UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. CARMINE A. TARANTINO,

Petitioner,

v.

SMITHSONIAN INSTITUTION,

Agency.

DOCKET NUMBER

CB-1208-16-0027-U-2

DATE: November 7, 2016

THIS STAY ORDER IS NONPRECEDENTIAL1

Julie R. Figueira, Esquire, Washington, D.C., for the petitioner.

Amy Koontz, Esquire, Katherine Bartell, Esquire, and Christine Nicholson, 

Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

ORDER ON STAY EXTENSION REQUEST

¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC) 

requests a 90-day extension of the previously granted stay of the Smithsonian 

Institution’s change of Carmine A. Tarantino’s work schedule and duty station. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

For the reasons discussed below, we GRANT OSC’s request IN PART and extend 

the stay for 72 days, through and including January 18, 2017. In addition, we 

DENY the Smithsonian Institution’s motion to seal the record. 

BACKGROUND

¶2 On September 20, 2016, OSC filed an initial request for a 45-day stay of a

change in work schedule and duty station of Mr. Tarantino, a Utility Systems 

Repairer Operator with the Smithsonian Institution in New York City, New York. 

MSPB Docket No. CB-1208-16-0027-U-1, Stay Request File (SRF), Tab 1. On 

September 23, 2016, Chairman Susan Tsui Grundmann granted OSC’s initial stay 

request, finding that, given the deference that should be afforded to OSC and the 

assertions made in the stay request, there were reasonable grounds to believe that 

the Smithsonian Institution changed Mr. Tarantino’s work station and duty 

schedule in retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(B) and 

(C). Special Counsel ex rel. Carmine A. Tarantino v. Smithsonian Institution, 

MSPB Docket No. CB-1208-16-0027-U-1, Order on Stay Request, ¶¶ 6‐10

(Sept. 23, 2016); SRF, Tab 3, ¶¶ 6-10. On October 21, 2016, OSC filed a timely 

request to extend the stay for an additional 90 days. MSPB Docket No. CB-1208-

16-0027-U-2, Stay Request Extension File (SREF), Tab 1. The agency filed a 

timely opposition to the extension request. 2 SREF, Tab 5. 

 

2 On November 2, 2016, OSC filed a motion for leave to respond to the Smithsonian 

Institution’s opposition to the stay extension request. SREF, Tab 5 at 2‐9. Neither the

applicable statute nor the Board’s regulations provide for such a response. 5 U.S.C. 

§ 1214(b)(1)(B), (C); 5 C.F.R. § 1201.136(b). Furthermore, OSC’s motion fails to 

demonstrate that such a response is necessary for the Board to resolve the stay 

extension request. SREF, Tab 5 at 2‐9. Therefore, OSC’s motion is DENIED. 
3

ANALYSIS

The Board has authority to extend the stay. 

¶3 Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Board’s stay authority is limited 

to personnel actions, see Special Counsel v. Internal Revenue 

Service, 65 M.S.P.R. 146, 148 (1994), which are defined by 5 U.S.C. § 2302(a)(2) 

as certain specified actions with respect to an employee in, or applicant for, a 

covered position “in an agency.” In its opposition to the stay extension request, 

the Smithsonian Institution argues that the Board lacked authority to order the 

initial stay, and lacks authority to extend the stay, because the Smithsonian 

Institution is not an “agency,” as defined by 5 U.S.C. § 2302(a)(2)(C). SREF,

Tab 5 at 6‐13. 

¶4 In Pessa v. Smithsonian Institution, 60 M.S.P.R. 421, 425 (1994), an 

individual right of action (IRA) appeal, we held that the Smithsonian Institution 

is an “agency” under 5 U.S.C. § 2302(a)(2)(C). The Smithsonian Institution 

argues that Pessa was incorrectly decided, and asks us to overrule the decision. 

SREF, Tab 5 at 8‐13. We decline the Institution’s invitation to overrule 

established Board precedent in the context of a stay extension request, which, 

inter alia, imposes time constraints that preclude full development of the record 

on the issue. 3

 

We extend the stay for 72 days. 

¶5 A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued in order to 

maintain the status quo ante while OSC and the agency involved resolve the 

 

3 In its opposition to the stay extension request, the Smithsonian Institution argues that 

in Special Counsel ex rel. Hardy v. Department of Health & Human Services, 

117 M.S.P.R. 174, ¶¶ 5‐18 (2011), the Board terminated a stay when we determined 

that the individual at issue was not an “employee” entitled to file an IRA appeal 

under 5 U.S.C. § 1221. SREF, Tab 5 at 8. However, in Hardy, we reached our decision 

in conformance with existing case law, applying established precedent. Hardy, 

117 M.S.P.R. 174, ¶¶ 5‐17. In contrast, here, the Smithsonian Institution asks that we 

overrule established Board precedent. 
4

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 consequences of an 

alleged prohibited personnel practice. Id. In evaluating a request to extend a 

stay, the Board will review the record in the light most favorable to OSC and will 

grant a stay extension request if OSC’s prohibited personnel practice claim is not 

clearly unreasonable. Id. at 158. 

¶6 In its initial stay request and the request for extension currently before the 

Board, OSC alleges that, in November and December 2015, in Mr. Tarantino’s 

capacity as a union steward, he filed claims or complaints on behalf of a 

coworker with the Department of Labor, the Occupational Safety and Health 

Administration (OSHA), the agency’s Office of Safety, Health, and 

Environmental Management (OSHEM), and the Office of Equal Employment 

Minority Affairs. SRF, Tab 1 at 7‐8; SREF, Tab 1 at 3‐4. OSC further contends 

that on November 22, 2015, Mr. Tarantino filed a complaint with the Smithsonian 

Institution’s Office of the Inspector General (OIG), in which he alleged that his 

second‐level supervisor had retaliated against a coworker and had submitted false 

statements to OSHA and OSHEM. SRF, Tab 1 at 8; SREF, Tab 1 at 4. 

According to OSC, Mr. Tarantino’s second-level supervisor learned of the OIG 

complaint and some of Mr. Tarantino’s activities as union steward in 

November 2015. SRF, Tab 1 at 8; SREF, Tab 1 at 4. Thereafter, on 

November 24, 2015, Mr. Tarantino’s second-level supervisor informed him that 

effective December 13, 2015, his work schedule and duty station would change 

from a third shift tour of duty at the Cooper Hewitt Smithsonian Design Museum, 

to a first shift tour of duty at the National Museum of the American Indian in 

lower Manhattan. SRF, Tab 1 at 8; SREF, Tab 1 at 4. Accordingly, OSC alleges 

that it has a reasonable belief that the agency changed Mr. Tarantino’s duty 

station and work schedule in retaliation for protected activity under 5 U.S.C. 

§ 2302(b)(9)(B) and (C). SRF, Tab 1 at 12‐14; SREF, Tab 1 at 3, 6‐9. 
5

¶7 In its request for an extension, OSC asserts that the factual record in this 

case has not changed significantly since OSC filed its initial stay request. SREF, 

Tab 5 at 3. OSC alleges that 4 days after the Board granted the initial stay 

request, it requested information and documents from the Smithsonian Institution 

pursuant to 5 C.F.R. § 5.4. SREF, Tab 5 at 5. OSC contends that, as of the date 

of the stay extension request, the Smithsonian Institution had not responded with 

information or documents. Id. OSC further asserts that, on October 11, 2016, 

approximately 2 weeks after the Board granted the initial stay request, OSC 

requested information and documents from the Smithsonian Institution’s OIG, 

and as of the date of the stay extension request, the OIG had not responded with 

any information or documents. Id. However, according to OSC, on October 12, 

2016, the OIG provided a “Close Out Synopsis” and an October 3, 2016 “Report 

of Investigation on Alleged Reprisal by a Smithsonian Institution Employee” (the 

OIG report) pertaining to Mr. Tarantino, without any supporting evidence relied 

on in the synopsis or report. Id. at 5‐6. 

¶8 OSC asserts that since the initial stay order, it has interviewed several 

agency witnesses, and that it intends to re‐interview them, presumably as a result 

of the information and documents produced by the agency. Id. at 6. Finally, OSC 

contends that it has attempted several times to schedule interviews of 

Smithsonian Institution officials, but that the agency has not confirmed a time or 

date for the interviews. Id. For these reasons, OSC alleges that it requires 

additional time to investigate this matter. Id. at 9‐10. 

¶9 In its opposition to the stay extension request, the Smithsonian Institution

asserts that there has been a material change in the evidentiary record since the 

initial stay order because its OIG concluded that the second-level supervisor 

did not retaliate against Mr. Tarantino. SREF, Tab 5 at 15‐22. In support of this 
6

assertion, the Smithsonian Institution submits the OIG report and a number of 

supporting exhibits. 4

 Id. at 24‐140. 

¶10 As an initial matter in the Smithsonian Institution’s arguments opposing the 

stay extension request, the majority of the exhibits and a significant portion of the 

OIG report pertain to: (1) a December 24, 2015 letter of reprimand that the 

second-level supervisor issued to Mr. Tarantino regarding his refusal to attend a 

civility training session on December 7, 2015; (2) Mr. Tarantino’s alleged lack of 

candor regarding the reason he was unable to attend the training; (3) the facts and 

circumstances surrounding a December 31, 2015 proposal to suspend 

Mr. Tarantino for 3 days for absence without leave, lack of candor about his 

whereabouts, and violating security regulations; and (4) Mr. Tarantino’s alleged 

lack of candor regarding his outside employment with a private entity, which the 

Smithsonian Institution contends is the real reason that he opposes the changed 

tour of duty. Id. at 17‐22, 33‐38, 67‐140. 

¶11 We find that the Smithsonian Institution has failed to demonstrate that this 

evidence and argument indicates that OSC’s request for a stay based on the 

 

4 The Smithsonian Institution has moved to seal its response to the stay extension 

request, the OIG report, and several of the attached exhibits on the grounds that the 

documents are sensitive and confidential, and the OIG’s case at issue is still open. 

SREF, Tab 4 at 4‐7. OSC does not oppose the motion to seal the response to the stay 

extension request, but it opposes the motion to seal the attachments. SREF, Tab 4 

at 24-28. As an initial matter, by their nature, several of the attached exhibits that the 

Smithsonian Institution seeks to seal are already in Mr. Tarantino’s possession or 

available to Mr. Tarantino. Id. at 98, 101, 105. Furthermore, the Board’s consideration 

of a motion to seal is circumscribed by the Freedom of Information Act (FOIA), 

5 U.S.C. § 552. Social Security Administration v. Doyle, 45 M.S.P.R. 258, 262 (1990). 

FOIA exemptions are to be narrowly construed, and the Government bears the burden of 

proving the applicability of an exemption. See Department of State v. Ray, 502 U.S. 

164, 173 (1991). Moreover, public policy does not favor sealing records, and the 

burden is on the party making such a request to demonstrate why the record should be 

sealed. Doyle, 45 M.S.P.R. at 261. In the instant appeal, the Smithsonian Institution’s 

generalized allegations do not satisfy its burden of establishing that the record should 

be sealed, and accordingly, the motion to seal is denied. 
7

prohibited personnel practices claim is unreasonable. See Special Counsel v. 

Department of Transportation, 74 M.S.P.R. at 157. This evidence is not directly 

relevant to the issue of whether the second-level supervisor changed 

Mr. Tarantino’s duty station and work schedule in retaliation for protected 

activity under 5 U.S.C. § 2302(b)(9)(B) and (C). Furthermore, although OSC 

mentioned the letter of reprimand and proposed suspension in its initial stay 

request, it has not requested a stay of either of these actions. SRF, Tab 1 at 8‐9. 

¶12 However, the Smithsonian Institution also contends that OSC’s prohibited 

personnel practices claim is unreasonable because the OIG report concluded that 

the change in Mr. Tarantino’s duty station and work schedule was not retaliatory. 

SREF, Tab 5 at 15‐17, 31‐33. The OIG report discusses interviewing the second

‐level supervisor who presented his rationale for changing Mr. Tarantino’s 

schedule and duty location. The report concludes that these changes were 

planned before the second‐level supervisor learned of Mr. Tarantino’s alleged 

protected activity. Id. at 31‐33. In support of this assertion, the Smithsonian 

Institution submits evidence that the second‐level supervisor began proposing 

general duty station and work schedule changes in October 2015. Id. at 60-65. 

However, Mr. Tarantino’s name was not included on an October 26, 2015 email 

list of employees proposed for work schedule changes, id. at 63, and it is unclear 

when he was added, or whether any of the other employees on the proposed list 

ultimately had their schedules changed. 

¶13 A stay proceeding is not intended to be a substitute for a complete hearing 

on the merits of a prohibited personnel practice claim. Special Counsel ex rel. 

Tines v. Department of Veterans Affairs, 98 M.S.P.R. 510, ¶ 5 (2005). OSC’s 

stay request need merely fall within the range of rationality to be granted. Id. 

The Board reviews the facts as alleged by OSC in the light most favorable to a 

finding that there are reasonable grounds to believe that a prohibited personnel 

practice was committed. Id. Here, viewing the record in the light most favorable 
8

to OSC, and considering the deferential legal standard, we find that OSC’s claim 

that the change in Mr. Tarantino’s work schedule and duty station was retaliatory 

is not clearly unreasonable, and that OSC has shown reasonable cause to justify 

extending the stay. 

¶14 The length of the extension, however, requires a separate determination. 

See Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208, 

¶ 5 (2007). The Board may grant an extension for any period that it considers 

appropriate. 5 U.S.C. § 1214(b)(1)(B); Waddell, 105 M.S.P.R. 208, ¶ 3. Here, 

although the record does not indicate when Mr. Tarantino filed his OSC

complaint, the initial stay request reflects that OSC had reviewed the complaint 

by April 7, 2016, when it contacted the Smithsonian Institution to request an 

“informal stay.” SRF, Tab 1 at 6. However, OSC did not file the initial stay 

request until more than 5 months afterwards. SRF, Tab 1. Furthermore, although 

this may be attributable in part to a delay by Mr. Tarantino in filing his 

complaint, OSC did not file the initial stay request until more than 8 months after 

the effective date of the change in Mr. Tarantino’s work schedule and duty 

station. Id. 

¶15 The Board has recognized its obligation to press OSC to present corrective 

action cases in a timely manner. Special Counsel ex rel. Waddell v. Department 

of Justice, 104 M.S.P.R. 141, ¶ 6 (2006). In light of the factors discussed above, 

we find that a 72-day extension of the stay is warranted, and we therefore grant

OSC’s request in part. 

ORDER

¶16 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 72-day extension of the stay is 

hereby GRANTED. It is hereby ORDERED that: 

(1)The terms and conditions of the stay issued on September 23, 2016, 

are extended through and including January 18, 2017;
9

(2)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; 

(3) Any request for a further 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 evidentiary support, on or before 

January 3, 2017. See 5 C.F.R. § 1201.136(b). Any comments on 

such a request that the agency wishes 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, before January 10, 

2017. See 5 C.F.R. § 1201.136(b). 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board