Filed: Jan. 13, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 2 Docket No. DC-0752-16-0278-I-1 Naval Station Norfolk – Hearing 2, Appellants, v. Department of the Navy, Agency. January 13, 2016 Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellants. Julia Alexandra Fitzmaurice and Brent Fraim, Norfolk, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellants have petitioned for review of initial decisions that
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 2 Docket No. DC-0752-16-0278-I-1 Naval Station Norfolk – Hearing 2, Appellants, v. Department of the Navy, Agency. January 13, 2016 Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellants. Julia Alexandra Fitzmaurice and Brent Fraim, Norfolk, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellants have petitioned for review of initial decisions that a..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 2
Docket No. DC-0752-16-0278-I-1
Naval Station Norfolk – Hearing 2,
Appellants,
v.
Department of the Navy,
Agency.
January 13, 2016
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellants.
Julia Alexandra Fitzmaurice and Brent Fraim, Norfolk, Virginia, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellants have petitioned for review of initial decisions that affirmed
the agency’s furlough actions. Because these appeals present similar issues, and
to expedite their processing, we CONSOLIDATE them pursuant to 5 U.S.C.
§ 7701(f)(1) and 5 C.F.R. § 1201.36(a)-(b). 1 For the following reasons, we
GRANT the petitions for review, FIND that the appellants were subject to, and
not excepted from, the furlough, AFFIRM the initial decisions’ determinations
1
The appeals that are included in this consolidation are Sharon Gaston v. Department
of the Navy, MSPB Docket No. DC-0752-14-0532-I-1, and Frederick W. Greenfield v.
Department of the Navy, MSPB Docket No. DC-0752-14-0533-I-1.
2
that the furlough promoted the efficiency of the service, VACATE the initial
decisions’ findings on the appellants’ discrimination claims, and REMAND the
appeals for further adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The agency furloughed the appellants for 6 days from their GS-0083-8
Detective positions at the Naval Station Norfolk (NSN). Greenfield v.
Department of the Navy, MSPB Docket No. DC-0752-14-0533-I-1, Initial Appeal
File (IAF), Tab 6 at 7, 24, 26, 28, 30-32. 2 The agency informed the appellants
that the furlough was necessitated by the extraordinary and serious budgetary
challenges facing the Department of Defense (DOD) for the remainder of fiscal
year 2013, the most serious of which was the sequester that began on March 1,
2013, i.e., across-the-board reductions to budgetary resources for the Federal
Government. Id. at 38. The agency also informed the appellants that, if other
employees in their competitive level (i.e., positions at the same grade level and
classification series, the duties of which were generally interchangeable) were not
being furloughed, it was because those employees, among other things, were in a
position “whose duties have been determined to be of crucial importance to this
agency’s mission and responsibilities and cannot be curtailed.” Id.
¶3 On appeal to the Board, the appellants asserted that the agency improperly
subjected them to a furlough and discriminated against them based on their race
(Black). 3 IAF, Tab 1 at 4, Tab 8 at 6, 22. In an equal employment opportunity
complaint, for example, the appellants asserted that the agency did not furlough
the GS-0083 Detectives at other installations in the Mid-Atlantic Region (Little
2
All of the citations to the record are to the file of the appellant Greenfield unless
otherwise specified.
3
The appellant Gaston also alleged that the action was based on sex discrimination.
Gaston v. Department of the Navy, MSPB Docket No. DC-0752-14-0532-I-1, Initial
Appeal File (Gaston IAF), Tab 13.
3
Creek, Oceana, and Norfolk Naval Shipyard), all of whom were White or
Hispanic. IAF, Tab 8 at 7.
¶4 After conducting a single hearing for both appeals, the administrative judge
affirmed the furlough actions in two separate initial decisions. IAF, Tab 25,
Initial Decision (ID) at 21; Gaston v. Department of the Navy, MSPB Docket No.
DC-0752-14-0532-I-1, Initial Appeal File (Gaston IAF), Tab 34, Initial Decision
(Gaston ID). The administrative judge found that the agency established cause
for the furlough—a shortage of funds—and that the furlough promoted the
efficiency of the service. ID at 5. The administrative judge further found that the
appellants did not prove that the agency treated them differently from similarly
situated employees. ID at 16. In this regard, the administrative judge held that
the police officers and detectives at Little Creek, Oceana, and Norfolk Naval
Shipyard were not similarly situated to the appellants because they were part of
different organizational units and different competitive areas for purposes of the
furlough. ID at 17. Likewise, the administrative judge found that the appellants
were not similarly situated to the classification series 0083 Police Officers at the
NSN who were not furloughed because they were not, like the police officers,
first responders charged with direct responsibility for protecting the safety of life
and property. ID at 18-19. The administrative judge noted that, although the
appellants performed first-responder-like duties on occasion, their jobs as
detectives were uniquely different from the position of police officer because
only detectives process crime scenes in preparation for investigations. ID at 18.
¶5 The administrative judge also determined that the appellants did not prove
that the decision to furlough them was motivated by race or sex. ID at 17; Gaston
ID at 20. The administrative judge held that, although the NSN Security Officer,
who the administrative judge found was also the proposing official, used
“offensive, despicable, and racist language” when referring to various employees
of color within the security department, the evidence did not establish that the
proposing official influenced the deciding official’s decision not to except the
4
appellants from the furlough. ID at 13, 17-18, 20. The administrative judge
found that the deciding official’s explanation that race played no role in his
decision was credible, particularly given his undisputed testimony that he did not
know the race of the appellants before deciding to furlough them. ID at 19. In
addition, given that the deciding official furloughed 3,200 individuals, the
administrative judge found it inherently improbable that his decision not to
except the appellants from the furlough was personal to them. Id.
¶6 The administrative judge concluded that the agency articulated legitimate
management reasons for its decision to except NSN police officers, but not the
appellants, and that there was no evidence that the agency manipulated the
exceptions to target the appellants for personal reasons. ID at 20. Thus, the
administrative judge held that the agency proved by preponderant evidence that it
furloughed its employees in a fair and even manner. Id.
ANALYSIS
The agency proved by preponderant evidence that the appellants met the criteria
for being subject to, and not excepted from, the furlough.
¶7 The appellants contend on review that, as detectives, they met the
categorical exception from the furlough for employees having direct
responsibility to protect the safety of life and property. Greenfield v. Department
of the Navy, MSPB Docket No. DC-0752-14-0533-I-1, Petition for Review (PFR)
File, Tab 1 at 4, 10, 14-15. 4 In this regard, the appellants assert that, although the
agency apparently decided not to except them from the furlough because
detectives are not “first responders,” the actual exception criteria was “direct
responsibility to protect the safety of life and property,” not “first responders.”
Id. at 11. They also contend that detectives are more likely to respond to the
4
The appellants’ representative filed a petition for review on behalf of each appellant.
The petitions are largely identical; thus, unless noted otherwise, citations to the petition
for review are to the petition filed in the appellant Greenfield’s case.
5
safety of life and property because criminals have fled the scene by the time
police officers respond to most crime scenes, detectives serve as first responders
when they are patrolling or working undercover, or during stakeouts, and several
witnesses testified, without competent rebuttal, that detectives are first
responders. Id. at 11-12.
¶8 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.” Before the Board reaches the issue of whether an action
promotes the efficiency of the service, an agency must first establish that there is
“cause” under 5 U.S.C. § 7513(a). Dye v. Department of the Army, 121 M.S.P.R.
142, ¶ 9 (2014). The concept of “cause” in the context of a furlough appeal
encompasses whether the appellant met the criteria established by the agency for
being subject to, and not excepted from, the furlough. Id. The agency has the
burden of proving “cause” by preponderant evidence. See Tinker AFSC/DP v.
Department of the Air Force, 121 M.S.P.R. 385, ¶ 15 (2014); Dye, 121 M.S.P.R.
142, ¶ 10.
¶9 In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
DOD furlough exceptions, which included the following: “In order to avoid harm
to mission, those employees necessary to protect safety of life and property are
excepted to the extent necessary to protect life and property.” Naval Station
Norfolk – Hearing v. Department of the Navy, MSPB Docket No. DC-0752-14-
0669-I-1, Consolidation Appeal File (CAF), Tab 2 5; Department of the Navy
Administrative Record for FY 2013 Furlough Appeals (AR), Part 1 at 105, 108,
available at http://www.mspb.gov/furloughappeals/navy2013.htm. The
5
These appeals were previous part of a separate consolidation, Naval Station Norfolk –
Hearing v. Department of the Navy, MSPB Docket No. DC-0752-14-0669-I-1; however,
these appeals were severed from that consolidation prior to hearing and the issuance of
the initial decisions.
6
memorandum further provided that “[t]he exceptions approved for the safety of
life and protection of property category are granted with the understanding that
these are the minimum exceptions needed to maintain operations and provide
security on a 24/7 basis and that furloughing these employees would result in the
Department incurring additional costs for premium pay.” AR, Part 1 at 109. In a
declaration made under penalty of perjury, the Principal Deputy Assistant
Secretary of the Navy (Manpower and Reserve Affairs) indicated that the
exception was intended to be limited in application, and that Budget Submitting
Offices were “instructed to identify positions where 80% manning would create
unacceptable risk,” and this “focused on 24/7 shifts and emergency response
requirements.” Id. at 12, 14. Planning guidance issued on February 21, 2013, by
the Under Secretary of the Navy indicated that one of the exceptions to the
furlough would be for “[c]ivilians directly responsible for safety of life or
property—only to the extent needed to prevent unacceptable risk or catastrophic
gaps in the safety and protection of life or property.” IAF, Tab 9 at 68-69.
¶10 The Board addressed this categorical furlough exception in Lopez v.
Department of the Navy, 121 M.S.P.R. 647, ¶ 11 (2014), finding that it provided
an exception from the furlough for those employees who occupied positions that
generally were necessary to protect life and property, but only to the extent that it
was necessary for such employees to protect life and property. The Board found
that this exception did not necessarily create a blanket exception for all
employees occupying such positions regardless of whether their exception was
necessary to protect life and property. Id. Thus, this exception contemplated the
possibility that employees occupying positions that generally are necessary to
protect life and property could be excepted for only a portion of a planned
furlough, or that some employees occupying positions that generally are
necessary to protect life and property could be excepted while others would not
be excepted. Id.
7
¶11 Here, the NSN Security Officer indicated in an affidavit that he interpreted
the guidance to mean that uniformed police officers who stand at the gate were
excepted, so he decided not to recommend the exception of such employees as
canine handlers, administrative staff, “pass/ID” officers, training staff, and
detectives. IAF, Tab 8 at 102. He averred that, if a civilian was not directly
responsible for the safety of life or property, an exception for that civilian had to
be justified. Id. at 103. The Security Officer further indicated that detectives do
not manage traffic or contribute to counterterrorism efforts, but instead manage a
case load, which they work at their own pace; thus, if a detective did not show up
to work, public safety could be kept intact. Id. at 105-06. By contrast, if there
were not enough police officers, the base would have to close because the public
would be at risk. Id. Similarly, the Security Officer testified that, based on
guidance from the Under Secretary of the Navy, he and several other officials,
after considering where they could take acceptable risks to protect the
installation, determined that it would not be an acceptable risk to furlough
uniformed police officers who are first responders. IAF, Tab 24, Hearing
Compact Disc (HCD) 1. He testified that they would, however, subject to the
furlough administrative office staff, police trainers, “pass/ID” personnel, canine
handlers, commercial vehicle inspection teams, and detectives. Id. He testified
that a detective was not a first responder, that there were already certain days and
nights when there would be no detectives on a shift, and that detectives would
typically respond to a crime scene once it was safe to conduct an investigation.
Id.
¶12 The NSN Commanding Officer, who was also the deciding official,
indicated in an affidavit that the exception criterion at issue at the NSN was for
those who protect the safety of life or property “to the extent needed,” and that
this meant that only “gun toting” police officers met that criterion. IAF, Tab 8
at 114-15. Thus, he understood that only classification series 0083 Police
Officers and Supervisors met the criterion for exception from the furlough. Id.
8
at 116. He also indicated that the only consideration in deciding whether to
furlough an employee was “an employee’s job title/position description and their
ability to fully perform their duties.” Id. at 119. The NSN Commanding Officer
similarly testified that he interpreted the exception to apply to his first
responders, which would be “gun toting” police officers, fire, and “EMS” 6
personnel. HCD 1. He testified that these individuals were first responders to
safety or security emergencies who would arrive on the scene to protect the safety
of life or property, and that he did not consider detectives to be first responders
because they would not arrive first on the scene to protect life and property, but
would arrive at a later time to investigate. Id. Thus, individuals met the
exception at the NSN if they were first responders, to the extent they were needed
to protect the safety of life and property. Id. The NSN Commanding Officer also
testified that, although commanding officers at other bases in the region were
operating under the same furlough guidelines, each base had its unique size,
mission, and staff, such that other bases could have interpreted the guidelines
differently. Id. Although he had discretion under those guidelines, he did not
except the appellants from the furlough because he determined that the appellants
were not first responders. Id.
¶13 The Deputy Regional Security Director indicated in an affidavit that the
exception applied to civilians responsible for the safety of life or property, only
to the extent needed to prevent unacceptable risk or catastrophic gaps, i.e., mostly
police officers and firefighters. IAF, Tab 8 at 122, 126. Further, the Commander
of the Navy Installation Command testified that detectives were not considered to
be involved directly in the protection of life and property according to the NSN
Installation Commander, that they are not first responders, and that this
interpretation was based on which personnel were needed to protect the
6
EMS is an abbreviation for Emergency Medical Services.
9
installation for the 1 day per week that the agency was planning to furlough its
civilian employees. HCD 1.
¶14 The administrative judge appropriately recognized that detectives, on
occasion, perform first-responder-like duties, ID at 18, and there appears to be no
dispute that detectives perform stakeouts, do undercover work, arrest suspects,
testify in court, secure crime scenes, and take evidence from suspects and
witnesses, HCD 1 (testimony of the Commander, Navy Installation Command, the
NSN Commanding Officer, and the NSN Precinct Commander);
HCD 2 (testimony of the NSN Deputy Precinct Commander and the appellant
Greenfield). These duties may be viewed as having some relation to the
protection of life and property. Nevertheless, based on the evidence set forth
above and the Board’s decision in Lopez, we find that the exception applied to
those employees necessary to protect the safety of life and property, and only “to
the extent necessary” to protect life and property. The exception focused on
round-the-clock emergency response requirements, and the agency sought to
except from the furlough only those employees whose absence would present an
unacceptable risk to the protection of life and property, which the NSN
installation determined did not include detectives. Although a position
description indicates that police officers are first responders, IAF, Tab 9 at 51,
the position description for detectives does not include such language,
id. at 30-37. The exception also provided installation commanders with the
authority to apply the exception in such a way as to meet the needs of their
particular installation. Thus, we find that the agency has proven by preponderant
evidence that the appellants, as detectives, were subject to, and did not meet the
criteria for an exception to, the furlough. We thus find that, even assuming that
the detective position itself generally were to be considered a first responder
position necessary to protect the safety of life and property, this did not create a
blanket furlough exception for that position, and the agency has established that
10
detectives were not necessary to protect the safety of life and property at the NSN
at the time of the furloughs in these cases. See Lopez, 121 M.S.P.R. 647, ¶ 11.
The agency proved by preponderant evidence that the furlough promoted the
efficiency of the service.
¶15 The appellants assert that the agency did not conduct the furlough in a fair
and even manner because it furloughed NSN detectives but did not furlough NSN
police officers who were on light duty, limited duty, or in a disciplinary status,
not eligible to carry a weapon or perform police work, and assigned to duties
such as placing cones for traffic control; thus, they assert that these police
officers did not meet the exception criteria, yet were excepted from the furlough.
PFR File, Tab 1 at 4, 9-14. In addition, the appellants contend that other
detectives within the same competitive area at different installations were not
furloughed, even though they were covered by the same collective bargaining
agreement, fell under the same regional security director, and answered to the
same furlough guidance from the Commander of the Navy Region, Mid-Atlantic.
Id. at 13. The appellants assert that a human resources specialist testified at the
hearing that all detectives within the local commuting area for all seven
Department of the Navy military installations would fall under a single
competitive area. Id. at 13-14. The appellants contend that the administrative
judge rejected this testimony and instead used organizational units as the
competitive areas in question. Id. at 14.
¶16 The Board has held that, in light of the basic similarities between
reductions in force (RIF) and adverse action furloughs, RIF principles are
instructive in determining the scope of the Board’s review of adverse action
furloughs and what it means for a furlough of 30 days or less to be taken for the
efficiency of the service. Chandler v. Department of the Treasury, 120 M.S.P.R.
163, ¶ 7 (2013). Thus, an agency satisfies the efficiency of the service standard
under 5 U.S.C. § 7513(a) in a furlough appeal by showing, in general, that the
furlough was a reasonable management solution to the financial restrictions
11
placed on it and that the agency applied its determination as to which employees
to furlough in a “fair and even manner.” Id., ¶ 8. A “fair and even manner”
means that the agency applied the furlough uniformly and consistently, just as it
is required to apply a RIF. Id. It also means that the agency is required to treat
similar employees similarly and to justify any deviations with legitimate
management reasons. Id.
¶17 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
RIF principles in making that determination, including RIF competitive level
principles. Id.; see Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶ 6
(2014); 5 C.F.R. § 752.404(b)(2). In determining the retention standing of
competing employees during a RIF, each agency shall establish competitive
levels consisting of all positions in a competitive area which are in the same
grade (or occupational level) and classification series, and which are similar
enough in duties, qualification requirements, pay schedules, and working
conditions so that an agency may reassign the incumbent of one position to any of
the other positions in the level without undue interruption. Weathers,
121 M.S.P.R. 417, ¶ 8. Position descriptions are significant evidence in
determining whether positions should be in the same competitive level, but other
evidence also may be relevant under the circumstances if it sheds light on the
position descriptions. McKenna v. Department of the Navy, 105 M.S.P.R. 373,
¶ 13 (2007); see Jicha v. Department of the Navy, 65 M.S.P.R. 73, 77 (1994)
(finding that the competitive level in which an employee is placed is determined
by the duties and qualifications required of the incumbent as set forth in the
official position description). Generally, a competitive area must be defined
solely in terms of the agency’s organizational unit(s) and geographical location.
Weathers, 121 M.S.P.R. 417, ¶ 8. The minimum competitive area is a subdivision
of the agency under separate administration within the local commuting area. Id.
12
¶18 We first find that the appellants were not similarly situated to the police
officers at the NSN. In addition to the reasons set forth by the administrative
judge as to why police officers and detectives were not similarly situated,
ID at 16-19, the police officers at the NSN who were excepted from the furlough
were in a different competitive level from the appellants because they occupied
positions at different grade levels than the appellants, even if the positions were
in the same classification series as detectives, IAF, Tab 8 at 82-85, Tab 10
at 19-21; Burner v. Tennessee Valley Authority, 20 M.S.P.R. 167, 169-71 (1984).
Most police officers at the NSN occupied GS-4 or GS-5 positions, compared with
the appellants’ GS-8 detective positions. E.g., IAF, Tab 8 at 82, Tab 10 at 19-20.
¶19 We note that several supervisory police officers (J.L., D.P., and M.S.) who
were excepted from the furlough appear to have occupied GS-0083-8 positions
like the appellants. IAF, Tab 8 at 85, Tab 10 at 19-20. The appellants do not
allege that they were similarly situated to these supervisors. PFR File, Tab 1 at 4,
6-7, 9, 11-13. Nevertheless, we find that the supervisory police officer position
was not similarly situated to the detective position. For positions to occupy the
same competitive level, anyone who qualifies for one position must be able to
qualify for all. Disney v. Department of the Navy, 67 M.S.P.R. 563, 568 (1995).
The nature of the positions, and not the qualifications of their incumbents,
determines whether competitive levels are properly established. Coleman v.
Department of Education, 21 M.S.P.R. 574, 581 (1984). The record does not
include a supervisory police officer position description, but it does include a
police officer position description, which likely provides some indication of the
duties and responsibilities to be performed and/or supervised by a supervisory
police officer. The major duties and responsibilities of a police officer include
providing “Anti-Terrorism/Force Protection,” physical security, and law
enforcement services, such as gate sentry, pier sentry, counter-surveillance
duties, patrol of assigned areas, and operating specialized equipment designed to
deter, detect, and defend against potential security breaches and terrorist activity.
13
IAF, Tab 9 at 39-45. A police officer is a “First Responder,” and the position
requires qualification with service weapons and passing an annual physical
fitness test. Id. at 51.
¶20 By contrast, the major duties and responsibilities of the detective position
are to conduct investigations of violations of laws, regulations, offenses, and
crimes by maintaining surveillance over the scene or suspects, interrogating
suspects and witnesses, searching the scene for physical evidence, taking and
lifting fingerprints, comparing photographs of suspects with photographs on file,
obtaining statements from witnesses, apprehending suspects, preparing reports,
and testifying in court. Id. at 30-36. In this job, the detective must meet weapons
qualifications and, from time to time, use force when making arrests or dealing
with uncooperative personnel. Id. at 37. Testimony at the hearing from a former
NSN Precinct Commander indicated that detectives received enhanced training on
interviewing and fingerprinting and that police officers would not be as effective
without the detectives in processing crime scenes and gathering evidence.
HCD 1. Similarly, a lead watch commander testified that the duties of detectives
are expanded because they process crime scenes, issue warrants, and interview
and interrogate suspects, witnesses, and victims. HCD 2. The appellant
Greenfield testified that he received training that police officers do not receive,
including in such areas as writing analysis, i.e., determining whether individuals
were being truthful in their written statements, processing crime scenes, and
footprint analysis. Id. He testified that the most a police officer can do is take a
report, while a detective interviews individuals and develops an investigation that
can lead to an arrest. Id. According to the position description, there are no
regular supervisory duties or responsibilities, nor are detectives “First
Responders.” IAF, Tab 9 at 30-37.
¶21 The inclusion of positions in the same classification series does not require
an agency to place them in the same competitive level. George v. Interstate
Commerce Commission, 20 M.S.P.R. 479, 482, aff’d, 758 F.2d 667
14
(Fed. Cir. 1984) (Table). We find that the positions of supervisory police officer
and detective are not similar enough in duties, qualification requirements, pay
schedules, and working conditions so that an agency may reassign the incumbent
of one position to the other position without undue interruption. Thus, they
belong in separate competitive levels and are not similarly situated for purposes
of an adverse action furlough. See Estrin v. Social Security Administration,
24 M.S.P.R. 303, 306-07 (1984) (excluding from the appellant’s competitive level
positions that differed significantly from the appellant’s position in the necessary
skills, duties, and knowledge, including supervisory responsibility); cf. Conway v.
Department of the Navy, 71 M.S.P.R. 502, 508 (1996) (noting that an agency is
permitted to establish separate competitive levels for positions with the same
grade and title to take into account special qualifications or duties required of
some incumbents).
¶22 Moreover, we agree with the administrative judge that the detectives
located at other installations are not similarly situated to the appellants.
Although they may have occupied the same positions at the same grade level, the
administrative judge correctly found that they were not similarly situated to the
appellants because they worked in different organizational units under separate
administrations. ID at 17; see Rodgers v. Department of the Navy, 122 M.S.P.R.
559, ¶¶ 2, 15 (2015) (holding that an Attorney Advisor at the Navy Munitions
Command in Yorktown, Virginia, who was furloughed, was not similarly situated
to attorneys in the same classification series assigned to the Norfolk Naval
Shipyard in Portsmouth, Virginia, for purposes of a furlough, even if they
performed similar duties, because the shipyard attorneys worked in a different
subdivision of the agency under separate administration, and thus were not in the
appellant’s competitive area); Weathers, 121 M.S.P.R. 417, ¶ 9 (finding that the
agency was permitted to treat different organizational units as separate
competitive areas and treat employees from those competitive areas differently
because they were not similarly situated); see also Bashein v. United States,
15
279 F.2d 255, 257-58 (Ct. Cl. 1960) (finding separate competitive areas for RIF
purposes when the New York Naval Shipyard and a Naval Supply Depot were,
despite being “close neighbors,” under separate commands with separate
retention registers).
¶23 Although a human resources specialist familiar with RIFs testified that, for
RIF purposes, detectives at the NSN were in the same competitive area as
detectives at the Oceana, Little Creek, and Norfolk Naval Shipyard installations,
she also testified that this definition of competitive area would be used by the
agency only in the case of a RIF or a furlough that lasted for more than 22 days.
HCD 2. A different human resources specialist who was involved in the 2013
furlough testified that the competitive area for detectives at the NSN during the
furlough was the fence line of the installation for which the commanding officer
had responsibility, and that each commanding officer had the authority to make
furlough decisions based on the needs of that installation. Id. This testimony is
consistent with the uncontradicted testimony and affidavits of numerous agency
officials that the decisions on exceptions to the furlough were
installation-specific, given that each base had different requirements and a unique
size, mission, and staff composition, and therefore each installation’s
commanding officer was given the flexibility to make different decisions on
whether furloughing detectives would have led to an unacceptable degree of risk.
HCD 1; see IAF, Tab 8 at 100-01, 107, 114, 122, 126-27. In sum, we agree with
the administrative judge that the detectives located at other installations were not
similarly situated to the appellants because they worked in different
organizational units under separate administrations.
¶24 We thus find that the actions promoted the efficiency of the service
because the furlough was a reasonable management solution to the financial
restriction placed on the agency, and the agency treated similar employees
similarly and applied the furlough uniformly and consistently.
16
We remand the appellants’ discrimination claims for further adjudication.
¶25 The appellants contend on review that the agency discriminated against
them based on race because it furloughed Black, but not White, detectives within
the same competitive area for RIF purposes. PFR File, Tab 1 at 4-5, 10, 15-17;
Gaston v. Department of the Navy, MSPB Docket No. DC-0752-14-0532-I-1,
Petition for Review File (Gaston PFR), Tab 1 at 15-17. The appellants assert that
all Black detectives within the Mid-Atlantic Region were furloughed, while all
White detectives were not furloughed. PFR File, Tab 1 at 16. They contend that
they were similarly situated to the White detectives at other installations because
they all performed the same duties (although they claim the Black detectives at
the NSN had a greater case load), fell under the same position description and
collective bargaining agreement, fell under the same regional security director,
and fell within the same competitive area. Id. They further assert that all
detectives within the Mid-Atlantic Region were evaluated under the same DOD
exception—direct responsibility to protect the safety of life and property—and
that the agency’s only explanation for the difference in treatment was that the
NSN Security Officer did not interpret the exception as did the responsible
officials at the other installations. Id.
¶26 The appellants also contend that, although the administrative judge found
no evidence that the Security Officer influenced the NSN Commanding Officer,
who was the deciding official, the administrative judge improperly failed to apply
the Board-recognized “cat’s paw” theory under which a management official,
acting because of an improper animus, can influence an agency official who is
unaware of the improper animus when implementing a personnel action. Id.
at 16-17. The appellants assert that the Security Officer, who made several racist
statements, influenced the ultimate decision to furlough the appellants because he
decided to change the status of the detectives at the NSN from excepted to
nonexcepted. Id. at 17.
17
¶27 In addressing the appellants’ discrimination claims, the administrative
judge applied the then-applicable Board case law holding that, once an appellant
establishes a prima facie case of discrimination, the burden shifts to the agency to
articulate a legitimate nondiscriminatory reason for its action; once the agency
has articulated a legitimate nondiscriminatory reason for its action, the burden
shifts back to the appellant to show that the agency’s proffered explanation
constitutes a pretext for discrimination. ID at 6-7, 17-20; McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). After the issuance of the initial
decisions, however, the Board issued its decision in Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶ 46 (2015), which clarified the evidentiary standards
and burdens of proof under which the Board analyzes discrimination claims and
held that the summary judgment standards for title VII cases, which incorporate
the burden-shifting framework of McDonnell Douglas, do not apply to Board
appeals.
¶28 The Board held in Savage that, when an appellant asserts an affirmative
defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board
first will inquire whether the appellant has shown by preponderant evidence that
the prohibited consideration was a motivating factor in the contested personnel
action. 122 M.S.P.R. 612, ¶ 51. Such a showing is sufficient to establish that the
agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel
practice under 5 U.S.C. § 2302(b)(1). Savage, 122 M.S.P.R. 612, ¶ 51. In
making an initial showing, an appellant may rely on direct evidence or any of the
three types of circumstantial evidence described in Troupe v. May Department
Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994), either alone or in
combination. Savage, 122 M.S.P.R. 612, ¶ 51. Those three types of
circumstantial evidence are (1) a “convincing mosaic” of discrimination, i.e.,
suspicious timing, ambiguous oral or written statements, behavior toward or
comments directed at other employees in the protected group at issue, and “other
bits and pieces from which an inference of discriminatory intent might be drawn,”
18
(2) comparator evidence, and (3) evidence that the agency’s stated reason for its
action is unworthy of belief, such that it is a mere pretext for discrimination.
Savage, 122 M.S.P.R. 612, ¶ 42 (quoting Troupe, 20 F.3d at 736-37). If the
appellant meets her burden, the Board then will inquire whether the agency has
shown by preponderant evidence that the action was not based on the prohibited
personnel practice, i.e., that it still would have taken the contested action in the
absence of the discriminatory or retaliatory motive. Id., ¶ 51. If the Board finds
that the agency has made that showing, its violation of 42 U.S.C. § 2000e-16 will
not require reversal of the action. Id.
¶29 Although the standard applied by the administrative judge may have been
proper at the time of the initial decision, the Board will apply the law in effect
when a petition for review is pending before the Board, which in this case
includes the decision in Savage. See, e.g., Doran v. Department of the Treasury,
115 M.S.P.R. 604, ¶ 10 (2011). Here, the appellants were not placed on notice of
the evidentiary standards and burdens of proof for proving their discrimination
claims as set forth in Savage. Gaston IAF, Tab 7 at 2-4; see Milner v.
Department of Justice, 77 M.S.P.R. 37, 46 (1997) (finding that an appellant did
not receive a fair and just adjudication of an affirmative defense when there was
no indication that the administrative judge apprised him of the applicable burdens
of proof or of the types of evidence required to meet his burden).
¶30 In addition, the administrative judge held that, although the Security
Officer 7 used certain “offensive, despicable, and racist language,” there was
insufficient evidence to establish that he influenced the deciding official.
7
Although the administrative judge found that the Security Officer was the proposing
official, ID at 9, 18, the proposal notice indicates that the proposing official was a
different individual and that requests to arrange for an oral reply or to review
supporting materials could be made to the Security Officer, e.g., IAF, Tab 6 at 38-40.
On remand, the administrative judge shall clarify the nature of the role of the Security
Officer as it related to the furlough of the appellants in these cases.
19
ID at 18. The Board has held, however, that an individual’s role in the
decision-making process that leads to an adverse action cannot be ignored in
considering a claim of discrimination and may taint the process. See Jones v.
Department of the Army, 75 M.S.P.R. 115, 119-21 (1997); Johnson v. Defense
Logistics Agency, 61 M.S.P.R. 601, 608 (1994). Moreover, in determining
whether the appellants were similarly situated to the detectives outside their
protected class who were not furloughed, the administrative judge should
consider whether the Board’s decision in Deas v. Department of Transportation,
108 M.S.P.R. 637 (2008), applies in this case. 8 In Deas, 108 M.S.P.R. 637, ¶ 21,
the Board held that, although comparators generally must be in the same work
unit as the appellant in order to be considered similarly situated for purposes of a
discrimination claim, employees outside an appellant’s work unit may be
similarly situated when the evidence establishes that a central office is
responsible for the review and coordination of adverse actions against employees
of different work units and the officials who execute the notices do not exercise a
sufficient degree of autonomy in determining the actions to be taken against the
employees. 9
8
In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 9-10 (2014), the Board
overruled decisions in which it applied the jurisdictional framework for “constructive”
suspensions to cases involving the placement of an employee on enforced leave for
more than 14 days, finding instead that those cases constitute appealable suspensions
within the Board’s jurisdiction. The Board in Deas, 108 M.S.P.R. 637, ¶ 12, had cited
to several cases for the principle that an agency’s placement of an employee on
enforced leave is a “constructive” suspension. The principle for which we cite to Deas
in this Opinion and Order has not, however, been overruled.
9
In a declaration made under penalty of perjury, the deciding official averred that all
positions at the NSN meeting the protection of life and property exception were
identified and submitted through the Commander, Navy Region Mid-Atlantic, and the
Commander, Navy Installations Command, and approved by the Assistant Secretary of
the Navy (Manpower and Reserve Affairs) via the Director, Office of Civilian Human
Resources. CAF, Tab 5 at 6. He further averred that, while the exceptions based on the
protection of life and property were submitted through higher level command, he made
an independent assessment of the security needs of the NSN and determined which
20
¶31 Under these circumstances, and because adjudicating these discrimination
claims may involve resolving conflicting evidence and credibility issues that
could depend upon the demeanor of witnesses, it is appropriate to remand these
cases for further adjudication. See Durr v. Department of Veterans Affairs,
119 M.S.P.R. 195, ¶ 15 (2013); Garrison v. Department of the Navy, 88 M.S.P.R.
389, ¶ 10 (2001); see also Farquhar v. Department of the Air Force, 82 M.S.P.R.
454, ¶ ¶ 8, 13 (1999) (affirming findings on the merits of a reduction–in-force
action, but remanding for adjudication of the appellant’s discrimination claim);
Thompson v. Department of the Navy, 80 M.S.P.R. 245, ¶¶ 5-7 (1998) (same). On
remand, the administrative judge should inform the parties of the standards of
proof applicable to a claim of discrimination pursuant to Savage, and provide
them with an opportunity to further develop the evidence on the discrimination
issue. The administrative judge’s new decision should incorporate the above
findings on the merits of the furlough and the Savage standard for analyzing the
appellants’ discrimination claims, as well as the Board’s decisions in Jones,
Johnson, and Deas. 10
positions were required for the protection of life and property. Id. He determined that
detective positions would not be excepted from the furlough mainly because he believed
that furloughing detectives at the NSN would not lead to an unacceptable risk or
catastrophic gaps in the safety and protection of life or property at the installation. Id.
10
The appellant Gaston does not challenge the administrative judge’s findings on her
sex discrimination claim. Gaston PFR File, Tab 1 at 10, 15-17. In any event, we find
that applying the analytical framework in Savage to the appellant Gaston’s sex
discrimination claim would not change the result in this case.
21
ORDER
¶32 Accordingly, we find that the appellants were subject to, and not excepted
from, the furlough, affirm the initial decisions’ finding that the agency proved
that the furlough promoted the efficiency of the service, vacate the initial
decisions’ findings regarding the race discrimination claims, and remand these
appeals for further adjudication consistent with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
