The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK MANOR, DOCKET NUMBER
Appellant, CH-0752-13-1841-I-1 1
v.
DEPARTMENT OF THE ARMY, DATE: August 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
LeAnne Filary, Roseville, Michigan, for the appellant.
Betty J. Baxter, Esquire and Christine L. Kachan, Esquire, Warren,
Michigan, 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
affirmed the agency action furloughing him for 6 workdays. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation. TACOM
Warren HR H-P v. Department of the Army, MSPB Docket No. CH-0752-14-0393-I-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 Effective July 8, 2013, the agency furloughed the appellant from his
Environmental Protection Specialist position as a result of the Budget Control Act
of 2011, as amended by the American Taxpayer Relief Act of 2012. Initial
Appeal File (IAF), Tab 6 at 5-8. The furlough was set to occur on discontinuous
days between July 8, 2013, and September 30, 2013, for a maximum of 88 hours
(11 workdays), and for no more than 16 hours per pay period. Id. at 5-6.
Ultimately, the agency furloughed the appellant for a total of 48 hours
(6 workdays). See id. at 4; see also TACOM Warren HR H-P v. Department of
the Army, MSPB Docket No. CH-0752-14-0393-I-1, Consolidated Appeal File
(CAF), Tab 9 at 50-51, 62.
¶3 The appellant filed an appeal with the Board challenging the furlough
action. IAF, Tab 1. He asserted that: (1) the furlough constituted a breach of his
employment contract; (2) the furlough violated 5 U.S.C. chapter 61 and 5 C.F.R.
Part 610; (3) he should have been exempt from the furlough based on a life,
health and safety exception; and (4) the agency violated the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified
3
at 38 U.S.C. §§ 4301-4333) (USERRA) by improperly rejecting his request to
schedule his furlough days to coincide with his military duty, so as to minimize
his time away from duty, thus impairing his ability to compete with his coworkers
for salary increases and one-time payments. Id. at 5; IAF, Tab 7 at 1, Tab 9 at 3,
Tab 11 at 1. He requested a hearing. IAF, Tab 1 at 2.
¶4 After holding the requested hearing, the administrative judge issued an
initial decision affirming the furlough. CAF, Tab 39, Initial Decision (ID). She
found that the agency proved by preponderant evidence that: (1) the furlough was
a reasonable management solution to financial restrictions the agency faced and,
as such, was implemented for a cause that promoted the efficiency of the service;
(2) it furloughed employees in a fair and even manner; and (3) it afforded the
furloughed employees constitutionally sufficient due process prior to
implementing the furlough. ID at 4-5, 13-14. Specifically, as to the appellant,
the administrative judge found that he failed to prove his claims that: (1) he fell
within a category excepted from the furlough; (2) the furlough constituted a
breach of contract; and (3) the agency denied him a benefit of employment based
on his military service when it refused to allow him to schedule his furlough days
to coincide with days when he was scheduled to perform military duty, in
violation of USERRA. 3 ID at 6, 10-13.
3
The administrative judge also rejected various appellants’ claims that: (1) there was
sufficient funding available to avoid the furlough; (2) the agency should have employed
other cost-saving measures in lieu of implementing the furlough; (3) the agency could
have used overtime to compensate them for lost productivity due to the furlough; (4) the
agency redistributed savings from the furlough to contractors in the form of service
contracts; (5) the agency used reservists during the furlough to perform work ordinarily
performed by government employees; (6) the agency’s refusal to allow them to schedule
furlough days consecutively rendered them ineligible for unemployment benefits;
(7) the furlough created personal hardship; and (8) they should not have been subjected
to the furlough because they performed work critical to the functioning of the agency.
ID at 6-10. To the extent that the appellant raised any of these arguments below, we
note that he does not dispute their rejection on review. As a result, we will not disturb
the administrative judge’s well-reasoned findings on these issues.
4
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the administrative judge erred in: (1) finding that he
failed to prove his USERRA claim; and (2) denying his discovery request for
information regarding the Acquisition Demonstration Project (ADP) pay pool. 4
Id. The agency filed a response, to which the appellant did not reply. PFR File,
Tab 3.
¶6 Under 38 U.S.C. § 4311(a), a person who performs uniformed service may
not be denied any benefit of employment by an employer on the basis of that
service. Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 5 (2014).
An appellant raising a discrimination claim under 38 U.S.C. § 4311 bears the
burden of proving that the contested agency decision was based on an improper
motivation—namely, the fact of his military service or the particulars of that
service. Id. For the reasons set forth below, we find that the appellant has not
satisfied this burden.
¶7 We discern no basis to conclude that the agency’s decision to deny the
appellant’s request regarding scheduling his furlough days was improperly based
on his military service. On review, the appellant references his hearing testimony
4
The appellant also asserts that new evidence warrants a different decision in this
matter. PFR File, Tab 1 at 4. In particular, he claims that, after the hearing, the
deciding official admitted to the appellant that he (the deciding official) erroneously
denied the appellant’s request to reschedule his furlough days, apologized to the
appellant, and stated that he considers the appellant to be an honorable man. Id. This
allegation in the appellant’s unsworn pleading constitutes argument, not evidence. See
Leaton v. Department of the Interior, 65 M.S.P.R. 331, 337 (1994) (finding that the
appellant’s prehearing submission was an unsworn pleading and, as such, constituted
argument, not evidence), aff’d, 64 F.3d 678 (Fed. Cir. 1995) (Table). The appellant has
produced no evidence to support this new argument, so we need not consider it. See
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board 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). Even if we were to consider it, it would not warrant a different
outcome in this appeal. Assuming arguendo that the deciding official regrets his
decision to deny the appellant’s request to reschedule his furlough days, this does not
establish that the deciding official was legally required to grant this request or that his
decision to deny the request was motivated by antimilitary animus.
5
that: (1) he has had a “very difficult time” with the scheduling of military leave,
in that his leave has been approved, but subsequently rejected because of his
failure to provide a copy of his military orders; and (2) his counterpart in another
division was “severely critic[al]” of his military obligations, repeatedly
complained to his supervisor about him being gone on military leave, and told his
supervisor that she would not put up with his military leave. PFR File, Tab 1
at 2; see Hearing Compact Disc (HCD) (testimony of the appellant). Even if true,
the appellant has not established how these allegations relate to the furlough
action at issue in this appeal. He has not shown that the deciding official, who
was responsible for denying his rescheduling request, was involved in previous
decisions regarding his use of military leave, or in any way influenced by the
counterpart who was allegedly critical of the appellant’s military leave.
¶8 The deciding official testified that all furlough days were determined in
advance of the furlough, in conjunction with various unions. 5 HCD (testimony of
the deciding official). He stated that this allowed the agency to ensure its ability
to meet its basic mission by maintaining awareness of all employees’ schedules.
Id. He further testified that he made a conscious decision not to consider any
rescheduling requests because it was necessary to treat everyone equally and
opening up the possibility of exceptions could create an unwanted “ripple effect.”
Id. He indicated that, although the selected furlough days may have been
inconvenient for some, the furlough affected several thousand employees, and it
would not be feasible to accommodate everyone’s preferences. Id. Thus, he
decided that he “did not want to go down that path” and, in accordance with that
determination, refused to consider the appellant’s rescheduling request. Id.
5
The appellant asserts that the administrative judge erred in considering this testimony,
see ID at 12, because he is not a union member and the union is prevented from
representing him, see PFR File, Tab 1 at 3. Assuming arguendo that the agency erred in
subjecting him to the furlough schedule established in conjunction with various unions,
this does not establish that its actions were motivated by any antimilitary animus.
6
These assertions, to which the appellant makes no meaningful challenge, 6 suggest
that the appellant was not subjected to discrimination. 7 Rather, it appears that the
agency uniformly applied a predetermined policy.
¶9 We note that the appellant’s contention that he was “forced to be gone
6 more days from work than any other furloughed employee” and was
disproportionately injured as a result of the furlough is plainly incorrect. See
PFR File, Tab 1 at 2-3. The appellant was furloughed for 6 days, just like many
other employees, and there is no evidence that the agency imposed upon him a
furlough of greater length than any other similarly situated employee. That he
also had previously scheduled 8 military duty to complete is irrelevant because this
obligation would have existed even in the absence of the furlough. Indeed, the
agency did not create this obligation; rather, the Michigan Air National Guard
issued the appellant’s military orders. IAF, Tab 9, Exhibit B at 4-12.
¶10 We also note that the Office of Personnel Management’s Guidance for
Administrative Furloughs indicates that employees may not substitute paid leave
or other forms of paid time off, including military leave, for any hours or days
designated as furlough time off. IAF, Tab 13 at 23. Thus, the agency was
without authority to permit the appellant to take paid military leave while
simultaneously placing him in a furlough status.
6
The appellant argues that this testimony is “misleading” because he was the only
employee who requested a different schedule. PFR File, Tab 1 at 3. We disagree. The
fact that the deciding official only denied the appellant’s request because no other
employees made similar requests is not evidence of discrimination. We cannot infer
discriminatory motivation simply based on the absence of similarly situated
comparators.
7
See Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 16 (2007) (stating that
USERRA’s prohibition against the denial of a benefit of employment on the basis of an
employee’s military service does not entitle an employee to preferential treatment)
(citing Tully v. Department of Justice, 481 F.3d 1367, 1369-70 (Fed. Cir. 2007).
8
The appellant’s military duty orders are dated May 1, 2013, and May 30, 2013. IAF,
Tab 9, Exhibit B at 4-12. The agency reached its decision regarding the furlough on
June 25, 2013. IAF, Tab 6 at 8.
7
¶11 As to the appellant’s discovery request regarding the ADP, he testified at
the hearing that the ADP operates under a pay pool system, whereby employees
compete for salary and bonuses. HCD (testimony of the appellant). As such, he
believes that he could have received a higher salary or bonus had he been
permitted to schedule his furlough days to coincide with his military duty, rather
than being gone for the 6 days he was furloughed in addition to his military leave
days. Id. To that end, he sought to discover information regarding ADP
employee scoring and salary increases and payouts. IAF, Tab 7 at 1. He states
on review that this information would have permitted him to “identify and
quantify his damages in how he was rated compared to others” in the pay pool.
PFR File, Tab 1 at 4. However, the impact of the decision to deny the appellant’s
rescheduling request is not relevant to the question of whether that decision was
discriminatory. We therefore discern no error in the administrative judge’s
decision to deny this discovery request.
¶12 Based on the foregoing, we find that the appellant has not established any
basis for review. Accordingly, we deny his petition for review and affirm the
initial decision. 9
NOTICE TO THE APPELLANT 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:
9
If the appellant believes that his absences for military leave have a disproportionately
negative effect on his pay and awards under the ADP, this is a separate issue from
whether the denial of his request to schedule his furlough days to coincide with his
military leave constituted discrimination under USERRA, and he may file a separate
USERRA appeal with the Board on that matter. We express no opinion as to the
Board’s jurisdiction over, or his likelihood of prevailing in, such an appeal.
8
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 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 an appeal to the
United States 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
9
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.