Special Counsel ex rel. Trinity M. Alicea v. Department of Defense
Background
- Trinity M. Alicea was hired by the Defense Commissary Agency as a GS-03 Sales Store Checker on October 19, 2015, subject to a one-year probationary period.
- A coworker ("John Smith") allegedly completed required on-the-job training (OJT) on Alicea’s behalf and management allegedly required employees to sign certificates falsely claiming they completed training.
- Alicea repeatedly (about 15 times) complained to a Supervisory Store Associate that OJT was being falsified and that she was denied proper training (including on WIC transactions), which she believed constituted wrongdoing.
- On October 1, 2016, the Supervisory Store Associate terminated Alicea during her probation, citing excess cash/noncash variances as performance failures.
- The Office of Special Counsel requested a 45-day stay under 5 U.S.C. § 1214(b)(1)(A), alleging the termination was a prohibited personnel practice in retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8).
- The Merit Systems Protection Board granted the 45-day stay, ordering reinstatement and preserving Alicea’s probationary period while OSC completes its investigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alicea made a protected disclosure under 5 U.S.C. § 2302(b)(8) | Alicea reasonably believed reporting falsified OJT and training certificates evidenced violation of law/abuse of authority | Agency implied performance failures, not protected disclosures | Board found reasonable grounds that Alicea’s complaints could be protected disclosures (disinterested observer standard) |
| Whether the agency had knowledge and the termination was retaliatory (contributing factor) | Supervisory Store Associate had actual knowledge of repeated disclosures; termination occurred within timeframe making disclosure a contributing factor | Agency relied on performance-based variances as basis for probationary termination | Board found OSC’s allegations satisfy the prima facie elements and timing supports contributing-factor inference |
| Whether a 45-day stay of the probationary termination was appropriate | OSC argued stay warranted while it investigates potential prohibited personnel practice | Agency opposed continuation of termination (implicitly) | Board granted the 45-day stay, ordering reinstatement and preservation of duties and probationary status |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (MSPB 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 (MSPB 2004) (Board may stay a probationary termination after its effective date)
- Office of Special Counsel ex rel. Hopkins v. Department of Transportation, 90 M.S.P.R. 154 (MSPB 2001) (elements for prima facie violation under § 2302(b)(8))
- Tullis v. Department of the Navy, 117 M.S.P.R. 236 (MSPB 2012) (standard for reasonableness of belief in protected disclosure)
- Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999) (disinterested-observer standard for reasonable belief)
- Sirgo v. Department of Justice, 66 M.S.P.R. 261 (MSPB 1995) (probationary termination is a covered personnel action)
- Schnell v. Department of the Army, 114 M.S.P.R. 83 (MSPB 2010) (timing can satisfy contributing-factor inference)
- Special Counsel v. Department of Veterans Affairs, 45 M.S.P.R. 486 (MSPB 1990) (stay of probationary termination preserves probationary period)
- Special Counsel v. Department of Commerce, 23 M.S.P.R. 136 (MSPB 1984) (same principle on probationary period preservation)