UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JOAN C. HARRUP, Appellant,

v.
DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DC

- 0752

- 13

- 5718

- I

- 1 1

DATE: June 8, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 2

Lucy Lewis , Richmond, Virginia, for the appellant.

David A. Evers , Richmond, Virginia, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the agency’s furlough action . Generally, we grant petitions such as this

1 This appeal originally was part o f a consolidation pursuant to 5 C.F.R. § 1201.36 (a)(2). See Defense Logistics Agency II v. Department of Defense , MSPB Docket No. DC

- 0752

- 15

- 0083

- I

- 1, Consolidated Appeal File (CAF). Only the appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1 at 1.

2 A nonprecedential order is one that the Board has d etermined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisi ons. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law t o the facts of the case; the judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new an d material evidence or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points and authorities, we conclude that the petitioner has not established any basi s under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant serves as a contract specialist with the agency and was furloughed for 6 days following the President’s March 1, 2013 sequester order. Initial Appeal File (IAF), Tab 1 at 8. The appellant filed an appeal of the agency’s furlough action, which was consolidated w ith several other employees’ appeals. IAF, Tab 1; see CAF, Tabs 1

- 2. Following a hearing, the administrative judge issued an initial decision sustain ing the agency’s action, finding that the agency was required to furlough employees based on a budget sho rtfall, and that it did so in a fair and even manner. CAF, Tab 13, Initial Decision (ID). T he administrative judge also found that the appellants were provided an adequate opportunity to respond to the proposed furlough actions which satisfied the
dictat es of due process, and that they failed to prove any of their affirmative
defenses. ID at 11

- 13. In reaching this latter conclusion, the administrative judge specifically addressed the instant appellant’s argument that the agency failed to comply with a memorandum of agreement (MOA) between the agency and the appellant’s union concerning the scheduling of furlough days for3

employees working either an alternative work schedule or a part

- time schedule

. ID at 12

- 13. T he administrative judge construed the a ppellant’s argument on this
issue as raising an affirmative defense of harmful error, and she found that the appellant failed to prove her claim because there was no evidence that she worked an approved alternative work schedule or was a part

- time employee . ID at 13. ¶3 The appellant has filed a petition for review primarily challenging the administrative judge’s denial of her harmful error allegation based on a violation
of the MOA. PFR File, Tab 1 at 4

- 5 . On review, the appellant argues that she had an ap proved reasonable accommodation prior to the agency’s furlough action
, which allowed her to take 2 hours of leave without pay on Tuesdays and 4 hours of leave without pay on Thursdays. Id . at 5. During the furlough, however, when she was not working each Monday, the appellant claims that she was unable to take time off on Tuesday s and Thursday s and “still accomplish [her] work requirements, fulfill [her] financial responsibilities, and maintain [her] therapy schedule[.]” Id

. On review, she also asserts that the change in her work schedule constitutes disability discrimination in violation of the Rehabilitation Act, and
she submit s several new documents
, which she acknowledges she did not submit below because she was unaware of the nature of the administrative judge’s initial
decision. Id . at 3

- 4, 7

- 9. The agency has filed a response in opposition to the petition for review arguing that the initial decision should be affirmed
, and it has objected to the appellant’s submission of new evide nce on review. PFR File,
Tab 4 at 7

- 8. The appellant has filed a reply in further support of her petition for review. PFR File, Tab 5. ¶4 Although the appellant does not specifically challenge the administrative judge’s findings concerning the imposition of the furlough action, we have
reviewed the initial decision and find no reason to differ with the administrative judge’s conclusions that the agency established cause for imposing the furlough and that it effected the furlough in a fair and even manner. ID at 10

- 11. The Board has found that an agency meets its burden of proving that a furlough4

promotes the efficiency of the service by showing, in general, that the furlough
was a reasonable ma nagement 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. In re Tinker AFSC/DP v. Department of the Air
Force , 121 M.S.P.R. 385
, ¶ 14 (2014). We agree with the administrative judge that the agency presented preponderant evidence satisfying these standards and thus substantiated its furlough action

. ¶5 We further concu r with the administrative judge’s denial of the appellant’s
harm ful error affirmative defense. ID at 12

- 13. Pursuant to 5 U.S.C. § 7701 (c)(2), an agency’s adverse action, including a furlough of less than 30 days, “may not be sustained . . . if the employee or applicant for employment (A) shows harmful error in the application of the agency’s procedures in arriving at such decision[. ] ” Goeke v. Department of Justice
, 122 M.S.P.R. 69 , ¶ 7 (2015). Reversal of an agency’s action is required therefore where an appellant establishes that the agency committed a procedural error that likely had a harmful
effect on the o utcome of the case. Id

. The appellant bears the burden of proving by preponderant evidence that the agency committed harmful error in reaching its
decision. See 5 C.F.R. § 1201.56 (b)(2)(i)(C), (c)(1). ¶6 We agree with the administrative judge that the appellant did not establish
her harmful error affirmative defense. ID at 12

- 13. The appellant alleged below that the agency failed to compl y with the MOA regarding the scheduling of furlough days for employees working either an alternative work schedule or part

- time. See IAF, Tabs 6

- 7. We agree with the administrative judge, however, that the appellant did not prove that she was either working an approved alternative work schedule at the time of the furlough or that she was a part

- time employee. ID at 13; see IAF, Tab 1 at 8 ( the appellant’s S tandard F orm 50 reflecting she is a full

- time employee). We thus concur with the administrativ e judge’s conclusion that the referenced MOA provisions did not apply to the5

scheduling of the appellant’s furlough days
, and that they cannot serve as the
basis for a harmful error affirmative defense. 3 ID at 13. ¶7 Finally, we find that the appellant faile d to raise an affirmative defense of disability discrimination in the proceedings below, and we find that she cannot
raise such a claim for the first time on review. See Ronso v. Department of the Navy , 122 M.S.P.R. 391 , ¶ 3 n.1 (2015) (the Board will not consider a new claim raised for the first time on review absent a showing it is based on new and material evidence not previously available despite the party’s due diligenc e). The record reflects that the appellant did not raise her disability discrimination allegations in her initial appeal, and that she did not do so in response to the administrative judge’s affirmative defenses order. IAF, Tab 1; see CAF, Tab s 4,
8 ; see also ID at 12

. Although the appellant has submitted new evidence on review concerning her challenge to the scheduling of her furlough days in connection with her disability discrimination claim , we find that this information previously was ava ilable to her and it does not justify accepting a new claim of disability discrimination for the first time on review . PFR File, Tab 1 at 7

- 8. The appellant’s submission of a reasonable accommodation request form that postdates the furlough period, moreover, is im material to her disability
discrimination allegation in connection with her furlough in 2013
, and it does no t

3 M oreover, the section of the MOA cited by the appellant concerning the scheduling of furlough days for employees working an alternativ e work schedule does not exempt employees from the furlough. See IAF, Tab 7 at 4, ¶ 3 (“Those employees who currently have an alternative work schedule with a scheduled regular day off will have the option of retaining their current day off as their weekly furlough day.”). A subsequent clause of the MOA explains that “[e]mployees who were working any t ype of alternative work schedule will return to such work schedule effective the first full pay period following the end of the furlough period.” Id . at 5, ¶ 5. Read ing these clauses together , the MOA provides employees with the option of scheduling their furlough day on a day they otherwise would not have been working had they been working an alternative work schedule. Implied in these provisions, however, is that employees would not work an alternative work schedule d uring the furlough. Thus, even if these provisions applied to the appellant, which they do not, they would not have exempted her from the financial effects of the furlough
, as she suggests on review. See PFR File, Tab 1 at 3

- 4.6

justify accepting and adjudicating a new affirmative defense for the first time on review. See i d . at 9. ¶8 The administrative judge’s initial decis ion sustaining the a gency’s furlough
action and denying the appellant’s affirmative defense of harmful error is
affirmed

.

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

Disc rimination 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 reques t 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 yo ur representative. If you choose to file, be very careful to file on time.7

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 ag ency 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 c ourt

- 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:

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