                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 32

                            Docket No. AT-0752-13-4332-I-1

                                       Lee Ronso,
                                       Appellant,
                                            v.
                               Department of the Navy,
                                         Agency.
                                      April 14, 2015

           Lee Ronso, Cantonment, Florida, pro se.

           Thomas J. Tangi, Jacksonville, Florida, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has petitioned for review of the initial decision, which
     affirmed the agency’s furlough action. For the following reasons, we conclude
     that the petitioner has not established a basis under 5 C.F.R. § 1201.115 for
     granting the petition for review. We therefore DENY the petition for review and
     AFFIRM the initial decision AS MODIFIED.

                                     BACKGROUND

¶2         The appellant is a Rehabilitation Program Manager for the agency’s
     substance abuse clinic in Pensacola, Florida. Initial Appeal File (IAF), Tab 10
     at 4. On June 3, 2013, the agency sent him a notice of proposed furlough, citing
                                                                                               2

     budget cuts required by the Budget Control Act of 2011, as amended by the
     American Taxpayer Relief Act of 2012.              Id. at 6-8.     The notice proposed
     furloughing full-time employees, such as the appellant, for up to 11 days. Id.
     at 7. On June 26, 2013, the appellant received the agency’s decision, upholding
     the proposed furlough. Id. at 9-11.
¶3          The appellant filed this appeal with the Board.        IAF, Tab 1. After holding
     the requested hearing, the administrative judge upheld the furlough. IAF, Tab 13,
     Initial Decision (ID). The appellant has filed a petition for review. 1 PFR File,
     Tab 1. The agency has not filed a response.




     1
        The appellant’s petition for review contains new arguments that were not raised
     below. Despite solely relying on an exception for the protection of life and property
     below, IAF, Tab 7 at 4, the appellant’s petition suggests that another furlough exception
     also may have applied to his position, Petition for Review (PFR) File, Tab 1 at 9
     (referencing the authority of deciding officials to approve up to 50 individual,
     mission-based exceptions to the furlough); IAF, Tab 11 at 8 (permitting designated
     agency officials to approve up to 50 additional exceptions as needed to ensure safe and
     efficient operations of their departments). He also seems to suggest that the agency’s
     furlough decisions may have been motivated by sex discrim ination. See PFR File,
     Tab 1 at 23. However, 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 availab le despite the party’s due diligence.           Banks v.
     Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant made
     no such showing, we will not consider his new arguments on review.
     The appellant also suggests that the administrative judge erred in allowing the deciding
     official the opportunity to review a document during her testimony, without affording
     him a similar opportunity concerning another document. See PFR File, Tab 1 at 6
     (referencing a copy of a document which is available in the Department of the Navy’s
     Administrative Record for FY 2013 Furlough Appeals, Part 2 at 125-27, available at
     http://www.mspb.gov/furloughappeals/navy2013.htm). However, because the appellant
     failed to present any argument that this purported error affected his substantive rights, it
     is of no legal consequence and we will not consider it further. See Tan v. Department
     of Veterans Affairs, 89 M.S.P.R. 15, ¶ 5 (2001) (the proponent of an alleged procedural
     error bears the burden of demonstrating that it adversely affected his substantive rights;
     absent that adverse effect, the error is harm less).
                                                                                      3

                                          ANALYSIS
¶4         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.” Accordingly, an agency must prove that cause existed for the
     furlough and that the furlough promotes the efficiency of the service.      Dye v.
     Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the
     efficiency of service 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.           Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).
¶5         The appellant does not dispute the administrative judge’s finding that the
     agency’s furloughs were a reasonable management solution to the budget cuts
     required by sequestration and promoted the efficiency of the service, generally,
     and we decline to revisit the administrative judge’s well-reasoned findings on the
     issue. ID at 3-5; see generally Lopez v. Department of the Navy, 121 M.S.P.R.
     647, ¶¶ 4, 15-16 (2014) (affirming the administrative judge’s determination that
     furloughs were a reasonable management solution to the financial restrictions
     resulting from sequestration).      Nor does the appellant allege that the agency
     applied the furlough in an unfair or uneven manner. See Chandler, 120 M.S.P.R.
     163, ¶ 8 (explaining that “fair and even manner” means that the agency treated
     similar employees similarly and justified any deviations with legitimate
     management reasons). Instead, the appellant alleges that he fell within one of the
     agency’s designated exceptions for the furlough, based upon the nature of his
     position managing a substance abuse program. PFR File, Tab 1 at 8-23. He also
     alleges that, contrary to the administrative judge’s findings, the agency violated
     its own policy and his due process rights when the decidin g official delegated the
     task of receiving oral responses to the furlough proposals. Id. at 5-7, 15-18. We
     find no merit to these arguments.
                                                                                            4

     The administrative judge properly found that the agency proved cause for the
     appellant’s furlough because he met the criteria for being subject to, and not
     excepted from, the furlough.

¶6          The appellant has consistently argued that he should have been excepted
     from the furlough based upon the nature of his position. E.g., IAF, Tab 7 at 4.
     According to the appellant, he fell within the exception that applied to select
     medical personnel. See IAF, Tab 7 at 4, Tab 11 at 7-8. We find no error in the
     administrative judge finding otherwise.
¶7          The agency’s burden to show “cause” for a furlough encompasses whether
     the appellant met the criteria established by the agency for being subject to, and
                                         2
     not excepted from, the furlough.        Dye, 121 M.S.P.R. 142, ¶ 9. The Secretary of
     Defense issued a memorandum establishing a number of exceptions to the
     decision to furlough employees. See IAF, Tab 11 at 7-11. Among them was an
     exception for “those employees necessary to protect safety of life and property
     . . . to the extent necessary to protect life and property . . . includ[ing] selected
     medical personnel.” Id. at 7. The memorandum elaborated that “exceptions for
     the medical category are approved with the understanding [that] these exceptions
     preserve the minimum level of personnel needed to maintain quality of care in
     24/7 emergency rooms and other critical care areas such as behavioral health.”
     Id. at 8.
¶8          The deciding official for the appellant’s furlough limited her use of this
     exception to medical staff providing emergency and in-patient services. See IAF,
     Tab 12, Hearing Compact Disk (HCD) (deciding official testimony). She did not
     use the exception for personnel that serviced out-patient clinics, such as the


     2
       The administrative judge framed the issue of whether the appellant fell with in an
     exception to the furlough as an issue of “efficiency of the service.” ID at 5. However,
     this issue is more appropriately addressed as one of cause. ID at 5-7. To the extent that
     the administrative judge incorrectly characterized this discussion, we modify the initial
     decision.
                                                                                       5

      appellant.   See id.   On review, the appellant asserts that the deciding official
      interpreted the exception too narrowly by not including out-patient services. PFR
      File, Tab 1 at 13, 19-21. He argues that his position at an out-patient clinic is
      critical to the well-being of patients. Id. at 8-11. According to the appellant, he
      is the only civilian in his department, so his furlough resulted in his unqualified
      subordinates managing the substance abuse treatment program on the days he was
      furloughed. Id. at 8-9. He also argues that he was deemed essential or exempt
      during the later government shutdown, so he should have been excepted from the
      furloughs resulting from sequestration for the same reasons. Id. at 14-15.
¶9          Although we appreciate the appellant’s concern for the well-being of
      patients, we find no error in the administrative judge’s determination that the
      agency proved cause, despite declining to apply the furlough exception for select
      medical personnel to the appellant.      See ID at 6-8; see also Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding
      no reason to disturb the administrative judge’s findings where the administrative
      judge considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions). Because the exception included the phrase “to the extent
      necessary,” it did not create a blanket exception. See IAF, Tab 11 at 7; see also
      Lopez, 121 M.S.P.R. 647, ¶ 11.         Instead, the exception contemplated that
      management would exercise discretion, as it did here, in determining which
      employees were needed to preserve minimal care. See IAF, Tab 11 at 7.
¶10         We also find no error in the administrative judge’s determination that,
      while the appellant may have been deemed “essential” or “exempt” for purposes
      of a government shutdown, 3 that determination is not dispositive for purposes of



      3
       The referenced “government shutdown” was a period from October 1-16, 2013, during
      which nonexempt federal employees were furloughed after Congress failed to pass a
      budget or continuing resolution in time to avoid a lapse in appropriations. See
      generally Continuing Appropriations Act of 2014, Pub. L. No. 113-46, 127 Stat. 558
                                                                                       6

      the agency’s exceptions for furloughs resulting from sequestration. ID at 7-8.
      The appellant has argued that the government shutdown and sequestration are
      comparable because both required furloughs due to fiscal issues. PFR File, Tab 1
      at 14-15. He asserts that it is illogical that he worked throughout the shutdown
      because he was “essential” when the agency had no funding, but was furloughed
      when sequestration caused the agency to have reduced funding. Id. at 15.
¶11       We agree with the administrative judge’s decisions to credit the deciding
      official’s testimony and find that the government shutdown and sequestration
      each required a unique assessment of staffing needs.       ID at 7-8.   While the
      government shutdown was governed by the Antideficiency Act, Pub. L. No.
      97-258, 96 Stat. 877 (1982) (codified, in pertinent part, as amended, at 31 U.S.C.
      § 1342), the sequestration furloughs were governed by the agency’s internal
      policy, see IAF, Tab 11 at 4-13. Like the sequestration furlough exception for
      “employees necessary to protect safety of life and property,” the furloughs that
      resulted from the government shutdown had a similar exception “for emergencies
      involving the safety of human life or the protection of property.”      31 U.S.C.
      § 1342; IAF, Tab 11 at 7.         However, despite this facial similarity, the
      administrative judge found, based on the testimony of the deciding official, that
      the circumstances of the government shutdown furlough resulted in more
      exceptions.   The agency had to determine which employees would be exempt
      from the government shutdown furloughs with the knowledge that employees who
      were not excepted would be absent on a continuous, rather than a sporadic, basis
      and without the knowledge of when the shutdown would come to an end. See
      HCD (deciding official testimony).      By comparison, the agency knew that
      employees would be furloughed no more than 11 days due to sequestration, and
      the agency was able to space out those days over the course of several months.

      (2013) (ending the October 2013 government shutdown by providing appropriations for
      the remainder of the fiscal year).
                                                                                          7

      Id.; IAF, Tab 11 at 6. In essence, the government shutdown required that the
      agency abruptly wind down and stop many activities, while sequestration
      permitted the agency to engage in a more thoughtful consideration of how to
      reduce spending over the course of a fiscal year to accommodate a reduced
      budget. 4   See HCD (deciding official testimony).       Accordingly, the agency’s
      determination that the appellant was essential during the government shutdown
      did not prevent it from proving cause for his sequestration furlough, as it did
      here.
      The appellant did not establish that the agency committed a due process violation
      or harmful error by delegating the task of receiving oral replies.

¶12           The appellant does not dispute that he was given the opportunity to respond
      to the proposed furlough.     Instead, he argues that the agency violated his due
      process rights and committed harmful error because the deciding official
      delegated the task of receiving oral replies to a designated official, rather than
      receiving them personally. PFR File, Tab 1 at 5-7; see HCD (deciding official
      testimony). We disagree.
¶13           Prior notice and an opportunity to respond to an appealable agency action
      are fundamental due process requirements for a tenured public employee. See
      Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); see also
      Gilbert v. Homar, 520 U.S. 924, 930 (1997) (recognizing that due process rights
      may vary depending on the circumstances).             Here, the agency proposed
      furloughing the appellant, but first provided him with 7 days to respond orally
      and/or in writing.   IAF, Tab 10 at 7-8. Accordingly, the agency provided the
      appellant with the required constitutional right to minimum due process and a



      4
        The appellant does not dispute this d istinction in the two furloughs. See PFR File,
      Tab 1 at 14-15 (containing the appellant’s argument that he should have been deemed
      essential during both furloughs because they were both “based on fiscal issues” and he
      is essential for patient care).
                                                                                            8

      meaningful opportunity to respond. 5 See generally Kinsey v. Department of the
      Navy, 59 M.S.P.R. 226, 229 (1993) (where an agency has provided an employee
      with an opportunity to make a written reply to a notice of proposed adverse
      action, its failure to afford him an opportunity to make an oral reply does not
      violate his right to minimum due process).
¶14         Even though we find no due process violation, we still must determine
      whether the agency committed a procedural error. See Stone v. Federal Deposit
      Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,
      in addition to the right to due process, “[p]ublic employees are . . . entitled to
      whatever other procedural protections are afforded to them by statute, regulation,
      or agency procedure”).        Therefore, we must examine whether the agency
      committed a harmful error by virtue of the deciding official delegating the
      authority to receive oral replies to the proposed furlough.         See Ward v. U.S.
      Postal Service, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (holding that procedural

      5
        The appellant disputes the administrative judge’s findin g that he did not submit an
      oral or written reply to the proposed furlough. PFR File, Tab 1 at 7, 17; see ID at 6.
      According to the appellant, he submitted an oral reply to his immediate supervisor.
      PFR File, Tab 1 at 7, 17. However, other than his own testimony, the appellant
      presented no evidence of this reply, such as testimony from his supervisor. Moreover,
      to the extent that he orally disputed the proposed furlough to his supervisor, this was
      not the appropriate avenue for submitting a rep ly, as the appellant implicitly
      acknowledges. Compare IAF, Tab 10 at 8 (furlough proposal directing the appellant to
      contact a specific Human Resources representative to arrange for an oral reply if he
      wished to submit one), with PFR File, Tab 1 at 7 (indicating that he “did not reply via
      [Human Resources]” because he did not trust that his statement would be reported “in
      an accurate and factual manner”). Accordingly, we see no meaningful d istinction
      between the appellant’s testimony that he “orally replied” to his immediate supervisor
      and the administrative judge’s finding. See generally Flores v. Department of Defense,
      121 M.S.P.R. 287, ¶ 11 (2014) (findin g that in the absence of any indication that the
      appellant made a reasonable effort to assert his right to respond, or that the agency
      denied him his right to respond through action, negligence, or design, the appellant was
      not denied due process); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶¶ 7, 22
      (2004) (finding no due process vio lation where the appellant asked to respond to a
      proposed removal after the agency’s deadline for doing so and the agency refused),
      aff’d, 176 F. App’x 110 (Fed. Cir. 2006).
                                                                                           9

      errors are subject to a harmful error analysis). An appellant bears the burden of
      proving, by preponderant evidence, that the agency committed harmful error in
      reaching its decision.   5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(2).     A harmful
      error is an error by the agency in the application of its procedures that is likely to
      have caused the agency to reach a conclusion different from the one it would have
      reached in the absence or cure of the error. 5 C.F.R. § 1201.56(c)(3).
¶15         In asserting harmful error, the appellant relies on the May 14, 2013
      memorandum from the Secretary of Defense that detailed which employees could
      be excepted from the furloughs. See IAF, Tab 11 at 4-14. The memorandum
      indicated that the designated official for determining who would be excepted
      from the furloughs would be no lower than a local Installation Commander and
      that these responsibilities could not be delegated further. Id. at 8.
¶16         Despite the aforementioned memorandum, the record reveals that the
      deciding official’s delegation of the duty to receive oral replies was consistent
      with agency policy. See Department of the Navy’s Administrative Record for FY
      2013 Furlough Appeals, Part 1 at 36, available at http://www.mspb.gov/furlough
      appeals/navy2013.htm. The policy pertaining to furloughs, dated 10 days after
      the memorandum cited by the appellant, explicitly provided that “[a]n individual
      other than the [d]eciding [o]fficial may be delegated as the [r]eply [o]fficial” for
      oral replies. Id. Moreover, even if the agency had erred in delegating the duty of
      receiving oral replies, the appellant failed to present any argument or evidence as
      to   how   the   error   was   harmful.      See     Pumphrey   v.      Department   of
      Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an
      employee has been harmed by a procedural error in the adverse action process;
      the appellant bears the burden of proving harm). Accordingly, the administrative
      judge properly found that the appellant failed to show that the agency committed
      either a due process violation or a harmful error.
                                                                                     10

                                               ORDER
¶17         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                       P.O. Box 77960
                                  Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                      131 M Street, NE
                                        Suite 5SW12G
                                  Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
      later than 30 calendar days after receipt by your representative. If you choose to
      file, be very careful to file on time.
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Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.          See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.



FOR THE BOARD:


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