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 Be ach, Virginia, fo r the appellants.

Julia Alexandra Fitzmaurice and Bren t 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 initi al decisions that affirmed the agency’s furlough actions . Because these appeals pr esent 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 we re subject to, and not excepted from, the furlough, AFFIRM th e initial decisions’ determinations

1 The appeals that are include d 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 se rvice, VACATE the initial decisions’ findings on the appellants’ discrimination claims, and REMAND the appeals for further adjudi cation 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 Na val 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. 2The agency info rmed the appellants that the furlough was necessitated by th e extraordinary an d serious budgetary challenges facing the Department of Defe nse (DOD) for the re mainder of fiscal year 2013, the most serious of which wa s the sequester that began on March 1, 2013, i.e., across-the-board reductions to budgetary re sources for the Federal
Government. Id . at 38. The agency also inform ed the appellants that, if other employees in their competitiv e level (i.e., positions at the same gr ade level and classification series, the duties of which were generally interchangeable) were not being furloughed, it was be cause those employees, among other things, were in a position “whose duties have b een determined to be of crucial importance to this agency’s mission and responsibiliti es and cannot be curtailed.” Id

. ¶3 On appeal to the Board, the appellant s asserted that th e 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 e qual employment opportunity complaint, for example, th e appellants asserted that the agency did not furlough the GS-0083 Detectives at other installa tions in the Mid-Atla ntic Region (Little

2All 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 Shi pyard), all of whom were White or Hispanic. IAF, Tab 8 at 7. ¶4 After conducting a single hearing for bot h appeals, the ad ministrative judge affirmed the furlough actions in two sepa rate initial decisi ons. 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 serv ice. ID at 5. The administrative judge further found that the appellants did not prove that the agency treated them differ ently from similarly situated employees. ID at 16. In this regard, the administrati ve judge held that the police officers and dete ctives at Little Creek, Oceana, and Norfolk Naval Shipyard were not similarly situated to the appellants because they were part of different organizational uni ts and different competitiv e areas for purposes of the furlough. ID at 17. Likewise, the admi nistrative judge found that the appellants were not similarly situated to the clas sification series 0083 Po lice Officers at the NSN who were not furloughed because they were not, like the police officers, first responders charged with direct responsibility for pr otecting the safety of life and property. ID at 18-19. The admi nistrative judge noted that, although the appellants performed first-responder-li ke duties on occasion, their jobs as detectives were uniquely different from the position of police officer because only detectives process crime sc enes in preparation for inve stigations. ID at 18. ¶5 The administrative judge al so determined that the appellants did not prove that the decision to furlough th em was motivated by race or sex. ID at 17; Gaston ID at 20. The administrati ve judge held that, although the NSN Security Officer, who the administrative j udge found was also the pr oposing official, used “offensive, despicable , and racist language” when re ferring to vari ous employees of color within the securi ty department, the evidence did not establish that the proposing official influenced the deciding official’s decision not to except the4

appellants from the furlough. ID at 13 , 17-18, 20. The ad ministrative judge found that the deciding official’s explanat ion that race played no role in his decision was credible, particularly given his undisputed testim ony that he did not know the race of the appella nts before deciding to furl ough them. ID at 19. In addition, given that the deciding official furloughe d 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 thatthe agency articul ated legitimate management reasons for its decision to except NSN police officers, but not the appellants, and that there was no evid ence that the agency manipulated the exceptions to target the a ppellants for personal reasons . ID at 20. Thus, the administrative judge held that the agency proved by preponderantevidence that it furloughed its employees in a fair and even manner. Id

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ANALYSIS The agency proved by preponde rant evidence that the appe llants met the criteria for being subject to, and not excepted from, the furlough. ¶7 The appellants contend on review th at, as detectives , they met the categorical exception from the furl ough for employees having direct responsibility to protect the sa fety 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. 4In this regard, the appell ants assert that, although the agency apparently decided not to except them from th e furlough because detectives are not “first responders,” th e actual exception cr iteria was “direct responsibility to protect the safety of life and property, ” not “first responders.” Id . at 11. They also contend that detect ives are more likely to respond to the

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

safety of life and propert y because criminals have fl ed the scene by the time police officers respond to most crime scenes , detectives serve as first responders when they are patrolling or working under cover, 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 prom ote the efficiency of the service.” Before the Board reaches the i ssue of whether an action promotes the efficiency of the service, an agency must first esta blish 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 cont ext of a furlough appeal encompasses whether the appe llant met the criteria esta blished by the agency for being subject to, and not ex cepted 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 Defens e 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 Furl ough Appeals (AR), Part 1 at 105, 108, available athttp://www.mspb.gov/furloughapp eals/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 conso lidation prior to hearing and the issuance of the initial decisions.6

memorandum further provided th at “[t]he exceptions a pproved for the safety of life and protection of pr operty category are granted with the understanding that these are the minimu m exceptions needed to main tain operations and provide security on a 24/7 basis and that furloughi ng these employees would result in the Department incurring additional costs for pr emium pay.” AR, Part 1 at 109. In a declaration made under penalty of perj ury, the Principal Deputy Assistant Secretary of the Navy (Manpower and Re serve Affairs) i ndicated that the exception was intended to be limited in application, and th at Budget Submitting Offices were “instructed to identify po sitions 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 indicate d that one of the exceptions to the furlough would be for “[c]ivilians directly responsible for sa fety of life or property—only to the extent needed to preven t unacceptable risk or catastrophic gaps in the safety and protection of life or prope rty.” IAF, Tab 9 at 68-69. ¶10 The Board addressed this ca tegorical 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 em ployees who occupied positions that generally were necessary to pr otect life and property, but only to the extent that it was necessary for such empl oyees to protect life and property. The Board found that this exception did notnecessarily create a blanket exception for all employees occupying such po sitions regardless of wh ether their exception was necessary to protect life and property. Id . Thus, this exception contemplated the possibility that employees occupying posi tions that generall y are necessary to protect life and property could be ex cepted for only a portion of a planned furlough, or that some employees o ccupying positions that generally are necessary to protect life and property could be excepted while others would not be excepted. Id

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¶11 Here, the NSN Security Offi cer indicated in an affida vit 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 excepti on of such employees as canine handlers, administrative staff, “p ass/ID” officers, training staff, and detectives. IAF, Tab 8 at 102. He aver red that, if a civili an was not directly responsible for the safety of life or property, an excepti on for that civilian had to be justified. Id . at 103. The Security Officer further indicated that detectives do not manage traffic or contribute to counter terrorism efforts, butinstead 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 office rs, the base would have to close because the public would be at risk. Id . Similarly, the S ecurity Officer test ified that, based on guidance from the Under Secretary of the Navy, he and several other officials, after considering where th ey could take acceptabl e risks to protect the installation, determ ined that it would not be an acceptable risk to furlough uniformed police officers who are firs t responders. IAF, Tab 24, Hearing Compact Disc (HCD) 1. He testified that they woul d, however, subject to the furlough administrative office staff, poli ce trainers, “pass/ID ” personnel, canine handlers, commercial vehicle insp ection teams, and detectives. Id . He testified that a detective was not a fi rst responder, that there were already certain days and nights when there would be no detectives on a shift, a nd that detectives would typically respond to a crime sc ene once it was safe to c onduct an investigation. Id

. ¶12 The NSN Commanding Officer, who wa s also the deciding official, indicated in an affidavit th at the exception criterion atissue 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 offi cers met that criter ion. IAF, Tab 8 at 114-15. Thus, he understood that only classification series 0083 Police Officers and Supervisors met the criterion for exce ption from the furlough. Id

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at 116. He also indicated that the only considera tion in deciding whether to furlough an employee was “an employee’s j ob title/position desc ription and their ability to fully perform their duties.” Id . at 119. The NSN Commanding Officer similarly testified that he interprete d the exception to apply to his first responders, which would be “gun toting” police offi cers, fire, and “EMS” 6 personnel. HCD 1. He test ified that these individuals were first responders to safety or security emergenc ies who would arrive on the sc ene to protect the safety of life or property, and that he did not consid er 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 comma nding officers at other ba ses in the region were operating under the same furlough guidelines , each base had its unique size, mission, and staff, such that other base s could have interpreted the guidelines differently. Id . Although he had discretion unde r those guidelines, he did not except the appellants from the furlough because he determined that the appellants were not firs t 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 pr event unacceptable risk or catastrophic gaps, i.e., mostly police officers and firefighters. IAF, Ta b 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 Commande r, that they are not first responders, and that this interpretation was based on which pe rsonnel were needed to protect the

6EMS is an abbreviation for Emergency Medical Services.9

installation for the 1 day per week that the agen cy was planning to furlough its civilian employees. HCD 1. ¶14 The administrative judge appropriately recognized that detectives, on occasion, perform first-responde r-like duties, ID at 18, a nd there appears to be no dispute that detectives pe rform stakeouts, do undercove r work, arrest suspects, testify in court, secure crime scenes, and take evidence from suspects and witnesses, HCD 1 (testimony of the Co mmander, Navy Installation Command, the NSN Commanding Officer, and th e NSN Precinct Commander); HCD 2 (testimony of the NSN Deputy Pr ecinct Commander and the appellant Greenfield). These duties may be view ed as having some relation to the protection of life and prope rty. 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. Th e exception focused on round-the-clock emergency response requireme nts, and the agency sought to except from th e furlough only those employees w hose absence would present an unacceptable risk to the protection of life and property, which the NSN installation determined did not include detectiv es. Although a position description indicates that police officers are first responders, IAF, Tab 9 at 51, the position description for detectiv es does not include such language, id . at 30-37. The exception also provide d installation commanders with the authority to apply the exception in such a way as to meet the needs of their particular installatio n. Thus, we find that the ag ency has proven by preponderant evidence that the appe llants, as detectives, were s ubject to, and did not meet the criteria for an exce ption to, the furlough. We thus find that, even assuming that the detective position itself generally were to be c onsidered a first responder position necessary to protect the safety of life and propert y, this did not create a blanket furlough exception for that position, and the agen cy has established that10

detectives were not necessar y to protect the safety of life and property at the NSN at the time of the furl oughs in these cases. See Lopez , 121 M.S.P.R. 647 , ¶ 11. The agency proved by preponderant evid ence that th e furlough promoted the efficiency of the service. ¶15 The appellants assert that the agency did not condu ct 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, limit ed duty, or in a di sciplinary 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 ex ception criteria, yet were excepted from the furlough. PFR File, Tab 1 at 4, 9-14. In additi on, the appellants contend that other detectives within th e same competitive ar ea at different inst allations were not furloughed, even though they were cove red by the same collective bargaining agreement, fell under the same regional s ecurity director, and answered to the same furlough guidance from the Commander of the Navy Region, Mid-Atlantic. Id . at 13. The appellants as sert that a human resources specialist testified at the hearing that all detectiv es within the lo cal commuting area for all seven Department of the Navy military installations would fall under a single competitive area. Id . at 13-14. The appellants c ontend that the administrative judge rejected this testimony and inst ead used organizati onal 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 advers e action furloughs, RI F 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 agen cy satisfies the efficiency of the service standard under 5 U.S.C. § 7513 (a) in a furlough appeal by show ing, in general, that the furlough was a reasonable management solu tion to the financ ial restrictions11

placed on it and that the ag ency applied its determinat ion 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 similarl y and to justify any devi ations with legitimate management reasons. Id

. ¶17 Which employees are simila rly 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 esta blish competitive levels consisting of all positions in a competitiv e area which are in the same grade (or occupational level) and classi fication series, and which are similar enough in duties, qualification require ments, pay schedules, and working conditions so that an agency may reassign the incumbent of one positi on to any of the other positions in the leve l 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 co mpetitive leve l, but other evidence also may be relevant under th e 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 qualificatio ns required of the incumb ent as set forth in the official position descripti on). Generally, a competi tive area must be defined solely in terms of the agency’s organiza tional unit(s) and geogr aphical location. Weathers , 121 M.S.P.R. 417 , ¶ 8. The minimum competi tive area is a subdivision of the agency under separate administration within th e local commuting area. Id

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¶18 We first find that the appellants were not similarly situ ated to the police officers at the NSN. In addition to th e reasons set forth by the administrative judge as to why police officers and dete ctives were not si milarly situated, ID at 16-19, the police officers at th e NSN who were excepted from the furlough were in a different competitive level from the appe llants because they occupied positions at different grade levels than the appellants, even if the positions were in the same classification series as de tectives, 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. Th e appellants do not allege that they were simila rly situated to these supervis ors. PFR File, Tab 1 at 4, 6-7, 9, 11-13. Neverthele ss, we find that the superv isory police officer position was not similarly situated to the detective position. For positions to occupy the same competitive level, a nyone who qualifies for one pos ition 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 positi ons, and not the qualificati ons of their incumbents, determines whether competitive le vels 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 posi tion description, but it does include a police officer position descri ption, which likely provide s some indication of the duties and responsibil ities to be performed and/orsupervised by a supervisory police officer. The major dut ies and responsibilities of a police officer include providing “Anti-Terrorism/Force Protec tion,” physical security, and law enforcement services, such as gate se ntry, pier sentry, counter-surveillance duties, patrol of assigned areas, and operating speciali zed equipment designed to deter, detect, and defend against potential s ecurity breaches and terrorist activity.13

IAF, Tab 9 at 39-45. A pol ice officer is a “First Responder,” and the position requires qualification with service we apons and passing an annual physical fitness test. Id . at 51. ¶20 By contrast, the major du ties and responsibilities of the detective position are to conduct investigations of violations of laws, regulations, offenses, and crimes by maintaining surveillance ove r the scene or susp ects, interrogating suspects and witnesses, searching the scene for phys ical evidence, taking and lifting fingerprints, compar ing photographs of suspects with photographs on file, obtaining statements from witnesses, a pprehending suspects, preparing reports, and testifying in court. Id . at 30-36. In this job, th e 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 dete ctives received enhanced training on interviewing and fingerprintin g and that police officers would not be as effective without the detectives in processing cr ime scenes and gathering evidence. HCD 1. Similarly, a lead watch commander testified that the duties of detectives are expanded because they process crime scen es, issue warrants, and interview and interrogate suspects, witnesses, a nd victims. HCD 2. The appellant Greenfield testified that he received training that po lice officers do not receive, including in such areas as writing analysis, i.e., dete rmining 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 indivi duals 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 co mpetitive level. George v. Interstate
Commerce Commission , 20 M.S.P.R. 479 , 482, aff’d , 758 F.2d 66714

(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 thatan agency may reassign the incumbent of one position to the ot her position without undue in terruption. Thus, they belong in separate competitive levels an d 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 th e appellant’s competitive level positions that differed significantly fro m the appellant’s position in the necessary skills, duties, and knowledge, incl uding 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 competit ive levels for positi ons with the same grade and title to take into account sp ecial qualifications orduties required of some incumbents). ¶22 Moreover, we agree with the administrative judge that the detectives located at other installati ons are not similarly situat ed to the appellants. Although they may have occupi ed the same positions at the same grad e level, the administrative judge correctly found that they were not similarly situated to the appellants because they worked in diffe rent organizational units under separate administrations. ID at 17; see Rodgers v. Depar tment of the Navy , 122 M.S.P.R. 559 , ¶¶ 2, 15 (2015) (holding that an Atto rney Advisor at the Navy Munitions Command in Yorktown, Virginia, who was furloughed, was not similarly situated to attorneys in the same classificati on series assigned to the Norfolk Naval Shipyard in Portsmouth, Virginia, for purposes of a furlough, even if they performed similar duties, b ecause the shipyard attorney s 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 organizati onal units as separate competitive areas and treat employees from those comp etitive 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 sepa rate competitiv e areas for RIF purposes when the New York Naval Shi pyard and a Naval Supply Depot were, despite being “close neighbors,” underseparate commands with separate retention registers). ¶23 Although a human resources specialist fami liar with RIFs testified that, for RIF purposes, detectives at the NSN we re in the same co mpetitive 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 fu rlough that lasted for more than 22 days. HCD 2. A different human resources specialist who was i nvolved in the 2013 furlough testified that the competitive areafor detectives at the NSN during the furlough was the fence line of the installation for wh ich the commanding officer had responsibility, and that each commanding officer had the authority to make furlough decisions based on the n eeds of that installation. Id . This testimony is consistent with the uncontra dicted testimony and affida vits of numerous agency officials that the decisions on exceptions to the furlough were installation-specific, given that each base had differ ent requirements and a unique size, mission, and staff composition, and ther efore each installation’s commanding officer was given the flexibil ity to make differ ent decisions on whether furloughing detectives would have led to an unaccep table 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 detect ives located at other installations were not similarly situated to the appellants because they work ed in different organizational units under se parate administrations. ¶24 We thus find that the actions promot ed the efficiency of the service because the furlough was a reasonable management so lution to the financial restriction placed on the ag ency, and the agency tr eated similar employees similarly and applied the furl ough uniformly and consistently.16

We remand the appellants’ discrimina tion claims for furt her 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 (Gas ton PFR), Tab 1 at 15-17. Th e appellants assert that all Black detectives within the Mid-Atlantic Re gion 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 agreemen t, fell under the same re gional security director, and fell within the sa me competitive area. Id . They further assert that all detectives within the Mid-Atlantic Re gion were evaluated under the same DOD exception—direct responsibility to protec t 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 interpre t the exception as did the responsible officials at the ot her installations. Id

. ¶26 The appellants also contend that, al though the administra tive judge found no evidence that the Securi ty Officer influenced th e NSN Commanding Officer, who was the deciding official, the administ rative judge improperly failed to apply the Board-recognized “cat’s paw” theory under which a management official, acting because of an imprope r animus, can influence an agency official who is unaware of the improper animus when implementing a personnel action. Id

. at 16-17. The appellants as sert that the Secu rity Officer, who ma de 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 appell ants’ discrimination clai ms, 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 nondi scriminatory reason for it s action; once the agency has articulated a legitima te nondiscriminatory reason for its action, the burden shifts back to the appell ant to show that the agen cy’s proffered explanation constitutes a pretext for discri mination. 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 Boar d 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 Boar d analyzes discrimi nation 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 appellan t asserts an affirmative defense of discriminati on 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 considerati on 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 dire ct evidence or any of the three types of circumstanti al 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 “convinc ing mosaic” of disc rimination, i.e., suspicious timing, ambiguous oral or wr itten statements, be havior toward or comments directed at other employees in the protected gr oup at issue, and “other bits and pieces from wh ich an inference of discrimina tory intent might be drawn,”18

(2) comparator evidence, a nd (3) evidence that the agen cy’s stated reason for its action is unworthy of belief, such that it is a mere pr etext 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 ad ministrative 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 be fore 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 appellan ts 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 affirma tive defense when there was no indication that the administrative judge appris ed him of the applicable burdens of proof or of the types of eviden ce required to meet his burden). ¶30 In addition, the administrative judge held that, although the Security Officer 7used certain “offensive, despicable , and racist language,” there was insufficient evidence to establish that he influen ced the deciding official.

7 Although the administrative judge found that the Security Officer was the proposing official, ID at 9, 18, the pr oposal 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 ma de 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 discrimina tion 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). Moreov er, in determining whether the appellants were similarly situ ated to the detec tives outside their protected class who were not furloughe d, the administra tive judge should consider whether the Board’s decision in Deas v. Departmen t of Transportation , 108 M.S.P.R. 637 (2008), applies in this case. 8In 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 consid ered similarly situat ed 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 autonom y in determining the actions to be taken against the employees. 9

8In Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶¶ 9-10 (2014), the Board overruled decisions in which it applied the ju risdictional framework for “constructive” suspensions to cases involving the placeme nt of an employee on enforced leave for more than 14 days, finding instead that thos e 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 placemen t of an employee on enforced leave is a “constructive” suspensi on. The principle for which we cite to Deas in this Opinion and Order has not, however, been overruled.

9In a declaration made under penalty of perj ury, the deciding official averred that all positions at the NSN meeting the protecti on of life and property exception were identified and submitted thro ugh the Commander, Navy Regi on Mid-Atlantic, and the Commander, Navy Installations Command, and approved by the Assistant Secretary of the Navy (Manpower and Reserv e Affairs) via the Director , Office of Civilian Human Resources. CAF, Tab 5 at 6. He further averred that, wh ile the exceptions based on the protection of life and property were submitt ed through higher level command, he made an independent assessment of the security needs of the NSN and determined which20

¶31 Under these circumstance s, and because adjudicating these discrimination claims may involve resolvin g conflicting evidence and credibility issues that could depend upon the demeanor of witnesses, it is a ppropriate 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 j udge should inform the part ies of the standards of proof applicable to a claim of discrimination pursuant to Savage , and provide them with an opportunity to further de velop the evidence on the discrimination issue. The administrative judge’s ne w 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 w ould not lead to an unacceptable risk or catastrophic gaps in the safety and protection of life or property at the installation. Id

. 10The appellant Gaston does not challenge the administrative judge’s findings on her sex discrimination claim. Gast on PFR File, Tab 1 at 10, 15-17. In a ny 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 appellan ts were subject to , and not excepted from, the furlough, affirm the initial d ecisions’ finding that the agency proved that the furlough promoted the efficiency of the service, vacate the initial decisions’ findings regardi ng the race discrimination claims, and remand these appeals for further adjudi cation consistent with this Opinion and Order.

FOR THE BOARD:

________________ ______________ William D. Spencer Clerk of the Board Washington, D.C.