Lee Ronso v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 32

Docket No. AT-0752-13-4332-I-1

Lee Ronso,

Appellant,

v.

Department of the Navy,

Agency.

April 14, 2015

Lee Ronso, Cantonment, Florida, pro se.

Thomas J. Tangi, Jacksonville, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of the initial decision, which

affirmed the agency’s furlough action. For the following reasons, we conclude

that the petitioner has not established a basis under 5 C.F.R. § 1201.115 for

granting the petition for review. We therefore DENY the petition for review and

AFFIRM the initial decision AS MODIFIED.

BACKGROUND

¶2 The appellant is a Rehabilitation Program Manager for the agency’s

substance abuse clinic in Pensacola, Florida. Initial Appeal File (IAF), Tab 10

at 4. On June 3, 2013, the agency sent him a notice of proposed furlough, citing

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

American Taxpayer Relief Act of 2012. Id. at 6-8. The notice proposed

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

at 7. On June 26, 2013, the appellant received the agency’s decision, upholding

the proposed furlough. Id. at 9-11.

¶3 The appellant filed this appeal with the Board. IAF, Tab 1. After holding

the requested hearing, the administrative judge upheld the furlough. IAF, Tab 13,

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

Tab 1. The agency has not filed a response.

1

The appellant’s petition for review contains new arguments that were not raised

below. Despite solely relying on an exception for the protection of life and property

below, IAF, Tab 7 at 4, the appellant’s petition suggests that another furlough exception

also may have applied to his position, Petition for Review (PFR) File, Tab 1 at 9

(referencing the authority of deciding officials to approve up to 50 individual,

mission-based exceptions to the furlough); IAF, Tab 11 at 8 (permitting designated

agency officials to approve up to 50 additional exceptions as needed to ensure safe and

efficient operations of their departments). He also seems to suggest that the agency’s

furlough decisions may have been motivated by sex discrim ination. See PFR File,

Tab 1 at 23. However, 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 availab le despite the party’s due diligence. Banks v.

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

no such showing, we will not consider his new arguments on review.

The appellant also suggests that the administrative judge erred in allowing the deciding

official the opportunity to review a document during her testimony, without affording

him a similar opportunity concerning another document. See PFR File, Tab 1 at 6

(referencing a copy of a document which is available in the Department of the Navy’s

Administrative Record for FY 2013 Furlough Appeals, Part 2 at 125-27, available at

http://www.mspb.gov/furloughappeals/navy2013.htm). However, because the appellant

failed to present any argument that this purported error affected his substantive rights, it

is of no legal consequence and we will not consider it further. See Tan v. Department

of Veterans Affairs, 89 M.S.P.R. 15, ¶ 5 (2001) (the proponent of an alleged procedural

error bears the burden of demonstrating that it adversely affected his substantive rights;

absent that adverse effect, the error is harm less).

3

ANALYSIS

¶4 Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an

employee for 30 days or less “only for such cause as will promote the efficiency

of the service.” Accordingly, an agency must prove that cause existed for the

furlough and that the furlough promotes the efficiency of the service. Dye v.

Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the

efficiency of service 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. Chandler v. Department of the

Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).

¶5 The appellant does not dispute the administrative judge’s finding that the

agency’s furloughs were a reasonable management solution to the budget cuts

required by sequestration and promoted the efficiency of the service, generally,

and we decline to revisit the administrative judge’s well-reasoned findings on the

issue. ID at 3-5; see generally Lopez v. Department of the Navy, 121 M.S.P.R.

647, ¶¶ 4, 15-16 (2014) (affirming the administrative judge’s determination that

furloughs were a reasonable management solution to the financial restrictions

resulting from sequestration). Nor does the appellant allege that the agency

applied the furlough in an unfair or uneven manner. See Chandler, 120 M.S.P.R.

163, ¶ 8 (explaining that “fair and even manner” means that the agency treated

similar employees similarly and justified any deviations with legitimate

management reasons). Instead, the appellant alleges that he fell within one of the

agency’s designated exceptions for the furlough, based upon the nature of his

position managing a substance abuse program. PFR File, Tab 1 at 8-23. He also

alleges that, contrary to the administrative judge’s findings, the agency violated

its own policy and his due process rights when the decidin g official delegated the

task of receiving oral responses to the furlough proposals. Id. at 5-7, 15-18. We

find no merit to these arguments.

4

The administrative judge properly found that the agency proved cause for the

appellant’s furlough because he met the criteria for being subject to, and not

excepted from, the furlough.

¶6 The appellant has consistently argued that he should have been excepted

from the furlough based upon the nature of his position. E.g., IAF, Tab 7 at 4.

According to the appellant, he fell within the exception that applied to select

medical personnel. See IAF, Tab 7 at 4, Tab 11 at 7-8. We find no error in the

administrative judge finding otherwise.

¶7 The agency’s burden to show “cause” for a furlough encompasses whether

the appellant met the criteria established by the agency for being subject to, and

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not excepted from, the furlough. Dye, 121 M.S.P.R. 142, ¶ 9. The Secretary of

Defense issued a memorandum establishing a number of exceptions to the

decision to furlough employees. See IAF, Tab 11 at 7-11. Among them was an

exception for “those employees necessary to protect safety of life and property

. . . to the extent necessary to protect life and property . . . includ[ing] selected

medical personnel.” Id. at 7. The memorandum elaborated that “exceptions for

the medical category are approved with the understanding [that] these exceptions

preserve the minimum level of personnel needed to maintain quality of care in

24/7 emergency rooms and other critical care areas such as behavioral health.”

Id. at 8.

¶8 The deciding official for the appellant’s furlough limited her use of this

exception to medical staff providing emergency and in-patient services. See IAF,

Tab 12, Hearing Compact Disk (HCD) (deciding official testimony). She did not

use the exception for personnel that serviced out-patient clinics, such as the

2

The administrative judge framed the issue of whether the appellant fell with in an

exception to the furlough as an issue of “efficiency of the service.” ID at 5. However,

this issue is more appropriately addressed as one of cause. ID at 5-7. To the extent that

the administrative judge incorrectly characterized this discussion, we modify the initial

decision.

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appellant. See id. On review, the appellant asserts that the deciding official

interpreted the exception too narrowly by not including out-patient services. PFR

File, Tab 1 at 13, 19-21. He argues that his position at an out-patient clinic is

critical to the well-being of patients. Id. at 8-11. According to the appellant, he

is the only civilian in his department, so his furlough resulted in his unqualified

subordinates managing the substance abuse treatment program on the days he was

furloughed. Id. at 8-9. He also argues that he was deemed essential or exempt

during the later government shutdown, so he should have been excepted from the

furloughs resulting from sequestration for the same reasons. Id. at 14-15.

¶9 Although we appreciate the appellant’s concern for the well-being of

patients, we find no error in the administrative judge’s determination that the

agency proved cause, despite declining to apply the furlough exception for select

medical personnel to the appellant. See ID at 6-8; see also Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding

no reason to disturb the administrative judge’s findings where the administrative

judge considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions). Because the exception included the phrase “to the extent

necessary,” it did not create a blanket exception. See IAF, Tab 11 at 7; see also

Lopez, 121 M.S.P.R. 647, ¶ 11. Instead, the exception contemplated that

management would exercise discretion, as it did here, in determining which

employees were needed to preserve minimal care. See IAF, Tab 11 at 7.

¶10 We also find no error in the administrative judge’s determination that,

while the appellant may have been deemed “essential” or “exempt” for purposes

of a government shutdown, 3 that determination is not dispositive for purposes of

3

The referenced “government shutdown” was a period from October 1-16, 2013, during

which nonexempt federal employees were furloughed after Congress failed to pass a

budget or continuing resolution in time to avoid a lapse in appropriations. See

generally Continuing Appropriations Act of 2014, Pub. L. No. 113-46, 127 Stat. 558

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the agency’s exceptions for furloughs resulting from sequestration. ID at 7-8.

The appellant has argued that the government shutdown and sequestration are

comparable because both required furloughs due to fiscal issues. PFR File, Tab 1

at 14-15. He asserts that it is illogical that he worked throughout the shutdown

because he was “essential” when the agency had no funding, but was furloughed

when sequestration caused the agency to have reduced funding. Id. at 15.

¶11 We agree with the administrative judge’s decisions to credit the deciding

official’s testimony and find that the government shutdown and sequestration

each required a unique assessment of staffing needs. ID at 7-8. While the

government shutdown was governed by the Antideficiency Act, Pub. L. No.

97-258, 96 Stat. 877 (1982) (codified, in pertinent part, as amended, at 31 U.S.C.

§ 1342), the sequestration furloughs were governed by the agency’s internal

policy, see IAF, Tab 11 at 4-13. Like the sequestration furlough exception for

“employees necessary to protect safety of life and property,” the furloughs that

resulted from the government shutdown had a similar exception “for emergencies

involving the safety of human life or the protection of property.” 31 U.S.C.

§ 1342; IAF, Tab 11 at 7. However, despite this facial similarity, the

administrative judge found, based on the testimony of the deciding official, that

the circumstances of the government shutdown furlough resulted in more

exceptions. The agency had to determine which employees would be exempt

from the government shutdown furloughs with the knowledge that employees who

were not excepted would be absent on a continuous, rather than a sporadic, basis

and without the knowledge of when the shutdown would come to an end. See

HCD (deciding official testimony). By comparison, the agency knew that

employees would be furloughed no more than 11 days due to sequestration, and

the agency was able to space out those days over the course of several months.

(2013) (ending the October 2013 government shutdown by providing appropriations for

the remainder of the fiscal year).

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Id.; IAF, Tab 11 at 6. In essence, the government shutdown required that the

agency abruptly wind down and stop many activities, while sequestration

permitted the agency to engage in a more thoughtful consideration of how to

reduce spending over the course of a fiscal year to accommodate a reduced

budget. 4 See HCD (deciding official testimony). Accordingly, the agency’s

determination that the appellant was essential during the government shutdown

did not prevent it from proving cause for his sequestration furlough, as it did

here.

The appellant did not establish that the agency committed a due process violation

or harmful error by delegating the task of receiving oral replies.

¶12 The appellant does not dispute that he was given the opportunity to respond

to the proposed furlough. Instead, he argues that the agency violated his due

process rights and committed harmful error because the deciding official

delegated the task of receiving oral replies to a designated official, rather than

receiving them personally. PFR File, Tab 1 at 5-7; see HCD (deciding official

testimony). We disagree.

¶13 Prior notice and an opportunity to respond to an appealable agency action

are fundamental due process requirements for a tenured public employee. See

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); see also

Gilbert v. Homar, 520 U.S. 924, 930 (1997) (recognizing that due process rights

may vary depending on the circumstances). Here, the agency proposed

furloughing the appellant, but first provided him with 7 days to respond orally

and/or in writing. IAF, Tab 10 at 7-8. Accordingly, the agency provided the

appellant with the required constitutional right to minimum due process and a

4

The appellant does not dispute this d istinction in the two furloughs. See PFR File,

Tab 1 at 14-15 (containing the appellant’s argument that he should have been deemed

essential during both furloughs because they were both “based on fiscal issues” and he

is essential for patient care).

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meaningful opportunity to respond. 5 See generally Kinsey v. Department of the

Navy, 59 M.S.P.R. 226, 229 (1993) (where an agency has provided an employee

with an opportunity to make a written reply to a notice of proposed adverse

action, its failure to afford him an opportunity to make an oral reply does not

violate his right to minimum due process).

¶14 Even though we find no due process violation, we still must determine

whether the agency committed a procedural error. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,

in addition to the right to due process, “[p]ublic employees are . . . entitled to

whatever other procedural protections are afforded to them by statute, regulation,

or agency procedure”). Therefore, we must examine whether the agency

committed a harmful error by virtue of the deciding official delegating the

authority to receive oral replies to the proposed furlough. See Ward v. U.S.

Postal Service, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (holding that procedural

5

The appellant disputes the administrative judge’s findin g that he did not submit an

oral or written reply to the proposed furlough. PFR File, Tab 1 at 7, 17; see ID at 6.

According to the appellant, he submitted an oral reply to his immediate supervisor.

PFR File, Tab 1 at 7, 17. However, other than his own testimony, the appellant

presented no evidence of this reply, such as testimony from his supervisor. Moreover,

to the extent that he orally disputed the proposed furlough to his supervisor, this was

not the appropriate avenue for submitting a rep ly, as the appellant implicitly

acknowledges. Compare IAF, Tab 10 at 8 (furlough proposal directing the appellant to

contact a specific Human Resources representative to arrange for an oral reply if he

wished to submit one), with PFR File, Tab 1 at 7 (indicating that he “did not reply via

[Human Resources]” because he did not trust that his statement would be reported “in

an accurate and factual manner”). Accordingly, we see no meaningful d istinction

between the appellant’s testimony that he “orally replied” to his immediate supervisor

and the administrative judge’s finding. See generally Flores v. Department of Defense,

121 M.S.P.R. 287, ¶ 11 (2014) (findin g that in the absence of any indication that the

appellant made a reasonable effort to assert his right to respond, or that the agency

denied him his right to respond through action, negligence, or design, the appellant was

not denied due process); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶¶ 7, 22

(2004) (finding no due process vio lation where the appellant asked to respond to a

proposed removal after the agency’s deadline for doing so and the agency refused),

aff’d, 176 F. App’x 110 (Fed. Cir. 2006).

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errors are subject to a harmful error analysis). An appellant bears the burden of

proving, by preponderant evidence, that the agency committed harmful error in

reaching its decision. 5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(2). A harmful

error is an error by the agency in the application of its procedures that is likely to

have caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. 5 C.F.R. § 1201.56(c)(3).

¶15 In asserting harmful error, the appellant relies on the May 14, 2013

memorandum from the Secretary of Defense that detailed which employees could

be excepted from the furloughs. See IAF, Tab 11 at 4-14. The memorandum

indicated that the designated official for determining who would be excepted

from the furloughs would be no lower than a local Installation Commander and

that these responsibilities could not be delegated further. Id. at 8.

¶16 Despite the aforementioned memorandum, the record reveals that the

deciding official’s delegation of the duty to receive oral replies was consistent

with agency policy. See Department of the Navy’s Administrative Record for FY

2013 Furlough Appeals, Part 1 at 36, available at http://www.mspb.gov/furlough

appeals/navy2013.htm. The policy pertaining to furloughs, dated 10 days after

the memorandum cited by the appellant, explicitly provided that “[a]n individual

other than the [d]eciding [o]fficial may be delegated as the [r]eply [o]fficial” for

oral replies. Id. Moreover, even if the agency had erred in delegating the duty of

receiving oral replies, the appellant failed to present any argument or evidence as

to how the error was harmful. See Pumphrey v. Department of

Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an

employee has been harmed by a procedural error in the adverse action process;

the appellant bears the burden of proving harm). Accordingly, the administrative

judge properly found that the appellant failed to show that the agency committed

either a due process violation or a harmful error.

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ORDER

¶17 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

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Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)

and 29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.