                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT DONNELL DONALDSON,                       DOCKET NUMBER
                 Appellant,                          DC-0752-13-1200-I-1 1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: March 24, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 2

           Robert Donnell Donaldson, Landover, Maryland, pro se.

           Kenneth Rye, Esquire, Robert C. Rutherford, Jr. and M. Alana Mayer,
             Norfolk, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the agency’s action furloughing him from his position and found that he

     1
       Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation, Military
     Sealift Command Washington Navy 2 v. Department of the Navy, MSPB Docket
     No. DC-0752-14-0246-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     failed to prove his affirmative defenses. For the reasons discussed below, we
     GRANT the appellant’s petition for review.          We AFFIRM the administrative
     judge’s findings that the furlough promoted the efficiency of the service and that
     the appellant failed to prove his affirmative defenses of a violation of due
     process, harmful procedural error, and discrimination based on race and national
     origin. We VACATE the administrative judge’s finding that the appellant failed
     to prove his claim that the agency violated the Veterans Employment
     Opportunities Act of 1998 (VEOA), and dismiss the claim for lack of jurisdiction.
     We REMAND the case to the regional office for further adjudication of the
     appellant’s   potential   affirmative   defense   under   the   Uniformed   Services
     Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
     §§ 4301-4333) (USERRA) in accordance with this Order.

                                       BACKGROUND
¶2        The agency issued a decision notice furloughing the appellant from his
     position as a Marine Transportation Specialist with the Military Sealift Command
     (MSC) for no more than 11 workdays. Initial Appeal File (IAF), Tab 7 at 9, 30.
     The proposal notice indicated that the furlough was due to the “extraordinary and
     serious budgetary challenges facing the Department of Defense (DOD) for the
     remainder of Fiscal Year (FY) 2013, the most serious of which is the sequester
     that began on March 1, 2013.”       Id. at 25‑26.    The agency later reduced the
     duration of the furlough from 11 days to 6 days.          Department of the Navy
     Administrative Record for FY 2013 Furlough Appeals (AR), Part 1, Tab 2 at 18,
     Tab 3 at 19, available at http://www.mspb.gov/furloughappeals/navy2013.htm.
¶3        The appellant filed an individual appeal challenging the furlough, which the
     Board consolidated with related appeals of other MSC employees. IAF, Tab 1,
     Tab 12; Military Sealift Command Washington Navy 2 v. Department of the Navy,
     MSPB Docket No. DC-0752-14-0246-I-1, Consolidation Appeal File (CAF),
     Tab 1 at 1, 12. The appellant challenged the propriety of the furlough, and raised
                                                                                       3

     a number of affirmative defenses, alleging that the agency violated his due
     process rights, committed harmful procedural error, violated his veterans’
     preference rights, and discriminated against him based on race, national origin,
     and his status as a disabled veteran. IAF, Tab 16 at 6‑8, Tab 37 at 11, Tab 39
     at 6‑10, 23, Tab 42 at 12, 14‑19.
¶4        Following a hearing, the administrative judge issued an initial decision
     sustaining the furlough action. CAF, Tab 26, Initial Decision (ID) at 2. He found
     that the agency proved that the furlough promoted the efficiency of the service.
     ID at 17-19. Regarding the appellant’s affirmative defenses, the administrative
     judge found that the appellant failed to establish a violation of due process or
     harmful procedural error. ID at 19‑21. He also found that the appellant failed to
     establish his claims of discrimination based on race or national origin.         ID
     at 24-28 & n.8. Finally, he found that the appellant failed to provide evidence to
     support his claim that the agency violated VEOA. ID at 28‑29.
¶5        The appellant has filed a petition for review of the initial decision, and the
     agency has opposed the petition for review.      Petition for Review (PFR) File,
     Tabs 1, 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        On review, the appellant states that he challenges “each and every finding
     of fact” in the initial decision. PFR File, Tab 1 at 4. A petition for review must
     contain sufficient specificity for the Board to ascertain whether there is a serious
     evidentiary challenge justifying a complete review of the record. Tines v.
     Department of the Air Force, 56 M.S.P.R. 90, 92 (1992).         Under the Board’s
     regulations, the petition for review itself must identify any procedural or
     adjudicatory errors and explain how they affected the outcome of the initial
     decision. 5 C.F.R. §§ 1201.114(b), 1201.115(b)-(c). Accordingly, we have not
     revisited the administrative judge’s findings or reanalyzed the evidence regarding
     “each and every finding” in the initial decision.       PFR File, Tab 1 at 4; see
                                                                                        4

     Davison v. Department of Veterans Affairs, 115 M.S.P.R. 640, ¶ 9 (2011) (finding
     that mere disagreement with the administrative judge’s explained findings are not
     a basis to grant the petition for review); Weaver v. Department of the
     Navy, 2 M.S.P.R. 129, 133 (1980) (finding that, before the Board will undertake a
     complete review of the record, the petitioning party must explain why the
     challenged factual determination is incorrect, and identify the specific evidence in
     the record which demonstrates the error). Instead, we have limited our review to
     those issues and findings regarding which the appellant has presented specific
     arguments on review. 3
     The agency’s alleged failure to comply with the administrative judge’s instruction
     does not provide a basis for disturbing the initial decision.
¶7        On review, the appellant contends that the agency failed to comply with an
     instruction from the administrative judge to exclude an attorney for the agency
     from all pleadings and involvement with the consolidated appeals, because the
     attorney supervised another appellant, and could potentially be called as a rebuttal
     witness at hearing. PFR File, Tab 1 at 11. He alleges that the attorney continued
     to receive pleadings electronically and that the administrative judge was
     complicit in the agency’s actions by failing to enforce his instruction.          Id.
     However, the attorney for the agency did not supervise the appellant, and the
     appellant has failed to explain how any alleged error by the agency or
     administrative judge in allowing her         to continue to receive pleadings
     electronically affected his substantive rights. PFR File, Tab 11 at 1. Therefore,
     we find that the appellant’s arguments regarding the agency’s alleged failure to
     comply with the administrative judge’s instruction do not provide a basis for
     disturbing the initial decision.       See Panter v. Department of the Air
     Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not

     3
       The appellant does not raise any specific arguments on review challenging the
     administrative judge’s findings that he failed to prove his affirmative defenses of a
     violation of due process or harmful procedural error, and we discern no reason to
     disturb these findings. PFR File, Tab 1; see ID at 19‑21.
                                                                                            5

     prejudicial to a party’s substantive rights provides no basis for reversal of an
     initial decision).
     The agency proved by preponderant evidence that the appellant’s furlough
     promoted the efficiency of the service.
¶8         An agency may furlough an employee for 30 days or less “only for such
     cause as will promote the efficiency of the service.” 4 5 U.S.C. §§ 7512(5),
     7513(a); Einboden v. Department of the Navy, 802 F.3d 1321, 1324-25 (Fed. Cir.
     2015). An agency satisfies this standard in a furlough appeal by showing 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.             Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).
¶9         On review, the appellant reiterates his argument, raised below, that the
     agency should not have furloughed him because his salary was paid from a
     working capital fund (WCF), which he contends was not subject to sequestration.
     PFR File, Tab 1 at 5; see IAF, Tab 33 at 3, Tab 37 at 9. Applying the Board’s
     decision in Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 15‑16,
     aff’d, 802 F.3d 1321 (Fed. Cir. 2015), the administrative judge found that the
     agency had discretion to furlough employees, such as the appellant, whose
     salaries were paid from WCFs. ID at 22. After the initial decision in the instant


     4
       On review, the appellant appears to challenge the “efficiency of the service” standard,
     characterizing it as “disingenuous,” “hypothetical,” and “contrary to the [l]aw of the
     Circuit.” PFR File, Tab 1 at 6, 8-10. However, the “efficiency of the service” standard
     is statutorily established and has been adopted and applied in precedential decisions of
     the U.S. Court of Appeals for the Federal Circuit. 5 U.S.C. §§ 7512(5), 7513(a);
     Einboden v. Department of the Navy, 802 F.3d 1321, 1324-25 (Fed. Cir. 2015). The
     Board has no discretion to alter this standard. See Commissioner of Internal Revenue v.
     Lundy, 516 U.S. 235, 252 (1996) (finding that a court is bound by the language of a
     statute as it is written), superseded by statute on other grounds as stated in Murdock v.
     United States, 103 Fed. Cl. 389 (2012); see also Spain v. Department of Homeland
     Security, 99 M.S.P.R. 529, ¶ 9 (2005) (finding that decisions of the Federal Circuit
     constitute precedent that is binding on the Board), aff’d, 177 F. App’x 88 (Fed.
     Cir. 2006).
                                                                                          6

      appeal was issued, the Federal Circuit issued a precedential decision affirming the
      Board’s decision in Einboden. See Einboden, 802 F.3d 1321. The Federal Circuit
      found, in pertinent part, that even assuming that WCFs were exempt from
      sequestration, employees paid from WCF accounts were not shielded from being
      furloughed and that the savings from the furlough of WCF employees could be
      used to address shortfalls in other areas of the agency’s budget. Id. at 1325. The
      Federal Circuit’s decision in Einboden controls our analysis of the appellant’s
      WCF argument, and accordingly, we affirm the administrative judge’s findings in
      this regard.
¶10         For the first time on review, the appellant alternatively contends that his
      furlough was improper because Congress allegedly only authorized $2 million to
      be sequestered from the agency’s WCF, and the agency purportedly saved
      significantly more than that amount through the furlough of MSC employees.
      PFR File, Tab 1 at 4-5, 7. However, the Federal Circuit’s decision in Einboden
      also forecloses this argument.     Einboden, 802 F.3d at 1325.      Moreover, in its
      recent precedential decision in National Federation of Federal Employees,
      Local 1442 v. Department of the Army, Nos. 2014-3175 & 2014-3189, 2015 WL
      6143247, at *7 (Fed. Cir. Oct. 20, 2015), the Federal Circuit held that it was
      reasonable for the DOD to consider its budget situation holistically when faced
      with sequestration, rather than isolating the situation of individual WCF entities.
      See Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014) (finding that,
      for purposes of the efficiency of the service standard, it was reasonable for DOD
      to consider its budget holistically, rather than isolating the situation of individual
      military components). The appellant does not dispute that DOD as a whole was
      facing a budgetary shortfall of billions of dollars, AR, Part 1, Tab 3 at 19,
      significantly more than the amount that he contends that the agency saved through
      the furlough of MSC employees, PFR File, Tab 1 at 7.
¶11         Finally, the appellant argues that the agency failed to demonstrate that
      savings from the furlough of MSC employees was used to offset the shortfall in
                                                                                              7

      DOD’s operations and maintenance budget shortfall.             PFR File, Tab 1 at 10.
      However, in Einboden, the court held that an agency is not “required to show
      actual re-programming of the funds saved by [an employee’s] furlough” in order
      to demonstrate that the furlough promoted the efficiency of the service.              See
      Einboden, 802 F.3d at 1325. In sum, the appellant has not persuaded us that the
      administrative judge erred in his assessment of the financial restrictions placed on
      the agency or in his conclusions that the furlough was a reasonable management
      solution to these restrictions and that the furlough was applied in a fair and even
      manner.     Therefore, we affirm the administrative judge’s finding that the
      appellant’s furlough promoted the efficiency of the service.
      The administrative judge correctly found that the appellant failed to prove his
      affirmative defenses of discrimination based on race and national origin.
¶12         On review, the appellant contends that the administrative judge summarily
      dismissed his discrimination claims, and asserts that he is in a protected class
      because he is African‑American and a disabled veteran. 5 PFR File, Tab 1 at 12.
      Regarding the appellant’s claim that the agency discriminated against him based
      on his race, the administrative judge found that the appellant failed to provide any
      evidence to support this claim under either a disparate impact or disparate
      treatment theory.    ID at 28 n.8.    Although the administrative judge’s analysis
      was not detailed, we agree with his conclusion that the appellant failed to prove
      this affirmative defense.



      5
        The appellant also argues on review that he is in a protected class because he is over
      40 years old. PFR File, Tab 1 at 12. However, the appellant did not raise an
      affirmative defense of discrimination based on age below. IAF, Tabs 37, 39, 42. We
      decline to consider this affirmative defense, raised in the first instance on review,
      because the appellant has failed to demonstrate that it is based on new and material
      evidence that was previously unavailable to him despite due diligence. See Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board
      generally will not consider an argument raised for the first time in a petition for review
      absent a showing that it is based on new and material evidence not previously available
      despite the party’s due diligence).
                                                                                         8

¶13         As the administrative judge explained in the affirmative defenses order
      below, IAF, Tab 38 at 5‑6, to establish a claim of discrimination based on a
      disparate impact theory, the appellant must, as an initial matter, present sufficient
      statistical evidence to prove that the employment practice at issue fell more
      harshly on one group than another, Hidalgo v. Department of Justice, 93 M.S.P.R.
      645, ¶ 12 (2003); Pigford v. Department of the Interior, 75 M.S.P.R. 250, 256
      (1997). The appellant has presented no such evidence, either below or on review.
      PFR File, Tab 1 at 12; IAF, Tabs 37, 39, 42.
¶14         Several days before the initial decision in the instant appeal was issued, the
      Board issued a decision that clarified the evidentiary standards and burdens of
      proof under which the Board analyzes claims of discrimination based on a
      disparate treatment theory. Savage v. Department of the Army, 122 M.S.P.R. 612,
      ¶¶ 42-43, 51 (2015).      Pursuant to Savage, where an appellant asserts an
      affirmative defense of discrimination, 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. Id., ¶ 51. An appellant
      may make this initial showing using direct evidence or any of three types of
      circumstantial evidence: a convincing mosaic of evidence from which a
      discriminatory intent may be inferred; evidence of disparate treatment of
      similarly situated comparators; or evidence that the agency’s stated reason is not
      worthy of credence but rather a pretext for discrimination. Id., ¶¶ 42-43 (quoting
      Troupe v. May Department Stores Company, 20 F.3d 734, 736‑37 (7th Cir.
      1994)). 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 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. Savage, 122 M.S.P.R. 612, ¶ 51.
                                                                                          9

¶15         The initial decision in the present appeal did not discuss or apply the
      clarified evidentiary standards in Savage. ID at 24‑28 & n.8. However, we find
      that applying the analytical framework in Savage would not change the result
      regarding the appellant’s claim of discrimination based on race in this case. The
      appellant failed to make an initial showing that race was a motivating factor in
      the   contested    personnel   action.     He   simply    asserted    that   he   was
      African-American, and failed to present either direct or circumstantial evidence
      that race was a motivating factor in the furlough action. IAF, Tab 39 at 6, Tab 42
      at 15, 18. Accordingly, we find that he failed to establish his affirmative defense
      of discrimination based on race under a disparate treatment theory.
¶16         On review, the appellant has not raised any specific allegations of error
      regarding the administrative judge’s finding that he failed to prove his affirmative
      defense of discrimination based on national origin. PFR File, Tab 1. We find
      that, contrary to the appellant’s assertion on review that the administrative judge
      generally summarily dismissed his discrimination claims, id. at 12, the
      administrative judge thoroughly analyzed the appellant’s national origin
      discrimination claim, and correctly concluded that the appellant failed to prove
      this affirmative defense. In pertinent part, we agree with the administrative judge
      that citizenship is not a protected category under title VII of the Civil Rights Act,
      and that the appellant did not specify that he was a member of a protected
      category with respect to national origin, given that U.S. citizens encompass a
      variety of national origins. ID at 26-27; see Espinoza v. Farah Manufacturing
      Co., 414 U.S. 86, 88-89, 92 (1973) (finding that discrimination based on
      citizenship does not violate title VII unless it is a pretext for national origin
      discrimination).   We also agree with the administrative judge that the agency
      provided several legitimate, nondiscriminatory reasons for its decision to exempt
      foreign nationals employed outside the contiguous U.S. from the furlough. ID
      at 27; AR, Part 1, Tab 2 at 16, ¶ 5. We further find that applying the analytical
                                                                                              10

      framework in Savage would not change the result regarding the appellant’s
      discrimination claim based on national origin in this case. Thus, based on the
      existing record, and for the reasons contained in the initial decision, we affirm the
      administrative judge’s finding that the appellant did not meet his burden of
      proving his affirmative defense of discrimination based on national origin.
      The appellant’s VEOA claim is dismissed for lack of jurisdiction without
      reaching the merits.
¶17         The appellant’s assertion on review that he is in a protected class because
      he is a disabled veteran may be construed as a challenge to the administrative
      judge’s finding that he failed to provide evidence to support his claim that the
      agency violated his rights under VEOA.           PFR File, Tab 1 at 12; ID at 28-29.
      Specifically, the administrative judge found that the appellant failed to provide
      evidence or argument regarding any statute or regulation relating to veterans’
      preference the agency allegedly violated in effectuating the furlough.                  ID
      at 28-29. This constitutes a finding on the merits of the appellant’s VEOA claim.
      See Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 7 (2008)
      (finding that an appellant’s allegation in general terms that his VEOA preference
      rights were violated was sufficient to raise a nonfrivolous allegation that an
      agency   violated   his   rights   under   a    statute   or   regulation    relating   to
      veterans’ preference).
¶18         However, to establish Board jurisdiction over a VEOA claim, an appellant
      must, among other things, show that he exhausted his administrative remedy with
      the Department of Labor (DOL).                 Graves v. Department of Veterans
      Affairs, 117 M.S.P.R. 491, ¶ 8 (2012).         In the present case, the appellant has
      failed to demonstrate that he exhausted his administrative remedy with DOL, and
      therefore, the Board lacks jurisdiction over his VEOA claim. 6              See id., ¶ 11.


      6
        Prior to issuing the initial decision, the administrative judge failed to notify the
      appellant of the jurisdictional elements of a VEOA claim, including the exhaustion
      requirement. IAF, Tab 38; see Burgess v. Merit Systems Protection Board, 758 F.2d
                                                                                           11

      Because the Board lacks jurisdiction over the VEOA claim, we find that the
      administrative judge erred in adjudicating the claim on the merits.                 See
      Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)
      (explaining that the Board must first resolve the threshold issue of jurisdiction
      before proceeding to the merits of an appeal); see also Becker v. Department of
      Veterans Affairs, 115 M.S.P.R. 409, ¶¶ 1, 4 (2010) (vacating an initial decision on
      the merits to dismiss for lack of jurisdiction under VEOA because jurisdiction is a
      threshold issue). Therefore, we vacate the administrative judge’s finding in that
      regard, and instead, we dismiss the claim for lack of jurisdiction.
      Remand is required to address the appellant’s potential affirmative defense
      under USERRA.
¶19         We find the appellant’s allegations below that the agency discriminated
      against him as a disabled veteran should have been construed as a potential
      affirmative defense to the furlough action under USERRA. IAF, Tab 37 at 11.
      USERRA claims are broadly and liberally construed, and the appellant need not
      invoke the USERRA statute itself for the Board to review a claim under
      USERRA. Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 10 n.6 (2009). If
      an appellant either explicitly or implicitly alleges USERRA as an affirmative
      defense, the administrative judge must inform him of his burden of proof and of
      his burden of going forward with the evidence, as well as of the type of evidence
      necessary to prove the defense.      Fox v. U.S. Postal Service, 88 M.S.P.R. 381,
      ¶¶ 10, 14 (2001); see Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010)


      641, 643‑44 (Fed. Cir. 1985) (finding that an appellant must receive explicit
      information on what is required to establish an appealable jurisdictional issue).
      However an administrative judge’s failure to provide an appellant with proper Burgess
      notice can be cured if the agency’s pleadings contain the notice that was lacking, or if
      the initial decision puts the appellant on notice of what he must do to establish
      jurisdiction, thus affording him the opportunity to meet his jurisdictional burden on
      review. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008). Here, we find
      that the agency’s pleading below and the initial decision cured the administrative
      judge’s failure to provide jurisdictional notice regarding the appellant’s VEOA claim.
      IAF, Tab 40 at 7; ID at 28.
                                                                                          12

      (finding that where an appellant alleges facts that reasonably raise an affirmative
      defense, the administrative judge must address the affirmative defense in any
      close-of-record order or prehearing conference summary and order).                 The
      administrative judge failed to do so here, and therefore, a remand is necessary. 7
      IAF, Tab 37; CAF, Tab 15. On remand, the administrative judge shall inform the
      appellant of his burdens of proof and of pursuing his potential affirmative defense
      under USERRA; allow for further development of the record regarding this
      affirmative defense as appropriate; and issue a new initial decision addressing the
      affirmative defense.

                                            ORDER
¶20         For the reasons discussed above, we affirm the administrative judge’s
      findings that the furlough promoted the efficiency of the service and that the
      appellant failed to prove his affirmative defenses of a violation of due process,
      harmful procedural error, and discrimination based on race and national origin.
      We vacate the administrative judge’s finding that the appellant failed to prove his
      claim that the agency violated VEOA, and instead dismiss the claim for lack of
      jurisdiction. We remand the case to the regional office for further adjudication of
      the appellant’s potential affirmative defense under USERRA in accordance with
      this Remand Order.




      FOR THE BOARD:                             ______________________________
                                                 William D. Spencer
                                                 Clerk of the Board
      Washington, D.C.




      7
        The agency’s pleadings and the initial decision also did not provide notice regarding
      the appellant’s potential USERRA affirmative defense. IAF, Tab 40; ID.
