                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEROY STINSON,                                  DOCKET NUMBER
                  Appellant,                         AT-0752-13-5137-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 26, 2015
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           Leroy Stinson, Cusseta, Georgia, pro se.

           Anne M. Norfolk, Fort Benning, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER
¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s furlough action.       For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE the initial decision’s
     determination that the agency proved by preponderant evidence that its action


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     promoted the efficiency of the service, AFFIRM all other findings in the initial
     decision, and REMAND the case to the regional office for further adjudication in
     accordance with this Remand Order.

                                       BACKGROUND
¶2           The appellant is a Maintenance Mechanic at the agency’s Fort Benning
     Martin Army Community Hospital. See Initial Appeal File (IAF), Tab 1 at 1. On
     May 28, 2013, the agency sent him a notice of proposed furlough, citing the
     budget cuts required by the Budget Control Act of 2011, as amended by the
     American Taxpayer Relief Act of 2012.           Id. at 17-18.    The notice proposed
     furloughing full-time employees, such as the appellant, up to 11 days. Id. at 18.
     On June 10, 2013, the agency issued a decision, upholding the proposed
     furlough. 2 Id. at 15-16.
¶3           The appellant appealed his furlough to the Board.            Id. at 1-5.    The
     administrative judge consolidated his appeal with a number of others that the
     judge deemed similarly situated. See CAF, Tab 1 at 1-2. After holding a hearing,
     the administrative judge upheld the furloughs.        CAF, Tab 10, Initial Decision
     (ID).    The appellant has filed a petition for review. 3 PFR File, Tab 1.          The
     agency has filed a response. PFR File, Tab 3.




     2
       The agency’s proposal and decision both authorized up to 11 furlough days, but the
     agency later determined that employees such as the appellant would only be subject to 6
     furlough days. See MSPB Docket No. AT-0752-14-0200-I-1, Consolidated Appeal File
     (CAF), Tab 2 at 9-10.
     3
       In part, the appellant’s petition appears to argue on behalf of all employees at Martin
     Army Community Hospital that were furloughed, even those who did not file a Board
     appeal. See Petition for Review (PFR) File, Tab 1 at 3-5, 7-8. However, we have
     considered his petition only to the extent that it presents arguments as to his own
     furlough. This decision will not adjudicate the furlough of any other employees at
     Martin Army Community Hospital.
                                                                                     3

     The administrative judge properly found that furloughs were a reasonable
     management solution to significant budget cuts.
¶4         Given the appellant’s pro se status, we have construed his petition for
     review as challenging the initial decision to the extent that it affirmed his
     furlough and found no evidence that he was treated disparately. See IAF, Tab 1
     at 2 (alleging that the agency treated employees disparately in regard to the
     furlough); see generally PFR File, Tab 1; Roche v. U.S. Postal Service, 828 F.2d
     1555, 1558 (Fed. Cir. 1987) (a pro se appellant’s pleading should be construed
     liberally).
¶5         The agency bore the burden of proving that the appellant’s furlough
     promoted the efficiency of the service.     See Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). An agency satisfies this standard in a
     furlough appeal 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.”      Id.   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. Id. Rather, it
     means that the agency is required to treat similar employees similarly and to
     justify any deviations with legitimate management reasons.           Id.   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 principles in making that determination. Id. The Board’s efficiency of the
     service determination does not encompass agency spending decisions per se,
     including spending on personnel matters, nor does it encompass an agency’s
     decision to allocate furlough days in a certain manner among employees who are
     not similarly situated. Id., ¶ 9.
¶6         Here, the appellant did not dispute below that furloughs were a reasonable
     management solution to significant budget cuts, and we decline to disturb the
     administrative judge’s well-reasoned finding that the agency met this burden. ID
                                                                                       4

     at 3-4.     Instead, the appellant alleged that the agency treated employees
     disparately. See IAF, Tab 1 at 2. As set forth more fully below in our discussion
     of the appellant’s motion to compel discovery, we remand this appeal for further
     adjudication on this issue.
     The administrative judge acted within his discretion by disallowing two of the
     appellant’s witnesses and excluding much of the evidence the appellant
     submitted.
¶7         The appellant argues that the administrative judge erred in denying his
     request to call the Director of Human Resources, S.R., and a Practical Nurse,
     D.L., as witnesses to the hearing.    See PFR File, Tab 1 at 2-3; see also IAF,
     Tab 10 at 2 (proposed witness list); CAF, Tab 6 at 5 (denying the appellant’s
     request to call S.R. and D.L.). In addition, he argues that the administrative judge
     erred in excluding much of the evidence he submitted. See PFR File, Tab 1 at 6;
     see also IAF, Tab 10 (the appellant’s submission of evidence); CAF, Tab 6 at 5-6
     (decision to exclude much of the appellant’s evidence as irrelevant or redundant).
     We disagree.
¶8         An administrative judge has broad discretion to regulate the course of the
     hearing and to exclude evidence and witnesses that have not been shown to be
     relevant,    material,   and   nonrepetitious.       Thomas     v.   U.S.    Postal
     Service, 116 M.S.P.R. 453, ¶ 4 (2011); Franco v. U.S. Postal Service, 27
     M.S.P.R. 322, 325 (1985); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of
     an initial decision on these grounds, the petitioning party must show on review
     that a relevant witness or evidence, which could have affected the outcome, was
     disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4.
¶9         In his proposed witness list, the appellant indicated that he wished to call
     S.R. because she was the point of contact for replies to the furlough proposal and
     she was the person in charge of maintaining the agency’s case file. IAF, Tab 10
     at 2. On review, the appellant lists several additional topics on which S.R. may
     have been able to provide testimony. PFR File, Tab 1 at 2-3 (listing topics as
                                                                                              5

      including due process concerns; the purported call back of some furloughed
      employees for 1 day; whether overtime was utilized in any departments to ease
      the financial hardship of the furlough; and whether any new personnel were
      furloughed).
¶10         Even if we were to consider all the topics the appellant has now identified,
      we are not persuaded that the testimony of S.R. was relevant, material, and
      nonrepetitious in light of her position as compared to those who were approved to
      testify.   According to the appellant, the office of S.R. prepared the furlough
      documents and served as a point of contact. IAF, Tab 10 at 2. By comparison,
      witnesses approved for the hearing included the deciding official for the
      furloughs, C.L., and another witness who the appellant described as responsible
      for the administration of the furloughs in a fair and consistent manner, C.A. 4 See
      id.; CAF, Tab 6 at 5 (approving three agency officials requested by the appellant
      to testify, including C.L. and C.A.).
¶11         As to proposed witness D.L., the appellant seems to suggest that she was a
      Nurse, similarly situated to several others who were exempted from the furlough.
      See IAF, Tab 10 at 2; see also PFR File, Tab 1 at 3. However, the appellant has
      provided no indication that D.L. was relevant to his own furlough. Instead, it
      appears that the appellant wished to call D.L. to present an argument that she was
      unfairly furloughed as compared to some of her colleagues. See IAF, Tab 10 at 2;
      see also PFR File, Tab 1 at 3; IAF, Tab 10, Subtab P (list of individuals exempt
      from furlough, including some Nurses).
¶12         Finally, as to the evidence the appellant wished to submit for the record but
      the administrative judge excluded, the appellant presented no substantive
      argument as to how it could have affected the outcome of his appeal. Instead, the


      4
        Although the appellant requested the latter as a witness, IAF, Tab 10 at 2, the
      administrative judge approved him as a witness, CAF, Tab 6 at 5, and he appeared at
      the hearing to testify, the appellant declined to call him when given the opportunity, see
      Hearing Compact Diskette (HCD).
                                                                                         6

      appellant merely asserted that the judge disallowed it without giving him the
      opportunity to explain its relevance.    PFR File, Tab 1 at 6. Examples of the
      excluded evidence include photos of signs outside the hospital where the
      appellant worked, IAF, Tab 10, Subtab A, the position description of a practical
      nurse, IAF, Tab 10, Subtab B, and an email about the possibility of winter
      weather that could impact commuters, IAF, Tab 10, Subtab C. The appellant’s
      petition failed to explain, and we are unable to discern, how such evidence could
      have any relevance to the agency’s furlough of the appellant, a Maintenance
      Mechanic. Moreover, he failed to demonstrate that any of the excluded evidence
      could have resulted in a different outcome below.
¶13        Based upon the above, we find that the appellant failed to demonstrate that
      the administrative judge exercised an abuse of discretion in disallowing S.R. and
      D.L. as witnesses and disallowing the majority of evidence he submitted. The
      appellant has not demonstrated that the witnesses or evidence was relevant,
      material, and nonrepetitious to his appeal.
      The administrative judge should have granted the appellant’s motion to compel as
      to discovery request no. 2.
¶14        The appellant asserts that the administrative judge erred in denying his
      motion to compel discovery as to requests nos. 1 & 2, pertaining to the hiring of
      new employees and overtime records. 5 See PFR File, Tab 1 at 5; see also IAF,
      Tab 2 at 3, 5 (discovery request and motion to compel), Tab 9 at 1 (administrative
      judge’s denial of motion to compel as to requests nos. 1 & 2).
¶15        Discovery is the process by which a party may obtain relevant information
      from another person or a party that the other person or party has not otherwise
      provided. Chandler, 120 M.S.P.R. 163, ¶ 10; 5 C.F.R. § 1201.72(a). The scope
      of discovery includes both relevant information and information that appears


      5
        The administrative judge also denied the appellant’s motion to compel as to several
      other discovery requests. See IAF, Tab 9 at 1. However, we are limiting our scope of
      review to those addressed in the appellant’s petition, requests nos. 1 & 2.
                                                                                        7

      reasonably calculated to lead to the discovery of admissible evidence.
      Chandler, 120 M.S.P.R. 163, ¶ 10.       What constitutes relevant information in
      discovery is to be liberally interpreted, and uncertainty should be resolved in
      favor of the movant absent any undue delay or hardship caused by such request.
      Id.   Discoverable information is not without boundaries, however, and the
      requesting party must ultimately show that the information sought is relevant or is
      likely to lead to relevant evidence. Id. The Board will not find reversible error in
      an administrative judge’s discovery rulings absent an abuse of discretion that
      prejudiced the appellant’s substantive rights.     White v. Government Printing
      Office, 108 M.S.P.R. 355, ¶ 9 (2008).
¶16         In Chandler, we found that information regarding the hiring of new
      employees following the announcement of a furlough pertained solely to the
      agency’s discretionary spending decisions, and that it was not discoverable in a
      furlough appeal.     Chandler, 120 M.S.P.R. 163, ¶¶ 12-14.           Therefore, the
      administrative judge in this case properly denied the appellant’s motion to compel
      discovery of the same with request no. 1. See IAF, Tab 9 at 1.
¶17         In Chandler, 120 M.S.P.R. 163, ¶ 12, the appellant sought “all records,
      discussion papers, documentation, e-mail, fax, post-it notes, etc.” related to
      employees paid overtime since the time the agency announced its intention to
      conduct a furlough. The Board disagreed with the administrative judge’s denial
      of this request, holding that “[a]lthough the agency’s alleged decision to award
      certain employees overtime pay may be characterized as a spending decision as
      well, we find that it might also be relevant to whether the agency applied the
      furlough uniformly and consistently.” Id., ¶¶ 13-14. The Board held that if the
      agency used overtime payments to relieve certain employees but not others of the
      financial consequences of the furlough, that may be sufficient to show that the
      furlough did not meet the efficiency of the service standard. Id., ¶ 14.
¶18         The motion to compel filed by the appellant, who is acting pro se, requested
      “the names, work area, and dates of all personnel that were allowed to perform
                                                                                           8

      work outside their normal work hours from the July through September 2013
      timeframe. Who granted the authority to perform this work and how [was] each
      individual compensated for this time?” IAF, Tab 2 at 3. We find that this request
      is narrower than, or at least as broad as, the request in Chandler. The appellant
      did not request “all records, discussion papers, documentation, e-mail, fax, post-it
      notes, etc.” related to employees paid overtime, as the appellant did in Chandler,
      but merely sought what amounts to a listing of the names, work areas, and dates
      of those who worked overtime, as well as who granted the overtime and how each
      individual was compensated.         Accordingly, consistent with Chandler, we
      VACATE the initial decision’s determination that the furlough action promoted
      the efficiency of the service because the agency applied its determination as to
      which employees to furlough in a fair and even manner, GRANT the motion to
      compel as to request no. 2, and REMAND for further proceedings because that
      discovery request sought relevant information under 5 C.F.R. § 1201.72(a). 6
      The Board will not address arguments the appellant made for the first time on
      review.
¶19         As we understand his petition, the appellant presents a number of new
      arguments that he failed to raise in his initial appeal. These arguments seem to
      include assertions that the agency may have committed harmful procedural error
      by failing to provide furloughed employees with the identity of those who were
      exempt from the furlough in the furlough notice, PFR File, Tab 1 at 3-4; the
      agency may have improperly utilized a contractor to perform work the appellant
      normally performs during one of the days on which he was furloughed, id. at 6;
      and the agency may have improperly recalled 22 individuals from their scheduled
      furloughs for 1 day, id. at 3, 5.


      6
        Although the administrative judge denied the appellant’s motion to compel request
      no. 2, he did permit the appellant to elicit testimony during the hearing as to whether
      any individuals were permitted to work overtime during the furlough. See HCD
      (testimony of C.L.).
                                                                                               9

¶20         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.             Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Below, the appellant
      failed to speak up when the administrative judge asked if any appellant was
      asserting harmful error.      See CAF, Tab 6 at 5 (prehearing conference notes
      indicating that no appellant asserted any affirmative defense, including harmful
      error, in response to the administrative judge’s inquiry).          In addition, despite
      having the opportunity to elicit testimony from witnesses about the agency’s
      purported use of a contractor to perform his work, he failed to do so. See HCD.
      Similarly, the appellant had the opportunity to elicit testimony about the 22
      individuals purportedly recalled from the furlough for 1 day, from either C.L. or
      C.A., but he did not. 7 See id. Finally, the appellant failed to present arguments
      on any of these issues, either in his initial appeal form, a prehearing submission,
      or a closing brief. 8



      7
        During cross-examination, the appellant indicated that C.L. testified as to exempting
      152 employees from the furlough, while the agency’s list of exempted employees
      included 174 names. See HCD; see also IAF, Tab 10, Subtab P. However, C.L.
      responded by indicating that he had no information about the difference, and the
      appellant failed to elicit further testimony on the issue, testify himself about the issue,
      or present written argument about the issue. See HCD. The administrative judge’s
      decision acknowledged the difference between the numbers, but found it immaterial.
      ID at 5 n.6. It seems likely that the appellant’s argument that 22 individuals may have
      been improperly recalled is somehow related to the difference between the
      152 employees exempted according to the deciding official and the 174 employees
      exempted according to the agency’s documentation. However, while the appellant
      identified the discrepancy when eliciting testimony from the deciding official, he
      presented no argument about how that discrepancy of 22 was relevant, if at all.
      8
        At the hearing, the administrative judge concluded by leaving the record open until
      Friday, August 22, 2014, for closing briefs. HCD. The designated representative for
      all appellants other than the appellant currently before us submitted a closing brief, as
      did the agency. CAF, Tabs 8-9. In his petition, the appellant suggests that he did not
      file a closing brief because he was waiting for a written transcript of the hearing. PFR
      File, Tab 1 at 7. However, we find the administrative judge’s instructions clear and
                                                                                       10

                                           ORDER
¶21        Accordingly, we REMAND this appeal to the regional office for further
      adjudication consistent with this Remand Order.




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




      unambiguous, without any indication that a transcript would be provided, or that the
      parties should wait on any such transcript before submitting their closing briefs.
