UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARK MANOR,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

CH-0752-13-1841-I-11

DATE: August 31, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

LeAnne Filary, Roseville, Michigan, for the appellant.

Betty J. Baxter, Esquire and Christine L. Kachan, Esquire, Warren, 

Michigan, 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 

affirmed the agency action furloughing him for 6 workdays. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

 1 Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation. TACOM 

Warren HR H-P v. Department of the Army, MSPB Docket No. CH-0752-14-0393-I-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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 Effective July 8, 2013, the agency furloughed the appellant from his 

Environmental Protection Specialist position as a result of the Budget Control Act 

of 2011, as amended by the American Taxpayer Relief Act of 2012. Initial 

Appeal File (IAF), Tab 6 at 5-8. The furlough was set to occur on discontinuous 

days between July 8, 2013, and September 30, 2013, for a maximum of 88 hours

(11 workdays), and for no more than 16 hours per pay period. Id. at 5-6. 

Ultimately, the agency furloughed the appellant for a total of 48 hours 

(6 workdays). See id. at 4; see also TACOM Warren HR H-P v. Department of 

the Army, MSPB Docket No. CH-0752-14-0393-I-1, Consolidated Appeal File

(CAF), Tab 9 at 50-51, 62.

¶3 The appellant filed an appeal with the Board challenging the furlough

action. IAF, Tab 1. He asserted that: (1) the furlough constituted a breach of his 

employment contract; (2) the furlough violated 5 U.S.C. chapter 61 and 5 C.F.R.

Part 610; (3) he should have been exempt from the furlough based on a life, 

health and safety exception; and (4) the agency violated the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (codified 
3

at 38 U.S.C. §§ 4301-4333) (USERRA) by improperly rejecting his request to 

schedule his furlough days to coincide with his military duty, so as to minimize 

his time away from duty, thus impairing his ability to compete with his coworkers 

for salary increases and one-time payments. Id. at 5; IAF, Tab 7 at 1, Tab 9 at 3, 

Tab 11 at 1. He requested a hearing. IAF, Tab 1 at 2.

¶4 After holding the requested hearing, the administrative judge issued an 

initial decision affirming the furlough. CAF, Tab 39, Initial Decision (ID). She 

found that the agency proved by preponderant evidence that: (1) the furlough was 

a reasonable management solution to financial restrictions the agency faced and, 

as such, was implemented for a cause that promoted the efficiency of the service; 

(2) it furloughed employees in a fair and even manner; and (3) it afforded the 

furloughed employees constitutionally sufficient due process prior to 

implementing the furlough. ID at 4-5, 13-14. Specifically, as to the appellant, 

the administrative judge found that he failed to prove his claims that: (1) he fell 

within a category excepted from the furlough; (2) the furlough constituted a 

breach of contract; and (3) the agency denied him a benefit of employment based 

on his military service when it refused to allow him to schedule his furlough days 

to coincide with days when he was scheduled to perform military duty, in 

violation of USERRA.

3

 ID at 6, 10-13.

 3 The administrative judge also rejected various appellants’ claims that: (1) there was 

sufficient funding available to avoid the furlough; (2) the agency should have employed 

other cost-saving measures in lieu of implementing the furlough; (3) the agency could 

have used overtime to compensate them for lost productivity due to the furlough; (4) the 

agency redistributed savings from the furlough to contractors in the form of service 

contracts; (5) the agency used reservists during the furlough to perform work ordinarily 

performed by government employees; (6) the agency’s refusal to allow them to schedule 

furlough days consecutively rendered them ineligible for unemployment benefits; 

(7) the furlough created personal hardship; and (8) they should not have been subjected 

to the furlough because they performed work critical to the functioning of the agency. 

ID at 6-10. To the extent that the appellant raised any of these arguments below, we 

note that he does not dispute their rejection on review. As a result, we will not disturb 

the administrative judge’s well-reasoned findings on these issues. 
4

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. He argues that the administrative judge erred in: (1) finding that he 

failed to prove his USERRA claim; and (2) denying his discovery request for 

information regarding the Acquisition Demonstration Project (ADP) pay pool.4

 

Id. The agency filed a response, to which the appellant did not reply. PFR File, 

Tab 3.

¶6 Under 38 U.S.C. § 4311(a), a person who performs uniformed service may 

not be denied any benefit of employment by an employer on the basis of that 

service. Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 5 (2014). 

An appellant raising a discrimination claim under 38 U.S.C. § 4311 bears the 

burden of proving that the contested agency decision was based on an improper 

motivation—namely, the fact of his military service or the particulars of that 

service. Id. For the reasons set forth below, we find that the appellant has not 

satisfied this burden.

¶7 We discern no basis to conclude that the agency’s decision to deny the 

appellant’s request regarding scheduling his furlough days was improperly based 

on his military service. On review, the appellant references his hearing testimony 

 4 The appellant also asserts that new evidence warrants a different decision in this 

matter. PFR File, Tab 1 at 4. In particular, he claims that, after the hearing, the 

deciding official admitted to the appellant that he (the deciding official) erroneously 

denied the appellant’s request to reschedule his furlough days, apologized to the 

appellant, and stated that he considers the appellant to be an honorable man. Id. This 

allegation in the appellant’s unsworn pleading constitutes argument, not evidence. See 

Leaton v. Department of the Interior, 65 M.S.P.R. 331, 337 (1994) (finding that the 

appellant’s prehearing submission was an unsworn pleading and, as such, constituted 

argument, not evidence), aff’d, 64 F.3d 678 (Fed. Cir. 1995) (Table). The appellant has 

produced no evidence to support this new argument, so we need not consider it. See

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board will not 

consider an argument raised for the first time in a petition for review absent a showing 

that it is based on new and material evidence not previously available despite the 

party’s due diligence). Even if we were to consider it, it would not warrant a different 

outcome in this appeal. Assuming arguendo that the deciding official regrets his 

decision to deny the appellant’s request to reschedule his furlough days, this does not 

establish that the deciding official was legally required to grant this request or that his 

decision to deny the request was motivated by antimilitary animus.
5

that: (1) he has had a “very difficult time” with the scheduling of military leave, 

in that his leave has been approved, but subsequently rejected because of his 

failure to provide a copy of his military orders; and (2) his counterpart in another 

division was “severely critic[al]” of his military obligations, repeatedly 

complained to his supervisor about him being gone on military leave, and told his 

supervisor that she would not put up with his military leave. PFR File, Tab 1 

at 2; see Hearing Compact Disc (HCD) (testimony of the appellant). Even if true, 

the appellant has not established how these allegations relate to the furlough 

action at issue in this appeal. He has not shown that the deciding official, who 

was responsible for denying his rescheduling request, was involved in previous 

decisions regarding his use of military leave, or in any way influenced by the 

counterpart who was allegedly critical of the appellant’s military leave.

¶8 The deciding official testified that all furlough days were determined in 

advance of the furlough, in conjunction with various unions. 5

 HCD (testimony of 

the deciding official). He stated that this allowed the agency to ensure its ability 

to meet its basic mission by maintaining awareness of all employees’ schedules. 

Id. He further testified that he made a conscious decision not to consider any 

rescheduling requests because it was necessary to treat everyone equally and 

opening up the possibility of exceptions could create an unwanted “ripple effect.” 

Id. He indicated that, although the selected furlough days may have been 

inconvenient for some, the furlough affected several thousand employees, and it 

would not be feasible to accommodate everyone’s preferences. Id. Thus, he 

decided that he “did not want to go down that path” and, in accordance with that 

determination, refused to consider the appellant’s rescheduling request. Id.

 5 The appellant asserts that the administrative judge erred in considering this testimony, 

see ID at 12, because he is not a union member and the union is prevented from 

representing him, see PFR File, Tab 1 at 3. Assuming arguendo that the agency erred in 

subjecting him to the furlough schedule established in conjunction with various unions, 

this does not establish that its actions were motivated by any antimilitary animus.
6

These assertions, to which the appellant makes no meaningful challenge, 6 suggest 

that the appellant was not subjected to discrimination.

7

 Rather, it appears that the 

agency uniformly applied a predetermined policy.

¶9 We note that the appellant’s contention that he was “forced to be gone 

6 more days from work than any other furloughed employee” and was 

disproportionately injured as a result of the furlough is plainly incorrect. See

PFR File, Tab 1 at 2-3. The appellant was furloughed for 6 days, just like many 

other employees, and there is no evidence that the agency imposed upon him a 

furlough of greater length than any other similarly situated employee. That he 

also had previously scheduled8 military duty to complete is irrelevant because this 

obligation would have existed even in the absence of the furlough. Indeed, the 

agency did not create this obligation; rather, the Michigan Air National Guard

issued the appellant’s military orders. IAF, Tab 9, Exhibit B at 4-12.

¶10 We also note that the Office of Personnel Management’s Guidance for 

Administrative Furloughs indicates that employees may not substitute paid leave 

or other forms of paid time off, including military leave, for any hours or days 

designated as furlough time off. IAF, Tab 13 at 23. Thus, the agency was 

without authority to permit the appellant to take paid military leave while 

simultaneously placing him in a furlough status.

 6 The appellant argues that this testimony is “misleading” because he was the only 

employee who requested a different schedule. PFR File, Tab 1 at 3. We disagree. The 

fact that the deciding official only denied the appellant’s request because no other 

employees made similar requests is not evidence of discrimination. We cannot infer 

discriminatory motivation simply based on the absence of similarly situated 

comparators.

7 See Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 16 (2007) (stating that 

USERRA’s prohibition against the denial of a benefit of employment on the basis of an 

employee’s military service does not entitle an employee to preferential treatment)

(citing Tully v. Department of Justice, 481 F.3d 1367, 1369-70 (Fed. Cir. 2007). 

8 The appellant’s military duty orders are dated May 1, 2013, and May 30, 2013. IAF, 

Tab 9, Exhibit B at 4-12. The agency reached its decision regarding the furlough on 

June 25, 2013. IAF, Tab 6 at 8.
7

¶11 As to the appellant’s discovery request regarding the ADP, he testified at 

the hearing that the ADP operates under a pay pool system, whereby employees 

compete for salary and bonuses. HCD (testimony of the appellant). As such, he 

believes that he could have received a higher salary or bonus had he been 

permitted to schedule his furlough days to coincide with his military duty, rather 

than being gone for the 6 days he was furloughed in addition to his military leave 

days. Id. To that end, he sought to discover information regarding ADP 

employee scoring and salary increases and payouts. IAF, Tab 7 at 1. He states 

on review that this information would have permitted him to “identify and 

quantify his damages in how he was rated compared to others” in the pay pool. 

PFR File, Tab 1 at 4. However, the impact of the decision to deny the appellant’s 

rescheduling request is not relevant to the question of whether that decision was 

discriminatory. We therefore discern no error in the administrative judge’s 

decision to deny this discovery request.

¶12 Based on the foregoing, we find that the appellant has not established any 

basis for review. Accordingly, we deny his petition for review and affirm the 

initial decision. 9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

 9 If the appellant believes that his absences for military leave have a disproportionately 

negative effect on his pay and awards under the ADP, this is a separate issue from 

whether the denial of his request to schedule his furlough days to coincide with his 

military leave constituted discrimination under USERRA, and he may file a separate 

USERRA appeal with the Board on that matter. We express no opinion as to the 

Board’s jurisdiction over, or his likelihood of prevailing in, such an appeal.
8

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s 

website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide 

for Pro Se Petitioners and Appellants,” which is contained within the 

court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services
9

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board