions with physician duties within the local commuting area to which it
can place the appellant and that it considered him for any such vacancies.
The agency must provide a complete list of all such vacancies, including
the duties of those positions, and whether or not it believes the appellant
qualifies for those jobs, giving specific reasons in support of its
conclusions. Likewise, the agency must provide detailed evidence to show
that it considered modified assignments of positions with physician duties,
within the local commuting area, for which the appellant qualifies. The
agency’s evidence must contain affidavits from responsible agency
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officials confirming that an exhaustive search was done and that all
vacancies, as well as all modified assignments, were considered.
(4) Any request for a further extension of the 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 August 26, 2016.
See 5 C.F.R. § 1201.136(b). Any comments on such a request that the
agency wishes 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 September 2, 2016. See 5 C.F.R. § 1201.136(b).

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