                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 2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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                       3

     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
                                                                                           5

     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.
                                                                                     6

     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.
