James J. Viscardi v. Department of Defense ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES J. VISCARDI, DOCKET NUMBER
Appellant, NY-0752-13-0938-I-1
v.
DEPARTMENT OF DEFENSE, DATE: March 24, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
James J. Viscardi, Northport, New York, pro se.
Michael R. Montefinise, Esquire, Garden City, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The agency’s Defense Contract Management Agency (DCMA) furloughed
the appellant from his GS-11 Contract Administrator position for 6 discontinuous
days. Initial Appeal File (IAF), Tab 1 at 19-22, Tab 10 at 13, Tab 17 at 9, Tab 28
at 19-24. The agency’s proposal notice informed the appellant that the action was
“necessitated by 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,” i.e.,
across-the-board reductions to federal budgetary resources. IAF, Tab 1 at 48; see
2 U.S.C. § 900(c)(2) (as used in 2 U.S.C. chapter 20, subchapter I, the terms
“sequester” and “sequestration” refer to or mean the cancellation of budgetary
resources provided by discretionary appropriations or direct spending law).
¶3 On appeal to the Board, the appellant asserted that he should have been
exempt from the furlough because he administers mission-based, critical-need
contracts for two programs that relate to military readiness, and that his request
for an exemption on that basis was denied in reprisal for his filing of a formal
discrimination complaint. IAF, Tab 1 at 13, Tab 13 at 2. The appellant also
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contended that the furlough would cause him a financial hardship; the action was
inequitable because of the established exemptions and based on age
discrimination; the agency should have implemented a hiring freeze and reduced
service contracts to avoid the furloughs; and the agency committed harmful error
when it failed to notify Congress of the furloughs. IAF, Tab 1 at 14-17; see IAF,
Tab 10 at 4-12. In addition, the appellant argued that the agency improperly
furloughed him under 5 C.F.R. part 752, rather than 5 C.F.R. part 351, because he
was furloughed for 6 discontinuous days covering a period of over 30 days. He
therefore maintained that the furlough action cannot be sustained because he was
denied his substantive entitlements under 5 C.F.R. part 351. See IAF,
Tabs 65-66, 68, 71-72, 74-76, 78-81, 85, 87-89, 91-92, 96, 101, 104, and 106.
¶4 After a hearing, the administrative judge affirmed the furlough action. IAF,
Tab 109, Initial Decision (ID) at 1, 31. The administrative judge found that the
6-day furlough constituted an adverse action, not a reduction in force (RIF); the
agency proved the factual basis for the furlough; the furlough promoted the
efficiency of the service; and the agency treated employees in a uniform and
consistent manner. ID at 3-10. The administrative judge also held that the
appellant did not fall under an established exemption from the furlough and did
not prove age discrimination, retaliation for filing a discrimination complaint,
harmful error, or a denial of due process. ID at 7-8, 10-31.
¶5 The appellant asserts on review that the administrative judge incorrectly
limited the scope of discovery to the competitive area in which the appellant
worked, given that the appellant was attempting to show, among other things, that
the action was not uniform and consistent and was based on disparate treatment
and disparate impact age discrimination. Petition for Review (PFR) File, Tab 1
at 2-3. The appellant also contends that the administrative judge should have
granted his motion for an interlocutory appeal on the discovery issue, Department
of Defense (DOD) Contract Administrators outside his competitive area are
similarly situated to him because they perform the same duties, and his furlough
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of 6 discontinuous workdays, which covered a period that totaled more than
22 discontinuous workdays, should have been subject to the RIF regulations at
5 C.F.R. part 351. Id. at 5-9. The appellant further asserts that the agency
improperly denied him an exemption from the furlough, which was not necessary
because there was no lack of funds, and thus the agency did not establish a
reasonable factor other than age for the furlough. Id. at 10-13. The agency has
filed a response in opposition to the petition for review; the appellant has filed a
reply to the agency’s response. PFR File, Tab 3-4. 2
DISCUSSION OF ARGUMENTS ON REVIEW 3
The administrative judge did not abuse his discretion regarding discovery.
¶6 Under 5 C.F.R. § 1201.72(a), discovery is a process by which a party may
obtain relevant information, which includes information that appears reasonably
calculated to lead to the discovery of admissible evidence. An administrative
judge has broad discretion in ruling on discovery matters, and absent a showing
of an abuse of discretion the Board will not find reversible error in such rulings.
See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
¶7 The appellant filed a motion to compel requesting, among other things,
names, job titles, and duty stations for “any and all agency civilian employees”
age 40 and above, and age 39 and below, who were exempt or not exempt from
the furlough, with the intent of proving disparate impact and disparate treatment
age discrimination. IAF, Tab 38 at 1, 5-6. The appellant defined “agency” as the
DOD. Id. at 5. The administrative judge, however, found that the above
2
After the record closed on review the appellant filed a request to submit an additional
pleading based on newly discovered “additional published evidence” not read ily
available before the record closed. PFR File, Tab 7. Because he has not described the
nature of the pleading, see 5 C.F.R. § 1201.114(a)(5), we DENY the request.
3
In light of our finding that there has been no abuse of discretion regard ing discovery,
the appellant’s argument that the administrative judge improperly failed to certify the
discovery issue as an interlocutory appeal need not be addressed. See Bascom v.
Department of Transportation, 20 M.S.P.R. 295, 300 n.7 (1984).
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discovery requests were overbroad and granted the appellant’s motion to compel
but limited the scope of the agency’s response to individuals within the
appellant’s competitive area. IAF, Tab 43.
¶8 The appellant has not shown that the administrative judge abused his
discretion in so limiting discovery. An agency meets the efficiency of the service
standard in a furlough appeal by showing, in general, 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. Chandler v. Department of the Treasury, 120 M.S.P.R. 163,
¶ 8 (2013). A “fair and even manner” means that the agency applied the adverse
action furlough uniformly and consistently, just as it is required to apply a RIF.
Id. Thus, the agency is required to treat similar employees similarly and to
justify any deviations with legitimate management reasons. Id. Which
employees are similarly situated will be decided on a case-by-case basis, but the
Board will be guided by RIF principles in making that determination. Id.
¶9 Employees who work in different competitive areas and for different
organizational units are generally not considered to be similarly situated for
purposes of determining whether the agency proved that it applied its
determination as to which employees to furlough in a fair and even manner. See
Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶¶ 8-9 (2014). A
competitive area is generally defined solely in terms of the agency’s
organizational units and geographical location, and the minimum competitive area
is a subdivision of the agency under separate administration within the local
commuting area. See 5 C.F.R. § 351.402(b).
¶10 Here, the administrative judge properly limited the scope of discovery to
the appellant’s competitive area insofar as the appellant was attempting to obtain
evidence to rebut the agency’s evidence regarding the uniformity and consistency
of its furlough determinations. See Weathers, 121 M.S.P.R. 417, ¶ 9. Moreover,
for employees to be deemed similarly situated for purposes of a disparate
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treatment discrimination claim, all relevant aspects of the appellant’s employment
situation must be “nearly identical” to those of comparator employees. Fox v.
Department of the Army, 120 M.S.P.R. 529, ¶ 37 (2014). For example, to be
similarly situated, comparators must have reported to the same supervisor, been
subjected to the same standards governing discipline, and engaged in conduct
similar to the appellant’s without differentiating or mitigating circumstances. Id.
Regarding the appellant’s disparate treatment claim, the administrative judge
properly denied the appellant’s motion to compel the production of information
relating to employees outside his competitive area because the appellant did not
allege that all relevant aspects of his employment situation, including the
supervisor to whom he reported, were nearly identical to the employment
situations of all DOD civilian employees. See Snell v. U.S. Postal Service,
82 M.S.P.R. 674, 677 (1999) (finding that the appellant did not prove his
affirmative defense of age discrimination based on disparate treatment because he
did not show that he was similarly situated to any comparison employee or that he
was treated more harshly than any such employee).
¶11 Nevertheless, 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 disciplinary actions to be taken against the
employees. Deas v. Department of Transportation, 108 M.S.P.R. 637, ¶ 21
(2008). Here, even assuming that employees outside the appellant’s work unit or
competitive area were similarly situated to him under Deas, the agency provided
information to the appellant regarding which employees were furloughed for the
entire DCMA Eastern Region, which was broader than his competitive area. In
this regard, the deciding official, who was the DCMA Commander for the Eastern
Region, indicated in a declaration made under penalty of perjury that, “[a]fter
carefully considering each employee’s reply to the proposed furlough notice and
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the efficiency of the service of the Department and based on the professional
advice of the DCMA Human Capital Directorate, I did not find any circumstances
that warranted granting relief from the furlough for any DCMA employee in the
Eastern Regional Command.” IAF, Tab 34 at 5-6. Thus, the appellant has shown
no abuse of discretion by the administrative judge as it relates to discovery in
support of a claim of disparate treatment age discrimination.
¶12 Under a disparate impact theory, a facially neutral employment practice
may be deemed to violate Title VII of the U.S. Code without the evidence of an
employer’s subjective intent to discriminate that is required in a disparate
treatment case. Stern v. Federal Trade Commission, 46 M.S.P.R. 328, 332-33
(1990). To establish a case of a disparate impact violation of the Age
Discrimination in Employment Act (ADEA), an employee must: (1) identify the
specific employment practices that are allegedly responsible for any observed
statistical disparities; and (2) offer statistical evidence of a kind and degree
showing that the practices at issue have caused the disparate impact. Warner v.
Department of the Interior, 115 M.S.P.R. 281, ¶ 8 (2010). Unlike Title VII, the
ADEA significantly narrows coverage for disparate impact cases by precluding
agency liability if the adverse impact was attributable to reasonable factors other
than age. Id. This is treated as an affirmative defense for which the agency bears
the burden of production and persuasion. Id.
¶13 As set forth above, the appellant filed a motion to compel discovery
requesting names, job titles, and duty stations for any and all DOD civilian
employees age 40 and above, and age 39 and below, who were exempt or not
exempt from the furlough, with the intent of proving disparate impact age
discrimination. IAF, Tab 38 at 1, 5-6. Although the appellant contends that his
reason for requesting such information regarding all DOD civilian employees was
to capture a statistically significant and material sample, PFR File, Tab 1 at 5, he
has not provided any authority which would support a finding that such
information was reasonably calculated to lead to the discovery of admissible
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evidence. See 5 C.F.R. § 1201.72(a). The appellant has not explained, for
example, how information regarding all DOD civilian employees would be
relevant to the furlough action taken by DCMA, which is the acting agency in this
case. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 (1988)
(statistical disparities must be sufficiently substantial that they raise an inference
of causation); see also Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶ 10
(2014) (finding that the agency that took the furlough action was the Department
of the Navy, not DOD). In any event, as set forth above, the information
provided to the appellant by the agency shows that the agency furloughed all
employees in DCMA’s Eastern Region, which encompassed several competitive
areas including the appellant’s competitive area consisting of offices in New
York and New Jersey, and did not exempt any of those employees. IAF, Tab 34
at 5-6 (declaration of the deciding official, who was also the DCMA Commander
for the Eastern Region); see IAF, Tab 17 at 6, Tab 84 at 4, 6, 11-12. The record
reflects that there were 3,268 individuals under the command of the DCMA
Eastern Region. Hearing Compact Diskette (testimony of the deciding official
and DCMA Commander for the Eastern Region). Thus, based upon a sample size
consisting of all individuals who worked under the Commander of DCMA’s
Eastern Region, there was no statistical disparity based on age or any other factor.
¶14 Even assuming that the agency had produced information showing a
statistical disparity involving age, the appellant has shown no error in the
administrative judge’s alternative finding that the agency met its burden of
proving by preponderant evidence a reasonable factor other than age for the
furlough, i.e., a shortage of funds suffered by DCMA due to sequestration and the
agency’s decision to furlough employees as a reasonable solution to this problem.
ID at 14-15. Accordingly, even assuming an abuse of discretion by the
administrative judge regarding discovery, the appellant has shown no basis for
reversal of the initial decision. See Panter v. Department of the Air Force,
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22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
The administrative judge properly applied 5 C.F.R. part 752 to this appeal.
¶15 The appellant asserts that his furlough of 6 discontinuous workdays, which
covered a period that totaled more than 22 discontinuous workdays, should have
been subject to the RIF regulations at 5 C.F.R. part 351. PFR File, Tab 1 at 8-9.
¶16 In Salo v. Department of Defense, 2015 MSPB 14, ¶ 7, the Board addressed
this argument, holding that the RIF regulations did not apply when the agency
placed the appellant in a temporary nonpay and nonduty status for 6 workdays on
a discontinuous basis, despite the fact that the length of time that the appellant
was subject to being furloughed may have lasted more than 22 discontinuous
workdays. The Board held under these circumstances that the agency actually
furloughed the appellant on a discontinuous basis, i.e., placed him in a temporary
nonduty and nonpay status, for less than 22 days. See id. Thus, such an action
was reviewable by the Board under the efficiency of the service standard of
5 U.S.C. § 7513(a), and the agency was not required to follow RIF procedures.
Salo, 2015 MSPB 14, ¶¶ 6-7. Similarly, we find that the administrative judge
properly applied 5 C.F.R. part 752, rather than the RIF regulations set forth at
5 C.F.R. part 351, in this case.
The administrative judge properly found that the agency proved that its furlough
action promoted the efficiency of the service.
¶17 Although the appellant contends that DOD Contract Administrators outside
his competitive area are similarly situated to him because they perform the same
duties that he performs, PFR File, Tab 1 at 6-7, employees who work in different
competitive areas and for different organizational units are generally not
considered to be similarly situated, see Weathers, 121 M.S.P.R. 417, ¶¶ 8-9. The
appellant further asserts that the agency improperly denied him an exemption
from the furlough, and that the furlough was preventable and not necessary
because there was no lack of funds, and thus the agency did not establish a
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reasonable factor other than age for the furlough. PFR File, Tab 1 at 10-13. We
disagree. The record evidence supports the administrative judge’s determination
that the appellant did not fall within an exemption to the furlough, the agency had
to make significant spending cuts because of sequestration, and the furlough
helped it avoid a deficit. See, e.g., IAF, Tab 1 at 62-65, Tab 17 at 6-7
(stipulations of fact), Tab 22 at 33-34, 38, Tab 57 at 16-18; ID at 2, 6-8.
¶18 Accordingly, we DENY the petition for review and AFFIRM the initial
decision. The appellant’s furlough is SUSTAINED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
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later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.