The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOAN C. HARRUP, DOCKET NUMBER
Appellant, DC-0752-13-5718-I-1 1
v.
DEPARTMENT OF DEFENSE, DATE: June 8, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Lucy Lewis, Richmond, Virginia, for the appellant.
David A. Evers, Richmond, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s furlough action. Generally, we grant petitions such as this
1
This appeal originally was part of a consolidation pursuant to 5 C.F.R.
§ 1201.36(a)(2). See Defense Logistics Agency II v. Department of Defense, MSPB
Docket No. DC-0752-15-0083-I-1, Consolidated Appeal File (CAF). Only the appellant
has filed a petition for review of the initial decision. Petition for Review (PFR) File,
Tab 1 at 1.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
one 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
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant serves as a contract specialist with the agency and was
furloughed for 6 days following the President’s March 1, 2013 sequester order.
Initial Appeal File (IAF), Tab 1 at 8. The appellant filed an appeal of the
agency’s furlough action, which was consolidated with several other employees’
appeals. IAF, Tab 1; see CAF, Tabs 1-2. Following a hearing, the administrative
judge issued an initial decision sustaining the agency’s action, finding that the
agency was required to furlough employees based on a budget shortfall, and that
it did so in a fair and even manner. CAF, Tab 13, Initial Decision (ID). The
administrative judge also found that the appellants were provided an adequate
opportunity to respond to the proposed furlough actions which satisfied the
dictates of due process, and that they failed to prove any of their affirmative
defenses. ID at 11-13. In reaching this latter conclusion, the administrative
judge specifically addressed the instant appellant’s argument that the agency
failed to comply with a memorandum of agreement (MOA) between the agency
and the appellant’s union concerning the scheduling of furlough days for
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employees working either an alternative work schedule or a part-time schedule.
ID at 12-13. The administrative judge construed the appellant’s argument on this
issue as raising an affirmative defense of harmful error, and she found that the
appellant failed to prove her claim because there was no evidence that she worked
an approved alternative work schedule or was a part-time employee. ID at 13.
¶3 The appellant has filed a petition for review primarily challenging the
administrative judge’s denial of her harmful error allegation based on a violation
of the MOA. PFR File, Tab 1 at 4-5. On review, the appellant argues that she
had an approved reasonable accommodation prior to the agency’s furlough action,
which allowed her to take 2 hours of leave without pay on Tuesdays and 4 hours
of leave without pay on Thursdays. Id. at 5. During the furlough, however, when
she was not working each Monday, the appellant claims that she was unable to
take time off on Tuesdays and Thursdays and “still accomplish [her] work
requirements, fulfill [her] financial responsibilities, and maintain [her] therapy
schedule[.]” Id. On review, she also asserts that the change in her work schedule
constitutes disability discrimination in violation of the Rehabilitation Act, and
she submits several new documents, which she acknowledges she did not submit
below because she was unaware of the nature of the administrative judge’s initial
decision. Id. at 3-4, 7-9. The agency has filed a response in opposition to the
petition for review arguing that the initial decision should be affirmed, and it has
objected to the appellant’s submission of new evidence on review. PFR File,
Tab 4 at 7-8. The appellant has filed a reply in further support of her petition for
review. PFR File, Tab 5.
¶4 Although the appellant does not specifically challenge the administrative
judge’s findings concerning the imposition of the furlough action, we have
reviewed the initial decision and find no reason to differ with the administrative
judge’s conclusions that the agency established cause for imposing the furlough
and that it effected the furlough in a fair and even manner. ID at 10-11. The
Board has found that an agency meets its burden of proving that a furlough
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promotes the efficiency of the service 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. In re Tinker AFSC/DP v. Department of the Air
Force, 121 M.S.P.R. 385, ¶ 14 (2014). We agree with the administrative judge
that the agency presented preponderant evidence satisfying these standards and
thus substantiated its furlough action.
¶5 We further concur with the administrative judge’s denial of the appellant’s
harmful error affirmative defense. ID at 12-13. Pursuant to 5 U.S.C.
§ 7701(c)(2), an agency’s adverse action, including a furlough of less than 30
days, “may not be sustained . . . if the employee or applicant for employment (A)
shows harmful error in the application of the agency’s procedures in arriving at
such decision[.]” Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 7 (2015).
Reversal of an agency’s action is required therefore where an appellant
establishes that the agency committed a procedural error that likely had a harmful
effect on the outcome of the case. Id. The appellant bears the burden of proving
by preponderant evidence that the agency committed harmful error in reaching its
decision. See 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1).
¶6 We agree with the administrative judge that the appellant did not establish
her harmful error affirmative defense. ID at 12-13. The appellant alleged below
that the agency failed to comply with the MOA regarding the scheduling of
furlough days for employees working either an alternative work schedule or
part-time. See IAF, Tabs 6-7. We agree with the administrative judge, however,
that the appellant did not prove that she was either working an approved
alternative work schedule at the time of the furlough or that she was a part-time
employee. ID at 13; see IAF, Tab 1 at 8 (the appellant’s Standard Form 50
reflecting she is a full-time employee). We thus concur with the administrative
judge’s conclusion that the referenced MOA provisions did not apply to the
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scheduling of the appellant’s furlough days, and that they cannot serve as the
basis for a harmful error affirmative defense. 3 ID at 13.
¶7 Finally, we find that the appellant failed to raise an affirmative defense of
disability discrimination in the proceedings below, and we find that she cannot
raise such a claim for the first time on review. See Ronso v. Department of the
Navy, 122 M.S.P.R. 391, ¶ 3 n.1 (2015) (the Board will not consider a new claim
raised for the first time on review absent a showing it is based on new and
material evidence not previously available despite the party’s due diligence). The
record reflects that the appellant did not raise her disability discrimination
allegations in her initial appeal, and that she did not do so in response to the
administrative judge’s affirmative defenses order. IAF, Tab 1; see CAF, Tabs 4,
8; see also ID at 12. Although the appellant has submitted new evidence on
review concerning her challenge to the scheduling of her furlough days in
connection with her disability discrimination claim, we find that this information
previously was available to her and it does not justify accepting a new claim of
disability discrimination for the first time on review. PFR File, Tab 1 at 7-8. The
appellant’s submission of a reasonable accommodation request form that
postdates the furlough period, moreover, is immaterial to her disability
discrimination allegation in connection with her furlough in 2013, and it does not
3
Moreover, the section of the MOA cited by the appellant concerning the scheduling of
furlough days for employees working an alternative work schedule does not exempt
employees from the furlough. See IAF, Tab 7 at 4, ¶ 3 (“Those employees who
currently have an alternative work schedule with a scheduled regular day off will have
the option of retaining their current day off as their weekly furlough day.”). A
subsequent clause of the MOA explains that “[e]mployees who were working any type
of alternative work schedule will return to such work schedule effective the first full
pay period following the end of the furlough period.” Id. at 5, ¶ 5. Reading these
clauses together, the MOA provides employees with the option of scheduling their
furlough day on a day they otherwise would not have been working had they been
working an alternative work schedule. Implied in these provisions, however, is that
employees would not work an alternative work schedule during the furlough. Thus,
even if these provisions applied to the appellant, which they do not, they would not
have exempted her from the financial effects of the furlough, as she suggests on review.
See PFR File, Tab 1 at 3-4.
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justify accepting and adjudicating a new affirmative defense for the first time on
review. See id. at 9.
¶8 The administrative judge’s initial decision sustaining the agency’s furlough
action and denying the appellant’s affirmative defense of harmful error is
affirmed.
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.