The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOCKET NUMBERS 1
TINKER HEARING A-D DA-0752-14-0289-I-1
TINKER AFB HEARING E-L DA-0752-14-0293-I-1
TINKER HEARING M-R DA-0752-14-0294-I-1
TINKER HEARING S-Z DA-0752-14-0407-I-1
Appellants,
v.
DEPARTMENT OF THE AIR FORCE, DATE: June 5, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Craig T. Barron and Delo Wayne Anderson, American Federation of
Government Employees, Oklahoma City, Oklahoma, for the appellants.
Telin W. Ozier, Esquire, Midwest, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
The individual appeals that are included in this consolidation are set forth in
Appendices A-D to this order. No petition for review was filed in the other appeals that
were decided as part of the initial decisions in these matters, and thus they are not listed
on these appendices or addressed in this decision.
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellants represented by the two American Federation of Government
Employees (AFGE) representatives noted above have filed petitions for review of
the four initial decisions, which affirmed the agency’s furlough actions.
Generally, we grant petitions such as these only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioners have not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 A number of similarly situated employees from Tinker Air Force Base
appealed the agency’s decision to furlough them for 6 days between July 8, 2013,
and September 30, 2013. See, e.g., MSPB Docket No. DA-0752-14-0289-I-1
(Tinker Hearing A-D), Consolidated Appeal File (CAF), Tab 2; MSPB Docket
DA-0752-14-0293-I-1 (Tinker Hearing E-L), CAF, Tab 2; MSPB Docket No.
DA-0752-14-0294-I-1 (Tinker Hearing M-R), CAF, Tab 2; MSPB Docket
DA-0752-14-0407-I-1 (Tinker Hearing S-Z), CAF, Tab 2. The individual appeals
were consolidated into the aforementioned four groups. After holding a single
hearing, the administrative judge issued an initial decision for each consolidated
3
group, affirming the furloughs. See, e.g., Tinker Hearing A-D, CAF, Tab 28,
Initial Decision (ID); Tinker Hearing E-L, CAF, Tab 31, ID; Tinker Hearing M-R,
CAF, Tab 29, ID; Tinker Hearing S-Z, CAF, Tab 29, ID.
¶3 The Board has received two virtually identical petitions for review from Mr.
Barron and Mr. Anderson of AFGE for each consolidated group. 3 See Tinker
Hearing A-D, Petition for Review (PFR) File, Tabs 1-2; Tinker Hearing E-L, PFR
File, Tabs 1-2; Tinker Hearing M-R, PFR File, Tabs 1-2; Tinker Hearing S-Z,
PFR File, Tabs 1-2. The agency has filed responses in opposition to the petitions
for review. See, e.g., Tinker Hearing A-D, PFR File, Tab 4.
¶4 Because the petitions for review raise the same issues in each matter, we
have further consolidated these appeals to address the AFGE petitions for review.
See 5 C.F.R. § 1201.36(b) (consolidation is appropriate if doing so would
expedite processing and not adversely affect the interest of the parties).
Accordingly, this final order applies to all of the appellants represented by Mr.
Barron and Mr. Anderson whose furloughs were affirmed below in these four
consolidated appeals.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellants argue that the agency could not meet its burden of proof
because it declined to call witnesses at the hearing and relied instead on
documentary evidence that was not authenticated. E.g., Tinker Hearing A-D, PFR
File, Tab 1 at 4-5. Hearsay evidence is admissible in Board proceedings.
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981). An
assessment of the probative value of hearsay evidence depends on the
3
Numerous appellants in these consolidations designated individual representatives
from AFGE. Only AFGE representatives Mr. Barron and Mr. Anderson filed petitions
for review of the initial decisions issued by the administrative judge. Accordingly,
petitions for review were docketed on behalf of those appellants represented by Mr.
Barron or Mr. Anderson. See Tinker Hearing A-D, Petition for Review (PFR) File, Tab
3; Tinker Hearing E-L, PFR File, Tab 3; Tinker Hearing M-R, PFR File, Tab 3; Tinker
Hearing S-Z, PFR File, Tab 3.
4
circumstances of each case. Id. Factors affecting the weight to be accorded to
hearsay evidence include: the consistency of the declarants’ accounts with other
information in the case; internal consistency; whether corroboration for the
statements can otherwise be found in the record; the absence of contradictory
evidence; and the credibility of the declarant when he made the statement
attributed to him. Id. at 87.
¶6 The administrative judge relied on the documentary evidence provided by
the agency in finding that the agency demonstrated “cause” for the furloughs,
e.g., Tinker Hearing A-D, ID at 6, 10, and that the furloughs promoted the
efficiency of the service, e.g., Tinker Hearing A-D, ID at 10. The administrative
judge found that this evidence “overwhelmingly” supported the agency’s need to
reduce spending as a result of sequestration and also supported a finding that the
agency evenly and fairly applied the furloughs. E.g., Tinker Hearing A-D, ID at
15. Based on our review of the records in these appeals, we agree with the
administrative judge’s findings. The affidavits and memoranda relied on by the
agency to establish that the furloughs were necessary are of sufficient probative
value to establish these facts given the consistency of the evidence and the
absence of any contradictory evidence.
¶7 It is well settled that technical rules for the exclusion of evidence, such as
appropriate authentication, do not apply to proceedings before federal
administrative judges. Sanders v. Department of the Air Force, 23 M.S.P.R. 88,
90 (1984). Here, the appellants have not claimed that the documents submitted
by the agency are inauthentic. Their arguments are based on the Federal Rules of
Evidence. The Board relies on the Federal Rules of Evidence as guidance, but an
administrative judge is not required to strictly adhere to them in determining what
evidence is to be admitted at a hearing. See Arterberry v. Department of the Air
Force, 25 M.S.P.R. 582, 583 (1985). The appellants’ arguments rely entirely on
the type of evidence on which the agency relied to meet its burden of proof.
Administrative judges are not prohibited from admitting any category of evidence
5
and have considerable discretion in the manner in which they conduct hearings.
Hatley v. Veterans Administration, 9 M.S.P.R. 585, 590 (1982). We find no error
in the administrative judge’s findings that the agency met its burden of proof with
documentary evidence in these cases. The appellants have not presented any
basis for disturbing the initial decisions. Therefore we DENY the petitions for
review.
NOTICE TO THE APPELLANTS REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
6
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
7
APPENDIX A
Tinker Hearing A-D
DA-0752-14-0289-I-1
Ali A. Akbaran DA-0752-13-2270-I-1
Barbara J. Anderson DA-0752-13-0734-I-1
Brenda Brown DA-0752-13-1570-I-1
Brian R. Atkins DA-0752-13-2250-I-1
Carl Dahms DA-0752-13-0690-I-1
Cecil Cole DA-0752-13-2281-I-1
Cody Cleveland DA-0752-13-3298-I-1
Craig Barron DA-0752-13-0688-I-1
Damen G. Burris DA-0752-13-0689-I-1
David Bolen DA-0752-13-1796-I-1
Delia Acosta DA-0752-13-0857-I-1
Delo W. Anderson DA-0752-13-0692-I-1
Dustin Dennis DA-0752-13-2248-I-1
George Duggins DA-0752-13-1054-I-1
Gregory Calvillo DA-0752-13-1729-I-1
Homer Adams DA-0752-13-0691-I-1
Jakeb Drew DA-0752-13-2094-I-1
James D. Brazeal DA-0752-13-1393-I-1
James Dunaway DA-0752-13-1550-I-1
Jeffery Culwell DA-0752-13-1735-I-1
Joseph Billus DA-0752-13-2241-I-1
Kenneth Blotz DA-0752-13-2238-I-1
Kerry D. Becker DA-0752-13-1262-I-1
Leroy Anderson DA-0752-13-2326-I-1
8
Leslie Davis DA-0752-13-2470-I-1
Martin Castaneda DA-0752-13-0807-I-1
Michael Clark DA-0752-13-1045-I-1
Peter S. Conser DA-0752-13-2606-I-1
Peyton Berry DA-0752-13-0853-I-1
Ramona Chandler DA-0752-13-2463-I-1
Redena Alexander DA-0752-13-3389-I-1
Robert Deardorff DA-0752-13-0819-I-1
Ron Circo DA-0752-13-0809-I-1
Shelly Chambers DA-0752-13-1539-I-1
Steven E. Davis DA-0752-13-2465-I-1
Steven S. Delk DA-0752-13-0694-I-1
Tarry Boudreaux DA-0752-13-2403-I-1
Theodore W. Dexter DA-0752-13-2063-I-1
Tyran Battles DA-0752-13-1355-I-1
9
APPENDIX B
TINKER AFB HEARING E-L
DA-0752-14-0293-I-1
Amy Luong DA-0752-13-1403-I-1
Barbara Ervin DA-0752-13-1274-I-1
Barel Laughlin DA-0752-13-1413-I-1
Bobby Irvin DA-0752-13-2141-I-1
Cameron Lange DA-0752-13-0856-I-1
Carmon M. Fogle DA-0752-13-0679-I-1
Daniel Gore DA-0752-13-1387-I-1
Edward Kuehn DA-0752-13-0869-I-1
Elvin Ervin DA-0752-13-1275-I-1
Eugene Herrington DA-0752-13-2213-I-1
James C. Lambert DA-0752-13-2239-I-1
James Fullbright DA-0752-13-0699-I-1
Jan Harden DA-0752-13-1353-I-1
Johnathan John DA-0752-13-2077-I-1
Lance Holtsclaw DA-0752-13-1289-I-1
Mark E. Kirby DA-0752-13-0683-I-1
Micheal Hively DA-0752-13-2067-I-1
Patrick M. Janeway DA-0752-13-2360-I-1
Patrick M. Judkins DA-0752-13-0682-I-1
Peter Lachance DA-0752-13-1332-I-1
Ramiro Larralde DA-0752-13-2245-I-1
Robert Farrar DA-0752-13-0697-I-1
Robert Harrell DA-0752-13-0732-I-1
Robert Henry DA-0752-13-0878-I-1
10
Robert R. Hill DA-0752-13-2306-I-1
Scott E. Guthrie DA-0752-13-0678-I-1
Stephen A. Lang DA-0752-13-3300-I-1
Steve Lane DA-0752-13-2329-I-1
Steven Gregston DA-0752-13-1341-I-1
Terrill Johnson DA-0752-13-2273-I-1
Terry James DA-0752-13-0680-I-1
11
APPENDIX C
Tinker Hearing M-R
DA-0752-14-0294-I-1
Angela F. Patterson DA-0752-13-1351-I-1
Arthur McCool DA-0752-13-2243-I-1
Brian McCoun DA-0752-13-1322-I-1
Derick Moore DA-0752-13-2237-I-1
Donald Mattingly DA-0752-13-2266-I-1
Dwayne A. Miller DA-0752-13-0855-I-1
Frank Mendoza DA-0752-13-2252-I-1
Harold A. McGee DA-0752-13-0735-I-1
Hong Kieu Nguyen DA-0752-13-2315-I-1
Jack Northcott DA-0752-13-1597-I-1
Jack R. Mc Swain DA-0752-13-0810-I-1
Jackie Randle DA-0752-13-2088-I-1
Jason ODell DA-0752-13-1600-I-1
Jerry D. Place DA-0752-13-2073-I-1
Kenneth Peters DA-0752-13-2259-I-1
Kimberly T. Nguyen DA-0752-13-1849-I-1
Latrida A. Mukes DA-0752-13-2282-I-1
Michial Robidoux DA-0752-13-2272-I-1
Mickey Phillips DA-0752-13-1621-I-1
Randy Perkins DA-0752-13-0736-I-1
Rodney Payne DA-0752-13-0733-I-1
Russell Murphy DA-0752-13-3297-I-1
Russell Noel DA-0752-13-3391-I-1
Shawn C. Petty DA-0752-13-1620-I-1
Travis L. Matthews DA-0752-13-1318-I-1
12
APPENDIX D
Tinker Hearing S-Z
DA-0752-14-0407-I-1
Blair L. Smith DA-0752-13-1650-I-1
Brett Ware DA-0752-13-0806-I-1
Bruce D. Sparks DA-0752-13-0684-I-1
Bruce Stout DA-0752-13-3395-I-1
Caleb White DA-0752-13-4570-I-1
Charles Stephens DA-0752-13-2330-I-1
Dana Waitman DA-0752-13-1687-I-1
Danny Warden DA-0752-13-3393-I-1
David Spaulding DA-0752-13-2249-I-1
James B. Taylor DA-0752-13-1665-I-1
James Sharry DA-0752-13-1406-I-1
Jeffrey A. Van Dorp DA-0752-13-4662-I-1
Jonathon Smith DA-0752-13-1652-I-1
Kelley Wood DA-0752-13-2930-I-1
Kevin Stanford DA-0752-13-2062-I-1
Lloyd Thompson DA-0752-13-1842-I-1
Mark Raymond Turner DA-0752-13-0864-I-1
Mark Sissons DA-0752-13-2368-I-1
Mark Voyles DA-0752-13-1407-I-1
Matthew Sawyer DA-0752-13-1643-I-1
Richard Todd DA-0752-13-2255-I-1
Ronald D. Vaughn DA-0752-13-2072-I-1
Ronald Stone DA-0752-13-1659-I-1
Ronnie Shaffer DA-0752-13-2374-I-1
13
Russell Trotter DA-0752-13-2235-I-1
Shane Wilson DA-0752-13-3392-I-1
Sheila Verdugo DA-0752-13-0737-I-1
Steve Wood DA-0752-13-3299-I-1
Travis Wilson DA-0752-13-2480-I-1