UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOAN C. HARRUP,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-0752-13-5718-I-11

DATE: June 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

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 of 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2 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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 to 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 and 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 basis 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 with several other employees’ 

appeals. IAF, Tab 1; see CAF, Tabs 1-2. Following a hearing, the administrative 

judge issued an initial decision sustaining the agency’s action, finding that the 

agency was required to furlough employees based on a budget shortfall, and that 

it did so in a fair and even manner. CAF, Tab 13, Initial Decision (ID). The 

administrative judge also found that the appellants were provided an adequate 

opportunity to respond to the proposed furlough actions which satisfied the 

dictates 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 for 
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employees working either an alternative work schedule or a part-time schedule. 

ID at 12-13. The administrative judge construed the appellant’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 approved 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 Tuesdays and Thursdays 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 submits 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 evidence 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 furlough 
4

promotes the efficiency of the service 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. 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 concur with the administrative judge’s denial of the appellant’s 

harmful 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 outcome 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 comply 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 Standard Form 50 

reflecting she is a full-time employee). We thus concur with the administrative 

judge’s conclusion that the referenced MOA provisions did not apply to the 
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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 failed 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 diligence). 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, Tabs 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 available 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 immaterial to her disability 

discrimination allegation in connection with her furlough in 2013, and it does not 

 3 Moreover, the section of the MOA cited by the appellant concerning the scheduling of 

furlough days for employees working an alternative 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 type 

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. Reading 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 during 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.
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justify accepting and adjudicating a new affirmative defense for the first time on 

review. See id. at 9.

¶8 The administrative judge’s initial decision sustaining the agency’s furlough 

action and denying the appellant’s affirmative defense of harmful error is 

affirmed.

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board