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Commerce IG nondisclosure agreement OSC MSPB stay request

Commerce IG nondisclosure agreement OSC MSPB stay request

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Commerce IG nondisclosure agreement OSC MSPB stay request
Commerce IG nondisclosure agreement OSC MSPB stay request

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Published by: MSPBWatch on Nov 30, 2012
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12/04/2012

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UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSELEX REL. JOHN DOES, 1-4,Petitioners,v.DEPARTMENT OF COMMERCE,Agency.DOCKET NUMBERCB-1208-13-0011-U-1DATE: November 29, 2012
THIS STAY ORDER IS NONPRECEDENTIAL
1
 
Julie Martin-Korb, Esquire, Washington, D.C., for the petitioner.Wade Green, Esquire, Washington, D.C., for the agency.
BEFORE
Mark A. Robbins, Member
ORDER ON STAY REQUEST
Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC) requests a 45–day stay of the following actions while it completes itsinvestigation into whether the agency’s actions constitute prohibited personnelpractices under5 U.S.C. § 2302(b)(8), (b)(9), and (b)(12): (1) a significant change in working conditions imposed by allegedly unlawful nondisclosure
1
A nonprecedential order is one that the Board has determined does not addsignificantly to the body of MSPB case law. Parties may cite nonprecedential orders,but such orders have no precedential value; the Board and administrative judges are notrequired to follow or distinguish them in any future decisions. In contrast, aprecedential decision issued as an Opinion and Order has been identified by the Boardas significantly contributing to the Board's case law.
See
 
2agreements; and (2) threats to send failing performance appraisals to the fouraffected individuals should they either fail to sign or revoke the allegedlyunlawful nondisclosure agreements. OSC contends that the nondisclosureagreements are interfering with an ongoing investigation of an independentprohibited personnel practice complaint (hereinafter “Ongoing Investigation”).For the reasons set forth below, I GRANT OSC’s request IN PART.
BACKGROUND
2
 
In its November 26, 2012 stay request, OSC alleges that the four affectedindividuals (hereinafter “Former Employees”) previously worked in the agency’sOffice of Inspector General (OIG).
3
Stay Request File,
4
Tab 1 at 1. OSC assertsthat three of the Former Employees are current federal employees.
 Id.
at 1 n.1.As alleged by OSC, the three highest officials in OIG, consisting of the InspectorGeneral (IG), the Deputy IG and Counsel to the IG (Deputy IG), and the PrincipalAssistant IG for Investigations (PAIGI), coerced the Former Employees to signnondisclosure agreements in an effort to chill the Former Employees fromwhistleblowing, cooperating with OSC, and reporting wrongdoing to the UnitedStates Congress.
 Id.
at 2-3. Specifically, OSC alleges that, from 2010 to 2011,the IG, Deputy IG, and/or the PAIGI issued a failing performance appraisal to
2
For purposes of ruling on OSC’s request for an initial stay in this ex parteproceeding, I accept OSC’s version of the facts as true.
See, e.g.
,
Special Counsel v. Department of the Interior 
3
OSC requests that the Board grant the Former Employees anonymity and, in filing thestay request, has not provided the Board with the identities of these individuals,referring to the individuals only as “John Does 1-4.” The Board has docketed the stayrequest using “John Does 1-4,” and the identities of these individuals are not necessaryto act on the initial stay request on their behalves.
4
OSC has filed a motion to strike the first eight pages of its stay request because thepages were inadvertently submitted when e-filing its pleading. Stay Request File,Tab 2. I grant OSC’s motion and strike the first eight pages from the record.Accordingly, the first page of OSC’s submission is the first page of its brief entitled“Initial Request for Stay of Personnel Action and Protective Order.”
 
3each of the Former Employees.
 Id.
at 1, 4. Based on the timing and the contentof the performance appraisals, OSC asserts that the appraisals did not reflect anhonest assessment of each employee’s performance.
 Id.
at 4. OSC asserts thateach of the Former Employees had worked in OIG for several years but wasactively seeking employment elsewhere, as was known by the IG, Deputy IG,and/or the PAIGI.
 Id.
In addition, OSC alleges that each of the FormerEmployees had received superior performance evaluations in previous years andhad recently received at least a satisfactory appraisal.
 Id.
 According to OSC, immediately after the IG, Deputy IG, and/or the PAIGIissued the failing performance appraisals to each of the Former Employees, theIG, Deputy IG, and/or the PAIGI presented each employee with the allegedlyunlawful nondisclosure agreement and stated that, if the employee signed theagreement, the failing performance appraisal would not go into the employee’sOfficial Personnel Folder (OPF) and the agency would provide prospectiveemployers with a neutral job reference.
 Id.
OSC further asserts that, if theemployee did not sign the agreement, however, the IG, Deputy IG, and/or thePAIGI threatened to put the failing performance appraisal into the employee’sOPF and notify the employee’s new employer about the failing performanceappraisal.
 Id.
 OSC alleges that the nondisclosure agreement provides, in pertinent part,as follows:[Employee] further agrees: . . . not to disparage the Agency in anycommunications to any person or entity, including but not limited toMembers of Congress, the Office of Special Counsel, and the media.However, nothing in this Agreement shall prevent or inhibit[Employee] from responding truthfully to direct questions posted tohim in writing or in the course of a formal hearing before anylegislative, executive, or judicial body; . . .The parties agree that this Agreement . . . shall not be used, cited, orrelied upon by any party in connection with any other judicial oradministrative proceedings.

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