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 Beach, Virginia, for the appellants. 

Julia Alexandra Fitzmaurice and Brent 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 initial decisions that affirmed 

the agency’s furlough actions. Because these appeals present 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 were subject to, and 

not excepted from, the furlough, AFFIRM the initial decisions’ determinations 

 

1

 The appeals that are included 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 service, VACATE the initial 

decisions’ findings on the appellants’ discrimination claims, and REMAND the 

appeals for further adjudication 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 Naval 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, 30-32.2 The agency informed the appellants 

that the furlough was necessitated by the extraordinary and serious budgetary 

challenges facing the Department of Defense (DOD) for the remainder of fiscal 

year 2013, the most serious of which was the sequester that began on March 1, 

2013, i.e., across-the-board reductions to budgetary resources for the Federal 

Government. Id. at 38. The agency also informed the appellants that, if other 

employees in their competitive level (i.e., positions at the same grade level and 

classification series, the duties of which were generally interchangeable) were not 

being furloughed, it was because those employees, among other things, were in a 

position “whose duties have been determined to be of crucial importance to this 

agency’s mission and responsibilities and cannot be curtailed.” Id. 

¶3 On appeal to the Board, the appellants asserted that the 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 equal employment opportunity 

complaint, for example, the appellants asserted that the agency did not furlough 

the GS-0083 Detectives at other installations in the Mid-Atlantic Region (Little 

 

2

 All 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 Shipyard), all of whom were White or 

Hispanic. IAF, Tab 8 at 7. 

¶4 After conducting a single hearing for both appeals, the administrative judge 

affirmed the furlough actions in two separate initial decisions. 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 service. ID at 5. The administrative judge further found that the 

appellants did not prove that the agency treated them differently from similarly 

situated employees. ID at 16. In this regard, the administrative judge held that 

the police officers and detectives at Little Creek, Oceana, and Norfolk Naval 

Shipyard were not similarly situated to the appellants because they were part of 

different organizational units and different competitive areas for purposes of the 

furlough. ID at 17. Likewise, the administrative judge found that the appellants 

were not similarly situated to the classification series 0083 Police Officers at the 

NSN who were not furloughed because they were not, like the police officers, 

first responders charged with direct responsibility for protecting the safety of life 

and property. ID at 18-19. The administrative judge noted that, although the 

appellants performed first-responder-like duties on occasion, their jobs as 

detectives were uniquely different from the position of police officer because 

only detectives process crime scenes in preparation for investigations. ID at 18. 

¶5 The administrative judge also determined that the appellants did not prove 

that the decision to furlough them was motivated by race or sex. ID at 17; Gaston 

ID at 20. The administrative judge held that, although the NSN Security Officer, 

who the administrative judge found was also the proposing official, used 

“offensive, despicable, and racist language” when referring to various employees 

of color within the security department, the evidence did not establish that the 

proposing official influenced the deciding official’s decision not to except the 
4

appellants from the furlough. ID at 13, 17-18, 20. The administrative judge 

found that the deciding official’s explanation that race played no role in his 

decision was credible, particularly given his undisputed testimony that he did not 

know the race of the appellants before deciding to furlough them. ID at 19. In 

addition, given that the deciding official furloughed 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 that the agency articulated legitimate 

management reasons for its decision to except NSN police officers, but not the 

appellants, and that there was no evidence that the agency manipulated the 

exceptions to target the appellants for personal reasons. ID at 20. Thus, the 

administrative judge held that the agency proved by preponderant evidence that it 

furloughed its employees in a fair and even manner. Id. 

ANALYSIS 

The agency proved by preponderant evidence that the appellants met the criteria 

for being subject to, and not excepted from, the furlough. 

¶7 The appellants contend on review that, as detectives, they met the 

categorical exception from the furlough for employees having direct 

responsibility to protect the safety 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, 14-15.4

 In this regard, the appellants assert that, although the 

agency apparently decided not to except them from the furlough because 

detectives are not “first responders,” the actual exception criteria was “direct 

responsibility to protect the safety of life and property,” not “first responders.” 

Id. at 11. They also contend that detectives are more likely to respond to the 

 

4

 The appellants’ representative filed a petition for review on behalf of each appellant. 

The petitions are largely identical; thus, unless noted otherwise, citations to the petition 

for review are to the petition filed in the appellant Greenfield’s case. 
5

safety of life and property because criminals have fled the scene by the time 

police officers respond to most crime scenes, detectives serve as first responders 

when they are patrolling or working undercover, 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 promote the efficiency 

of the service.” Before the Board reaches the issue of whether an action 

promotes the efficiency of the service, an agency must first establish 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 context of a furlough appeal 

encompasses whether the appellant met the criteria established by the agency for 

being subject to, and not excepted 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 Defense 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 25

; Department of the Navy 

Administrative Record for FY 2013 Furlough Appeals (AR), Part 1 at 105, 108, 

available at http://www.mspb.gov/furloughappeals/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 consolidation prior to hearing and the issuance of 

the initial decisions. 
6

memorandum further provided that “[t]he exceptions approved for the safety of 

life and protection of property category are granted with the understanding that 

these are the minimum exceptions needed to maintain operations and provide 

security on a 24/7 basis and that furloughing these employees would result in the 

Department incurring additional costs for premium pay.” AR, Part 1 at 109. In a 

declaration made under penalty of perjury, the Principal Deputy Assistant 

Secretary of the Navy (Manpower and Reserve Affairs) indicated that the 

exception was intended to be limited in application, and that Budget Submitting 

Offices were “instructed to identify positions 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 indicated that one of the exceptions to the 

furlough would be for “[c]ivilians directly responsible for safety of life or 

property—only to the extent needed to prevent unacceptable risk or catastrophic 

gaps in the safety and protection of life or property.” IAF, Tab 9 at 68-69. 

¶10 The Board addressed this categorical 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 employees who occupied positions that 

generally were necessary to protect life and property, but only to the extent that it 

was necessary for such employees to protect life and property. The Board found 

that this exception did not necessarily create a blanket exception for all 

employees occupying such positions regardless of whether their exception was 

necessary to protect life and property. Id. Thus, this exception contemplated the 

possibility that employees occupying positions that generally are necessary to 

protect life and property could be excepted for only a portion of a planned 

furlough, or that some employees occupying positions that generally are 

necessary to protect life and property could be excepted while others would not 

be excepted. Id. 
7

¶11 Here, the NSN Security Officer indicated in an affidavit 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 exception of such employees as 

canine handlers, administrative staff, “pass/ID” officers, training staff, and 

detectives. IAF, Tab 8 at 102. He averred that, if a civilian was not directly 

responsible for the safety of life or property, an exception for that civilian had to 

be justified. Id. at 103. The Security Officer further indicated that detectives do 

not manage traffic or contribute to counterterrorism efforts, but instead 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 officers, the base would have to close because the public 

would be at risk. Id. Similarly, the Security Officer testified that, based on 

guidance from the Under Secretary of the Navy, he and several other officials, 

after considering where they could take acceptable risks to protect the 

installation, determined that it would not be an acceptable risk to furlough 

uniformed police officers who are first responders. IAF, Tab 24, Hearing 

Compact Disc (HCD) 1. He testified that they would, however, subject to the 

furlough administrative office staff, police trainers, “pass/ID” personnel, canine 

handlers, commercial vehicle inspection teams, and detectives. Id. He testified 

that a detective was not a first responder, that there were already certain days and 

nights when there would be no detectives on a shift, and that detectives would 

typically respond to a crime scene once it was safe to conduct an investigation. 

Id. 

¶12 The NSN Commanding Officer, who was also the deciding official, 

indicated in an affidavit that the exception criterion at issue 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 officers met that criterion. IAF, Tab 8 

at 114-15. Thus, he understood that only classification series 0083 Police 

Officers and Supervisors met the criterion for exception from the furlough. Id. 
8

at 116. He also indicated that the only consideration in deciding whether to 

furlough an employee was “an employee’s job title/position description and their 

ability to fully perform their duties.” Id. at 119. The NSN Commanding Officer 

similarly testified that he interpreted the exception to apply to his first 

responders, which would be “gun toting” police officers, fire, and “EMS”6

personnel. HCD 1. He testified that these individuals were first responders to 

safety or security emergencies who would arrive on the scene to protect the safety 

of life or property, and that he did not consider 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 commanding officers at other bases in the region were 

operating under the same furlough guidelines, each base had its unique size, 

mission, and staff, such that other bases could have interpreted the guidelines 

differently. Id. Although he had discretion under those guidelines, he did not 

except the appellants from the furlough because he determined that the appellants 

were not first 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 prevent unacceptable risk or catastrophic gaps, i.e., mostly 

police officers and firefighters. IAF, Tab 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 Commander, that they are not first responders, and that this 

interpretation was based on which personnel were needed to protect the 

 

6

 EMS is an abbreviation for Emergency Medical Services. 
9

installation for the 1 day per week that the agency was planning to furlough its 

civilian employees. HCD 1. 

¶14 The administrative judge appropriately recognized that detectives, on 

occasion, perform first-responder-like duties, ID at 18, and there appears to be no 

dispute that detectives perform stakeouts, do undercover work, arrest suspects, 

testify in court, secure crime scenes, and take evidence from suspects and 

witnesses, HCD 1 (testimony of the Commander, Navy Installation Command, the 

NSN Commanding Officer, and the NSN Precinct Commander); 

HCD 2 (testimony of the NSN Deputy Precinct Commander and the appellant 

Greenfield). These duties may be viewed as having some relation to the 

protection of life and property. 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. The exception focused on 

round-the-clock emergency response requirements, and the agency sought to 

except from the furlough only those employees whose absence would present an 

unacceptable risk to the protection of life and property, which the NSN 

installation determined did not include detectives. Although a position 

description indicates that police officers are first responders, IAF, Tab 9 at 51, 

the position description for detectives does not include such language, 

id. at 30-37. The exception also provided installation commanders with the 

authority to apply the exception in such a way as to meet the needs of their 

particular installation. Thus, we find that the agency has proven by preponderant 

evidence that the appellants, as detectives, were subject to, and did not meet the 

criteria for an exception to, the furlough. We thus find that, even assuming that 

the detective position itself generally were to be considered a first responder 

position necessary to protect the safety of life and property, this did not create a 

blanket furlough exception for that position, and the agency has established that 
10

detectives were not necessary to protect the safety of life and property at the NSN 

at the time of the furloughs in these cases. See Lopez, 121 M.S.P.R. 647, ¶ 11. 

The agency proved by preponderant evidence that the furlough promoted the 

efficiency of the service. 

¶15 The appellants assert that the agency did not conduct 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, limited duty, or in a disciplinary 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 exception criteria, yet were excepted from the furlough. 

PFR File, Tab 1 at 4, 9-14. In addition, the appellants contend that other 

detectives within the same competitive area at different installations were not 

furloughed, even though they were covered by the same collective bargaining 

agreement, fell under the same regional security director, and answered to the 

same furlough guidance from the Commander of the Navy Region, Mid-Atlantic. 

Id. at 13. The appellants assert that a human resources specialist testified at the 

hearing that all detectives within the local commuting area for all seven 

Department of the Navy military installations would fall under a single 

competitive area. Id. at 13-14. The appellants contend that the administrative 

judge rejected this testimony and instead used organizational 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 adverse action furloughs, RIF 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 agency satisfies the efficiency of the service standard 

under 5 U.S.C. § 7513(a) in a furlough appeal by showing, in general, that the 

furlough was a reasonable management solution to the financial restrictions 
11

placed on it and that the agency applied its determination 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 similarly and to justify any deviations with legitimate 

management reasons. Id. 

¶17 Which employees are similarly 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 establish competitive 

levels consisting of all positions in a competitive area which are in the same 

grade (or occupational level) and classification series, and which are similar 

enough in duties, qualification requirements, pay schedules, and working 

conditions so that an agency may reassign the incumbent of one position to any of 

the other positions in the level 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 competitive level, but other 

evidence also may be relevant under the 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 qualifications required of the incumbent as set forth in the 

official position description). Generally, a competitive area must be defined 

solely in terms of the agency’s organizational unit(s) and geographical location. 

Weathers, 121 M.S.P.R. 417, ¶ 8. The minimum competitive area is a subdivision 

of the agency under separate administration within the local commuting area. Id. 
12

¶18 We first find that the appellants were not similarly situated to the police 

officers at the NSN. In addition to the reasons set forth by the administrative 

judge as to why police officers and detectives were not similarly situated, 

ID at 16-19, the police officers at the NSN who were excepted from the furlough 

were in a different competitive level from the appellants because they occupied 

positions at different grade levels than the appellants, even if the positions were 

in the same classification series as detectives, 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. The appellants do not 

allege that they were similarly situated to these supervisors. PFR File, Tab 1 at 4, 

6-7, 9, 11-13. Nevertheless, we find that the supervisory police officer position 

was not similarly situated to the detective position. For positions to occupy the 

same competitive level, anyone who qualifies for one position 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 positions, and not the qualifications of their incumbents, 

determines whether competitive levels 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 position description, but it does include a 

police officer position description, which likely provides some indication of the 

duties and responsibilities to be performed and/or supervised by a supervisory 

police officer. The major duties and responsibilities of a police officer include 

providing “Anti-Terrorism/Force Protection,” physical security, and law 

enforcement services, such as gate sentry, pier sentry, counter-surveillance 

duties, patrol of assigned areas, and operating specialized equipment designed to 

deter, detect, and defend against potential security breaches and terrorist activity. 
13

IAF, Tab 9 at 39-45. A police officer is a “First Responder,” and the position 

requires qualification with service weapons and passing an annual physical 

fitness test. Id. at 51. 

¶20 By contrast, the major duties and responsibilities of the detective position 

are to conduct investigations of violations of laws, regulations, offenses, and 

crimes by maintaining surveillance over the scene or suspects, interrogating 

suspects and witnesses, searching the scene for physical evidence, taking and 

lifting fingerprints, comparing photographs of suspects with photographs on file, 

obtaining statements from witnesses, apprehending suspects, preparing reports, 

and testifying in court. Id. at 30-36. In this job, the 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 detectives received enhanced training on 

interviewing and fingerprinting and that police officers would not be as effective 

without the detectives in processing crime scenes and gathering evidence. 

HCD 1. Similarly, a lead watch commander testified that the duties of detectives 

are expanded because they process crime scenes, issue warrants, and interview 

and interrogate suspects, witnesses, and victims. HCD 2. The appellant 

Greenfield testified that he received training that police officers do not receive, 

including in such areas as writing analysis, i.e., determining 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 individuals 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 competitive level. George v. Interstate 

Commerce Commission, 20 M.S.P.R. 479, 482, aff’d, 758 F.2d 667 
14

(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 that an agency may reassign the incumbent 

of one position to the other position without undue interruption. Thus, they 

belong in separate competitive levels and 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 the appellant’s competitive level 

positions that differed significantly from the appellant’s position in the necessary 

skills, duties, and knowledge, including 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 competitive levels for positions with the same 

grade and title to take into account special qualifications or duties required of 

some incumbents). 

¶22 Moreover, we agree with the administrative judge that the detectives 

located at other installations are not similarly situated to the appellants. 

Although they may have occupied the same positions at the same grade level, the 

administrative judge correctly found that they were not similarly situated to the 

appellants because they worked in different organizational units under separate 

administrations. ID at 17; see Rodgers v. Department of the Navy, 122 M.S.P.R. 

559, ¶¶ 2, 15 (2015) (holding that an Attorney Advisor at the Navy Munitions 

Command in Yorktown, Virginia, who was furloughed, was not similarly situated 

to attorneys in the same classification series assigned to the Norfolk Naval 

Shipyard in Portsmouth, Virginia, for purposes of a furlough, even if they 

performed similar duties, because the shipyard attorneys 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 organizational units as separate 

competitive areas and treat employees from those competitive 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 separate competitive areas for RIF 

purposes when the New York Naval Shipyard and a Naval Supply Depot were, 

despite being “close neighbors,” under separate commands with separate 

retention registers). 

¶23 Although a human resources specialist familiar with RIFs testified that, for 

RIF purposes, detectives at the NSN were in the same competitive 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 furlough that lasted for more than 22 days. 

HCD 2. A different human resources specialist who was involved in the 2013 

furlough testified that the competitive area for detectives at the NSN during the 

furlough was the fence line of the installation for which the commanding officer 

had responsibility, and that each commanding officer had the authority to make 

furlough decisions based on the needs of that installation. Id. This testimony is 

consistent with the uncontradicted testimony and affidavits of numerous agency 

officials that the decisions on exceptions to the furlough were 

installation-specific, given that each base had different requirements and a unique 

size, mission, and staff composition, and therefore each installation’s 

commanding officer was given the flexibility to make different decisions on 

whether furloughing detectives would have led to an unacceptable 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 detectives located at other installations were not 

similarly situated to the appellants because they worked in different 

organizational units under separate administrations. 

¶24 We thus find that the actions promoted the efficiency of the service 

because the furlough was a reasonable management solution to the financial 

restriction placed on the agency, and the agency treated similar employees 

similarly and applied the furlough uniformly and consistently. 
16

We remand the appellants’ discrimination claims for further 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 (Gaston PFR), Tab 1 at 15-17. The appellants assert that 

all Black detectives within the Mid-Atlantic Region 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 agreement, fell under the same regional security director, 

and fell within the same competitive area. Id. They further assert that all 

detectives within the Mid-Atlantic Region were evaluated under the same DOD 

exception—direct responsibility to protect 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 interpret the exception as did the responsible 

officials at the other installations. Id. 

¶26 The appellants also contend that, although the administrative judge found 

no evidence that the Security Officer influenced the NSN Commanding Officer, 

who was the deciding official, the administrative judge improperly failed to apply 

the Board-recognized “cat’s paw” theory under which a management official, 

acting because of an improper animus, can influence an agency official who is 

unaware of the improper animus when implementing a personnel action. Id. 

at 16-17. The appellants assert that the Security Officer, who made 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 appellants’ discrimination claims, 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 nondiscriminatory reason for its action; once the agency 

has articulated a legitimate nondiscriminatory reason for its action, the burden 

shifts back to the appellant to show that the agency’s proffered explanation 

constitutes a pretext for discrimination. 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 Board 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 Board analyzes discrimination 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 appellant asserts an affirmative 

defense of discrimination 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 consideration 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 direct evidence or any of the 

three types of circumstantial 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 “convincing mosaic” of discrimination, i.e., 

suspicious timing, ambiguous oral or written statements, behavior toward or 

comments directed at other employees in the protected group at issue, and “other 

bits and pieces from which an inference of discriminatory intent might be drawn,” 
18

(2) comparator evidence, and (3) evidence that the agency’s stated reason for its 

action is unworthy of belief, such that it is a mere pretext 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 administrative 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 before 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 appellants 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 affirmative defense when there was 

no indication that the administrative judge apprised him of the applicable burdens 

of proof or of the types of evidence required to meet his burden). 

¶30 In addition, the administrative judge held that, although the Security 

Officer7

 used certain “offensive, despicable, and racist language,” there was 

insufficient evidence to establish that he influenced the deciding official. 

 

7

 Although the administrative judge found that the Security Officer was the proposing 

official, ID at 9, 18, the proposal 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 made 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 discrimination 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). Moreover, in determining 

whether the appellants were similarly situated to the detectives outside their 

protected class who were not furloughed, the administrative judge should 

consider whether the Board’s decision in Deas v. Department of Transportation, 

108 M.S.P.R. 637 (2008), applies in this case.8 In 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 considered similarly situated 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 autonomy in determining the actions to be taken against the 

employees.9 

 

8

 In Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶¶ 9-10 (2014), the Board 

overruled decisions in which it applied the jurisdictional framework for “constructive” 

suspensions to cases involving the placement of an employee on enforced leave for 

more than 14 days, finding instead that those 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 placement of an employee on 

enforced leave is a “constructive” suspension. The principle for which we cite to Deas

in this Opinion and Order has not, however, been overruled. 

9

 In a declaration made under penalty of perjury, the deciding official averred that all 

positions at the NSN meeting the protection of life and property exception were 

identified and submitted through the Commander, Navy Region Mid-Atlantic, and the 

Commander, Navy Installations Command, and approved by the Assistant Secretary of 

the Navy (Manpower and Reserve Affairs) via the Director, Office of Civilian Human 

Resources. CAF, Tab 5 at 6. He further averred that, while the exceptions based on the 

protection of life and property were submitted through higher level command, he made 

an independent assessment of the security needs of the NSN and determined which 
20

¶31 Under these circumstances, and because adjudicating these discrimination 

claims may involve resolving conflicting evidence and credibility issues that 

could depend upon the demeanor of witnesses, it is appropriate 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 judge should inform the parties of the standards of 

proof applicable to a claim of discrimination pursuant to Savage, and provide 

them with an opportunity to further develop the evidence on the discrimination 

issue. The administrative judge’s new 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 would not lead to an unacceptable risk or 

catastrophic gaps in the safety and protection of life or property at the installation. Id. 

10 The appellant Gaston does not challenge the administrative judge’s findings on her 

sex discrimination claim. Gaston PFR File, Tab 1 at 10, 15-17. In any 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 appellants were subject to, and not excepted 

from, the furlough, affirm the initial decisions’ finding that the agency proved 

that the furlough promoted the efficiency of the service, vacate the initial 

decisions’ findings regarding the race discrimination claims, and remand these 

appeals for further adjudication consistent with this Opinion and Order. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.