UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. GLENN SCHWARZ, CB-1208-17-0022-U-4
Petitioner,
v.
DATE: October 12, 2017
DEPARTMENT OF THE NAVY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Sheryl Golkow, Esquire, Dallas, Texas, for the petitioner.
Malvina Winston, Esquire, Washington, D.C., for the petitioner.
Cheri L. Cannon, Esquire, and Smenta K. Chabbra, Esquire, Washington,
D.C., for the relator.
Jennifer B. Toler, Esquire, and Anakah D. Harrison, Cherry Point, North
Carolina, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 the agency’s
removal of Mr. Schwarz. For the reasons discussed below, OSC’s request is
GRANTED and the stay is extended through December 11, 2017.
BACKGROUND
¶2 On June 28, 2017, OSC requested a 45-day initial stay of the agency’s
June 8, 2017 decision to reinstate Mr. Schwarz’s removal for allegedly violating a
settlement and abeyance agreement. Special Counsel ex rel. Glenn Schwarz v.
Department of the Navy, MSPB Docket No. CB-1208-17-0022-U-1, Stay Request
File (U-1 SRF), Tab 1. Mr. Schwarz previously had filed a complaint of
whistleblower reprisal with OSC on September 10, 2016, which was resolved via
a November 22, 2016 settlement agreement. Id. at 7. As part of the settlement
agreement, the agency agreed to hold Mr. Schwarz’s pending removal action in
abeyance for a period of 2 years, provided that he complied with certain
performance and conduct standards. Id. On June 8, 2017, the agency reinstated
Mr. Schwarz’s removal for failing to comply with the performance and conduct
standards set forth in the settlement agreement. Id. In particular, the agency
charged that Mr. Schwarz was less than candid on two occasions, engaged in
off-duty misconduct that disrupted the workplace by sending two Facebook
messages to a retired employee, improperly attested to his time and attendance on
several occasions, and failed to follow instructions to request leave at least 1 day
in advance on one occasion. Id. at 7-9.
¶3 In its initial stay request, OSC argued that it had reasonable grounds to
believe that the agency reinstated Mr. Schwarz’s removal based on reprisal for
protected disclosures he had made concerning the agency’s improper testing of
aircraft fueling equipment and improper testing and disposing of jet fuel. Id. at
10-15. OSC asserted that an investigation by the agency’s Inspector General
3
substantiated Mr. Schwarz’s disclosures. Id. at 6. OSC further asserted that
attendant circumstances suggested that Mr. Schwarz’s protected disclosures
and/or activities were a contributing factor in the decision to reinstate his removal
because the June 8, 2017 removal notice directly referenced Mr. Schwarz’s
communications with OSC and the agency’s reasons for reinstating the removal
action were weak and lacked a nexus to Government efficiency. Id. at 14-15. On
June 30, 2017, OSC’s initial stay request was granted. U-1 SRF, Tab 2.
¶4 On July 28, 2017, OSC filed a timely request to extend the stay for an
additional 90 days. 2 Special Counsel ex rel. Glenn Schwarz v. Department of the
Navy, MSPB Docket No. CB-1208-17-0022-U-3, Stay Request File (U-3 SRF),
Tab 1. OSC’s request was granted in part, and the stay was extended for 60 days
through October 12, 2017. U-3 SRF, Tab 5.
¶5 On September 27, 2017, OSC filed a timely request to extend the stay for
an additional 60 days. Special Counsel ex rel. Glenn Schwarz v. Department of
the Navy, MSPB Docket No. CB-1208-17-0022-U-4, Stay Request File
(U-4 SRF), Tab 1. The agency has filed a timely response. U -4 SRF, Tabs 3-4.
ANALYSIS
¶6 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 conseq uences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
record will be reviewed in the light most favorable to OSC, and a stay extension
request will be granted if OSC’s prohibited personnel practice claim is not clearly
2
Prior to this, on July 25, 2017, the agency’s motion to terminate the stay and
Mr. Schwarz’s motion to modify the stay were denied. Special Counsel ex rel. Glenn
Schwarz v. Department of the Navy, MSPB Docket No. CB-1208-17-0022-U-2,
Stay Request File, Tab 10.
4
unreasonable. Id. at 158. An extension may be granted for any period that is
considered 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).
¶7 In its request for an extension, OSC asserts that it has conducted interviews
with Mr. Schwarz’s first- and second-level supervisors, it has identified a third
witness to interview, and it is in the process of reviewing over 3,000 pages of
documents from the agency. U-4 SRF, Tab 1 at 2-3. OSC further asserts that it
expects the agency to produce additional documents and that it has reason to
believe that it will interview other witnesses as the investigation progresses.
Id. at 3. The agency consents to a 30-day extension but asserts that any extension
beyond 30 days is unnecessary. 3 U-4 SRF, Tab 3 at 4. In support of its argument,
the agency asserts that the third witness is an agency attorney who is not a new
witness and whose interview has been scheduled for October 11, 2017, prior to
the expiration of the current stay. Id. at 4-5. The agency further asserts that,
although it has produced over 3,000 documents, OSC received the bulk o f those
documents prior to September 1, 2017, and there are no further outstanding
document requests. Id. at 5-6 & n.3. Viewing the record in the light most
favorable to OSC and considering the fact that the evidentiary record supporting
OSC’s initial stay request does not appear to have changed materially since the
initial stay was granted, an extension of the stay is appropriate. See Special
Counsel ex rel. Waddell v. Department of Justice, 103 M.S.P.R. 372, ¶ 5 (2006).
¶8 The length of the extension, however, requires a separate determination.
Special Counsel ex rel. Waddell v. Department of Justice , 104 M.S.P.R. 141, ¶ 7
(2006). Although the agency opines that a 30-day extension is appropriate to
allow OSC to complete its investigation, OSC is in a better position than the
3
The agency concedes that a 30-day extension is reasonable “[i]n light of minor
scheduling conflicts from both OSC and a witness that briefly delayed the
investigation.” U-4 SRF, Tab 3 at 5.
5
agency to determine how much time is needed to complete the review process.
See Special Counsel v. General Services Administration , 45 M.S.P.R. 601, 605
(1990). Further, a 60-day extension would allow OSC time to initiate any future
action it deems appropriate, such as drafting a prohibited personnel practice
report, seeking resolution of the matter with the agency, and/or filing a petition
for corrective action with the Board. See 5 U.S.C. § 1214. Accordingly, 60 days
is a reasonable amount of time to extend the stay.
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 June 30, 2017, is extended through and including
December 11, 2017, on the terms and conditions set forth in that
Order;
(2) The agency shall not effect any changes in Mr. Schwarz’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), as amended by Pub. L. No. 115-42, 4 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
November 24, 2017; and
4
As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
6
(5) Any comments on such a request that the agency wants considered
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 December 1,
2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.