UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

OFFICE OF SPECIAL COUNSEL,

EX REL. JAMES P. HOPKINS,

Petitioner,

v.

DEPARTMENT OF TRANSPORTATION,

Respondent.

DOCKET NUMBER CB-1208-02-0004-U-1

DATE: October 17, 2001

Alberto Rivera-Fournier, Esquire, Washington, D.C., for the Petitioner.

Christine E. Comer, Washington, DC, for the Respondent.

BEFORE

Beth S. Slavet, Chairman

OPINION AND ORDER

¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC) requests a 45-day stay of the agency's termination of James P. Hopkins during his probationary period 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.

BACKGROUND

¶2 In its October 15, 2001 stay request, OSC alleges that Mr. Hopkins began employment with the Federal Aviation Administration (FAA) on or about May 20, 2001, as an International Aviation Operation Specialist, FG-301-12(4), with the Office of International Aviation.1 OSC asserts that, for the first two months of his employment with the agency, Mr. Hopkins was Manager of the International Training Program at the FAA, which required him to oversee registration and other functions related to enrolling foreign students in the FAA Academy. OSC claims that on September 13, 2001, Mr. Hopkins read an article mentioning that the Federal Bureau of Investigation (FBI) believed that some of the hijackers who had commandeered airplanes on September 11, 2001, and flown them into the Pentagon and the World Trade Center may have received flight training in the United States; the article listed the names of two individuals about whom the FBI was seeking information because their names were on the passenger manifest(s) of one or more of those planes.

¶3 OSC avers that, also on September 13, 2001, Mr. Hopkins performed a search on the database of the FAA's International Training Program and discovered that an individual with the same surname (but a different first name) and nationality as one of the individuals named by the FBI had received training at the FAA Academy in 1991 and 1998. OSC contends that on the same day he discovered it, Mr. Hopkins brought this information to the attention of his first-level supervisor and suggested that it be passed to FAA Security. When his first-level supervisor informed Mr. Hopkins that it was not his responsibility, and ordered him not to go to FAA Security, OSC asserts, Mr. Hopkins persisted and encountered his third-level supervisor, to whom he also gave the information regarding the database match. According to OSC, Mr. Hopkins was told to return to his office, and on the way there, he informed two co-workers of the information he had discovered. OSC claims that Mr. Hopkins was subsequently informed by his first-level supervisor that he was being disruptive, and that he must leave the building as he was being placed on immediate administrative leave until further notice. OSC states that Mr. Hopkins passed his information on to the FBI while he was on administrative leave, and that, on September 21, 2001, the FAA informed him that he was being removed for inability to maintain "a calm and professional approach in the completion of duties, as well as evidence of sound judgment." OSC contends that a stay of the appellant's termination during his probationary period is appropriate while it completes its investigation because there are reasonable grounds to believe that the agency's action is prohibited under 5 U.S.C. § 2302(b)(8).2

ANALYSIS

¶4 OSC asserts that a prima facie violation of section 2302(b)(8) exists where: (1) The employee made a disclosure of information that he or she "reasonably believed" evidenced a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a danger to public health or safety; (2) the agency official(s) exercising personnel action authority had knowledge of the employee's disclosure; (3) there is a taking or failure to take, or a threat to take or failure to take, a personnel action; and (4) the protected disclosure was a "contributing factor" to the action taken. OSC further asserts that prima facie evidence supports each of these four elements.

¶5 First, OSC claims that Mr. Hopkins' disclosures to his first and third-level supervisors and to the FBI of the match of the name in the FAA International Training Program's database to the name of the individual publicized by the FBI constituted disclosures of a substantial and specific danger to public safety, and are therefore protected under 5 U.S.C. § 2302(b)(8). OSC maintains that the fact that national leaders have been exhorting members of the public in recent weeks to come forward with any information that might be useful in the investigation into the September 11, 2001 hijackings, as well as the fact that Mr. Hopkins believed that the FBI might want to question the hijacker's relatives about the possibility of future terrorist attacks, support the reasonableness of his belief that he was disclosing a substantial and specific danger to public safety. Second, OSC asserts that Mr. Hopkins' first-level supervisor, one of the individuals to whom Mr. Hopkins made his disclosure, signed Mr. Hopkins' termination letter. Third, OSC states that termination of an employee during his probationary period is a personnel action under section 2302(b)(8), as the Board has stated in Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995). Finally, OSC contends that the fact that Mr. Hopkins was placed on administrative leave the same day he made his disclosures, and that he was terminated eight days later, supports a finding that the disclosures came within a period of time that a reasonable person could conclude that they were a contributing factor in the personnel action.

¶6 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 the [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 merely fall within the "range of rationality" to be granted, In re Kass, 2 M.S.P.R. 79, 96 (1980) (interpreting the predecessor provision to 5 U.S.C. § 1214, 5 U.S.C. § 1208), and the facts should be viewed in the light which is most favorable to a finding of reasonable grounds to believe that a prohibited personnel practice was (or will be) committed, Special Counsel v. Department of Transportation, 59 M.S.P.R. 552, 555 (1993).

¶7 OSC asserts that Mr. Hopkins was terminated on September 21, 2001, and I note that the request for a stay of that action was filed less than one month later. See Special Counsel v. Department of Defense Dependent Schools, 76 M.S.P.R. 621, 624 (1997) (the lapse of time since the date of a personnel action is a factor to be considered in determining whether to grant a stay). OSC further states that it requires additional time to conduct its investigation, perform a legal analysis of the evidence gathered, and to decide whether to seek corrective action. See Special Counsel v. Department of the Navy, 65 M.S.P.R. 346, 347 (1994) (an initial stay is designed to provide OSC time to complete an investigation). In light of the assertions made by OSC in its request, I find that there are reasonable grounds to believe that the agency terminated Mr. Hopkins during his probationary period because of disclosures under section 2302(b)(8).

ORDER

¶8 Based on the foregoing, I conclude that granting OSC's stay request would be appropriate. Accordingly, a 45-day stay of Mr. Hopkins' termination is hereby GRANTED. The stay shall be in effect from October 18, 2001, through and including December 2, 2001.

¶9 It is further ORDERED that:

¶10 (1) Mr. Hopkins shall be reinstated to his former position, International Aviation Operation Specialist, FG-301-12(4), with the Office of International Aviation, Asia Pacific Division;

¶11 (2) All actions of the FAA to effect Mr. Hopkins' termination during his probationary period are hereby stayed;

¶12 (3) The FAA shall not effect any change in Mr. Hopkins' duties or responsibilities which is 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;

¶13 (4) 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;

¶14 (5) Any request for an extension of the stay pursuant to 5 U.S.C. § 1214(b)(1)(B) must be received by the Clerk of the Board and the agency, together with any further evidentiary support, on or before November 17, 2001. Any comments on such a request that the agency wants the Board to consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be received by the Clerk of the Board, together with any evidentiary support, on or before November 25, 2001.

FOR THE BOARD:

Washington, D.C.

Beth S. Slavet, Chairman

1 The facts asserted in OSC's request for a 45-day Stay of the Personnel Action are supported by an affidavit executed by its investigator.

2 After but on the same day that OSC had filed its request for a stay of Mr. Hopkins' termination, OSC made a supplemental filing of a copy of a letter from the FAA informing Mr. Hopkins that his termination was being rescinded effective September 21, 2001, and that although he was being restored to his position with back pay and benefits, he would be placed in administrative leave status until further notice. OSC correctly points out that "the purpose of a stay is to preserve the status quo ante, not simply the status quo" and that "placing an employee on administrative leave is not a return to the status quo ante," see Special Counsel v. Department of the Navy, 85 M.S.P.R. 454, ¶17 (2000). OSC reiterates that, notwithstanding the agency's action, it still requests a stay of the termination.