                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHRISTOPHER B. SHAW, 1                          DOCKET NUMBER
                  Appellant,                         NY-0752-13-0270-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 26, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Nnenne Agbai, Washington, D.C., for the appellant.

           Matthew J. Geller, Esquire, West Point, New York, 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’s furlough action. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. In re
     West Point Emergency Service, No Hearing v. Department of the Army, MSPB Docket
     No. NY-0752-14-0154-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 administrative
     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, 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).

                                      BACKGROUND
¶2         The agency furloughed the appellant for 6 days from his GS-0080-12
     Supervisory Security Specialist position with the Directorate of Emergency
     Services (DES), United States Army Garrison West Point.          Initial Appeal File
     (IAF), Tab 1 at 7, Tab 3 at 5-8.     The agency’s proposal notice informed the
     appellant that the action was “necessitated by the extraordinary and serious
     budgetary challenges facing the Department of Defense for the remainder of
     Fiscal Year 2013, the most serious of which is the sequester that began on
     March 1, 2013,” i.e., across-the-board reductions to Federal budgetary resources.
     IAF, Tab 1 at 9.
¶3         On appeal to the Board, the appellant asserted that he should have been
     exempt from the furlough because his position was necessary to protect the safety
     of life and property and that he was similarly situated to other DES employees
     who were exempted from the furlough pursuant to this exception. IAF, Tab 1
     at 5, Tab 5 at 4. He also alleged that the agency furloughed him in retaliation for
                                                                                      3

     his prior equal employment opportunity (EEO) activity. IAF, Tab 8 at 2, Tab 13
     at 4.
¶4           Based on the written record, the administrative judge issued an initial
     decision affirming the agency’s furlough action. IAF, Tab 16, Initial Decision
     (ID). The administrative judge found that the agency established cause for the
     furlough, the furlough promoted the efficiency of the service, and the appellant
     failed to prove that the agency treated him differently from similarly situated
     employees. ID at 11-13. The administrative judge also found that the appellant
     failed to prove that the decision to furlough him was motivated by retaliation. ID
     at 9‑11.
¶5           The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.

                       DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly found that the agency proved by preponderant
     evidence that the appellant met the criteria for being subject to, and not excepted
     from, the furlough.
¶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.”    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. Dye v. Department of the
     Army, 121 M.S.P.R. 142, ¶ 9 (2014).       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, ¶ 9.
¶7           In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
     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.” Department of the
     Army Administrative Record for Fiscal Year 2013 Furlough Appeals, Tab 7,
                                                                                        4

      available    at   http://www.mspb.gov/furloughappeals/army2013.htm.             The
      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.”        Id.   It also granted
      installation commanders with the authority to apply the exception in such a way
      as to meet the needs of their particular installation. Id.
¶8          Here, the deciding official for the appellant’s furlough indicated in an
      affidavit that he limited his use of this exception to two classes of employees
      within DES: (1) Department of the Army Security Guards; and (2) West Point
      Fire Department firefighters, fire chiefs, fire inspectors, and fire protection
      specialists. In re West Point Emergency Service, No Hearing v. Department of
      the Army, MSPB Docket No. NY-0752-14-0154-I-1, Consolidation Appeal File
      (CAF), Tab 5 at 6‑7.
¶9          On review, the appellant reiterates his argument below that he should have
      been exempt from the furlough because his position is necessary to protect the
      safety of life and property.      PFR File, Tab 1 at 11-13.     He argues that he
      supervised the security guards who were exempt and performed job duties, such
      as “implementing a physical security/crime prevention program,” which he
      contends is in the “same category of duties” as those performed by the exempt
      security guards. Id. at 11‑12.
¶10         We find no error in the administrative judge’s determination that the agency
      proved cause, despite declining to apply the furlough exception for employees
      necessary to protect the safety of life and property to the appellant. Because the
      exception included the phrase “to the extent necessary,” it did not create a blanket
      exception.   Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 9 (2015);
      Lopez v. Department of the Navy, 121 M.S.P.R. 647, ¶ 11 (2014). Instead, the
                                                                                          5

      exception contemplated that management would exercise discretion, as it did
      here, in determining which employees were needed to protect the safety of life
      and property. See Lopez, 121 M.S.P.R. 647, ¶ 11 (recognizing that the exception
      contemplated that some employees occupying positions that are generally
      necessary to protect life and property could be excepted while others would not
      be excepted).

      The administrative judge properly found that the agency proved by preponderant
      evidence that the appellant’s furlough promoted the efficiency of the service.
¶11         An agency satisfies the efficiency of the service standard by showing, in
      general, that the furlough was a reasonable management solution to the financial
      restrictions placed on it and that it applied its determination as to which
      employees to furlough in a “fair and even manner.” Lopez, 121 M.S.P.R. 647,
      ¶ 15. A “fair and even manner” means that the agency applied the adverse action
      furlough uniformly and consistently.      Id.   It 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. Id. Rather, it means that the agency is required to treat similar employees
      similarly and to justify any deviations with legitimate management reasons. Id.
¶12         On review, the appellant disputes the administrative judge’s finding that he
      is not similarly situated to the security guard employees who the agency excepted
      from the furlough. PFR File, Tab 1 at 11-13. He argues he is similarly situated
      because he regularly provided guidance to the security guards to direct the
      emergency     activity   that   they   performed   and   was   responsible   for   the
      implementation of the physical security/crime prevention programs for the
      installation. Id. at 6, 11.
¶13         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
      reduction-in-force (RIF) principles in making that determination.        Chandler v.
      Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013); see 5 C.F.R.
      § 752.404(b)(2) (applying RIF competitive‑level principles to adverse action
                                                                                        6

      furloughs). 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 that are in the same grade (or occupational level) and
      classification series, and that 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 v. Department of the Navy, 121 M.S.P.R.
      417, ¶ 8 (2014). 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).
¶14         Considering these RIF competitive-level principles, we agree with the
      administrative judge that the appellant is not similarly situated to the security
      guards who were exempt from the furlough because they occupied positions at
      different grade levels and in different classification series. ID at 11-13; compare
      IAF, Tab 10 at 12-19 (GS-0080-12 Supervisory Security Specialist position
      description), with id. at 6-11, IAF Tab 12 at 5-22 (GS-0085-04 Security Guard,
      GS-0085-05 Lead Security Guard, and GS-0085-07/09 Supervisory Security
      Guard position descriptions); see Naval Station Norfolk-Hearing 2 v. Department
      of the Navy, 123 M.S.P.R. 144, ¶¶ 17-18 (2016) (finding that detective and police
      officer positions required different competitive levels in the context of a furlough
      because they occupied different grade levels).
                                                                                        7

      The administrative judge properly found that the appellant failed to prove his
      affirmative defense of retaliation.
¶15         When an appellant asserts an affirmative defense of discrimination or
      retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether he
      has shown by preponderant evidence that the prohibited consideration was a
      motivating factor in the contested personnel action. Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 51 (2015).             An appellant may make this initial
      showing using direct evidence or any of three types of circumstantial evidence:
      (1) a “convincing mosaic” of discrimination or retaliation, i.e., suspicious timing,
      ambiguous oral or written statements, behavior toward or comments directed at
      other employees in the protected group, and other bits and pieces from which an
      inference of discriminatory or retaliatory intent might be drawn; (2) evidence of
      disparate treatment of similarly situated comparators; and (3) evidence that the
      agency’s stated reason for its action is unworthy of belief, a mere pretext for
      discrimination or retaliation. Id., ¶¶ 42, 51.
¶16         If the appellant meets that 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 alleged discriminatory or retaliatory motive, and, 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., ¶ 51.
¶17         The administrative judge found that the appellant failed to prove by
      preponderant evidence that his prior EEO activity was a motivating factor in the
      decision to furlough him because neither the proposing nor the deciding official
      was named in the EEO complaint and neither had met the appellant until almost a
      year after he filed his EEO complaint.       ID at 10.     She noted that the record
      reflected that the proposing official did not meet the appellant until July 2012
      when he first was assigned to the organization and the deciding official did not
                                                                                           8

      become Garrison Commander until October 2012.            Id.; see IAF, Tab 14 at 11,
      CAF, Tab 5 at 5.
¶18         On review, the appellant asserts that the administrative judge erred in
      focusing on the timeline between the date he filed his 2011 EEO complaint and
      the furlough action, and ignored the fact that the proposing and deciding officials
      learned of his EEO complaint “much later and closer in time to the furlough
      decision.” PFR File, Tab 1 at 10. However, the appellant offered no evidence or
      argument below concerning when such officials learned of his prior EEO
      complaint. 3 Thus, based on the record below, we agree with the administrative
      judge that the appellant failed to meet his burden.
¶19         The appellant contends for the first time on review that he verbally
      informed the proposing official that he had filed an EEO complaint but fails to
      specify when. PFR File, Tab 1 at 9. He similarly contends that he informed the
      deciding official of his prior EEO activity just months before the furlough
      decision. Id. The Board generally will not consider evidence or argument raised
      for the first time on review absent a showing that it is based on new and material
      evidence not previously available despite the party’s due diligence. See Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S.
      Postal Service, 3 M.S.P.R. 211, 214 (1980). Because the appellant has provided
      no explanation for his failure to raise such arguments below, we need not
      consider them on review. 4 In any event, absent any additional evidence from

      3
        The record below contains a copy of an investigation report regarding a subsequent
      EEO complaint that the appellant filed in 2014, in which an investigator generally
      summarizes the appellant’s testimony that management officials, including the
      proposing and deciding officials for his furlough, were aware of his 2011 EEO
      complaint. IAF, Tab 14 at 11. According to the investigator’s summary, the proposing
      official testified that he was not aware of the appellant’s prior EEO activity. Id. The
      record does not, however, reflect when the appellant contended such officials became
      aware of his 2011 EEO complaint.
      4
        We similarly decline to address the appellant’s argument raised for the first time on
      review that the agency violated the Anti-Deficiency Act when it contacted him to
      perform work while he was furloughed. PFR File, Tab 1 at 11‑12.
                                                                                 9

which an inference of retaliatory intent might be drawn, we find the appellant’s
bare assertions that the proposing and deciding official were aware of his prior
EEO complaint alone fall short of establishing a convincing mosaic of retaliation.
See Savage, 122 M.S.P.R. 612, ¶¶ 42, 51.

                 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.
                                                                                10

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.
