UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. JUDY KACHANES,

Petitioner,

v.

DEPARTMENT OF AGRICULTURE,

Agency.

DOCKET NUMBER

CB-1208-14-0021-U-1

DATE: August 20, 2014

THIS STAY ORDER IS NONPRECEDENTIAL1

Alejandra Duarte Dove, Esquire, Washington, D.C., for the petitioner.

Valerie J. Neris-Blankenship, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

ORDER ON STAY REQUEST

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

has requested a 45-day stay of the agency’s indefinite detail, proposed removal, 

and constructive removal of Judy Kachanes to allow it to investigate Ms. 

Kachanes’s prohibited personnel practice complaint. For the reasons set forth 

below, OSC’s request for a stay is GRANTED.

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 In its August 15, 2014 stay request, OSC alleges that Ms. Kachanes was a 

27-year employee of the agency’s Food Safety and Inspection Service (FSIS), 

with no disciplinary history prior to the incidents at issue in its investigation. 

OSC further alleges that the agency appointed Ms. Kachanes to a Consumer 

Safety Inspector position in McPherson, Kansas, effective September 9, 2012. 

Shortly thereafter, Ms. Kachanes allegedly began making various disclosures of 

violations of standards concerning the humane slaughter of animals and the 

agency’s failure to take appropriate action to correct the violations and prevent 

their reoccurrence. OSC alleges that the agency retaliated against Ms. Kachanes

by detailing her for an indefinite period of time, proposing her removal, and 

constructively removing her. 

¶3 OSC asserts that during Ms. Kachanes’s monitoring of a specialty meat 

plant (the plant) on October 18, 2012, she observed that the animals were not 

rendered unconscious by the bolts of electricity used to stun them before death, a 

violation of the Humane Methods of Slaughter Act of 1978. Consistent with 

agency regulations, Ms. Kachanes reported the inhumane slaughter to the 

inspector permanently assigned to the plant and asked him to take appropriate 

action. OSC contends that the inspector declined to take any of the required 

remedial actions, and Ms. Kachanes thereafter reported the incident to various 

officials within her chain of command and the FSIS Humane Handling 

Ombudsman. OSC alleges that the agency immediately relieved her of her duties 

at the plant. After Ms. Kachanes saw no evidence of any corrective action at the 

plant, she allegedly contacted both the Secretary of Agriculture and the 

Government Accountability Project to report the incident and her belief that the 

FSIS had failed to properly respond. 

¶4 OSC asserts that Ms. Kachanes’s concerns were confirmed when she 

attended a “correlation” at the plant on March 6, 2013, for the purpose of 

demonstrating that the plant had addressed and corrected the problems that she 
3

had reported. While there, Ms. Kachanes observed further alleged violations of 

the slaughter process and reported the new violations to the Ombudsman and the 

FSIS officials in her chain of command. On March 14, 2013, the District 

Manager placed Ms. Kachanes on a detail from her Consumer Safety Inspector 

position in McPherson, Kansas, to the position of Food Inspector in Wellington, 

Kansas, “until further notice.” OSC asserts that this was a demotion in duties and 

was a physically more demanding position; accordingly, Ms. Kachanes informed 

the agency that she was unable to perform the duties of the Food Inspector 

position due to medical restrictions that were incompatible with the position.

2 In 

response, the District Manager allegedly issued another detail assignment to Noel, 

Missouri, “until further notice,” and, for the first time, referred to alleged 

performance issues that occurred 5 months prior. OSC asserts that the allegations 

of performance issues coincided with Ms. Kachanes’s October 2012 disclosures 

concerning the plant and were not mentioned during her mid-year performance 

review in February 2013. Ms. Kachanes again submitted medical documentation 

concerning her inability to perform in the detailed position, and she did not begin 

her detail assignment for physical inability to perform the duties of the position.

OSC alleges that the agency then placed her in an Absent Without Leave (AWOL)

status despite her requests for leave without pay. 

¶5 In response to Ms. Kachanes’s March 22, 2013 complaint with the agency’s 

Office of the Assistant Secretary for Civil Rights (OCR), 3 on August 21, 2013, 

OCR allegedly ordered the FSIS to return Ms. Kachanes to a Consumer Safety 

Inspector position in McPherson, Kansas, effective September 25, 2013. Instead,

 2 As OSC notes, the Office of Personnel Management (OPM) qualification standards for 

the Food Inspection series 1863 include medical requirements whereas the OPM 

qualification standards for the Consumer Safety Inspection series 1862 do not. 

3 Ms. Kachanes complained to OCR that the detail to the Food Inspector position in 

Noel, Missouri, violated the terms of an earlier equal employment opportunity 

settlement agreement that resulted in her appointment to the Consumer Safety Inspector

position in McPherson, Kansas.
4

OSC alleges that the agency issued a notice of proposed removal on September 

12, 2013, for failure to report to duty as detailed, conduct unbecoming a federal 

employee, and absence without leave. OSC alleges that Ms. Kachanes 

involuntarily resigned on December 14, 2013, prior to a final decision on the 

proposed removal. 

ANALYSIS

¶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 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. Special Counsel ex rel. 

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

¶7 OSC argues that it has reasonable grounds to believe that Ms. Kachanes 

made multiple protected disclosures of violations of laws, rules, and regulations 

under 5 U.S.C. § 2302(b)(8) concerning the plant’s violation of inhumane 

slaughter laws and agency management’s failure to take the appropriate action to 

bring the plant into compliance. OSC contends that a disinterested observer in 

Ms. Kachanes’s shoes could believe that the information she disclosed evidenced 

violations of law, rule, or regulation. OSC argues that the agency officials in Ms. 

Kachanes’s chain of command had knowledge of her disclosures at the time of 

their decisions to take each of the challenged personnel actions under 5 U.S.C. 

§ 2302(a)(2)(A): the decision to detail her indefinitely, propose her removal, and 
5

coerce her resignation.

4

 OSC alleges that Ms. Kachanes’s whistleblowing activity 

was a contributing factor in the agency’s decision to take the covered personnel 

actions because her disclosures occurred within a short period of time before each 

of the agency’s action. Further, OSC argues that the attendant circumstances 

surrounding these actions support a motive to retaliate against her. 5

¶8 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 indefinitely detailed Ms. Kachanes, proposed her removal, and 

constructively removed her based on her protected disclosures in violation of 

5 U.S.C. § 2302(b)(8).

ORDER

¶9 Based on the foregoing, I conclude that granting OSC’s stay request is 

appropriate. Accordingly, a 45-day stay of Ms. Kachanes’s indefinite detail, 

proposed removal, and constructive removal is GRANTED. The stay shall be in 

effect from August 20, 2014, through and including October 3, 2014. It is further 

ORDERED that:

(1) Ms. Kachanes shall be reinstated to her position of record as a 

Consumer Safety Inspector in McPherson, Kansas, with the same 

 4 Although Ms. Kachanes resigned prior to OSC’s stay request, the language of the 

statute permits the stay of a personnel action if the Special Counsel has reasonable 

grounds to believe that the action “was taken, or is to be taken, as a result of a 

prohibited personnel practice.” 5 U.S.C. § 1214(b)(1)(A)(i). An involuntary 

resignation is tantamount to a removal and is a “personnel action” under 5 U.S.C. 

§ 2302(a)(2)(A)(iii). See Pariseau v. Department of the Air Force, 113 M.S.P.R. 370, 

¶ 11 (2010). The Board has the authority to stay the removal of an employee after the 

effective date of the action. See Special Counsel v. Department of Transportation, 59 

M.S.P.R. 552, 555 (1993).

5 OSC asserts that management behavior outside of the personnel decisions also 

suggests a retaliatory motive. Further, OSC cites the agency Inspector General’s May 

2013 audit report, which concluded that FSIS inspectors failed to take appropriate 

enforcement actions, failed to improve slaughter practices at supervised plants, and 

failed to ensure the humane handling of swine, which are conclusions consistent with 

Ms. Kachanes’s disclosures. 
6

duties and responsibilities that she formerly had and at the same 

salary and grade level effective August 20, 2014;

(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 an extension of this 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

September 19, 2014. 

(4) 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 and served on OSC, together with any 

evidentiary support, on or before September 26, 2014.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board