Gajdos v. Department of Army, SF-0752-13-1913-I-1

CourtMerit Systems Protection Board
Citation2014 MSPB 55
Decision Date22 July 2014
Docket NumberSF-0752-13-1913-I-1
PartiesJohnathan Gajdos, [1] Appellant, v. Department of the Army, Agency.

2014 MSPB 55

Johnathan Gajdos, [1] Appellant,

Department of the Army, Agency.

No. SF-0752-13-1913-I-1

United States of America Merit Systems Protection Board

July 22, 2014

Johnathan Gajdos, Appellant, Johnathan Gajdos, Monterey, California, pro se.

Michael L. Halperin, Esquire, Monterey, California, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member Vice Chairman Wagner issues a separate, dissenting opinion.


¶1 The appellant petitions for review of an initial decision that affirmed the agency's furlough action. For the following reasons, we find that the petitioner has not established a basis under 5 C.F.R. § 1201.115 to grant the petition for review. We therefore DENY the petition and AFFIRM the initial decision's due process analysis AS MODIFIED by this Opinion and Order, still affirming the furlough action.


¶2 On May 28, 2013, the agency issued a Notice of Proposed Furlough informing the appellant, an Assistant Professor, that the Defense Language Institute Foreign Language Center (DLIFLC) proposed to furlough him for no more than 11 workdays due to "the extraordinary and serious budgetary challenges facing the Department of Defense (DoD) for the remainder of Fiscal Year (FY) 2013, the most serious of which is the sequester that began on March 1, 2013." Initial Appeal File (IAF), Tab 1 at 1, 7-8; Army Training Doctrine Command v. Department of the Army, MSPB Docket No. SF-0752-13-4840-1-1, Consolidation File (CF), Tab 8 at 23. The agency notified the appellant that the Budget Control Act of 2011, as amended by the American Taxpayer Relief Act of 2012, made across-the-board reductions to budgetary resources for the federal government, that DoD must and will protect wartime operations funding for its troops in harm's way, that "[t]his inevitably means larger cuts in base-budget funding for the Operation and Maintenance (O&M) accounts," and that DoD "will need funding in other accounts that can be used to provide the warfighters with what they need to protect national security and fight the war." CF, Tab 8 at 23. The agency afforded the appellant an opportunity to respond orally and/or in writing to the proposal, to review the supporting material, and to furnish affidavits or other supporting documentary evidence in his answer. Id. at 24. The proposal notice indicated that no decision to furlough had been made or would be made until full consideration was given to the appellant's reply. Id.

¶3 By written notice dated June 14, 2013, the agency's deciding official informed the appellant that his written and oral replies to the proposal notice had been reviewed and carefully considered, determined that the reasons for the proposed furlough remained valid, and indicated that the procedures and conditions related to the furlough were determined to be the most equitable means of implementing the furlough and that the appellant would be required to be on a discontinuous furlough for no more than 11 workdays during the period from July 8, 2013, through September 30, 2013. IAF, Tab 1 at 10-11. The record includes a Standard Form 50 reflecting the appellant's furlough, effective July 8, 2013, on discontinuous days between July 8, 2013, and September 30, 2013, not to exceed a maximum of 88 hours, with the appellant's supervisor informing the appellant of the specific furlough dates before the beginning of each pay period. Id. at 7-8.

¶4 On appeal, the appellant asserted that: (1) the furlough did not promote the efficiency of the service because active-duty service member students at the DLIFLC would be present for instruction with half-strength teaching teams, which could result in lower student graduation rates and increased costs associated with extending the length of student training; (2) it appeared that his written response to the proposal had not been considered because the decision notice incorrectly indicated that he had made an oral reply and did not specifically address the concerns he had raised; (3) the decision notice did not specify the reasons for the decision, but merely indicated that the reasons set forth in the proposal notice remained valid; (4) the decision notice did not state the basis for selecting a particular employee for furlough, as required by 5 C.F.R. § 752.404, and the agency did not provide him with any materials the agency relied upon specific to his furlough action; (5) the DLIFLC Commandant, who signed the decision letter, did not appear to be empowered to make the decision, which should have been signed by the Secretary of Defense as the true deciding official; and (6) the agency engaged in discrimination based on national origin because it furloughed U.S. citizens but not foreign national civilian employees on H-1B visas. IAF, Tab 1 at 5; see IAF, Tab 8 at 5-10.

¶5 The administrative judge consolidated this appeal with several other appeals. CF, Tabs 2-3. Based on the written record because the appellants either did not request a hearing or withdrew their request for a hearing, see, e.g., IAF, Tab 13, the administrative judge affirmed the furlough actions, CF, Tab 21, Initial Decision (ID) at 1-2, 12. The administrative judge found that the agency subsequently reduced the number of furlough days served by the appellants to 6 workdays. ID at 3. She further found that the agency proved that the furloughs promoted the efficiency of the service by offering unrebutted evidence that the agency had to make significant spending cuts because of sequestration, [2] that the furloughs helped the agency avoid a deficit without jeopardizing military readiness, and that the agency imposed the furloughs uniformly with exceptions only for a limited number of categories, such as employees who were needed to protect life or property or whose absence would result in the failure of a critical mission. ID at 6.

¶6 Regarding the appellants' claim relating to H-1B visa holders, who are not U.S. citizens, the administrative judge held that the appellants did not establish a prima facie case of discrimination because citizenship is not a cognizable protected category under Title VII of the Civil Rights Act of 1964, and the appellants did not specify that they were members of a protected category with respect to national origin, given that U.S. citizens encompass a variety of national origins. ID at 7-8. The administrative judge also held that the agency established a legitimate management reason for exempting H-1B visa holders from the furlough, namely, regulations requiring the agency to pay H-1B visa holders even if the employee is not working as long as the inability to work is the result of the agency's action or inaction. ID at 8. The administrative judge rejected the appellants' harmful error claim, finding as to 5 C.F.R. § 752.404(b)(2) that there was no evidence that the appellants and other employees who were not furloughed were in the same competitive level, and that the agency, in any event, provided sufficient notice of the basis for furloughing some employees but not others and the specific reasons for the furlough. ID at 8-9.

¶7 Finally, the administrative judge held that the appellants did not prove that the agency violated their due process rights. ID at 10-12. In this regard, the administrative judge held that there was no regulatory or judicially imposed requirement that the agency specifically address all arguments raised in a response to a proposal notice, and that a failure to address all such arguments was not a due process violation. The administrative judge also noted that a May 14, 2013 memorandum from the Secretary of Defense indicated that deciding officials would have the discretion to execute the full range of options, including reducing the number of days an individual is furloughed or granting an exception from the furlough. ID at 11; see CF, Tab 7 at 70-74. The administrative judge further held that the deciding official's limited discretionary review in this case was consistent with the nature of furloughs resulting from a sequestration, which are unlike other adverse actions because factors normally within a deciding official's discretion, such as the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which are relevant in agency penalty determinations, do not apply here. ID at 12.


¶8 The appellant asserts on review that there is substantial evidence indicating that the deciding official did not have the authority to reverse the course of the proposed furlough, including: (1) a memorandum from the deciding official indicating that the furlough was mandatory to meet required spending reductions and that neither the union nor management would be able to stop the furlough; (2) an email from the deciding official indicating that "we will furlough only if we are told we have to"; (3) the agency's response to the appeal, which indicated that the agency is a "top-down organization," which is required to obey orders within the chain of command, and the deciding official was ordered to furlough all non-exempt civilian employees; and (4) the agency's response to an interrogatory indicating that, if an employee was not exempt from the furlough, the response to the proposal notice was given no further consideration. Petition for Review (PFR) File, Tab 1 at 4-6. The appellant further contends that his pre-decisional reply opportunity was precluded because a decision made by the Secretary of Defense before the proposal notice was issued required the deciding official to furlough him, and that the agency did not follow its own adverse action procedures, which required that deciding officials have "full authority" to make a decision. Id. at 7. In this regard, the appellant asserts that he had no opportunity to reply to the Secretary of Defense, "the official who appears to have actually been the one...

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