In re Tinker AFSC/DP, DA-0752-14-0157-I-1[1]
| Decision Date | 15 July 2014 |
| Docket Number | DA-0752-14-0157-I-1[1] |
| Court | Merit Systems Protection Board |
| Parties | In Re Tinker AFSC/DP, Appellants, v. Department of the Air Force, Agency. 2014 MSPB 51 |
Krista O. Harke, Harrah, Oklahoma; Nicoli D. Frazier, Oklahoma City Oklahoma; Lynda J. Arce, Newalla, Oklahoma; Angela Lin Woods Oklahoma City, Oklahoma; LaNeal S. Barger, Midwest City Oklahoma; Sarah E. Walker, Edmond, Oklahoma; and Amy B Noble, Oklahoma City, Oklahoma, pro se.
Telin W. Ozier, Esquire, Tinker Air Force Base, Oklahoma, for the agency.
BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member
¶1 This appeal is before the Board on interlocutory appeal from the May 14, 2014 order of the administrative judge staying the proceedings and certifying for Board review her rulings that: (1) the agency's decision not to furlough so-called "safe haven" employees who were evacuated due to a natural disaster should be analyzed as part of the agency's burden of proving that its furlough determinations were made in a fair and even manner; and (2) neither 5 U.S.C. § 5523, nor the Office of Personnel Management's regulations implementing that provision, precluded the inclusion of "safe haven" employees in the agency-wide furlough. For the reasons set forth below, we AFFIRM the administrative judge's ruling that the agency has the burden of proving that it applied its determination as to which employees to furlough in a fair and even manner. We also FIND that whether a statute or regulation precluded the agency from furloughing "safe haven" employees is not determinative as to whether the agency treated its employees in a fair and even manner. Accordingly, we VACATE the stay order and RETURN the appeal to the regional office for adjudication consistent with this Opinion and Order.
¶2 The agency issued decision notices furloughing the appellants for no more than 11 workdays from their Equal Employment Specialist, Human Resources Specialist, Human Resources Assistant, and Lead Management Analyst positions based on 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." E.g., Harke v Department of the Air Force, MSPB Docket No. DA-0752-13-1340-I-1 (Harke Appeal File), Tab 1 at 8-14; Frazier v. Department of the Air Force, MSPB Docket No. DA-0752-13-1386-I-1 (Frazier Appeal File), Tab 1 at 8-15; Woods v. Department of the Air Force, MSPB Docket No. DA-0752-13-1789-I-1, Tab 1 at 8-13; Walker v. Department of the Air Force, MSPB Docket No. DA-0752-13-2113-1-1, Tab 1 at 7-13.2 The agency noted 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, and that DoD "must and will protect wartime operations funding for our troops in harm's way." E.g., Harke Appeal File, Tab 1 at 11; Frazier Appeal File, Tab 1 at 10.
¶3 On appeal to the Board, the appellants alleged, among other things, that the agency did not treat similar employees with fairness and equity because the agency exempted attorneys from the furlough, but not employees such as Human Resources Specialists, and exempted Oklahoma tornado victims whose homes were deemed uninhabitable, but not those employees whose homes received extensive storm damage but were still deemed "livable," even though financial hardship was not supposed be a consideration in effecting the furloughs. See, e.g., Harke Appeal File, Tab 1 at 6, 8; Frazier Appeal File, Tab 1 at 6.
¶4 The agency asserted in response that the appellants were ultimately furloughed for 6 workdays, see, e.g., Harke Appeal File, Tab 3 at 18; Frazier Appeal File, Tab 3 at 18, and that five agency attorneys were exempted because an ethical conflict would exist for the attorneys if they could appeal the same furlough they would have to defend before the Board, Harke Appeal File, Tab 3 at 5. The agency also asserted that, under 5 U.S.C. §§ 5522-23, the Secretary of the Air Force exercised "continuation of salary" in the form of evacuation payments to offset direct added expenses incurred by employees who were ordered to evacuate and were prevented from performing their duties because of an imminent danger to their lives as a result of a severe weather condition or emergency situation, such as the tornadoes that affected an area of Oklahoma that included Tinker Air Force Base on May 19, May 20, and May 31, 2013. Frazier Appeal File, Tab 2 at 17.
¶5 The administrative judge consolidated the appeals, MSPB Docket No. DA-0752-14-0157-1-1, Consolidated Appeal File (CAF), Tab 2 at 1-2, and found that the appellants did not request a hearing, id., Tab 3 at 1. In a summary of the close of record conference, the administrative judge identified the following issues in the case, namely whether: (1) the agency had a legitimate reason for the furlough; (2) the furlough promoted the efficiency of the service; (3) the agency applied the furlough in a fair and even manner; and (4) the agency committed harmful error in deciding to furlough the appellants. CAF, Tab 7 at 1. The administrative judge noted that the agency bore the burden of proving that there was a factual basis for the furlough, that the furlough promoted the efficiency of the service, and that the agency applied the furlough to the appellants in a fair and even manner. Id. at 2. The administrative judge informed the parties that an agency may establish that a furlough promotes the efficiency of the service by showing that the furlough was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a "fair and even manner," which means that the agency applied the adverse action furlough uniformly and consistently. Id.
¶6 The administrative judge further notified the parties that the appellants had the burden of proving by preponderant evidence that the agency committed harmful error in deciding to furlough them. Id. In this regard, the administrative judge noted that the appellants had alleged that the agency committed harmful error by not treating similarly-situated employees the same when it exempted some agency employees from the furlough based on the May 2013 tornadoes that struck the Moore, Oklahoma area. Id. at 2-3. The administrative judge indicated that, although 5 C.F.R. § 752.404(b)(2) provides that a proposal notice must state the basis for selecting a particular employee for furlough when some but not all employees in a given competitive level are being furloughed, the proposal notices in these cases did not indicate that any employees would be exempt from the furlough based on the impact of the May 2013 tornadoes. Id. at 3. Thus, the administrative judge ordered the parties to provide, among other things, information regarding whether any employees were exempt from the furlough based on the impact of the May 2013 tornadoes and, if so, evidence regarding whether any of the exempt employees were in the same competitive level as the appellants, as well as a detailed explanation of the basis for determining which employees were not subject to furlough. Id. at 3-4.
¶7 In its response to the summary of the close of record conference, the agency asserted that there was no harmful error because "safe haven" employees who received evacuation payments, including continuation of salary, until they returned to permanent housing in the evacuation area were "excluded" from the furlough by operation of law before the agency issued its furlough proposal notice, and thus did not need to fall under any of the stated exemptions for those subject to the furlough. CAF, Tab 8 at 5-9; see, e.g., id. at 16-21. Alternatively, the agency asserted that, even if there was an error in the application of its procedures, the appellants did not show that the error likely caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. CAF, Tab 8 at 10; see 5 C.F.R. § 1201.56(c)(3). The agency asserted that it applied the "safe haven" procedures in a uniform and consistent manner because "any employee whose home was rendered 'uninhabitable' could apply for and take advantage of the Safe Haven program." CAF, Tab 8 at 13. The agency asserted that because it was statutorily prohibited from reducing the pay of an employee under the protection of the "safe haven" program, and because keeping such "safe haven" employees in the pool of employees subject to the furlough would reduce their pay, removing those employees from the pool of employees subject to the furlough was a reasonable decision. Id.
¶8 The administrative judge thereafter issued an "Order and Certification of Interlocutory Appeal" finding that a question had arisen as to whether the agency's "safe haven" decision should be analyzed as part of the agency's burden of proving that it treated employees in a fair and even manner or whether the "safe haven" decision should be considered under a harmful error analysis with the appellants having the burden of proof. CAF, Tab 9 at 5. The administrative judge found that the Board had jurisdiction to review the agency's decision to "exempt 'safe haven' employees from the agency-wide furlough" and that the agency's "safe haven" decision should be analyzed as part of the agency's burden of proving that its furlough determinations were made in a fair and even manner. Id. at 5-6. The administrative judge further held that "neither 5 U.S.C. § 5523nor the Office of Personnel Management's regulations implementing that provision,...
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