UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. ELSTON L. STEPHENSON, CB-1208-17-0016-U-1
Petitioner,
v.
DATE: April 13, 2017
DEPARTMENT OF THE NAVY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Elisabeth R. Brown, Esquire, Oakland, California, for the petitioner.
Geoffrey D. Chun, San Diego, California, 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 agency’s probationary termination of
Elston Stephenson 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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The following allegations of fact are set forth more fully in OSC’s stay
request. Mr. Stephenson joined the agency as a Safety and Occupational Health
Specialist in February 2016, with approximately 20 years of experience in that
field. Stay Request File (SRF), Tab 1 at 5-6. The agency designed his position to
help the Fleet Readiness Center Southwest (FRCSW) achieve and maintain its
certification under an international health and safety standard and improve the
organization’s safety program. Id. at 6. Over a period of time, he expressed a
number of safety concerns regarding inadequate fall protections to the FRCSW
Safety Program Director and others. Id.
¶3 On August 4, 2016, Mr. Stephenson informed the Safety Program Director
as well as the Safety and Regulatory Compliance Director that the FRCSW had
experienced five recent falls, causing a variety of injuries. Id. He recommended
to those individuals that the Commander of FRCSW identify fall protections as
the highest safety priority. Id. On August 5, 2016, Mr. Stephenson also alerted
officials at the Fleet Readiness Centers Command (COMFRC) about one of those
recent falls, when an individual fell from an F-18 aircraft, broke his clavicle, and
required overnight hospitalization. Id. at 7. In doing so, he expressed concerns
of a systemic safety threat and explained that he already had brought the issue to
the FRCSW Safety Program Director and the Safety and Regulatory Compliance
Director. Id.
¶4 By August 9, 2016, Mr. Stephenson alerted officials at CO MFRC that
FRCSW officials had failed to comply with an Occupational Safety and Health
Administration (OSHA) requirement that the agency report the aforementioned
hospitalization, despite his reminders that they should do so. SRF, Tab 1 at 7,
Tab 3 at 130; see 29 C.F.R. § 1904.39(a)(2) (requiring that an employer report the
in-patient hospitalization of an employee due to a work-related incident to OSHA
within 24 hours). That same day, an official with COMFRC sent an inquiry to an
official with FRCSW in an email containing Mr. Stephenson’s August 5 message
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about the recent falls. SRF, Tab 1 at 7-8. That FRCSW official responded,
adding the FRCSW Safety and Regulatory Compliance Director to the email
chain, who then responded by disputing Mr. Stephenson’s claims and concerns.
Id. at 8.
¶5 On August 10, 2016, OSHA received an anonymous complaint from
employees at the FRCSW concerning inadequate fall protections. Id. at 9. OSHA
notified the FRCSW of the complaint the following day. Id.
¶6 On August 12, 2016, the FRCSW Safety and Regulatory Compliance
Director submitted a write-up to a human resources official to justify
Mr. Stephenson’s removal. Id. Among other things, this write-up includes
language expressly identifying Mr. Stephenson’s contacts with COMFRC and
what the FRCSW Safety and Regulatory Compliance Director believed was his
anonymous complaint to OSHA as grounds for his removal. Id. at 10-11. On
August 16, 2016, the FRCSW Safety Program Director provided a similar
write-up. Id. at 11-12. The agency then removed Mr. Stephenson on August 17,
2016. Id. at 5.
¶7 Separate from his disclosures concerning fall protections and OSHA
reporting requirements, Mr. Stephenson also filed a July 28, 2016 complaint with
agency leadership, requesting an Inspector General investigation. Id. at 12. The
complaint identified hostile work environment and equal employment opportunity
issues stemming from a previously investigated matter involving the FRCSW
Safety Program Director and his reported sharing of sexually explicit material
with subordinates. Id. Mr. Stephenson informed the FRCSW Safety and
Regulatory Compliance Director on or around August 5, 2016, that he had made
this complaint, and she shared it with others just before submitting her write -up
to justify Mr. Stephenson’s removal. Id. at 13.
¶8 On April 11, 2017, OSC filed the instant stay request, arguing that it has
reasonable grounds to believe that the agency’s decision to remove
Mr. Stephenson was reprisal for whistleblowing, a prohibited personnel practice
4
under 5 U.S.C. § 2302(b)(8). Id. at 5. OSC is requesting the Board to stay the
agency’s removal action for 45 days while OSC continues to investigate the
matter. Id. On April 12, 2017, the agency filed a response to OSC’s stay request.
SRF, Tab 3.
ANALYSIS
¶9 Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request any member of the
Merit Systems Protection Board to 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 t hat 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). The
Board has the authority to stay a probationary termination after its effective date
if it determines that OSC has reasonable grounds to believe the action was taken
as a result of a prohibited personnel practice. Special Counsel ex rel. Rigdon v.
Department of the Army, 98 M.S.P.R. 110, ¶ 13 (2004).
¶10 To establish a prima facie violation of 5 U.S.C. § 2302(b)(8), OSC must
demonstrate that: (1) the employee made a protected disclosure; (2) the
official(s) who recommended, took, or threatened the personnel action had actual
or constructive 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. Office of
Special Counsel ex rel. Hopkins v. Department of Transportation ,
90 M.S.P.R. 154, ¶ 4 (2001). Regarding the first element, a disclosure is
5
protected under 5 U.S.C. § 2302(b)(8) if the individual has a reasonable belief
that the information being disclosed evidences any 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. Bradley v.
Department of Homeland Security, 123 M.S.P.R. 547, ¶ 7 (2016).
¶11 Based on the facts set forth above, I find that OSC has reasonable grounds
to believe that the agency improperly removed Mr. Stephenson in retaliation for a
protected disclosure. Mr. Stephenson appears to have made a protected
disclosure by revealing that the agency violated a regulation that required
reporting a workplace injury to OSHA. 2 See 29 C.F.R. § 1904.39(a)(2). He may
have also made others, including protected disclosures of a substantial and
specific danger to public health or safety when he repeatedly reported fall
protection deficiencies. Based on OSC’s assertions, it appears that
Mr. Stephenson’s disclosures were a contributing factor in his termination.
See Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995) (recognizing
that a probationary termination is a personnel action). At a minimum, the facts
alleged by OSC suggest that the FRCSW Safety and Regulatory Compliance
Director and the FRCSW Safety Program Director learned of Mr. Stephenson’s
disclosures and recommended his termination just days later, satisfying the
knowledge/timing test. 3 See Ayers v. Department of the Army, 123 M.S.P.R. 11,
¶¶ 25-26 (2015) (observing that the appellant met his burden to prove
contributing factor when agency officials knew about the protected disclosure and
removed the appellant within a year of the disclosure, meeting the
knowledge/timing test).
2
The agency concedes that this may constitute a protected disclosure. SRF, Tab 3
at 14, 20.
3
Despite arguing that Mr. Stephenson’s disclosures did not contribute to his removal,
the agency appears to concede that the knowledge/timing test is satisfied. SRF, Tab 3
at 23-25.
6
¶12 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 engaged in a prohibited personnel practice described in 5 U.S.C.
§ 2302(b)(8).
ORDER
¶13 Based on the foregoing, I conclude that granting OSC’s stay request would
be appropriate. Accordingly, a 45-day stay of the agency’s probationary
termination action is GRANTED. The stay shall be in effect from April 13, 2017,
through and including May 27, 2017. It is further ORDERED that:
(1) During the pendency of this stay, Mr. Stephenson shall be reinstated
to the GS-12 Safety and Occupational Health Specialist position he
held prior to his probationary termination;
(2) The agency shall not effect any changes in Mr. Stephenson’s duties
or responsibilities that are 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;
(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; and
(4) Ordinarily, a request for an extension of a 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, no later than 15 days before the expiration of the
stay. Any comments on such a request that the agency want s 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, together
with any evidentiary support, no later than 8 days before the
7
expiration of the stay. However, the Board currently lacks the
quorum necessary to grant an extension of the stay.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.