Special Counsel ex rel. Glenn Schwarz v. Department of the Navy
Background
- OSC alleged the Navy reinstated Mr. Glenn Schwarz’s previously‑abeyance removal (per a settlement) on June 8, 2017 as retaliation for protected whistleblower disclosures.
- Schwarz had disclosed beginning in Sept. 2013 and filed with OSC in June 2015 that employees were improperly testing and disposing of aircraft fueling equipment and jet fuel, creating safety risks and waste.
- The Navy Inspector General substantiated the disclosures, and OSC publicly identified Schwarz as the whistleblower after referral.
- Schwarz filed a prohibited personnel practices complaint on Sept. 10, 2016 resolved by a Nov. 22, 2016 settlement holding his removal in abeyance for two years conditioned on conduct/performance.
- OSC argued the June 8, 2017 reinstatement referenced Schwarz’s OSC communications, occurred within a timeframe supporting a contributing‑factor inference, and relied on weak efficiency arguments.
- The Board applied the deferential standard for OSC stay requests and found reasonable grounds to believe the reinstatement was motivated by prohibited personnel practices, granting a 45‑day stay (June 30–Aug. 13, 2017).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSC showed reasonable grounds to believe the reinstatement was a prohibited personnel practice warranting a 45‑day stay | OSC: Schwarz made protected disclosures (safety, waste, rule violations); the IG substantiated them; timing, public ID, and the reinstatement’s reference to OSC communications show contributing factor | Navy: Reinstatement was for Schwarz’s failure to meet settlement performance/conduct standards (i.e., legitimate efficiency/discipline grounds) | Stay granted: Board finds OSC’s allegations fall within range of rationality and there are reasonable grounds to believe retaliation occurred; 45‑day stay ordered |
| Whether Schwarz’s disclosures and cooperation with OSC qualify as protected activity and satisfy the knowledge/timing test for contributing factor | OSC: Disclosures evidenced substantial and specific danger to public health/safety and violations; officials knew or should have known (public report, OSC press release, agency participation in mediation); 9‑month gap supports inference | Navy: Implicitly disputes nexus; relies on settlement breach justification | Board: Concludes disclosures/activities appear protected and timing/other circumstances support a contributing‑factor inference |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (2010) (OSC stay standard; review facts favorably to finding reasonable grounds)
- Hooker v. Department of Veterans Affairs, 120 M.S.P.R. 629 (2014) (elements for whistleblower retaliation prima facie case)
- Linder v. Department of Justice, 122 M.S.P.R. 14 (2014) (standard for reasonableness of belief in protected disclosure)
- Mastrullo v. Department of Labor, 123 M.S.P.R. 110 (2015) (knowledge/timing test for contributing factor)
- Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446 (2014) (timing/knowledge as evidence of contributing factor)