Special Counsel ex rel. Debbie White v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SPECIAL COUNSEL DOCKET NUMBER
EX REL. DEBBIE WHITE, CB-1208-17-0002-U-1
Petitioner,

v.
DATE: October 7, 2016
DEPARTMENT OF DEFENSE,
Agency.

THIS STAY ORDER IS NONPRECEDENTIAL *

Lisa Powell, Esquire, Oakland, California, for the petitioner.

Bradley R. Hansen, Esquire, Fort Lee, 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 demotion of Debbie White to
allow OSC to investigate Ms. White’s prohibited personnel practice complaint.
For the reasons set forth below, OSC’s request for a stay is GRANTED.

*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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BACKGROUND
¶2 In its October 5, 2016 stay request, OSC alleges that it has reasonable
grounds to believe that the agency demoted Ms. White in reprisal for protected
activity under 5 U.S.C. § 2302(b)(8). According to OSC, Ms. White is a GS-8
Defense Commissary Agency (DeCA) Meat Department Manager at the Whidbey
Island, Washington commissary who has worked her way up from the GS-3
Checker position at which she was hired in 2000. OSC alleges that, twice
between December 2013 and May 2014, Ms. White asked the store director,
N.A.-T., if she had taken merchandise from the meat department without paying
for it; and that, on September 2, 2014, Ms. White allegedly observed N.A.-T. and
another commissary manager taking merchandise from the store prior to the time
it opened. OSC further alleges that N.A.-T. claimed she had purchased the items
but produced no evidence of having done so. According to OSC, Ms. White
disclosed the alleged theft to another department manager that same day and on
October 19, 2104, anonymously reported it to the Department of Defense
(DOD)’s Fraud, Waste, and Abuse hotline; in January 2015, she disclosed the
incident to her first-line supervisor and also informed him of several other
suspicious events involving N.A.-T. that other store employees had disclosed to
her; and in June 2015, she disclosed the incident to the West Area Deputy
director, who referred her to the Zone Manager, to whom Ms. White then
disclosed the incident. OSC alleges that N.A.-T. was interviewed by a U.S. Navy
Criminal Investigation Division (CID) official on February 9, 2015, and by a
DeCA investigator on July 28, 2015, regarding the theft allegations, but there was
insufficient evidence found to substantiate the claims.
¶3 According to OSC, in February 2015, the same month she was first
interviewed by the CID fraud examiner, N.A.-T. began a wide-ranging
investigation of Ms. White, interviewing numerous store employees and
recommending in a March 2015 report that Ms. White be removed or demoted; in
seeking to determine whether Ms. White was the source of the CID fraud tip,
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N.A.-T. asked the employees she interviewed about the issue; and her demotion
recommendation explicitly relied in part on her belief that Ms. White had
reported her alleged theft. OSC further alleges that in July 2015, N.A.-T.
approved Ms. White’s performance evaluation with an overall rating of
“Excellent” and a performance bonus, but that, notwithstanding, on
September 29, 2015, she issued Ms. White a notice of proposed demotion for six
specifications of Conduct Unbecoming a Federal Supervisor, none of which
included the claim that Ms. White disclosed the alleged theft to CID; and that,
effective January 10, 2016, DeCA demoted Ms. White from her GS-8 position to
the part-time position of Cashier, GS-3, reducing her weekly hours and her hourly
rate by more than 40%.

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 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 employee 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
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or safety. As OSC states, to establish a prima facie violation of 5 U.S.C.
§ 2302(b)(8), it 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.
¶6 Theft of goods from a DOD commissary would be a violation of law, rule,
or regulation under section 2302(b)(8). Based on the information provided by
OSC, and under the applicable objective standard, see Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999), it appears that Ms. White made protected
disclosures because, under the circumstances described, a disinterested observer
would have reasonably suspected theft.
¶7 Based on OSC’s allegations in its stay request, both N.A.-T.’s proposal that
Ms. White be demoted and her actual demotion constitute “personnel action(s)”
as defined in 5 U.S.C. § 2302(a)(2)(A). That definition includes, in pertinent
part, an action under chapter 75 of title 5. 5 U.S.C. §§ 2302(a)(2)(A)(iii),
7512(3).
¶8 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 N.A.-T. had knowledge of Ms. White’s protected
activities as reflected in N.A.-T.’s March 2015 recommendation that Ms. White
be removed or demoted, which was based explicitly in part on N.A.-T.’s belief
that Ms. White had reported her alleged theft. OSC further contends that N.A.-T.
initiated her investigation of Ms. White the same month that CID interviewed her
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regarding the theft allegations and recommended removal or demotion the
following month. See Mastrullo, 123 M.S.P.R. 110, ¶ 21.
¶9 Thus, 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 took a personnel action against Ms. White based on her protected
activity in violation of 5 U.S.C. § 2302(b)(8) when it demoted her.

ORDER
¶10 Based on the foregoing, I conclude that granting OSC’s stay request is
appropriate. Accordingly, a 45-day stay of the appellant’s demotion is
GRANTED. The stay shall be in effect from October 7, 2016, through and
including November 20, 2016. It is further ORDERED that:
(1) Ms. White shall be returned to her former position with the same
duties and responsibilities and at the same salary and 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) 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 4, 2016. See 5 C.F.R. § 1201.136(b). 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
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Clerk of the Board together with any evidentiary support on or
before November 14, 2016.

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