Leroy Stinson v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEROY STINSON, DOCKET NUMBER

Appellant, AT-0752-13-5137-I-1

v.

DEPARTMENT OF THE ARMY, DATE: February 26, 2015

Agency.

THIS ORDER IS NO NPRECEDENTIAL 1

Leroy Stinson, Cusseta, Georgia, pro se.

Anne M. Norfolk, Fort Benning, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s furlough action. For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision’s

determination that the agency proved by preponderant evidence that its action

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

promoted the efficiency of the service, AFFIRM all other findings in the initial

decision, and REMAND the case to the regional office for further adjudication in

accordance with this Remand Order.

BACKGROUND

¶2 The appellant is a Maintenance Mechanic at the agency’s Fort Benning

Martin Army Community Hospital. See Initial Appeal File (IAF), Tab 1 at 1. On

May 28, 2013, the agency sent him a notice of proposed furlough, citing the

budget cuts required by the Budget Control Act of 2011, as amended by the

American Taxpayer Relief Act of 2012. Id. at 17-18. The notice proposed

furloughing full-time employees, such as the appellant, up to 11 days. Id. at 18.

On June 10, 2013, the agency issued a decision, upholding the proposed

furlough. 2 Id. at 15-16.

¶3 The appellant appealed his furlough to the Board. Id. at 1-5. The

administrative judge consolidated his appeal with a number of others that the

judge deemed similarly situated. See CAF, Tab 1 at 1-2. After holding a hearing,

the administrative judge upheld the furloughs. CAF, Tab 10, Initial Decision

(ID). The appellant has filed a petition for review. 3 PFR File, Tab 1. The

agency has filed a response. PFR File, Tab 3.

2

The agency’s proposal and decision both authorized up to 11 furlough days, but the

agency later determined that employees such as the appellant would only be subject to 6

furlough days. See MSPB Docket No. AT-0752-14-0200-I-1, Consolidated Appeal File

(CAF), Tab 2 at 9-10.

3

In part, the appellant’s petition appears to argue on behalf of all employees at Martin

Army Community Hospital that were furloughed, even those who did not file a Board

appeal. See Petition for Review (PFR) File, Tab 1 at 3-5, 7-8. However, we have

considered his petition only to the extent that it presents arguments as to his own

furlough. This decision will not adjudicate the furlough of any other employees at

Martin Army Community Hospital.

3

The administrative judge properly found that furloughs were a reasonable

management solution to significant budget cuts.

¶4 Given the appellant’s pro se status, we have construed his petition for

review as challenging the initial decision to the extent that it affirmed his

furlough and found no evidence that he was treated disparately. See IAF, Tab 1

at 2 (alleging that the agency treated employees disparately in regard to the

furlough); see generally PFR File, Tab 1; Roche v. U.S. Postal Service, 828 F.2d

1555, 1558 (Fed. Cir. 1987) (a pro se appellant’s pleading should be construed

liberally).

¶5 The agency bore the burden of proving that the appellant’s furlough

promoted the efficiency of the service. See Chandler v. Department of the

Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). An agency satisfies this standard in a

furlough appeal by showing, in general, that the furlough was a reasonable

management solution to the financial restrictions placed on it and that the agency

applied its determination as to which employees to furlough in a “fair and even

manner.” Id. This does not mean that the agency is required to apply the

furlough in such a way as to satisfy the Board’s sense of equity. Id. Rather, it

means that the agency is required to treat similar employees similarly and to

justify any deviations with legitimate management reasons. Id. Which

employees are similarly situated for purposes of an adverse action furlough will

be decided on a case-by-case basis, but the Board will be guided by reduction in

force principles in making that determination. Id. The Board’s efficiency of the

service determination does not encompass agency spending decisions per se,

including spending on personnel matters, nor does it encompass an agency’s

decision to allocate furlough days in a certain manner among employees who are

not similarly situated. Id., ¶ 9.

¶6 Here, the appellant did not dispute below that furloughs were a reasonable

management solution to significant budget cuts, and we decline to disturb the

administrative judge’s well-reasoned finding that the agency met this burden. ID

4

at 3-4. Instead, the appellant alleged that the agency treated employees

disparately. See IAF, Tab 1 at 2. As set forth more fully below in our discussion

of the appellant’s motion to compel discovery, we remand this appeal for further

adjudication on this issue.

The administrative judge acted within his discretion by disallowing two of the

appellant’s witnesses and excluding much of the evidence the appellant

submitted.

¶7 The appellant argues that the administrative judge erred in denying his

request to call the Director of Human Resources, S.R., and a Practical Nurse,

D.L., as witnesses to the hearing. See PFR File, Tab 1 at 2-3; see also IAF,

Tab 10 at 2 (proposed witness list); CAF, Tab 6 at 5 (denying the appellant’s

request to call S.R. and D.L.). In addition, he argues that the administrative judge

erred in excluding much of the evidence he submitted. See PFR File, Tab 1 at 6;

see also IAF, Tab 10 (the appellant’s submission of evidence); CAF, Tab 6 at 5-6

(decision to exclude much of the appellant’s evidence as irrelevant or redundant).

We disagree.

¶8 An administrative judge has broad discretion to regulate the course of the

hearing and to exclude evidence and witnesses that have not been shown to be

relevant, material, and nonrepetitious. Thomas v. U.S. Postal

Service, 116 M.S.P.R. 453, ¶ 4 (2011); Franco v. U.S. Postal Service, 27

M.S.P.R. 322, 325 (1985); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of

an initial decision on these grounds, the petitioning party must show on review

that a relevant witness or evidence, which could have affected the outcome, was

disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4.

¶9 In his proposed witness list, the appellant indicated that he wished to call

S.R. because she was the point of contact for replies to the furlough proposal and

she was the person in charge of maintaining the agency’s case file. IAF, Tab 10

at 2. On review, the appellant lists several additional topics on which S.R. may

have been able to provide testimony. PFR File, Tab 1 at 2-3 (listing topics as

5

including due process concerns; the purported call back of some furloughed

employees for 1 day; whether overtime was utilized in any departments to ease

the financial hardship of the furlough; and whether any new personnel were

furloughed).

¶10 Even if we were to consider all the topics the appellant has now identified,

we are not persuaded that the testimony of S.R. was relevant, material, and

nonrepetitious in light of her position as compared to those who were approved to

testify. According to the appellant, the office of S.R. prepared the furlough

documents and served as a point of contact. IAF, Tab 10 at 2. By comparison,

witnesses approved for the hearing included the deciding official for the

furloughs, C.L., and another witness who the appellant described as responsible

for the administration of the furloughs in a fair and consistent manner, C.A. 4 See

id.; CAF, Tab 6 at 5 (approving three agency officials requested by the appellant

to testify, including C.L. and C.A.).

¶11 As to proposed witness D.L., the appellant seems to suggest that she was a

Nurse, similarly situated to several others who were exempted from the furlough.

See IAF, Tab 10 at 2; see also PFR File, Tab 1 at 3. However, the appellant has

provided no indication that D.L. was relevant to his own furlough. Instead, it

appears that the appellant wished to call D.L. to present an argument that she was

unfairly furloughed as compared to some of her colleagues. See IAF, Tab 10 at 2;

see also PFR File, Tab 1 at 3; IAF, Tab 10, Subtab P (list of individuals exempt

from furlough, including some Nurses).

¶12 Finally, as to the evidence the appellant wished to submit for the record but

the administrative judge excluded, the appellant presented no substantive

argument as to how it could have affected the outcome of his appeal. Instead, the

4

Although the appellant requested the latter as a witness, IAF, Tab 10 at 2, the

administrative judge approved him as a witness, CAF, Tab 6 at 5, and he appeared at

the hearing to testify, the appellant declined to call him when given the opportunity, see

Hearing Compact Diskette (HCD).

6

appellant merely asserted that the judge disallowed it without giving him the

opportunity to explain its relevance. PFR File, Tab 1 at 6. Examples of the

excluded evidence include photos of signs outside the hospital where the

appellant worked, IAF, Tab 10, Subtab A, the position description of a practical

nurse, IAF, Tab 10, Subtab B, and an email about the possibility of winter

weather that could impact commuters, IAF, Tab 10, Subtab C. The appellant’s

petition failed to explain, and we are unable to discern, how such evidence could

have any relevance to the agency’s furlough of the appellant, a Maintenance

Mechanic. Moreover, he failed to demonstrate that any of the excluded evidence

could have resulted in a different outcome below.

¶13 Based upon the above, we find that the appellant failed to demonstrate that

the administrative judge exercised an abuse of discretion in disallowing S.R. and

D.L. as witnesses and disallowing the majority of evidence he submitted. The

appellant has not demonstrated that the witnesses or evidence was relevant,

material, and nonrepetitious to his appeal.

The administrative judge should have granted the appellant’s motion to compel as

to discovery request no. 2.

¶14 The appellant asserts that the administrative judge erred in denying his

motion to compel discovery as to requests nos. 1 & 2, pertaining to the hiring of

new employees and overtime records. 5 See PFR File, Tab 1 at 5; see also IAF,

Tab 2 at 3, 5 (discovery request and motion to compel), Tab 9 at 1 (administrative

judge’s denial of motion to compel as to requests nos. 1 & 2).

¶15 Discovery is the process by which a party may obtain relevant information

from another person or a party that the other person or party has not otherwise

provided. Chandler, 120 M.S.P.R. 163, ¶ 10; 5 C.F.R. § 1201.72(a). The scope

of discovery includes both relevant information and information that appears

5

The administrative judge also denied the appellant’s motion to compel as to several

other discovery requests. See IAF, Tab 9 at 1. However, we are limiting our scope of

review to those addressed in the appellant’s petition, requests nos. 1 & 2.

7

reasonably calculated to lead to the discovery of admissible evidence.

Chandler, 120 M.S.P.R. 163, ¶ 10. What constitutes relevant information in

discovery is to be liberally interpreted, and uncertainty should be resolved in

favor of the movant absent any undue delay or hardship caused by such request.

Id. Discoverable information is not without boundaries, however, and the

requesting party must ultimately show that the information sought is relevant or is

likely to lead to relevant evidence. Id. The Board will not find reversible error in

an administrative judge’s discovery rulings absent an abuse of discretion that

prejudiced the appellant’s substantive rights. White v. Government Printing

Office, 108 M.S.P.R. 355, ¶ 9 (2008).

¶16 In Chandler, we found that information regarding the hiring of new

employees following the announcement of a furlough pertained solely to the

agency’s discretionary spending decisions, and that it was not discoverable in a

furlough appeal. Chandler, 120 M.S.P.R. 163, ¶¶ 12-14. Therefore, the

administrative judge in this case properly denied the appellant’s motion to compel

discovery of the same with request no. 1. See IAF, Tab 9 at 1.

¶17 In Chandler, 120 M.S.P.R. 163, ¶ 12, the appellant sought “all records,

discussion papers, documentation, e-mail, fax, post-it notes, etc.” related to

employees paid overtime since the time the agency announced its intention to

conduct a furlough. The Board disagreed with the administrative judge’s denial

of this request, holding that “[a]lthough the agency’s alleged decision to award

certain employees overtime pay may be characterized as a spending decision as

well, we find that it might also be relevant to whether the agency applied the

furlough uniformly and consistently.” Id., ¶¶ 13-14. The Board held that if the

agency used overtime payments to relieve certain employees but not others of the

financial consequences of the furlough, that may be sufficient to show that the

furlough did not meet the efficiency of the service standard. Id., ¶ 14.

¶18 The motion to compel filed by the appellant, who is acting pro se, requested

“the names, work area, and dates of all personnel that were allowed to perform

8

work outside their normal work hours from the July through September 2013

timeframe. Who granted the authority to perform this work and how [was] each

individual compensated for this time?” IAF, Tab 2 at 3. We find that this request

is narrower than, or at least as broad as, the request in Chandler. The appellant

did not request “all records, discussion papers, documentation, e-mail, fax, post-it

notes, etc.” related to employees paid overtime, as the appellant did in Chandler,

but merely sought what amounts to a listing of the names, work areas, and dates

of those who worked overtime, as well as who granted the overtime and how each

individual was compensated. Accordingly, consistent with Chandler, we

VACATE the initial decision’s determination that the furlough action promoted

the efficiency of the service because the agency applied its determination as to

which employees to furlough in a fair and even manner, GRANT the motion to

compel as to request no. 2, and REMAND for further proceedings because that

discovery request sought relevant information under 5 C.F.R. § 1201.72(a). 6

The Board will not address arguments the appellant made for the first time on

review.

¶19 As we understand his petition, the appellant presents a number of new

arguments that he failed to raise in his initial appeal. These arguments seem to

include assertions that the agency may have committed harmful procedural error

by failing to provide furloughed employees with the identity of those who were

exempt from the furlough in the furlough notice, PFR File, Tab 1 at 3-4; the

agency may have improperly utilized a contractor to perform work the appellant

normally performs during one of the days on which he was furloughed, id. at 6;

and the agency may have improperly recalled 22 individuals from their scheduled

furloughs for 1 day, id. at 3, 5.

6

Although the administrative judge denied the appellant’s motion to compel request

no. 2, he did permit the appellant to elicit testimony during the hearing as to whether

any individuals were permitted to work overtime during the furlough. See HCD

(testimony of C.L.).

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¶20 The Board generally will not consider an argument raised for the first time

in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence. Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Below, the appellant

failed to speak up when the administrative judge asked if any appellant was

asserting harmful error. See CAF, Tab 6 at 5 (prehearing conference notes

indicating that no appellant asserted any affirmative defense, including harmful

error, in response to the administrative judge’s inquiry). In addition, despite

having the opportunity to elicit testimony from witnesses about the agency’s

purported use of a contractor to perform his work, he failed to do so. See HCD.

Similarly, the appellant had the opportunity to elicit testimony about the 22

individuals purportedly recalled from the furlough for 1 day, from either C.L. or

C.A., but he did not. 7 See id. Finally, the appellant failed to present arguments

on any of these issues, either in his initial appeal form, a prehearing submission,

or a closing brief. 8

7

During cross-examination, the appellant indicated that C.L. testified as to exempting

152 employees from the furlough, while the agency’s list of exempted employees

included 174 names. See HCD; see also IAF, Tab 10, Subtab P. However, C.L.

responded by indicating that he had no information about the difference, and the

appellant failed to elicit further testimony on the issue, testify himself about the issue,

or present written argument about the issue. See HCD. The administrative judge’s

decision acknowledged the difference between the numbers, but found it immaterial.

ID at 5 n.6. It seems likely that the appellant’s argument that 22 individuals may have

been improperly recalled is somehow related to the difference between the

152 employees exempted according to the deciding official and the 174 employees

exempted according to the agency’s documentation. However, while the appellant

identified the discrepancy when eliciting testimony from the deciding official, he

presented no argument about how that discrepancy of 22 was relevant, if at all.

8

At the hearing, the administrative judge concluded by leaving the record open until

Friday, August 22, 2014, for closing briefs. HCD. The designated representative for

all appellants other than the appellant currently before us submitted a closing brief, as

did the agency. CAF, Tabs 8-9. In his petition, the appellant suggests that he did not

file a closing brief because he was waiting for a written transcript of the hearing. PFR

File, Tab 1 at 7. However, we find the administrative judge’s instructions clear and

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ORDER

¶21 Accordingly, we REMAND this appeal to the regional office for further

adjudication consistent with this Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

unambiguous, without any indication that a transcript would be provided, or that the

parties should wait on any such transcript before submitting their closing briefs.