                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                        2016 MSPB 2

                             Docket No. DC-0752-16-0278-I-1
                           Naval Station Norfolk – Hearing 2,
                                        Appellants,
                                              v.
                                 Department of the Navy,
                                          Agency.
                                      January 13, 2016

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellants.

           Julia Alexandra Fitzmaurice and Brent Fraim, Norfolk, Virginia, for the
             agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellants have petitioned for review of initial decisions that affirmed
     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). 1      For the following reasons, we
     GRANT the petitions for review, FIND that the appellants were subject to, and
     not excepted from, the furlough, AFFIRM the initial decisions’ determinations

     1
       The appeals that are included in this consolidation are Sharon Gaston v. Department
     of the Navy, MSPB Docket No. DC-0752-14-0532-I-1, and Frederick W. Greenfield v.
     Department of the Navy, MSPB Docket No. DC-0752-14-0533-I-1.
                                                                                          2

     that the furlough promoted the efficiency of the service, VACATE the initial
     decisions’ findings on the appellants’ discrimination claims, and REMAND the
     appeals for further adjudication consistent with this Opinion and Order.

                                       BACKGROUND
¶2         The agency furloughed the appellants for 6 days from their GS-0083-8
     Detective positions at the Naval Station Norfolk (NSN).                Greenfield v.
     Department of the Navy, MSPB Docket No. DC-0752-14-0533-I-1, Initial Appeal
     File (IAF), Tab 6 at 7, 24, 26, 28, 30-32. 2 The agency informed the appellants
     that the furlough was necessitated by the extraordinary and serious budgetary
     challenges facing the Department of Defense (DOD) for the remainder of fiscal
     year 2013, the most serious of which was the sequester that began on March 1,
     2013, i.e., across-the-board reductions to budgetary resources for the Federal
     Government. Id. at 38. The agency also informed the appellants that, if other
     employees in their competitive level (i.e., positions at the same grade level and
     classification series, the duties of which were generally interchangeable) were not
     being furloughed, it was because those employees, among other things, were in a
     position “whose duties have been determined to be of crucial importance to this
     agency’s mission and responsibilities and cannot be curtailed.” Id.
¶3         On appeal to the Board, the appellants asserted that the agency improperly
     subjected them to a furlough and discriminated against them based on their race
     (Black). 3 IAF, Tab 1 at 4, Tab 8 at 6, 22. In an equal employment opportunity
     complaint, for example, the appellants asserted that the agency did not furlough
     the GS-0083 Detectives at other installations in the Mid-Atlantic Region (Little


     2
       All of the citations to the record are to the file of the appellant Greenfield unless
     otherwise specified.
     3
      The appellant Gaston also alleged that the action was based on sex discrimination.
     Gaston v. Department of the Navy, MSPB Docket No. DC-0752-14-0532-I-1, Initial
     Appeal File (Gaston IAF), Tab 13.
                                                                                         3

     Creek, Oceana, and Norfolk Naval Shipyard), all of whom were White or
     Hispanic. IAF, Tab 8 at 7.
¶4         After conducting a single hearing for both appeals, the administrative judge
     affirmed the furlough actions in two separate initial decisions.      IAF, Tab 25,
     Initial Decision (ID) at 21; Gaston v. Department of the Navy, MSPB Docket No.
     DC-0752-14-0532-I-1, Initial Appeal File (Gaston IAF), Tab 34, Initial Decision
     (Gaston ID). The administrative judge found that the agency established cause
     for the furlough—a shortage of funds—and that the furlough promoted the
     efficiency of the service. ID at 5. The administrative judge further found that the
     appellants did not prove that the agency treated them differently from similarly
     situated employees. ID at 16. In this regard, the administrative judge held that
     the police officers and detectives at Little Creek, Oceana, and Norfolk Naval
     Shipyard were not similarly situated to the appellants because they were part of
     different organizational units and different competitive areas for purposes of the
     furlough. ID at 17. Likewise, the administrative judge found that the appellants
     were not similarly situated to the classification series 0083 Police Officers at the
     NSN who were not furloughed because they were not, like the police officers,
     first responders charged with direct responsibility for protecting the safety of life
     and property. ID at 18-19. The administrative judge noted that, although the
     appellants performed first-responder-like duties on occasion, their jobs as
     detectives were uniquely different from the position of police officer because
     only detectives process crime scenes in preparation for investigations. ID at 18.
¶5         The administrative judge also determined that the appellants did not prove
     that the decision to furlough them was motivated by race or sex. ID at 17; Gaston
     ID at 20. The administrative judge held that, although the NSN Security Officer,
     who the administrative judge found was also the proposing official, used
     “offensive, despicable, and racist language” when referring to various employees
     of color within the security department, the evidence did not establish that the
     proposing official influenced the deciding official’s decision not to except the
                                                                                               4

     appellants from the furlough. ID at 13, 17-18, 20. The administrative judge
     found that the deciding official’s explanation that race played no role in his
     decision was credible, particularly given his undisputed testimony that he did not
     know the race of the appellants before deciding to furlough them. ID at 19. In
     addition, given that the deciding official furloughed 3,200 individuals, the
     administrative judge found it inherently improbable that his decision not to
     except the appellants from the furlough was personal to them. Id.
¶6          The administrative judge concluded that the agency articulated legitimate
     management reasons for its decision to except NSN police officers, but not the
     appellants, and that there was no evidence that the agency manipulated the
     exceptions to target the appellants for personal reasons. ID at 20. Thus, the
     administrative judge held that the agency proved by preponderant evidence that it
     furloughed its employees in a fair and even manner. Id.

                                            ANALYSIS
     The agency proved by preponderant evidence that the appellants met the criteria
     for being subject to, and not excepted from, the furlough.
¶7          The appellants contend on review that, as detectives, they met the
     categorical   exception     from    the   furlough    for   employees      having    direct
     responsibility to protect the safety of life and property. Greenfield v. Department
     of the Navy, MSPB Docket No. DC-0752-14-0533-I-1, Petition for Review (PFR)
     File, Tab 1 at 4, 10, 14-15. 4 In this regard, the appellants assert that, although the
     agency apparently decided not to except them from the furlough because
     detectives are not “first responders,” the actual exception criteria was “direct
     responsibility to protect the safety of life and property,” not “first responders.”
     Id. at 11. They also contend that detectives are more likely to respond to the

     4
       The appellants’ representative filed a petition for review on behalf of each appellant.
     The petitions are largely identical; thus, unless noted otherwise, citations to the petition
     for review are to the petition filed in the appellant Greenfield’s case.
                                                                                          5

     safety of life and property because criminals have fled the scene by the time
     police officers respond to most crime scenes, detectives serve as first responders
     when they are patrolling or working undercover, or during stakeouts, and several
     witnesses testified, without competent rebuttal, that detectives are first
     responders. Id. at 11-12.
¶8         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.”    Before the Board reaches the issue of whether an action
     promotes the efficiency of the service, an agency must first establish that there is
     “cause” under 5 U.S.C. § 7513(a). Dye v. Department of the Army, 121 M.S.P.R.
     142, ¶ 9 (2014).    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. Id. 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, ¶ 10.
¶9         In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
     DOD 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.”         Naval Station
     Norfolk – Hearing v. Department of the Navy, MSPB Docket No. DC-0752-14-
     0669-I-1, Consolidation Appeal File (CAF), Tab 2 5; Department of the Navy
     Administrative Record for FY 2013 Furlough Appeals (AR), Part 1 at 105, 108,
     available    at    http://www.mspb.gov/furloughappeals/navy2013.htm.               The


     5
       These appeals were previous part of a separate consolidation, Naval Station Norfolk –
     Hearing v. Department of the Navy, MSPB Docket No. DC-0752-14-0669-I-1; however,
     these appeals were severed from that consolidation prior to hearing and the issuance of
     the initial decisions.
                                                                                         6

      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.” AR, Part 1 at 109. In a
      declaration made under penalty of perjury, the Principal Deputy Assistant
      Secretary of the Navy (Manpower and Reserve Affairs) indicated that the
      exception was intended to be limited in application, and that Budget Submitting
      Offices were “instructed to identify positions where 80% manning would create
      unacceptable risk,” and this “focused on 24/7 shifts and emergency response
      requirements.” Id. at 12, 14. Planning guidance issued on February 21, 2013, by
      the Under Secretary of the Navy indicated that one of the exceptions to the
      furlough would be for “[c]ivilians directly responsible for safety of life or
      property—only to the extent needed to prevent unacceptable risk or catastrophic
      gaps in the safety and protection of life or property.” IAF, Tab 9 at 68-69.
¶10         The Board addressed this categorical furlough exception in Lopez v.
      Department of the Navy, 121 M.S.P.R. 647, ¶ 11 (2014), finding that it provided
      an exception from the furlough for those employees who occupied positions that
      generally were necessary to protect life and property, but only to the extent that it
      was necessary for such employees to protect life and property. The Board found
      that this exception did not necessarily create a blanket exception for all
      employees occupying such positions regardless of whether their exception was
      necessary to protect life and property. Id. Thus, this exception contemplated the
      possibility that employees occupying positions that generally are necessary to
      protect life and property could be excepted for only a portion of a planned
      furlough, or that some employees occupying positions that generally are
      necessary to protect life and property could be excepted while others would not
      be excepted. Id.
                                                                                         7

¶11         Here, the NSN Security Officer indicated in an affidavit that he interpreted
      the guidance to mean that uniformed police officers who stand at the gate were
      excepted, so he decided not to recommend the exception of such employees as
      canine handlers, administrative staff, “pass/ID” officers, training staff, and
      detectives. IAF, Tab 8 at 102. He averred that, if a civilian was not directly
      responsible for the safety of life or property, an exception for that civilian had to
      be justified. Id. at 103. The Security Officer further indicated that detectives do
      not manage traffic or contribute to counterterrorism efforts, but instead manage a
      case load, which they work at their own pace; thus, if a detective did not show up
      to work, public safety could be kept intact. Id. at 105-06. By contrast, if there
      were not enough police officers, the base would have to close because the public
      would be at risk.   Id.   Similarly, the Security Officer testified that, based on
      guidance from the Under Secretary of the Navy, he and several other officials,
      after considering where they could take acceptable risks to protect the
      installation, determined that it would not be an acceptable risk to furlough
      uniformed police officers who are first responders.         IAF, Tab 24, Hearing
      Compact Disc (HCD) 1. He testified that they would, however, subject to the
      furlough administrative office staff, police trainers, “pass/ID” personnel, canine
      handlers, commercial vehicle inspection teams, and detectives. Id. He testified
      that a detective was not a first responder, that there were already certain days and
      nights when there would be no detectives on a shift, and that detectives would
      typically respond to a crime scene once it was safe to conduct an investigation.
      Id.
¶12         The NSN Commanding Officer, who was also the deciding official,
      indicated in an affidavit that the exception criterion at issue at the NSN was for
      those who protect the safety of life or property “to the extent needed,” and that
      this meant that only “gun toting” police officers met that criterion. IAF, Tab 8
      at 114-15.   Thus, he understood that only classification series 0083 Police
      Officers and Supervisors met the criterion for exception from the furlough. Id.
                                                                                          8

      at 116.    He also indicated that the only consideration in deciding whether to
      furlough an employee was “an employee’s job title/position description and their
      ability to fully perform their duties.” Id. at 119. The NSN Commanding Officer
      similarly testified that he interpreted the exception to apply to his first
      responders, which would be “gun toting” police officers, fire, and “EMS” 6
      personnel. HCD 1. He testified that these individuals were first responders to
      safety or security emergencies who would arrive on the scene to protect the safety
      of life or property, and that he did not consider detectives to be first responders
      because they would not arrive first on the scene to protect life and property, but
      would arrive at a later time to investigate.        Id.      Thus, individuals met the
      exception at the NSN if they were first responders, to the extent they were needed
      to protect the safety of life and property. Id. The NSN Commanding Officer also
      testified that, although commanding officers at other bases in the region were
      operating under the same furlough guidelines, each base had its unique size,
      mission, and staff, such that other bases could have interpreted the guidelines
      differently. Id. Although he had discretion under those guidelines, he did not
      except the appellants from the furlough because he determined that the appellants
      were not first responders. Id.
¶13            The Deputy Regional Security Director indicated in an affidavit that the
      exception applied to civilians responsible for the safety of life or property, only
      to the extent needed to prevent unacceptable risk or catastrophic gaps, i.e., mostly
      police officers and firefighters. IAF, Tab 8 at 122, 126. Further, the Commander
      of the Navy Installation Command testified that detectives were not considered to
      be involved directly in the protection of life and property according to the NSN
      Installation Commander, that they are not first responders, and that this
      interpretation was based on which personnel were needed to protect the


      6
          EMS is an abbreviation for Emergency Medical Services.
                                                                                        9

      installation for the 1 day per week that the agency was planning to furlough its
      civilian employees. HCD 1.
¶14         The administrative judge appropriately recognized that detectives, on
      occasion, perform first-responder-like duties, ID at 18, and there appears to be no
      dispute that detectives perform stakeouts, do undercover work, arrest suspects,
      testify in court, secure crime scenes, and take evidence from suspects and
      witnesses, HCD 1 (testimony of the Commander, Navy Installation Command, the
      NSN     Commanding       Officer,   and    the    NSN     Precinct    Commander);
      HCD 2 (testimony of the NSN Deputy Precinct Commander and the appellant
      Greenfield).    These duties may be viewed as having some relation to the
      protection of life and property. Nevertheless, based on the evidence set forth
      above and the Board’s decision in Lopez, we find that the exception applied to
      those employees necessary to protect the safety of life and property, and only “to
      the extent necessary” to protect life and property.     The exception focused on
      round-the-clock emergency response requirements, and the agency sought to
      except from the furlough only those employees whose absence would present an
      unacceptable risk to the protection of life and property, which the NSN
      installation determined did not include detectives.          Although a position
      description indicates that police officers are first responders, IAF, Tab 9 at 51,
      the position description for detectives does not include such language,
      id. at 30-37.   The exception also provided installation commanders with the
      authority to apply the exception in such a way as to meet the needs of their
      particular installation. Thus, we find that the agency has proven by preponderant
      evidence that the appellants, as detectives, were subject to, and did not meet the
      criteria for an exception to, the furlough. We thus find that, even assuming that
      the detective position itself generally were to be considered a first responder
      position necessary to protect the safety of life and property, this did not create a
      blanket furlough exception for that position, and the agency has established that
                                                                                        10

      detectives were not necessary to protect the safety of life and property at the NSN
      at the time of the furloughs in these cases. See Lopez, 121 M.S.P.R. 647, ¶ 11.
      The agency proved by preponderant evidence that the furlough promoted the
      efficiency of the service.
¶15         The appellants assert that the agency did not conduct the furlough in a fair
      and even manner because it furloughed NSN detectives but did not furlough NSN
      police officers who were on light duty, limited duty, or in a disciplinary status,
      not eligible to carry a weapon or perform police work, and assigned to duties
      such as placing cones for traffic control; thus, they assert that these police
      officers did not meet the exception criteria, yet were excepted from the furlough.
      PFR File, Tab 1 at 4, 9-14.       In addition, the appellants contend that other
      detectives within the same competitive area at different installations were not
      furloughed, even though they were covered by the same collective bargaining
      agreement, fell under the same regional security director, and answered to the
      same furlough guidance from the Commander of the Navy Region, Mid-Atlantic.
      Id. at 13. The appellants assert that a human resources specialist testified at the
      hearing that all detectives within the local commuting area for all seven
      Department of the Navy military installations would fall under a single
      competitive area. Id. at 13-14. The appellants contend that the administrative
      judge rejected this testimony and instead used organizational units as the
      competitive areas in question. Id. at 14.
¶16         The Board has held that, in light of the basic similarities between
      reductions in force (RIF) and adverse action furloughs, RIF principles are
      instructive in determining the scope of the Board’s review of adverse action
      furloughs and what it means for a furlough of 30 days or less to be taken for the
      efficiency of the service. Chandler v. Department of the Treasury, 120 M.S.P.R.
      163, ¶ 7 (2013). Thus, an agency satisfies the efficiency of the service standard
      under 5 U.S.C. § 7513(a) in a furlough appeal by showing, in general, that the
      furlough was a reasonable management solution to the financial restrictions
                                                                                     11

      placed on it and that the agency applied its determination as to which employees
      to furlough in a “fair and even manner.” Id., ¶ 8. A “fair and even manner”
      means that the agency applied the furlough uniformly and consistently, just as it
      is required to apply a RIF. Id. It also means that the agency is required to treat
      similar employees similarly and to justify any deviations with legitimate
      management reasons. Id.
¶17         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
      RIF principles in making that determination, including RIF competitive level
      principles. Id.; see Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶ 6
      (2014); 5 C.F.R. § 752.404(b)(2).      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 which are in the same
      grade (or occupational level) and classification series, and which 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,
      121 M.S.P.R. 417, ¶ 8.       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).   Generally, a competitive area must be defined
      solely in terms of the agency’s organizational unit(s) and geographical location.
      Weathers, 121 M.S.P.R. 417, ¶ 8. The minimum competitive area is a subdivision
      of the agency under separate administration within the local commuting area. Id.
                                                                                        12

¶18         We first find that the appellants were not similarly situated to the police
      officers at the NSN. In addition to the reasons set forth by the administrative
      judge as to why police officers and detectives were not similarly situated,
      ID at 16-19, the police officers at the NSN who were excepted from the furlough
      were in a different competitive level from the appellants because they occupied
      positions at different grade levels than the appellants, even if the positions were
      in the same classification series as detectives, IAF, Tab 8 at 82-85, Tab 10
      at 19-21; Burner v. Tennessee Valley Authority, 20 M.S.P.R. 167, 169-71 (1984).
      Most police officers at the NSN occupied GS-4 or GS-5 positions, compared with
      the appellants’ GS-8 detective positions. E.g., IAF, Tab 8 at 82, Tab 10 at 19-20.
¶19         We note that several supervisory police officers (J.L., D.P., and M.S.) who
      were excepted from the furlough appear to have occupied GS-0083-8 positions
      like the appellants. IAF, Tab 8 at 85, Tab 10 at 19-20. The appellants do not
      allege that they were similarly situated to these supervisors. PFR File, Tab 1 at 4,
      6-7, 9, 11-13. Nevertheless, we find that the supervisory police officer position
      was not similarly situated to the detective position. For positions to occupy the
      same competitive level, anyone who qualifies for one position must be able to
      qualify for all. Disney v. Department of the Navy, 67 M.S.P.R. 563, 568 (1995).
      The nature of the positions, and not the qualifications of their incumbents,
      determines whether competitive levels are properly established.         Coleman v.
      Department of Education, 21 M.S.P.R. 574, 581 (1984). The record does not
      include a supervisory police officer position description, but it does include a
      police officer position description, which likely provides some indication of the
      duties and responsibilities to be performed and/or supervised by a supervisory
      police officer. The major duties and responsibilities of a police officer include
      providing   “Anti-Terrorism/Force     Protection,”   physical   security,   and   law
      enforcement services, such as gate sentry, pier sentry, counter-surveillance
      duties, patrol of assigned areas, and operating specialized equipment designed to
      deter, detect, and defend against potential security breaches and terrorist activity.
                                                                                         13

      IAF, Tab 9 at 39-45. A police officer is a “First Responder,” and the position
      requires qualification with service weapons and passing an annual physical
      fitness test. Id. at 51.
¶20          By contrast, the major duties and responsibilities of the detective position
      are to conduct investigations of violations of laws, regulations, offenses, and
      crimes by maintaining surveillance over the scene or suspects, interrogating
      suspects and witnesses, searching the scene for physical evidence, taking and
      lifting fingerprints, comparing photographs of suspects with photographs on file,
      obtaining statements from witnesses, apprehending suspects, preparing reports,
      and testifying in court. Id. at 30-36. In this job, the detective must meet weapons
      qualifications and, from time to time, use force when making arrests or dealing
      with uncooperative personnel. Id. at 37. Testimony at the hearing from a former
      NSN Precinct Commander indicated that detectives received enhanced training on
      interviewing and fingerprinting and that police officers would not be as effective
      without the detectives in processing crime scenes and gathering evidence.
      HCD 1. Similarly, a lead watch commander testified that the duties of detectives
      are expanded because they process crime scenes, issue warrants, and interview
      and interrogate suspects, witnesses, and victims.          HCD 2.     The appellant
      Greenfield testified that he received training that police officers do not receive,
      including in such areas as writing analysis, i.e., determining whether individuals
      were being truthful in their written statements, processing crime scenes, and
      footprint analysis. Id. He testified that the most a police officer can do is take a
      report, while a detective interviews individuals and develops an investigation that
      can lead to an arrest. Id. According to the position description, there are no
      regular supervisory duties or responsibilities, nor are detectives “First
      Responders.” IAF, Tab 9 at 30-37.
¶21          The inclusion of positions in the same classification series does not require
      an agency to place them in the same competitive level.         George v. Interstate
      Commerce      Commission,    20   M.S.P.R.   479,   482,    aff’d,   758   F.2d   667
                                                                                       14

      (Fed. Cir. 1984) (Table). We find that the positions of supervisory police officer
      and detective are not similar enough in duties, qualification requirements, pay
      schedules, and working conditions so that an agency may reassign the incumbent
      of one position to the other position without undue interruption.       Thus, they
      belong in separate competitive levels and are not similarly situated for purposes
      of an adverse action furlough.     See Estrin v. Social Security Administration,
      24 M.S.P.R. 303, 306-07 (1984) (excluding from the appellant’s competitive level
      positions that differed significantly from the appellant’s position in the necessary
      skills, duties, and knowledge, including supervisory responsibility); cf. Conway v.
      Department of the Navy, 71 M.S.P.R. 502, 508 (1996) (noting that an agency is
      permitted to establish separate competitive levels for positions with the same
      grade and title to take into account special qualifications or duties required of
      some incumbents).
¶22         Moreover, we agree with the administrative judge that the detectives
      located at other installations are not similarly situated to the appellants.
      Although they may have occupied the same positions at the same grade level, the
      administrative judge correctly found that they were not similarly situated to the
      appellants because they worked in different organizational units under separate
      administrations. ID at 17; see Rodgers v. Department of the Navy, 122 M.S.P.R.
      559, ¶¶ 2, 15 (2015) (holding that an Attorney Advisor at the Navy Munitions
      Command in Yorktown, Virginia, who was furloughed, was not similarly situated
      to attorneys in the same classification series assigned to the Norfolk Naval
      Shipyard in Portsmouth, Virginia, for purposes of a furlough, even if they
      performed similar duties, because the shipyard attorneys worked in a different
      subdivision of the agency under separate administration, and thus were not in the
      appellant’s competitive area); Weathers, 121 M.S.P.R. 417, ¶ 9 (finding that the
      agency was permitted to treat different organizational units as separate
      competitive areas and treat employees from those competitive areas differently
      because they were not similarly situated); see also Bashein v. United States,
                                                                                                   15

      279 F.2d 255, 257-58 (Ct. Cl. 1960) (finding separate competitive areas for RIF
      purposes when the New York Naval Shipyard and a Naval Supply Depot were,
      despite being “close neighbors,” under separate commands with separate
      retention registers).
¶23           Although a human resources specialist familiar with RIFs testified that, for
      RIF purposes, detectives at the NSN were in the same competitive area as
      detectives at the Oceana, Little Creek, and Norfolk Naval Shipyard installations,
      she also testified that this definition of competitive area would be used by the
      agency only in the case of a RIF or a furlough that lasted for more than 22 days.
      HCD 2. A different human resources specialist who was involved in the 2013
      furlough testified that the competitive area for detectives at the NSN during the
      furlough was the fence line of the installation for which the commanding officer
      had responsibility, and that each commanding officer had the authority to make
      furlough decisions based on the needs of that installation. Id. This testimony is
      consistent with the uncontradicted testimony and affidavits of numerous agency
      officials   that   the        decisions    on      exceptions      to   the   furlough     were
      installation-specific, given that each base had different requirements and a unique
      size,   mission,   and        staff   composition,    and      therefore   each   installation’s
      commanding officer was given the flexibility to make different decisions on
      whether furloughing detectives would have led to an unacceptable degree of risk.
      HCD 1; see IAF, Tab 8 at 100-01, 107, 114, 122, 126-27. In sum, we agree with
      the administrative judge that the detectives located at other installations were not
      similarly   situated     to     the   appellants     because     they   worked    in   different
      organizational units under separate administrations.
¶24           We thus find that the actions promoted the efficiency of the service
      because the furlough was a reasonable management solution to the financial
      restriction placed on the agency, and the agency treated similar employees
      similarly and applied the furlough uniformly and consistently.
                                                                                      16

      We remand the appellants’ discrimination claims for further adjudication.
¶25         The appellants contend on review that the agency discriminated against
      them based on race because it furloughed Black, but not White, detectives within
      the same competitive area for RIF purposes. PFR File, Tab 1 at 4-5, 10, 15-17;
      Gaston v. Department of the Navy, MSPB Docket No. DC-0752-14-0532-I-1,
      Petition for Review File (Gaston PFR), Tab 1 at 15-17. The appellants assert that
      all Black detectives within the Mid-Atlantic Region were furloughed, while all
      White detectives were not furloughed. PFR File, Tab 1 at 16. They contend that
      they were similarly situated to the White detectives at other installations because
      they all performed the same duties (although they claim the Black detectives at
      the NSN had a greater case load), fell under the same position description and
      collective bargaining agreement, fell under the same regional security director,
      and fell within the same competitive area.      Id.   They further assert that all
      detectives within the Mid-Atlantic Region were evaluated under the same DOD
      exception—direct responsibility to protect the safety of life and property—and
      that the agency’s only explanation for the difference in treatment was that the
      NSN Security Officer did not interpret the exception as did the responsible
      officials at the other installations. Id.
¶26         The appellants also contend that, although the administrative judge found
      no evidence that the Security Officer influenced the NSN Commanding Officer,
      who was the deciding official, the administrative judge improperly failed to apply
      the Board-recognized “cat’s paw” theory under which a management official,
      acting because of an improper animus, can influence an agency official who is
      unaware of the improper animus when implementing a personnel action.            Id.
      at 16-17. The appellants assert that the Security Officer, who made several racist
      statements, influenced the ultimate decision to furlough the appellants because he
      decided to change the status of the detectives at the NSN from excepted to
      nonexcepted. Id. at 17.
                                                                                       17

¶27         In addressing the appellants’ discrimination claims, the administrative
      judge applied the then-applicable Board case law holding that, once an appellant
      establishes a prima facie case of discrimination, the burden shifts to the agency to
      articulate a legitimate nondiscriminatory reason for its action; once the agency
      has articulated a legitimate nondiscriminatory reason for its action, the burden
      shifts back to the appellant to show that the agency’s proffered explanation
      constitutes a pretext for discrimination. ID at 6-7, 17-20; McDonnell Douglas
      Corp. v. Green, 411 U.S. 792, 802-04 (1973). After the issuance of the initial
      decisions, however, the Board issued its decision in Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 46 (2015), which clarified the evidentiary standards
      and burdens of proof under which the Board analyzes discrimination claims and
      held that the summary judgment standards for title VII cases, which incorporate
      the burden-shifting framework of McDonnell Douglas, do not apply to Board
      appeals.
¶28         The Board held in Savage that, when an appellant asserts an affirmative
      defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, 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. 122 M.S.P.R. 612, ¶ 51. Such a showing is sufficient to establish that the
      agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel
      practice under 5 U.S.C. § 2302(b)(1).      Savage, 122 M.S.P.R. 612, ¶ 51.       In
      making an initial showing, an appellant may rely on direct evidence or any of the
      three types of circumstantial evidence described in Troupe v. May Department
      Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994), either alone or in
      combination.     Savage, 122 M.S.P.R. 612, ¶ 51.           Those three types of
      circumstantial evidence are (1) a “convincing mosaic” of discrimination, i.e.,
      suspicious timing, ambiguous oral or written statements, behavior toward or
      comments directed at other employees in the protected group at issue, and “other
      bits and pieces from which an inference of discriminatory intent might be drawn,”
                                                                                           18

      (2) comparator evidence, and (3) evidence that the agency’s stated reason for its
      action is unworthy of belief, such that it is a mere pretext for discrimination.
      Savage, 122 M.S.P.R. 612, ¶ 42 (quoting Troupe, 20 F.3d at 736-37).              If the
      appellant meets her 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 discriminatory or retaliatory motive. Id., ¶ 51. 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.
¶29         Although the standard applied by the administrative judge may have been
      proper at the time of the initial decision, the Board will apply the law in effect
      when a petition for review is pending before the Board, which in this case
      includes the decision in Savage. See, e.g., Doran v. Department of the Treasury,
      115 M.S.P.R. 604, ¶ 10 (2011). Here, the appellants were not placed on notice of
      the evidentiary standards and burdens of proof for proving their discrimination
      claims as set forth in Savage.        Gaston IAF, Tab 7 at 2-4; see Milner v.
      Department of Justice, 77 M.S.P.R. 37, 46 (1997) (finding that an appellant did
      not receive a fair and just adjudication of an affirmative defense when there was
      no indication that the administrative judge apprised him of the applicable burdens
      of proof or of the types of evidence required to meet his burden).
¶30         In addition, the administrative judge held that, although the Security
      Officer 7 used certain “offensive, despicable, and racist language,” there was
      insufficient evidence to establish that he influenced the deciding official.


      7
        Although the administrative judge found that the Security Officer was the proposing
      official, ID at 9, 18, the proposal notice indicates that the proposing official was a
      different individual and that requests to arrange for an oral reply or to review
      supporting materials could be made to the Security Officer, e.g., IAF, Tab 6 at 38-40.
      On remand, the administrative judge shall clarify the nature of the role of the Security
      Officer as it related to the furlough of the appellants in these cases.
                                                                                     19

ID at 18.      The Board has held, however, that an individual’s role in the
decision-making process that leads to an adverse action cannot be ignored in
considering a claim of discrimination and may taint the process. See Jones v.
Department of the Army, 75 M.S.P.R. 115, 119-21 (1997); Johnson v. Defense
Logistics Agency, 61 M.S.P.R. 601, 608 (1994).            Moreover, in determining
whether the appellants were similarly situated to the detectives outside their
protected class who were not furloughed, the administrative judge should
consider whether the Board’s decision in Deas v. Department of Transportation,
108 M.S.P.R. 637 (2008), applies in this case. 8 In Deas, 108 M.S.P.R. 637, ¶ 21,
the Board held that, although comparators generally must be in the same work
unit as the appellant in order to be considered similarly situated for purposes of a
discrimination claim, employees outside an appellant’s work unit may be
similarly situated when the evidence establishes that a central office is
responsible for the review and coordination of adverse actions against employees
of different work units and the officials who execute the notices do not exercise a
sufficient degree of autonomy in determining the actions to be taken against the
employees. 9


8
  In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 9-10 (2014), the Board
overruled decisions in which it applied the jurisdictional framework for “constructive”
suspensions to cases involving the placement of an employee on enforced leave for
more than 14 days, finding instead that those cases constitute appealable suspensions
within the Board’s jurisdiction. The Board in Deas, 108 M.S.P.R. 637, ¶ 12, had cited
to several cases for the principle that an agency’s placement of an employee on
enforced leave is a “constructive” suspension. The principle for which we cite to Deas
in this Opinion and Order has not, however, been overruled.
9
  In a declaration made under penalty of perjury, the deciding official averred that all
positions at the NSN meeting the protection of life and property exception were
identified and submitted through the Commander, Navy Region Mid-Atlantic, and the
Commander, Navy Installations Command, and approved by the Assistant Secretary of
the Navy (Manpower and Reserve Affairs) via the Director, Office of Civilian Human
Resources. CAF, Tab 5 at 6. He further averred that, while the exceptions based on the
protection of life and property were submitted through higher level command, he made
an independent assessment of the security needs of the NSN and determined which
                                                                                              20

¶31            Under these circumstances, and because adjudicating these discrimination
      claims may involve resolving conflicting evidence and credibility issues that
      could depend upon the demeanor of witnesses, it is appropriate to remand these
      cases for further adjudication.       See Durr v. Department of Veterans Affairs,
      119 M.S.P.R. 195, ¶ 15 (2013); Garrison v. Department of the Navy, 88 M.S.P.R.
      389, ¶ 10 (2001); see also Farquhar v. Department of the Air Force, 82 M.S.P.R.
      454, ¶ ¶ 8, 13 (1999) (affirming findings on the merits of a reduction–in-force
      action, but remanding for adjudication of the appellant’s discrimination claim);
      Thompson v. Department of the Navy, 80 M.S.P.R. 245, ¶¶ 5-7 (1998) (same). On
      remand, the administrative judge should inform the parties of the standards of
      proof applicable to a claim of discrimination pursuant to Savage, and provide
      them with an opportunity to further develop the evidence on the discrimination
      issue.    The administrative judge’s new decision should incorporate the above
      findings on the merits of the furlough and the Savage standard for analyzing the
      appellants’ discrimination claims, as well as the Board’s decisions in Jones,
      Johnson, and Deas. 10




      positions were required for the protection of life and property. Id. He determined that
      detective positions would not be excepted from the furlough mainly because he believed
      that furloughing detectives at the NSN would not lead to an unacceptable risk or
      catastrophic gaps in the safety and protection of life or property at the installation. Id.
      10
         The appellant Gaston does not challenge the administrative judge’s findings on her
      sex discrimination claim. Gaston PFR File, Tab 1 at 10, 15-17. In any event, we find
      that applying the analytical framework in Savage to the appellant Gaston’s sex
      discrimination claim would not change the result in this case.
                                                                                   21

                                           ORDER
¶32         Accordingly, we find that the appellants were subject to, and not excepted
      from, the furlough, affirm the initial decisions’ finding that the agency proved
      that the furlough promoted the efficiency of the service, vacate the initial
      decisions’ findings regarding the race discrimination claims, and remand these
      appeals for further adjudication consistent with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
