Special Counsel ex rel. Elston L. Stephenson v. Department of the Navy
Background
- Stephenson, a GS-12 Safety and Occupational Health Specialist hired Feb 2016, reported repeated fall-protection deficiencies at Fleet Readiness Center Southwest (FRCSW) and flagged a work-related hospitalization that should have been reported to OSHA.
- He alerted FRCSW leadership and Fleet Readiness Centers Command (COMFRC) in August 2016 about the falls and the OSHA-reporting failure.
- OSHA received an anonymous complaint about fall protections on August 10, 2016; COMFRC had been informed of Stephenson’s reports shortly before.
- FRCSW officials (Safety Program Director and Safety & Regulatory Compliance Director) prepared write-ups citing Stephenson’s contacts with COMFRC and the OSHA complaint as grounds for removal.
- Stephenson was removed from his probationary position on August 17, 2016. OSC sought a 45-day stay on April 11, 2017, alleging retaliatory removal in violation of 5 U.S.C. § 2302(b)(8).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stephenson made protected disclosures | Stephenson disclosed OSHA-reporting violations and safety hazards (protected) | Agency disputed that disclosures were contributing factor | Board found reasonable grounds that disclosures were protected and contributed to removal |
| Whether agency officials had knowledge of disclosures | OSC: officials learned of disclosures and quickly recommended removal | Agency: argued disclosures did not contribute to removal (but conceded timing/knowledge) | Knowledge/timing test satisfied; officials knew and acted within days |
| Whether a probationary termination is a personnel action subject to stay | OSC: probationary termination is a personnel action warranting stay | Agency implicitly contested contribution but accepted test | Board treated probationary termination as a personnel action and granted stay |
| Appropriateness of a 45-day stay pending OSC investigation | OSC requested 45 days to complete investigation and legal review | Agency opposed but conceded some elements | Stay granted from Apr 13 to May 27, 2017; reinstatement ordered during stay |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (2010) (OSC stay request need only fall within range of rationality)
- Special Counsel ex rel. Rigdon v. Department of the Army, 98 M.S.P.R. 110 (2004) (Board may stay probationary termination after its effective date)
- Office of Special Counsel ex rel. Hopkins v. Department of Transportation, 90 M.S.P.R. 154 (2001) (elements to establish prima facie whistleblower reprisal under 5 U.S.C. § 2302(b)(8))
- Bradley v. Department of Homeland Security, 123 M.S.P.R. 547 (2016) (definition of protected disclosure includes reasonable belief of violations or substantial danger to public health or safety)
- Sirgo v. Department of Justice, 66 M.S.P.R. 261 (1995) (recognizing that probationary termination is a personnel action)
- Ayers v. Department of the Army, 123 M.S.P.R. 11 (2015) (knowledge/timing test: disclosures known to officials and subsequent adverse action within a year supports contributing-factor showing)