UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. STEVEN MCDANIEL, CB-1208-23-0006-U-3
Petitioner,
v.
DATE: July 19, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Dustin Seth Frankel, Esquire, Washington, D.C., for the petitioner.
Katherine W. Krems, Esquire, Washington, D.C., for the relator.
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
Theodore M. Miller, Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests a 60-day extension of the previously granted stay of Mr. McDaniel’s
probationary termination by the Department of Veterans Affairs (agency) while
OSC completes its investigation and legal review of the matter and determines
whether to seek corrective action. For the reasons discussed below, OSC’s
request is GRANTED.
BACKGROUND
¶2 On April 6, 2023, OSC requested a 45-day initial stay request of the
probationary termination of Mr. McDaniel based on alleged misconduct. Special
Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs, MSPB
Docket No. CB-1208-23-0006-U-1, Stay Request File, Tab 1. In its initial stay
request, OSC argued that it had reasonable grounds to believe that the agency’s
action was in retaliation for Mr. McDaniel’s protected disclosures and activities
under 5 U.S.C. § 2302(b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial
stay request was granted through and including May 24, 2023. Special Counsel
ex rel. Steven McDaniel v. Department of Veterans Affairs, MSPB Docket No.
CB-1208-23-0006-U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023). By
order dated May 24, 2023, the Board granted OSC’s request to extend the stay for
60 days, through and including July 23, 2023, on the same basis as the initial stay
request. Special Counsel ex rel. Steven McDaniel v. Department of Veterans
Affairs, MSPB Docket No. CB-1208-23-0006-U-2, Order on Stay Extension
Request, ¶¶ 1, 6-8 (May 24, 2023).
¶3 On July 7, 2023, OSC filed a timely second request to extend the stay for an
additional 60 days. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-3, Stay Request File
(U-3 SRF), Tab 1. The agency filed a response in opposition to OSC’s request.
U-3 SRF, Tab 2.
3
ANALYSIS
¶4 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).
¶5 In requesting a second 60-day extension of the existing stay, OSC asserts
that, based on the factual record, which remains largely unchanged, it continues
to have reasonable grounds to believe that Mr. McDaniel’s prob ationary
termination constituted a prohibited personnel practice in violation of 5 U.S.C.
§§ 2302(b)(8) and (b)(9)(C). U-3 SRF, Tab 1 at 2-8. OSC explains the actions it
has taken thus far in its investigation, to include, among other things, serving the
agency with requests for information, reviewing documents, and interviewing
approximately 13 witnesses. Id. at 3, 8. OSC also states that on June 2, 2023, the
agency produced over 250,000 electronic records, which OSC expended a
significant amount of time and energy reviewing during the first stay extension.
Id. OSC also asserts that its investigation is substantially complete, and requests
this additional extension to prepare a report of its findings and conclusions for the
Special Counsel, in accordance with 5 U.S.C. § 1214(b)(2)(B). Id. at 2-3, 8.
¶6 The agency has opposed OSC’s request, asserting that OSC cannot establish
that Mr. McDaniel’s probationary termination violated 5 U.S.C. §§ 2302(b)(8)
and (b)(9)(C), because the individuals with knowledge of his protected
disclosures and activities, as identified by OSC, did not make the decision to
terminate him. U-3 SRF, Tab 2 at 4, 8-9. Instead, the agency asserts that a Chief
4
Human Resources Officer, without knowledge of Mr. McDaniel’s protected
disclosures and activities, made the decision to terminate Mr. McDaniel during
his probationary period. Id. at 4, 8. Therefore, the agency claims that OSC
cannot establish that any protected disclosure was a contributing factor in
Mr. McDaniel’s probationary termination. Id. at 8. The agency attaches, among
other things, a copy of the probationary termination letter, which was signed by
the Chief Human Resources Officer. 2 Id. at 20-22.
¶7 As an initial matter, the fact that the Chief Human Resources Officer signed
the probationary termination letter does not serve as evidence that the individuals
identified by OSC as having knowledge of Mr. McDaniel’s protected disclosures
and/or activities did not make or influence the decision. In fact, OSC has alleged
that the official who effected the removal action acted at the direction of an
individual identified by OSC as having knowledge of Mr. McDaniel’s protected
disclosures and activities. U-3 SRF, Tab 1 at 7. In any event, a proceeding on
OSC’s request for an extension of a stay is not intended to be a substitute for a
complete hearing on the merits of OSC’s claim. Special Counsel v. Department
of Transportation, 71 M.S.P.R. 87, 90 (1996). Rather, the Board considers only
whether OSC’s prohibited personnel practice claim is clearly unreasonable. Id.
Viewing the record in the light most favorable to OSC, we find that OSC’s claim
is not clearly unreasonable. See id. In other words, the agency has not
demonstrated that, if OSC proves all of its allegations, it could not establish the
occurrence of a prohibited personnel practice. Id. Therefore, nothing submitted
2
The agency also attaches a copy of the Standard Form 50 showing Mr. McDaniel’s
appointment, an email chain between Mr. McDaniel and the agency’s Security Office
Chief of Police reporting officer misconduct, and an email from the agency’s Office of
the Inspector General confirming that an investigation had been opened into the officer
misconduct allegation. U-3 SRF, Tab 2 at 12-18. To the extent that the agency
attempts to argue the merits of its case, a stay proceeding is not intended to be a
substitute for a complete hearing on the merits of OSC’s claim. Special Counsel v.
Department of Transportation, 71 M.S.P.R. 87, 90 (1996).
5
by the agency changes our previous determination that OSC’s prohibited
personnel practice claim is not clearly unreasonable.
¶8 A separate determination must be made on the length of a reques ted stay.
Waddell, 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not be
extended for prolonged periods of time. Special Counsel v. Department of the
Treasury, 71 M.S.P.R. 419, 421 (1996). Moreover, the Board is obligated to
press OSC to present corrective action cases in a timely manner. Id. However,
because this is only OSC’s second extension request, there is extensive
documentation in this case, and OSC has already substantially completed its
investigation, we find that a 60-day extension of the stay is warranted, and we
therefore grant OSC’s request.
ORDER
¶9 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby GRANTED, and it is ORDERED as follows:
(1) The stay issued on April 10, 2023, is extended through and including
September 21, 2023, on the terms and conditions set forth in that
Order;
(2) The agency shall not effect any changes in Mr. McDaniel’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) and 5 C.F.R. § 1201.136(b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before September 6, 2023; and
6
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b) must be received by the Clerk of the Board on or
before September 13, 2023.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.