UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. ZERINA SPALDING,

Petitioner,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CB-1208-22-0016-U-1

DATE: July 28, 2022

THIS STAY ORDER IS NONPRECEDENTIAL1

Julie R. Figueira, Esquire and Paul David Metcalf, Jr., Esquire, 

Washington, D.C., for the petitioner.

Corlie McCormick, Jr., Esquire, Crofton, Maryland, for the relator.

Danae K. Remmert, Esquire, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Member

ORDER ON STAY REQUEST 

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

requests that the Board stay Ms. Spalding’s proposed removal for 45 days while 

OSC completes its investigation and legal review of the matter and determines 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

whether to seek corrective action. For the reasons discussed below, OSC’s 

request is GRANTED. 

BACKGROUND

¶2 In its July 25, 2022 stay request, OSC states that it has reasonable grounds

to believe that on March 16, 2022, the Department of the Treasury (the agency) 

proposed to remove Ms. Spalding from her position with the U.S. Mint in 

violation of 5 U.S.C. § 2302(b)(1) and (b)(8). Stay Request File (SRF), Tab 1 

at 5, 8. OSC alleges that, on December 13, 2019, Ms. Spalding sent an 

anonymous email to the agency’s Anti-Harassment Coordinator detailing 

instances of what she believed to be unlawful or improper favoritism toward 

white employees. Id. at 6. In the email, a copy of which OSC provides as an 

attachment to its stay request, the author alleged that some white employees at the 

agency received “differing treatment” and that agency leadership would “pick and 

choose what’s equal.” Id. at 21. The author identified examples of “differing 

treatment,” including instances in which two agency employees hung nooses in 

U.S. Mint facilities and one of the employees was not disciplined while the other 

employee was ultimately awarded financial compensation in a settlement 

agreement. Id. The email author also alleged that an employee was given an 

unfair advantage when the employee was permitted to serve in a detail beyond the 

time limit, agency officials ignored ethics violations committed by another 

employee, and certain employees were given favorable teleworking agreements 

and advantages in promotion decisions. Id. 

¶3 According to OSC, the email was later forwarded to the agency’s Office of 

the Inspector General (OIG), and the OIG initiated an investigation to determine 

the identity of the email sender. Id. at 7. After OIG received subpoenaed email 

and IP address records linking the anonymous email to Ms. Spalding’s home 

address, Ms. Spalding initially denied knowledge of the anonymous email during 
3

an interview with OIG investigators, but later admitted that she was the author of 

the anonymous email during a subsequent interview in February 2022. Id. at 8. 

¶4 OSC states that the agency proposed Ms. Spalding’s removal from Federal 

service on March 16, 2022, based on a charge of lack of candor. Id. According 

to OSC, although the agency initially agreed to mediation through OSC and to 

stay further processing of Ms. Spalding’s removal for 30 days beyond the end of 

mediation, the agency issued a removal decision on July 1, 2022, just 2 weeks 

after mediation ended, and on July 15, 2022, the agency informed OSC that it 

would not extend the stay on the removal decision and removed Ms. Spalding, 

effective immediately. Id. OSC contends that there are reasonable grounds to 

believe that the agency proposed Ms. Spalding’s removal in retaliation for her 

opposition to practices made unlawful by title VII in violation of 5 U.S.C. 

§ 2302(b)(1)(A), and in retaliation for her protected whistleblowing disclosures in 

violation of 5 U.S.C. § 2302(b)(8), and requests that the Board retroactively stay 

the proposed removal for a period of 45 days. Id. at 1, 9-10, 12-13, 19. 

ANALYSIS

¶5 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 [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 only 

fall within the range of rationality to be granted, and the facts must be reviewed 

in the light most favorable to a finding of reasonable grounds to believe that a 

prohibited personnel practice was (or will be) committed. See Special Counsel ex 

rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010). 

Deference is given to OSC’s initial determination, and a stay will be denied only 
4

when the asserted facts and circumstances appear to make the stay request 

inherently unreasonable. Special Counsel v. Department of Veterans Affairs, 

50 M.S.P.R. 229, 231 (1991).

¶6 Under 5 U.S.C. § 2302(b)(1)(A), it is a prohibited personnel practice for 

any employee who “has authority to take, direct others to take, recommend, or 

approve any personnel action,” to discriminate against any employee or applicant 

for employment on the basis of race, color, religion, sex, or national origin in 

violation of title VII. Illegal discrimination under title VII includes retaliation

against an employee based on her opposition to discrimination. 42 U.S.C. 

§ 2000e-16(a); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 36-37 

(2015). OSC states that Ms. Spalding sent the anonymous email in an effort to 

identify and oppose discrimination and favoritism based on race that was 

unlawful under title VII. SRF, Tab 1 at 9-11. OSC further asserts that within 

1 month of a report identifying Ms. Spalding as the author of this email, the 

agency proposed her removal and there is a causal link between her email 

opposing unlawful discrimination and her proposed removal. Id. at 11-12. Given 

the deference that should be afforded to OSC and the assertions made in its stay 

request, I find that there are reasonable grounds to believe that the agency’s 

proposal to remove Ms. Spalding is the result of a prohibited personnel practice 

under 5 U.S.C. § 2302(b)(1)(A).

2

 

2 OSC also contends that, even though the disclosures contained in Ms. Spalding’s 

anonymous email alleged racial discrimination that might be protected under title VII, 

the email also independently alleged wrongdoing within the categories of 5 U.S.C. 

§ 2302(b)(8), and thus the email is protected regardless of whether it also evidenced 

activity remediable under title VII. SRF, Tab 1 at 16. Because I am granting the stay 

based on an alleged prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(A) in 

connection with Ms. Spalding’s proposed removal, I need not consider whether to grant 

the stay based on 5 U.S.C. § 2302(b)(8). See, e.g., Special Counsel v. Department of 

Transportation, 70 M.S.P.R. 520, 522 n.* (1996) (finding it unnecessary to consider an 

alleged prohibited personnel practice claim under 5 U.S.C. § 2302(b)(11) because there 

was sufficient support for granting the stay based on the 5 U.S.C. § 2302(b)(8) claim).
5

ORDER

¶7 Based on the foregoing, granting OSC’s stay request would be appropriate. 

Accordingly, a 45-day stay of Ms. Spalding’s proposed removal is GRANTED. 

The stay shall be in effect from July 28, 2022, through and including 

September 10, 2022. It is further ORDERED that:

(1) During the pendency of this stay, Ms. Spalding shall be reinstated to

her former position at the same location, with the same duties and

responsibilities, and at the same salary and grade level that she had

prior to her removal;

(2) The agency shall not effect any changes in Ms. Spalding’s duties or 

responsibilities that are inconsistent with her salary or grade level, or 

impose upon her any requirement which is not required of other 

employees of comparable position, salary, or grade level;

(3) 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; 

(4) Any request for an extension of this stay pursuant to 5 U.S.C. 

§ 1214(b)(1)(B), as amended by Pub. L. No. 115-42,3 and 5 C.F.R. 

§ 1201.136(b), must be received by the Clerk of the Board and the 

agency, together with any further evidentiary support, on or before 

August 26, 2022; and

 

3 As passed by the House of Representatives on May 25, 2017, passed by the Senate on 

June 14, 2017, and signed into law on June 27, 2017.
6

(5) Any comments on such a request that the agency wants the Board to 

consider, pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R. 

§ 1201.136(b), must be received by the Clerk of the Board on or 

before September 2, 2022.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board