The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2026 MSPB 2
Docket No. AT-0752-21-0619-I-2
John Brandon Bushkell,
Appellant,
v.
Department of Justice,
Agency.
March 17, 2026
Kerry E. Knox , Esquire, Murfreesboro, Tennessee, for the appellant.
Chad Y. Tang , Esquire, Drew Ambrose , and Monica Hansen ,
Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review and the agency has filed
a cross petition for review of the initial decision, which sustained his removal.
For the reasons discussed below, we GRANT the petition for review, DENY the
cross petition for review, VACATE the initial decision, and REMAND the appeal
to the regional office for further adjudication in accordance with this Opinion and
Order.
BACKGROUND
¶2 The appellant was employed as a GS-13 Special Agent at the
agency’s Federal Bureau of Investigations (FBI) in its Memphis Field Office,
2
Nashville Resident Agency. Bushkell v. Department of Justice, MSPB Docket
No. AT-0752-21-0619-I-1, Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 37, 127.
Effective August 24, 2021, the agency removed him for being absent without
leave (AWOL) from March 15 through May 28, 2021. IAF, Tab 8 at 37-41,
59-62.
¶3 Prior to this period, from August 17, 2020, through January 3, 2021,
the appellant was absent from work due to a job-related neck injury. IAF, Tab 8
at 54, 161-66; Bushkell v. Department of Justice, MSPB Docket No. AT-0752-21-
0619-I-2, Appeal File (I-2 AF), Tab 8 at 12, Tab 16-1, Hearing Recording, Part 1
(HR-1) at 9:20 (testimony of the appellant’s supervisor), Tab 16-4, Hearing
Recording, Part 4 (HR-4) at 19:36 (testimony of the appellant). The appellant’s
doctor released him to return to “full time full duty work on January 4, 2021.”
I-2 AF, Tab 8 at 12-13; HR-1 at 9:43-10:33 (testimony of the appellant’s
supervisor). On January 6, 2021, the appellant’s next scheduled workday, he
sought medical treatment at an emergency room for what was diagnosed at the
time as lumbar radiculopathy. IAF, Tab 8 at 165; I-2 AF, Tab 11 at 21; HR-4
at 19:40 (testimony of the appellant). From January 6 to March 12, 2021, the
appellant took 384 hours of leave without pay (LWOP) in lieu of sick leave. IAF,
Tab 8 at 165-66. The Office of Workers’ Compensation Programs (OWCP)
ultimately determined that the January 6, 2021 injury was not work related. IAF,
Tab 8 at 153-54; I-2 AF, Tab 11 at 30.
¶4 In March 2021, the appellant’s supervisor learned that the appellant
had been cleared to return to work on January 4, 2021, by the doctor treating his
on-the-job neck injury. HR-1 at 10:00-10:33 (testimony of the appellant’s
supervisor). On March 12, 2021, the supervisor sent the appellant an email
directing him to return to work on March 15, 2021. IAF, Tab 8 at 130. The email
warned that the appellant would “be charged [AWOL] for absences that are
unexcused, lack administratively acceptable documentation, or . . . [for which the
appellant did] not have enough leave.” Id. The supervisor notified the appellant
3
that he had 240 hours of accrued annual leave and 146 hours and 45 minutes of
accrued sick leave. Id.
¶5 On March 14, 2021, the appellant responded that he had “a note from
[his] doctor not to return to work until [he was] cleared,” that he had a doctor’s
appointment scheduled on April 2, 2021, that he was still pursuing his workers’
compensation claim for his lumbar condition, and that he would like to use sick
leave “until this matter is resolved.” Id. at 129-30. His supervisor replied that
day informing the appellant that the agency had not received any medical
documentation. Id. at 129.
¶6 On March 22, 2021, the Regional Program Manager (RPM) from the
FBI’s Medical Operations and Readiness Unit (MORU) sent an email to the
appellant again stating that the agency had not received medical documentation
from him for his current absence. Id. at 121, 134. The RPM instructed the
appellant that such documentation must include certain details such as his
diagnosis and prognosis and workplace limitations. Id. at 134. She requested that
his practitioner provide the information on an FBI form FD-948, Certificate of
Essential Duty Status (FD-948). Id.; I-2 AF, Tab 7 at 28.
¶7 On April 5, 2021, the appellant submitted four FD-948s to the
MORU dated January 8, February 5, March 5, and April 2, 2021, which
collectively stated that he should remain completely off work from January 8
through May 7, 2021. I-2 AF, Tab 8 at 17, 20-23. On April 7, 2021, the RPM
provided the appellant with a letter stating that the FD-948s he had submitted on
April 5th were administratively unacceptable because his doctor had not provided
information regarding the appellant’s ICD code, diagnosis, prognosis, restrictions,
and estimated return to work date. 1 IAF, Tab 8 at 136-37; I-2 AF, Tab 8 at 20-23.
1
The parties have not explained what an “ICD code” is. However, in context, we
assume that it refers to an International Classification of Diseases code. World Health
Organization, International Statistical Classification of Diseases and Related Health
Problems (ICD), https://www.who.int/standards/classifications/classification-of-
diseases#:~:text=International%20Statistical%20Classification%20of%20Diseases%20a
4
She directed the appellant to resubmit fully completed FD-948s from his doctor
immediately. IAF, Tab 8 at 137.
¶8 On April 9, 2021, the appellant returned to the RPM her April 7,
2021 letter inscribed with a handwritten note from the appellant’s doctor dated
April 8, 2021. I-2 AF, Tab 8 at 25-27. The doctor’s note contained the ICD code,
diagnosis of a herniated disk with foraminal stenosis, prognosis, and restrictions.
Id. at 26-27. The doctor estimated a “return to regular duty work” in 3 months.
Id. at 26. The note was signed and dated by the appellant’s physician on April 8,
2021. Id. The appellant also resubmitted his April 5th FD-948s, with the
information contained in the physician’s April 8th note handwritten onto the
FD-948s by his spouse. Id. at 28-31, 156. On April 23, 2021, the RPM emailed
the appellant again notifying him that his FD -948s submitted on April 9th were
not administratively acceptable because they identified a different diagnosis, i.e.,
the appellant’s lumbar diagnosis, rather than the diagnosis identified “in the
original case,” apparently referring to his prior on-the-job neck injury. Id. at 39.
She directed the appellant to submit an updated FD-948, completed and signed by
his physician, for his lumbar diagnosis. Id.
¶9 The appellant emailed his supervisor on May 7, 2021, that he would
be “off work for an indefinite amount of time” for a “referral and some other
matters.” IAF, Tab 8 at 138. In his email response, the supervisor reminded the
appellant that “all previous leave guidance remains for each work day away.” Id.
The agency removed the appellant, effective August 24, 2021, on the basis that he
was AWOL between March 15 and May 28, 2021, totaling 440 hours. Id.
at 37-40, 59. The agency divided its AWOL charge into four specifications, as
follows: (1) March 15 to 19, 2021; (2) March 22 to April 2, 2021; (3) April 5 to
May 14, 2021; and (4) May 17 to 28, 2021. Id. at 38, 59.
nd%20Related%20Health%20Problems%20(ICD)&text=ICD%20serves%20a%20broad
%20range,and%20coded%20with%20the%20ICD (last visited Mar. 13, 2026); see
5 C.F.R. § 1201.64 (authorizing the Board and its administrative judges to take official
notice of matters of common knowledge or matters that can be verified).
5
¶10 After holding the appellant’s requested hearing, the administrative
judge issued an initial decision affirming the removal. IAF, Tab 1 at 2; I-2 AF,
Tab 18, Initial Decision (I-2 ID) at 1, 13. He did not sustain the first two
specifications, i.e., the AWOL charges from March 15 to April 2, 2021. I-2 ID
at 6. He nevertheless sustained the charge of AWOL, finding that the agency
proved the remaining two specifications covering the dates from April 5 to
May 28, 2021. I-2 ID at 6-7.
¶11 The administrative judge also found that the appellant failed to prove
his affirmative defense of disability discrimination based on failure to provide
reasonable accommodation or disparate treatment. I-2 ID at 7-10. He determined
that the agency established a nexus between the appellant’s misconduct and the
efficiency of the service. I-2 ID at 10-11. Lastly, he determined that the deciding
official properly considered the relevant mitigating and aggravating factors and
that the penalty of removal was within the tolerable limits of reasonableness.
I-2 ID at 11-12.
¶12 The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response and cross
petition for review, to which the appellant responded. 2 PFR File, Tabs 3, 6.
ANALYSIS
The agency proved the appellant was AWOL from approximately April 9, 2021,
to May 28, 2021.
¶13 To prove an AWOL charge, an agency must show that an employee
was absent without authorization and, if the employee requested leave, that the
request was properly denied. Wilson v. Small Business Administration,
2
At the time, the Board’s regulation expressly allowed a party to file a cross petition
for review. 5 C.F.R. § 1201.114(a) (2023). The Board revised this regulation, effective
October 7, 2024, eliminating the option of filing a cross petition for review but allowing
both parties to file a petition for review. Organization and Procedures, 89 Fed. Reg.
72957, 72959, 72962-63 (Sep. 9, 2024) (codified in relevant part at 5 C.F.R.
§ 1201.114(a)). We have considered all of the parties’ pleadings on review.
6
2024 MSPB 3, ¶ 7. The parties do not dispute that the appellant was absent
without authorization from March 15 to May 28, 2021, the dates at issue in his
removal. The agency’s timekeeping summary of the appellant’s leave usage
reflects that he was charged 440 hours of AWOL during those dates. IAF, Tab 8
at 166-69. However, the parties disagree as to whether the agency properly
denied his request to use sick leave. PFR File, Tab 1 at 4-6, Tab 3 at 6-10, Tab 6.
¶14 An AWOL charge will not be sustained if an employee presents
administratively acceptable evidence showing that he was incapacitated for duty
during the relevant time period, and he has sufficient sick leave to cover the
period of absence. Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 5
(2010); Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9 (2007); see
5 C.F.R. § 630.405(a)-(b) (indicating that an agency may deny a request for sick
leave when an employee fails to provide properly requested administratively
acceptable evidence). On March 14, 2021, the day prior to the beginning of the
absence at issue in the appellant’s removal, he requested to use sick leave pending
OWCP’s decision on his appeal of its determination that he did not suffer an
on-the-job injury on January 6, 2021. IAF, Tab 8 at 129-30. At the time his
absence began, the appellant had approximately 146 hours and 45 minutes of
accrued sick leave, which would have covered his absence through the morning of
April 8, 2021. IAF, Tab 8 at 127.
¶15 The administrative judge found that the agency improperly denied
the appellant’s sick leave request because the RPM could not identify any
information that was lacking in the medical documentation the appellant
submitted on April 9, 2021. I-2 ID at 6. We agree. The appellant’s signed
medical note dated April 8, 2021, contained an ICD code, his diagnosis, his
“[g]ood prognosis for a full recovery,” his restrictions, and his estimated return to
work in 3 months. I-2 AF, Tab 8 at 26-27. The appellant also submitted FD-948s
7
signed by the same physician and certifying that the appellant was “off work”
beginning on January 8, 2021. 3 Id. at 20-23.
¶16 To the extent that the administrative judge suggested that the agency
properly rejected medical documentation at some point in April 2021 because the
documentation was not submitted on FD-948s, we do not agree. I-2 ID at 6-7.
An agency cannot rest an AWOL charge solely on an employee’s failure to submit
medical documentation on a particular form. If the employee has sufficient sick
leave to cover the period in question, the agency must grant the request when the
employee provides administratively acceptable evidence of incapacitation because
of illness or injury and may not charge him with AWOL for the period, regardless
of whether the employee has complied with applicable leave procedures.
Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 18 (2003); see 5 C.F.R.
§§ 630.201 (defining a “medical certificate” for purposes of annual and sick leave
to include a practitioner’s “written statement ... certifying to the
incapacitation”), 630.401(a)(2) (mandating that an agency “grant sick leave”
when an employee is medically incapacitated), 630.405(a) (providing that an
agency “may . . . require a medical certificate or other administratively acceptable
evidence” before granting sick leave). Regardless of its format, the appellant’s
medical documentation was administratively acceptable, and the agency was
required to allow him to use his accrued sick leave. See Riley v. Department of
the Army, 53 M.S.P.R. 683, 690 (1992) (finding that an appellant’s physician’s
certificate constituted administratively acceptable evidence when it contained a
description of her medical condition and the period that she was on bed rest and
unable to work). Accordingly, we find that the appellant should have been
approved for 146 hours and 45 minutes of sick leave during the period at issue in
the AWOL charge.
3
In assessing this medical evidence, we have not considered the appellant’s wife’s
handwritten annotations on the FD-948s. I-2 AF, Tab 8 at 28-31, 156.
8
¶17 We do not agree with the administrative judge’s determination that
April 2, 2021, was the last date on which the agency improperly denied
the appellant’s request for sick leave. I-2 ID at 7. The only significance April 2,
2021, has in this appeal is that it is the last date covered under the second
specification of the charge. IAF, Tab 8 at 38. As noted above, the appellant’s
accrued sick leave covered his absence through the morning of April 8, 2021.
The appellant was also entitled to accrue additional sick leave at the rate of
4 hours at the end of each pay period during which he was in a pay status.
5 U.S.C. § 6307(a); Ringo v. Department of Defense, 122 M.S.P.R. 91, ¶¶ 5, 7
(2015); 5 C.F.R. § 630.202(a). We need not resolve precisely the length of
the appellant’s absence that would have been covered by his accrued sick leave.
But we observe that the period for which the agency improperly denied him sick
leave extended through approximately April 9, 2021.
¶18 Regardless of how the agency divided up the specifications in its
charge, the remaining AWOL period was over 280 hours. When more than one
event or factual specification supports a single charge, proof of one or more, but
not all, of the supporting specifications is sufficient to sustain the charge.
Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). As
discussed below, the agency proved the appellant was AWOL beginning around
April 9, 2021, and therefore proved its charge.
¶19 We now turn to the period beginning around April 9, 2021, when the
appellant’s sick leave would have run out had it properly been granted. The
appellant argues on review that the medical documentation discussed above,
which certified his incapacitation through April 9, 2021, also covered his
remaining absence. PFR File, Tab 1 at 5-6. However, an agency is not required
to prove that it properly denied leave that was not requested. Wilson, 2024 MSPB
3, ¶ 7. The appellant only requested to use sick leave and, as explained, his
accrued sick leave expired around April 9, 2021. I-2 AF, Tab 8 at 161, 168. The
appellant never requested to use any other type of leave. Id. An employee has
9
the primary responsibility for requesting leave. Hartigan v. Veterans
Administration, 39 M.S.P.R. 613, 619 (1989); Cresson v. Department of the Air
Force, 33 M.S.P.R. 178, 181-82 (1987). He is also responsible for ascertaining
whether his leave requests are approved. Johnson v. General Services
Administration, 46 M.S.P.R. 630, 634, aff’d per curiam, 944 F.2d 913 (Fed. Cir.
1991) (Table).
¶20 According to the appellant, he assumed his sick leave was being
approved. I-2 AF, Tab 8 at 157-59, 161. He testified that he did not learn that
the agency considered him to be AWOL until July 1, 2021, when he received the
notice of proposed removal. HR-4 at 40:46 (testimony of the appellant); IAF,
Tab 8 at 62. He never inquired as to his leave status even though he was unpaid
during his over 2-month absence. I-2 AF, Tab 8 at 168. When his accrued sick
leave was due to be exhausted around April 9, 2021, he did not request annual
leave because he believed that OWCP would eventually determine that his
absence was due to an on-the-job injury. Id. The appellant’s absence was
without leave, and he is responsible for his failure to ensure that it was approved.
Further, the appellant’s supervisor advised him on March 14, 2021, the day before
the agency designated the appellant as AWOL, that OWCP had not accepted his
workers’ compensation claim. I-2 AF, Tab 11 at 30. Thus, like the
administrative judge, we find that the agency proved its AWOL charge.
However, we do so based on our reasoning above rather than the reasoning set
forth in the initial decision.
The appellant was not entitled to retroactively invoke Family and Medical Leave
Act of 1993 (FMLA) protection for his leave.
¶21 In the appellant’s initial appeal, he alleged that the AWOL charge
should not be sustained because he was entitled to FMLA-protected leave. IAF,
Tab 1 at 5. When FMLA is implicated relative to an AWOL charge, the agency
must prove that it complied with FMLA as part of its overall burden of proving
the charge. Ellshoff v. Department of the Interior, 76 M.S.P.R. 54, 73-74 (1997).
10
However, the administrative judge did not identify the agency’s burden at any
point throughout the appeal. He also did not make a finding as to whether the
agency complied with FMLA in sustaining the AWOL charge. We find that the
appellant’s absence was not protected under FMLA.
¶22 The appellant, like most non-postal Federal employees, was covered
under Title II of FMLA. Williams v. Department of Commerce, 2024 MSPB 8,
¶ 14; see FMLA, Pub. L. No. 103-3, § 201(a)(1), 107 Stat. 6, 19 (codified as
amended, in pertinent part, at 5 U.S.C. § 6381(1)(A), which incorporates the
definitions of “employee” under Title II of the FMLA from 5 U.S.C. § 6301(2)
(generally including in the definition of “employee” an individual under 5 U.S.C.
§ 2105 (defining “employee” to include most civil service appointees))). Under
Title II, an eligible employee is “entitled to a total of 12 administrative
workweeks of leave during any 12-month period” for, as relevant here, “a serious
health condition that makes the employee unable to perform the functions of the
employee’s position.” 5 U.S.C. § 6382(a)(1)(D); Landahl v. Department of
Commerce, 83 M.S.P.R. 40, ¶ 8 (1999).
¶23 The Board has held in the past that an employee is not required to
specifically invoke FMLA when requesting leave, so long as he presents the
agency with sufficient evidence to trigger consideration of his absence under
FMLA. Bowen v. Department of the Navy, 112 M.S.P.R. 607, ¶ 8 (2009), aff’d
per curiam, 402 F. App’x 521 (Fed. Cir. 2010); Covington v. Department of the
Army, 85 M.S.P.R. 612, ¶ 13 (2000); Landahl, 83 M.S.P.R. 40, ¶ 9; Burge v.
Department of the Air Force, 82 M.S.P.R. 75, ¶ 14 (1999); Jefferies v.
Department of the Navy, 78 M.S.P.R. 255, 260 (1998); Gross v. Department of
Justice, 77 M.S.P.R. 83, 88 (1997); Ellshoff, 76 M.S.P.R. at 76. This holding is
incorrect.
¶24 The statute provides that an employee typically “shall provide the
employing agency with not less than 30 days’ notice, before the date the leave is
to begin, of the employee’s intention” to take FMLA leave. 5 U.S.C.
11
§ 6382(a)(1), (e). Further, under regulations issued by the Office of Personnel
Management implementing Title II of FMLA, an employee is responsible for
invoking his entitlement to FMLA leave unless he and his personal representative
are medically unable to do so. 5 C.F.R. § 630.1203(b). An employee may not
retroactively invoke his entitlement to FMLA-protected leave. Id. The U.S.
Court of Appeals for the Federal Circuit has cited 5 C.F.R. § 630.1203(b) for the
propositions that a Federal employee must invoke his entitlement to FMLA and
that an employee may not do so retroactively, unless the employee was medically
incapable of invoking his entitlement during the entire period of his absence, in
which case the employee must invoke within 2 workdays of his return.
Williams v. Department of the Army, 300 F. App’x 920, 923 (Fed. Cir. 2008); 4 see
also Crutchfield v. Department of the Navy, 73 M.S.P.R. 444, 447 n.3 (1997)
(recognizing that 5 C.F.R. § 630.1203(b) provides that an employee must invoke
his entitlement to FMLA leave). Therefore, we find that an employee covered by
Title II of FMLA must expressly invoke FMLA when requesting leave and may
not retroactively designate leave as FMLA protected unless the employee and his
personal representative are medically unable to do so. We overrule prior Board
cases to the extent that they state otherwise.
¶25 Turning to the facts here, we find that the agency was not required to
designate any portion of the appellant’s absence as FMLA protected because the
appellant did not invoke FMLA in his communications with his supervisor. On
March 14, 2021, after the appellant was notified that OWCP considered him to be
recovered from his neck injury and that he had to return to work, he informed his
supervisor that he was not medically cleared to work and requested leave. IAF,
Tab 8 at 129-30. The appellant was aware of his entitlement to FMLA-protected
leave, but he did not invoke it. IAF, Tab 8 at 92; I-2 AF, Tab 8 at 138, 161.
4
The Board may rely on unpublished decisions of the Federal Circuit if it finds the
court’s reasoning persuasive, as we do here. Jennings v. Social Security
Administration, 123 M.S.P.R. 557, ¶ 25 n.2 (2016).
12
Thus, the agency was not required to designate the appellant’s absence as FMLA
protected.
Remand is necessary in order for the administrative judge to adjudicate the
appellant’s affirmative defense of disability discrimination based on a denial of
reasonable accommodation.
¶26 The administrative judge found that the appellant failed to establish
his affirmative defense of disability discrimination based on disparate treatment
or a denial of reasonable accommodation. I-2 ID at 9-10. The parties do not
disagree with these determinations on review. We decline to disturb this finding
as it concerns the appellant’s disparate treatment claim. We also discern no basis
to disturb the administrative judge’s unchallenged determination that the
appellant did not request to return to work with accommodations. I-2 AF, Tab 8
at 151, 166, Tab 16-5, Hearing Recording, Part 5 at 27:00 (testimony of the
appellant). However, we find that the appellant’s March 14, 2021 request for sick
leave due to his medical condition constituted a reasonable accommodation
request.
¶27 Allowing an employee to use accrued or unpaid leave is a form of
reasonable accommodation. Josefina L. v. Department of Veterans Affairs, EEOC
Appeal No. 2021003613, 2023 WL 2660688, *3 (Mar. 15, 2023); Equal
Employment Opportunity Commission, Employer-Provided Leave and the
Americans with Disabilities Act, Granting Leave as a Reasonable
Accommodation (May 9, 2016), https://www.eeoc.gov/laws/guidance/employer-
provided-leave-and-americans-disabilities-act . 5 On March 14, 2021, upon
receiving his supervisor’s email directing the appellant to return to work, the
appellant informed his supervisor that he had “a note from [his] doctor not to
return to work until I am cleared.” IAF, Tab 8 at 130. He advised his supervisor
that he wished to take sick leave “until this matter is resolved.” Id. at 129. The
5
We defer to the Equal Employment Opportunity Commission on this matter of
substantive discrimination law. Wilson v. Small Business Administration, 2024 MSPB
3, ¶ 14.
13
administrative judge erred by not considering this request for leave as a request
for a reasonable accommodation.
¶28 On remand, the administrative judge must reevaluate the appellant’s
affirmative defense of disability discrimination based on the denial of the
appellant’s request to use sick leave, including determining in the first instance
whether the appellant was a qualified individual with a disability. See Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶¶ 28-29; Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 37. The administrative judge who
oversaw the proceedings below and issued the initial decision is no longer
employed by the Board. When there is conflicting testimony on a material issue,
and a new administrative judge will decide the case, the testimony should be
heard again to permit the administrative judge to make credibility determinations
based on witness demeanor. Lin v. Department of the Air Force, 2023 MSPB 2,
¶ 24. On remand, if the administrative judge determines that there is no such
testimonial conflict, the administrative judge may make a decision regarding this
claim on the written record. Otherwise, the administrative judge should hold a
supplemental hearing on the issue of whether the agency denied the appellant a
reasonable accommodation by failing to grant him sick leave through
approximately April 9, 2021.
The penalty of removal for over 280 hours of AWOL is reasonable.
¶29 The parties do not disagree with the administrative judge’s
conclusion that removal was a reasonable penalty. 6 We have found that the
agency proved the appellant was AWOL for more than 280 hours, even after
subtracting his available sick leave. 7
6
On review, the parties do not challenge the administrative judge’s finding that the
agency proved nexus. I-2 ID at 10-11. We decline to revisit that finding.
7
As discussed above, the appellant requested only to use sick leave, which would have
covered his absence through approximately April 9, 2021. Therefore, he cannot prove
that his AWOL after approximately that date constituted a denial of reasonable
accommodation.
14
¶30 The administrative judge found that the deciding official properly
considered all of the relevant factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), and exercised management
discretion within the tolerable limits of reasonableness. I-2 ID at 12. The
deciding official considered mitigating factors, such as the appellant’s two cash
awards and three time-off awards, but found that they were outweighed by the
aggravating factors, including the “substantial” amount of the appellant’s AWOL
and the seriousness of the offense, the negative effect the appellant’s absences
had on his office’s mission, his recent unacceptable performance, and that he had
been “repeatedly counseled” on medical and leave policies. Id.; IAF, Tab 8 at 39.
¶31 Neither the deciding official, nor the administrative judge,
specifically considered the appellant’s length of service as a relevant mitigating
factor. IAF, Tab 8 at 39; I-2 ID at 12. The Standard Form 50 in the record
reflects a service computation date in September 1998. IAF, Tab 8 at 37. Thus, it
appears the appellant had almost 22 years of service at the time of his August
2021 removal, which should have been considered mitigating. Halper v. U.S.
Postal Service, 91 M.S.P.R. 170, ¶¶ 8-11 (2002) (mitigating the penalty of
removal to a 30-day suspension and a demotion based, in part, on an appellant’s
23 1/2 years of Government service). AWOL is a serious offense that warrants a
severe penalty. Bowman v. Small Business Administration, 122 M.S.P.R. 217,
¶ 12 (2015); see, e.g., McCauley v. Department of the Interior, 116 M.S.P.R. 484,
¶¶ 13-14 (2011) (sustaining the penalty of removal for 22 days of AWOL despite
an appellant’s more than 20 years of service); Cook v. Department of the Navy,
34 M.S.P.R. 26, 27-29 (1987) (finding removal was reasonable for 16 hours of
AWOL, unauthorized use of telephone, and reading a newspaper during work
hours because the appellant had a prior 45 -day suspension and had been
counseled about conduct and attendance expectations). Even considering the
appellant’s length of service, we agree with the deciding official and the
15
administrative judge that removal was an appropriate penalty in light of the length
of the proven AWOL.
ORDER
¶32 For the reasons discussed above, we vacate the initial decision and
remand this case to the Atlanta Regional Office for further adjudication in
accordance with this Opinion and Order. The remand initial decision should
address the appellant’s claim of discrimination based on the denial of a
reasonable accommodation request with respect to his March 14, 2021 request for
sick leave. The administrative judge may adopt the Board’s findings above,
regarding the charge and penalty in the remand initial decision.
Gina K. Grippando
Clerk of the Board
Washington, D.C.