Peter Schneiderbauer v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER SCHNEIDERBAUER, DOCKET NUMBER
Appellant, SF-0752-13-4228-I-1 1
v.
DEPARTMENT OF THE NAVY, DATE: June 11, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Peter Schneiderbauer, Port Hueneme, California, pro se.
Matthew D. Dunand, Esquire, and Steven L. Seaton, Esquire, Bremerton,
Washington, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a)(2), this appeal was part of a consolidation,
NV24-California v. Department of the Navy, MSPB Docket No. SF-0752-14-0306-I-1,
Consolidated Appeal File (CAF). The appellant and one additional employee have filed
individual petitions for review of the initial decision. Only the arguments raised by the
instant appellant will be considered herein.
2
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s furlough action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant serves as an electronics engineer at the agency’s Naval
Surface Warfare Center, Port Hueneme Division (NSWC-PHD). Initial Appeal
File (IAF), Tab 2 at 4; see CAF, Tab 19, Initial Decision (ID) at 13 (citing the
Hearing Compact Disc (HCD)). The agency proposed to furlough the appellant
for no more than 11 days due to the budget constraints following the President’s
March 1, 2013 sequestration order. IAF, Tab 1 at 8-10. After providing an oral
reply to the deciding official, the agency imposed the furlough action, which was
subsequently reduced by the Secretary of Defense to no more than 6 days. Id. at
11-12 (decision letter); see CAF, Tab 2, Furlough Processing Order
(incorporating by reference the agency’s administrative record found on the
Board’s website); Department of the Navy Administrative Record for Fiscal Year
3
2013 Furlough Appeals (Administrative Record), Tab 3, available
at http://www.mspb.gov/furloughappeals/navy2013.htm.
¶3 The appellant filed an appeal of the agency’s furlough action, which was
consolidated with several other appeals, and he requested a hearing. CAF, Tabs
1, 2; IAF, Tab 1 at 2. The administrative judge held the requested hearing,
received closing submissions from several employees, including the instant
appellant, and issued an initial decision sustaining the agency’s furlough action.
ID at 13-16, 30; IAF, Tab 5 (appellant’s closing brief). In her initial decision, the
administrative judge found that the agency established cause for taking the
furlough action based on the budget shortfall resulting from the March 1, 2013
sequester order, and that the agency’s furlough action promoted the efficiency of
the service. ID at 5-13.
¶4 The administrative judge also addressed the specific arguments raised by
the appellant concerning the manner in which the agency implemented his
furlough. Specifically, she considered and rejected the appellant’s argument that
he was required to work more than 32 hours each week during the furlough period
without compensation. 3 ID at 13-16. In his appeal, the appellant alleged that he
was scheduled to attend a 10-week training, which overlapped with part of his
furlough period, and that he was required to study and perform assignments on
evenings and weekends as part of the training. ID at 13 (citing the HCD). The
agency extended the training course to 12 weeks to accommodate the appellant’s
reduced schedule as a result of the furlough. See id. The appellant alleged,
however, that he should have been paid overtime for the time he was required to
study and perform assignments on evenings and weekends. ID at 14 (citing the
HCD). The agency denied his requests for overtime and to alter the course
schedule, noting that overtime had not been authorized for other employees who
had previously taken the course, and that the course was structured to allow for
3
The agency implemented the appellant’s furlough by reducing his work hours from 40
to 32 hours each week. ID at 13 (citing the HCD).
4
time to complete assignments during the workday while attending the training.
See id.¶5 In her initial decision, the administrative judge found that the Board does
not have jurisdiction over the appellant’s claim involving a denial of overtime,
and she further found that, to the extent the appellant alleged that other
employees received overtime during the furlough period, those requests were of a
different nature than the appellant’s and that they met the agency’s mission-
critical standard for approving overtime during sequestration. ID at 16. The
administrative judge thus concluded that the agency implemented the appellant’s
furlough in a fair and even manner. ID at 15-16.
¶6 The appellant has filed a petition for review only challenging the
administrative judge’s finding that the agency implemented the furlough in a fair
and even manner when it denied his requests for overtime. 4 Petition for Review
(PFR) File, Tab 1. On review, the appellant argues that the administrative judge
erred in her factual conclusions that the course work for the training could be
completed during the workday and that he failed to specifically document the
amount of time he spent working on assignments on evenings and weekends. See
id. at 4-5. The appellant also argues that his training was unique because no other
training required employees to study and complete assignments on their own
time, and that the administrative judge therefore erred in concluding that he failed
to prove that similar overtime requests were granted during the furlough period
while his was denied. Id. at 6-7. The agency has filed a response in opposition to
the petition for review, and the appellant has filed a reply. PFR File, Tabs 3, 4.
¶7 The Board has found that an agency meets its burden of proving a furlough
promotes the efficiency of the service by showing, in general, that the furlough
4
On review, the appellant also frames the issue as a denial of wage compensation based
on his assertion that he was required to work in excess of 32 hours each week during
the furlough period. See, e.g., Petition for Review File, Tab 4 at 6 (“[The] [a]gency in
effect directed after-hours work without providing just compensation.”).
5
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. In re Tinker AFSC/DP v. Department of the Air
Force, 121 M.S.P.R. 385, ¶ 14 (2014). In Chandler v. Department of the
Treasury, 120 M.S.P.R. 163, ¶ 14 (2013), the Board held that an agency’s
decision to award certain employees overtime may be relevant to whether the
agency applied the furlough uniformly and consistently. Under Chandler, the
Board will consider whether an agency used overtime payments to relieve certain
employees, but not others, of the financial consequences of the furlough, and such
evidence may be sufficient to show that the furlough did not meet the efficiency
of the service standard. Id.¶8 Upon review of the initial decision and the arguments advanced by the
appellant on petition for review, we agree with the administrative judge that the
agency implemented the furlough in a fair and even manner, and that the agency
did not contravene this principle by denying the appellant’s requests for overtime.
ID at 13-16. The record reflects that the agency restructured the training course
to account for the fact that the appellant was limited to working 4 days per week
during the furlough period, and we agree with the administrative judge that the
agency presented credible evidence that it had not previously granted overtime
requests for employees taking the course, and that the appellant’s request for
overtime did not comply with the agency’s guidance for the approval of overtime
during the sequester. ID at 13-15; see Administrative Record, Tab 8. Although
the appellant challenges the administrative judge’s factual findings on review, he
has neither presented evidence contradicting these findings nor identified
evidence in the record below supporting his assertions. See generally PFR File,
Tab 1; see also Taylor v. U.S. Postal Service, 23 M.S.P.R. 48, 50 (1984) (mere
disagreement with an administrative judge’s factual and credibility
determinations does not establish a basis for granting a petition for review). We
thus fully concur with the administrative judge that there is no evidence in the
6
record that the agency’s denial of overtime was directed at the appellant or that
the overtime denial demonstrates that the agency did not apply the furlough
uniformly and consistently. See Kelly v. Department of the Army, 121 M.S.P.R.
408, ¶¶ 12-13 (2014). We further find that the agency’s decision to grant
overtime under limited circumstances, which did not include the appellant’s
requests, is a spending matter within the agency’s sound discretion and does not
present a valid basis for challenging the furlough before the Board. See id., ¶ 12.
¶9 Additionally, we agree with the administrative judge that the Board lacks
jurisdiction over the appellant’s challenges to the denial of his overtime requests
and his alleged denial of compensation for hours worked in excess of 32 hours per
week. See, e.g., Liebeck v. Department of Veterans Affairs, 77 M.S.P.R. 696, 698
(1998). Both the U.S. Court of Appeals for the Federal Circuit and the Board
have held that the loss or reduction of premium pay, such as overtime, through
means within the agency’s discretion and not otherwise appealable to the Board,
is not within the Board’s jurisdiction under chapter 75. Id.; see Strickland v.
Veterans Administration, 5 M.S.P.R. 526, 528 (1981). A reduction in pay under
chapter 75, moreover, only occurs when “the rate of basic pay fixed by law or
administrative action for the positon held by an employee” decreases; such an
action would therefore not encompass the appellant’s claim that he worked in
excess of 32 hours per week during the furlough without receiving compensation.
Id. (citing 5 U.S.C. § 7511(a)(4)); PFR File, Tab 4 at 6. Although the Board will
consider the manner in which an agency awards overtime in connection with an
employee’s appeal of a furlough, as noted above, we find no reason to conclude
that the appellant’s denial of overtime was directed at him. See
Chandler, 120 M.S.P.R. 163, ¶ 14. We therefore conclude that the appellant’s
challenges to the denial of overtime and the lack of compensation for hours
allegedly worked are not otherwise appealable actions to the Board under chapter
75. See Liebeck, 77 M.S.P.R. at 698; see also Johnson v. U.S. Postal Service, 67
7
M.S.P.R. 573, 577 (1995) (the Board’s jurisdiction is limited by statute and does
not cover all matters alleged to be unfair or unlawful in federal employment).
¶10 Finally, although the appellant has not challenged any of the administrative
judge’s other findings concerning the agency’s furlough action, we have reviewed
the remainder of the initial decision insofar as it applies to the appellant and we
agree that the agency established cause for taking the furlough action and that the
furlough action promotes the efficiency of the service. See Lopez v. Department
of the Navy, 121 M.S.P.R. 647, ¶¶ 15-16 (2014). The administrative judge’s
initial decision sustaining the furlough action is AFFIRMED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
8
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.