                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


IN RE WEST POINT CUST.,                         DOCKET NUMBERS
   HEARING, 1 PEARLENE                          NY-0752-14-0081-I-1
   HOWARD, MARVIN D. KENT,                      NY-0752-13-0572-I-1
   SR., MICHAEL JOHN MARTINO, 2                 NY-0752-13-0499-I-1
   AND JOHN BALAGUER, 3                         NY-0752-13-0505-I-1
                Appellants,                     NY-0752-13-0592-I-1

             v.

DEPARTMENT OF THE ARMY,                         DATE: September 23, 2016
            Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 4

      In Re West Point Cust., Hearing Appellants, pro se.

      Pearlene Howard, Newburgh, New York, pro se.

      Marvin D. Kent, Sr., New Windsor, New York, pro se.

      Michael John Martino, Newburgh, New York, pro se.


1
  The appellants that are included in this consolidation are set forth in Appendix A of
this Order.
2
 Appellants Howard, Kent, and Martino were initially part of the consolidation In re
West Point IMCDPW Hearing v. Department of the Army, MSPB Docket No. NY-0752-
14-0097-I‑1 (IMCDPW Hearing).
3
 Appellant Balaguer was initially part of the consolidation West Point IMCDPW No
Hearing v. Department of the Army, MSPB Docket No. NY-0752-14-0043-I‑1.
4
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

           John McCabe, Fort Montgomery, New York, for Appellant Balaguer.

           Matthew J. Geller, Esquire, West Point, New York, for the agency.


                                           BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member


                                      FINAL ORDER

¶1        The agency has filed petitions for review of the initial decisions in the
     above‑referenced appeals, which reversed 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). For the following reasons, we GRANT the agency’s petitions
     for review, REVERSE the initial decisions, and AFFIRM the furlough actions. 5

                                      BACKGROUND
¶2        The relevant facts are undisputed. A number of similarly situated custodial
     employees from the Directorate of Public Works, U.S. Army Garrison West Point,
     New York, appealed the agency’s decision to furlough them for between 3-5 days,
     in July and August 2013, and the appeals were consolidated.             E.g., In re
     West Point Cust., Hearing v. Department of the Army, MSPB Docket
     No. NY-0752-14-0081-I‑1 (West Point Cust., Hearing), Consolidation Appeal
     File (CAF), Tab 1; West Point IMCDPW No Hearing v. Department of the Army,
     MSPB Docket No. NY-0752-14-0043-I‑1, CAF, Tab 1; In Re West Point
     IMCDPW Hearing v. Department of the Army, MSPB Docket No. NY-0752-14-


     5
      Our findings in this order only apply to appellants Balaguer, Howard, Kent, Martino,
     and the appellants set forth in Appendix A, not to any other appellants who may have
     been in the IMCDPW Hearing or West Point IMCDPW No Hearing
     consolidation appeals.
                                                                                          3

     0097-I-1 (IMCDPW Hearing), CAF, Tab 1.           The administrative judge held a
     hearing in the IMCDPW Hearing consolidation appeal only. IMCDPW Hearing,
     CAF, Tab 10. In the other matters, the administrative judge permitted the parties
     to file written submissions. E.g., West Point Cust., Hearing, CAF, Tab 11.
¶3        The    administrative   judge   issued   separate   initial   decisions   in   the
     above-referenced matters.      West Point Cust., Hearing, CAF, Tab 15, Initial
     Decision (CAF ID); Howard v. Department of the Army, MSPB Docket
     No. NY-0752-13-0572-I-1, Initial Appeal File (IAF), Tab 6, Initial Decision
     (Howard ID); Kent v. Department of the Army, MSPB Docket No. NY-0752-13-
     0499-I-1, IAF, Tab 6, Initial Decision (Kent ID); Balaguer v. Department of the
     Army, MSPB Docket No. NY-0752-13-0592-I-1, IAF, Tab 14, Initial Decision
     (Balaguer ID); Martino v. Department of the Army, MSPB Docket No. NY-0752-
     13-0505-I-1, IAF, Tab 6, Initial Decision (Martino ID). 6          The administrative
     judge found that the agency demonstrated that a shortage of funds led to the
     implementation of the furlough, but that the agency did not apply the furlough
     uniformly and consistently.      West Point Cust., Hearing, CAF ID at 10‑11.
     Relying on the testimony of an agency Supervisory Program Analyst from the
     IMCDPW Hearing consolidation appeal who had requested that all custodial
     workers be exempted from the furlough, the administrative judge concluded that
     the appellants were similarly situated to the other employees who were exempted
     and the agency failed to explain why it denied this request. West Point Cust.,
     Hearing, CAF ID at 9-11. She therefore reversed the furlough actions because
     she found that they did not promote the efficiency of the service.        West Point
     Cust., Hearing, CAF ID at 11. Additionally, in appellant Balaguer’s appeal, the
     administrative judge found that he did not prove his affirmative defenses of
     disability discrimination and retaliation for filing a workers’ compensation claim.


     6
      Because of the similarity between these cases, we herein only cite to the West Point
     Cust., Hearing consolidation appeal file and initial decision unless otherwise noted.
                                                                                        4

     Balaguer ID at 9-11.     Notwithstanding her decision to reverse the furlough
     actions, the administrative judge did not order interim relief. West Point Cust.,
     Hearing, CAF ID at 12.
¶4        The agency filed petitions for review in all of the above‑referenced appeals.
     West Point Cust., Hearing, Petition for Review (PFR) File, Tab 1; Howard, PFR
     File, Tab 1; Kent, PFR File, Tab 1; Balaguer, PFR File, Tab 1; Martino, PFR
     File, Tab 1. The agency also requested that the Board consolidate the West Point
     Cust., Hearing consolidation appeal with the Howard, Kent, and Balaguer
     individual appeals.    West Point Cust., Hearing, PFR File, Tab 1 at 4 n.1;
     Balaguer, PFR File, Tab 1 at 4 n.1. 7 None of the appellants responded to the
     agency’s petitions for review.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On petition for review, the agency argues, among other things, that the
     administrative judge improperly substituted her judgment for that of the deciding
     official when she determined that the agency did not apply the furlough uniformly
     and consistently, and she erroneously relied on the testimony of the Supervisory
     Program Analyst from the IMCDPW Hearing consolidation appeal to buttress her
     conclusion in this matter. West Point Cust., Hearing, PFR File, Tab 1 at 8-16. 8
¶6        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.”      Naval Station Norfolk-Hearing 2 v. Department of the
     Navy, 123 M.S.P.R. 144, ¶ 8 (2016). An agency meets its burden of proving that
     a furlough promotes the efficiency of the service by showing, in general, that the
     furlough was a reasonable management solution to the financial restrictions

     7
       The agency did not request that the Board consolidate the Martino appeal with the
     remaining appeals because appellant Martino requested and attended a hearing.
     West Point Cust., Hearing, PFR File, Tab 1 at 4 n.1.
     8
       Because of the similarity in the agency’s arguments on review, we hereinafter only
     refer to the West Point Cust., Hearing petition for review unless otherwise noted.
                                                                                       5

     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); Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). A “fair and even manner” means that
     the agency applied the adverse action furlough uniformly and consistently.
     Chandler, 120 M.S.P.R. 163, ¶ 8. This does not mean that the agency is required
     to apply the furlough in such a way as to satisfy the Board’s sense of equity;
     rather, it means that the agency is required to treat similarly situated employees
     similarly and to justify any deviations with legitimate management reasons. Id.
     What the efficiency of the service encompasses are issues relating to the uniform
     and consistent application of the furlough, including whether the agency used a
     furlough to target employees for personal reasons or attempted to exempt certain
     employees from the furlough without legitimate management reasons. Id., ¶ 9.
¶7         We agree with the administrative judge that the furlough was a reasonable
     management solution to the financial restrictions placed upon the agency.
     West Point Cust., Hearing, CAF ID at 10.        We disagree, however, with her
     conclusion that the agency did not apply the furlough in a uniform and consistent
     manner. In a declaration made under penalty of perjury, the deciding official
     explained that he exempted from the furlough water treatment and power/utility
     plant operators who were deemed necessary to protect property and maintain
     operations, and he utilized “reduction-in-force” criteria, i.e., service computation
     dates, to exempt 98 of 128 custodial workers under the health and safety
     exception. West Point Cust., Hearing, CAF, Tab 12 at 4-6. Because “minimal
     productivity output was not being met,” the deciding official subsequently called
     back the remaining 30 custodial workers, including the appellants involved in
     these matters. Id. at 6.
¶8         In Lopez v. Department of Navy, 121 M.S.P.R. 647, ¶¶ 17, 19 (2014), the
     Board held that an agency’s use of a uniform and consistent criterion, such as
     service computation dates, in deciding which employees to furlough, constitutes a
                                                                                       6

     legitimate management reason for any differential treatment.           Here, as in
     Lopez, 121 M.S.P.R. 647, ¶ 18, there is no evidence that the agency’s use of
     service computation dates was intended to target any of the appellants for
     personal reasons, West Point Cust., Hearing, CAF ID at 11; Martino ID at 9;
     Balaguer ID at 11; Kent ID at 10; Howard ID at 10. We therefore conclude that
     the agency’s use of service computation dates constitutes a legitimate
     management reason for any difference in treatment between the appellants and the
     exempted custodial workers. That the deciding official ultimately agreed with the
     Supervisory Program Analyst regarding the need to exempt all custodial workers
     from the furlough does not warrant a different outcome.             See Einboden v.
     Department of the Navy, 122 M.S.P.R. 302, ¶ 18 n.5 (2015) (emphasizing that
     whether the efficiency of the service is met is determined by reviewing the
     circumstances present when the agency took the furlough action, rather than
     reviewing the action with the benefit of hindsight); aff’d, 802 F.3d 1321 (Fed.
     Cir. 2015); Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (finding
     that the Board will not scrutinize an agency’s decision in such a way that second
     guesses the agency’s assessment of its mission requirements and priorities), aff’d
     sub nom. Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir. 2014); cf.
     Clerman v. Interstate Commerce Commission, 35 M.S.P.R. 190, 194 (1987)
     (recognizing that the appropriateness of an agency’s decision to release
     employees by reduction in force is judged based on circumstances when the
     actions were taken, not on events that occurred after the fact). Accordingly, we
     reverse the initial decisions and reinstate the furlough actions.
¶9         In light of our disposition, we need not address the agency’s remaining
     arguments in its petitions for review. Because appellant Balaguer did not file a
     petition for review of the initial decision in his appeal, we also affirm the
     administrative judge’s conclusion that he did not prove his affirmative defenses
                                                                                        7

of    disability   discrimination    and    retaliation     for   filing   a     workers’
compensation claim. 9

    NOTICE TO IN RE WEST POINT CUST., HEARING APPELLANTS AND
       APPELLANTS HOWARD, KENT, AND MARTINO REGARDING
                  YOUR FURTHER REVIEW RIGHTS
       This   Final   Order   constitutes   the   Board’s     final   decision   in   this
matter. 5 C.F.R. § 1201.113. You have the right to request review of this final
decision by the U.S. Court of Appeals for the Federal Circuit. You must submit
your request to the court at the following address:
                               U.S. 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 U.S. 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 U.S. 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.


9
  Below, this Order provides appellant Balaguer with specific notice of his appeal rights
regarding his discrimination claim.
                                                                                          8

      If you are interested in securing pro bono representation for an appeal to
the U.S. 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.

 NOTICE TO APPELLANT BALAGUER REGARDING YOUR FURTHER
                     REVIEW RIGHTS
      This    Final    Order   constitutes     the   Board’s   final   decision   in    this
matter. 5 C.F.R. § 1201.113. 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 U.S. 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
                                                                                 9

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.

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 U.S. 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:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
                                                                10

                              APPENDIX A


                    IN RE WEST POINT CUST., HEARING
                           NY-0752-14-0081-I-1



Anthony S. Naclerio                       NY-0752-13-0552-I-1
Edmund A. Masloski                        NY-0752-13-0590-I-1
Evan L. Rosenmeyer                        NY-0752-14-0083-I-1
Gerard J. Killeen                         NY-0752-13-0585-I-1
Habakkuk Reggie Knight                    NY-0752-13-0595-I-1
James C. Howard                           NY-0752-13-0947-I-1
James McCormick                           NY-0752-13-0578-I-1
Johnnie J. Pittman                        NY-0752-13-0550-I-1
Joseph R. Murphy                          NY-0752-13-0521-I-1
Joseph Ray Branch                         NY-0752-13-0600-I-1
Josephine Burgos                          NY-0752-13-0940-I-1
Lamont Staples                            NY-0752-13-0551-I-1
Lauren E. Vogt                            NY-0752-13-0588-I-1
Leonard W. DeFreece                       NY-0752-13-0930-I-1
Marie Lerebours                           NY-0752-13-0514-I-1
Marie Reed                                NY-0752-13-0604-I-1
Michael B. Leghorn                        NY-0752-13-0463-I-1
Nijel T. Bethea                           NY-0752-13-0579-I-1
Richard P. De Maria                       NY-0752-13-0941-I-1
Rosemary DeJesus                          NY-0752-13-0491-I-1
Shaun Vincent Williams                    NY-0752-13-0504-I-1
Stephen A. Douglas                        NY-0752-13-0584-I-1
