Adrienne D. Carter v. Department of Housing and Urban Development

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ADRIENNE D. CARTER, DOCKET NUMBER

Appellant, CB-7121-14-0018-V-1

v.

DEPARTMENT OF HOUSING AND DATE: May 11, 2015

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Charles E. Wagner, Esquire, Silver Spring, Maryland, for the appellant.

Evette R. Young, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant seeks review of an arbitration decision that sustained her

removal for misconduct. For the following reasons, we GRANT the appellant’s

request for review under 5 U.S.C. § 7121(d). Because we find that the arbitrator

failed to employ the proper legal framework when he analyzed the appellant’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

failure to accommodate disability discrimination claim and he made an error in

civil service law in his penalty analysis, we VACATE the arbitration decision in

this regard. We FIND, however, that the appellant did not prove her disability

discrimination claim based on a failure to accommodate. We FURTHER FIND

that removal is a reasonable penalty for the sustained misconduct.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The background is undisputed. The appellant was removed based on

charges of failure to maintain a regular work schedule and failure to follow

instructions. See Request for Review (RFR) File, Tab 9 at 17-28 (notice of

proposed removal), 72-76 (decision letter). The appellant’s union filed a

grievance that proceeded to arbitration. See id. at 77 (notice to invoke

arbitration). After a hearing, the arbitrator found that: (1) the agency met its

burden to demonstrate that the appellant engaged in the charges; (2) the issue

concerning whether the agency provided a reasonable accommodation for the

appellant’s disability was not properly before the arbitrator, and in the alternative,

the appellant failed to demonstrate that the agency violated her rights regarding

the failure or refusal to provide her with a reasonable accommodation; (3) the

appellant did not prove her disparate treatment disability discrimination claim;

and (4) the removal promoted the efficiency of the service and was “for just and

sufficient cause.” RFR File, Tab 8 at 4-86.

¶3 In her “Statement of Grounds on Which Review is Requested” and

“Grounds Requiring Reversal of Arbitrator’s Decision,” the appellant identified

16 separate grounds, which we condense and summarize as follows: (1) the

removal was in retaliation for equal employment opportunity (EEO) activity;

(2) the agency improperly denied her request for a reasonable accommodation;

(3) the notice of proposed removal was defective because it did not identify the

nature of the second charge, the arbitrator used an improper construction of that

charge, and the arbitrator committed harmful error in his construction of that

3

charge; (4) the arbitrator improperly evaluated the appellant’s disability

discrimination claim and erroneously ruled that the reasonable accommodation

issue was not properly before him; (5) the agency violated the appellant’s due

process rights because it removed her based on her performance, which was not

one of the stated grounds for removal; (6) the arbitrator improperly upheld the

removal based on an agency official’s declaration that was submitted 1 month

after the record was closed; and (7) the agency failed to recognize her medical

conditions as a mitigating factor in the penalty analysis. See RFR File, Tab 7

at 5-9. The agency, in its response to the request for review, asserted among

other things, that: (1) the appellant is precluded from asserting retaliation as an

affirmative defense for the first time in her request for review; (2) the arbitrator

correctly determined that she was not disabled; (3) the arbitrator correctly

concluded that she failed to cooperate and provide sufficient medical

documentation to support her request for a reasonable accommodation; (4) the

appellant understood and responded to the failure to follow instructions charge;

and (5) the appellant was provided notice that her performance was at issue. RFR

File, Tab 9.

The Board has jurisdiction over the request for review, but it cannot review the

appellant’s claim of retaliation for protected activity because this issue was not

raised before the arbitrator.

¶4 The Board has jurisdiction over the request for review because the subject

matter of the grievance is one over which the Board has jurisdiction (removal),

the appellant alleged disability discrimination in connection with the underlying

action, and a final decision has been issued by the arbitrator. 5 U.S.C. § 7121(d);

McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 5 (2013).

¶5 If the negotiated grievance procedure (NGP) permits allegations of

discrimination, 2 the Board will review only those claims of discrimination that

2

A claim of EEO retaliation is cognizable under 5 U.S.C. § 2302(b)(1)(A). Rhee v.

Department of the Treasury, 117 M.S.P.R. 640, ¶ 20 (2012).

4

were raised in the NGP. If the NGP does not permit allegations of discrimination

to be raised, the appellant may raise such claims before the Board. See Brookens

v. Department of Labor, 120 M.S.P.R. 678, ¶ 6 (2014); see also 5 C.F.R.

§ 1201.155(c). The appellant did not provide the relevant portions of the NGP;

however, the arbitrator discussed section 22.03 of the NGP, which apparently

permitted the appellant to raise a claim of discrimination, and the arbitration

decision reflects the arbitrator’s consideration of the appellant’s disability

discrimination claim. See RFR File, Tab 8 at 49-60, 81-85. Because the

appellant could have, but did not, raise her retaliation claim during the NGP, she

is therefore precluded from asserting such a claim for the first time before the

Board. See 5 C.F.R. § 1201.155(c); see also Brookens, 120 M.S.P.R. 678, ¶ 6;

Jones v. Department of Energy, 120 M.S.P.R. 480, ¶¶ 3-10 (2013), aff’d, 589 F.

App’x 972 (Fed. Cir. 2014).

Standard of review of an arbitration decision

¶6 Arbitration awards are entitled to a greater degree of deference than initial

decisions issued by the Board’s administrative judges. See Benson v. Department

of the Navy, 65 M.S.P.R. 548, 554 (1994) (citing Bean v. Equal Employment

Opportunity Commission, 55 M.S.P.R. 609, 612 (1992)). The Board will modify

or set aside such a decision only where the arbitrator has erred as a matter of law

in interpreting civil service law, rules, or regulations. Id. An arbitrator’s factual

determinations are entitled to deference unless the arbitrator erred in his legal

analysis, for example, by misallocating the burdens of proof or employing the

wrong analytical framework. Pace v. Department of the Treasury, 118 M.S.P.R.

542, ¶ 5 (2012). Even if the Board disagrees with an arbitrator’s decision, absent

legal error, the Board cannot substitute its conclusions for those of the arbitrator.

Id.; Benson, 65 M.S.P.R. at 554.

We defer to the arbitrator’s decision to sustain both charges.

¶7 Despite the fact that charge 2 was labeled as “failure to follow

instructions,” the deciding official during the hearing apparently described the

5

charge as a charge of “insubordination.” See RFR File, Tab 8 at 70. The

arbitrator rejected the appellant’s assertion that the charge and the removal should

be reversed because she did not have notice of an insubordination charge. See id.

at 69. Rather, the arbitrator, among other things: (1) determined that the agency

never raised “insubordination” as a basis for the removal; (2) found that the

agency’s allegation in charge 2 (failure to follow instructions) was consistent

with the offense of “disregard of a directive” in the agency’s table of penalties

(offense 19), instead of failure to follow established leave procedures (offense

1B); (3) relied on a post-hearing sworn declaration from the agency’s Human

Resources Officer, who denied informing the appellant at her oral response to the

proposed removal that charge 2 corresponded to offense 1B; (4) found that the

appellant was placed on sufficient notice of the nature of charge 2 and properly

formulated a response to that charge; and (5) determined that the agency

demonstrated that the appellant engaged in misconduct under offense 19. See id.

at 69-74. In her request for review, the appellant challenges these findings and

the arbitrator’s reliance on the post-hearing sworn declaration.

¶8 The appellant has not demonstrated that the arbitrator made an error of civil

service law or erred in his legal analysis regarding his construction of this charge.

Despite the deciding official’s apparent inartful use of the word “insubordination”

during the hearing, the documentary evidence reflects the perception—shared by

both the agency and the appellant—that the charge was failure to follow

instructions and did not contain any element of intent that would be required for

an insubordination charge. Compare Hamilton v. U.S. Postal

Service, 71 M.S.P.R. 547, 556 (1996) (an agency may prove the charge by

establishing that proper instructions were given to an employee and that the

employee failed to follow them, whether that failure was intentional or not), with

Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 8 (2006) (insubordination

is a willful and intentional refusal to obey an authorized order of a superior

officer that the officer is entitled to have obeyed). Notably, the appellant, in her

6

response to the notice of proposed removal, cited to the Board’s decision in

Hamilton. See RFR File, Tab 9 at 62; see also RFR File, Tab 8 at 71-72. The

arbitrator also noted that the agency identified the failure to follow instructions

standard in its pleading. See RFR File, Tab 8 at 71-72. We therefore conclude

that the arbitrator properly determined that charge 2 was intended to be a charge

of failure to follow instructions, and he identified the proper legal standard for

evaluating this charge. Thus, we find that his analysis of this charge is entitled to

deference.

¶9 Although unclear, the appellant also may be challenging the arbitrator’s

finding that the agency properly sustained the charge of failure to maintain a

regular work schedule. In her request for review, she asserted that it is “well

established” that “generally, approved leave (annual, sick, leave without pay,

Family and Medical Leave Act (FMLA) [] leave[,] and [Office of Workers’

Compensation Programs (OWCP) leave] could not be used as a basis for

disciplinary action.” RFR File, Tab 7 at 17. However, the arbitrator explained

that, even if he excluded the appellant’s FMLA and OWCP leave, the appellant

still was absent from work for a “significant and unreasonable amount of the total

of 1,800 hours over a [2 ½] year period,” which amply supports the charge. RFR

File, Tab 8 at 62. The appellant has not identified an error in civil service law or

other legal error by the arbitrator in this regard, and we find that his decision to

uphold the failure to maintain a regular schedule charge is entitled to deference.

The arbitrator did not follow the proper standard for evaluating the appellant’s

claim of failure to accommodate disability discrimination, and we do not defer to

his analysis and conclusions.

¶10 The arbitrator found that the appellant did not prove that the agency

improperly denied her accommodation request for up to 2 days per week of

telework. See RFR File, Tab 8 at 51-60. In making this determination, the

arbitrator considered the following evidence: (1) the appellant failed to provide

supporting documentation for her first request for an accommodation; (2) she did

7

not challenge the agency’s disapproval of her second request for an

accommodation; (3) she did not identify any specific accommodation for her third

request; (4) the agency had provided her with a flexible schedule and air purifier,

among other things, as a result of her third accommodation request; and (5) the

agency had determined that she could not perform the essential functions of her

position if she was working at home. Id.

¶11 In her request for review, the appellant argued primarily that the arbitrator

did not consider the Americans with Disabilities Act Amendments Act of 2008

(ADAAA) and that the agency should have given her the accommodation of a

flexible work schedule. See, e.g., RFR File, Tab 7 at 5-9, 36-38, 41-43. 3 It is

true that the arbitrator did not reference the ADAAA or any pertinent statutory or

regulatory provisions thereto; nor did he appear to appreciate that the ADAAA

liberalized the definition of disability. See Doe v. Pension Benefit Guaranty

Corporation, 117 M.S.P.R. 579, ¶ 38 (2012); see also Lytes v. DC Water & Sewer

Authority, 572 F.3d 936, 941 (D.C. Cir. 2009) (stating that Congress, in effecting

the ADAAA, “undertook generally to ‘reinstat[e] a broad scope of protection’”).

Additionally, the arbitrator failed to identify any legal standard in his discussion

of the appellant’s failure to accommodate claim; instead, he only appears to have

included a discussion of an “impairment” and “disability” in his analysis of the

appellant’s disparate treatment claim. Compare RFR File, Tab 8 at 51-60 (failure

to accommodate claim), with id. at 81-85 (disparate treatment claim). See Thome

v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 24 (2015) (explaining

that an appellant may prove that she has a disability by showing that she: (1) has

a physical or mental impairment that substantially limits one or more major life

3

The appellant contends that the arbitrator improperly determined that the

accommodation issue was not before him because she had filed an earlier EEO action.

RFR File, Tab 7 at 4-5, 7; see RFR File, Tab 8 at 48-51. We need not decide this issue

because the arbitrator, as discussed herein, alternatively evaluated the appellant’s

contention that the agency failed to provide her with a reasonable accommodation. See

RFR File, Tab 8 at 51-60.

8

activities; (2) has a record of such impairment; or (3) is regarded as having such

an impairment). For these reasons, we find that the arbitrator did not employ the

proper framework for evaluating the appellant’s failure to accommodate claim,

his findings are not entitled to deference, and we will make our own findings on

this claim. See FitzGerald v. Department of Homeland Security, 107 M.S.P.R.

666, ¶ 18 (2008) (holding that the Board may make its own findings regarding the

appellant’s claim of retaliation because the arbitrator “did not cite any legal

standard when he evaluated the evidence” and his analysis did not follow the

proper legal framework).

¶12 The record reflects that the appellant had a variety of medical conditions.

See, e.g., RFR File, Tab 7 at 114-15, 139-42, 149-52. We assume, for purpose of

our analysis, that these conditions constitute impairments under the ADAAA.

See 29 C.F.R. § 1630.2(h)(1). The agency’s doctor noted that the appellant’s

conditions “will at times impair her capacity for mental concentration,” RFR File,

Tab 7 at 114, and concentrating is a major life activity under the ADAAA,

see 42 U.S.C. § 12102(2)(A). Thus, even though the appellant’s conditions

appear episodic, we further assume that she is disabled. See, e.g., 29 C.F.R.

§ 1630.2(j)(1)(vii) (stating that an impairment that is episodic is a disability if it

would substantially limit a major life activity when active).

¶13 Next, even assuming that the appellant has one or more impairments that

substantially limit a major life activity, she must still show that she is “qualified”

within the meaning of 29 C.F.R. § 1630.2(m). A “qualified” individual with a

disability is one who satisfies the requisite skill, experience, education and other

job-related requirements of the employment position such individual holds, and

who, with or without reasonable accommodation, can perform the essential

functions of the position. See 29 C.F.R. § 1630.2(m). The appellant has not

provided any persuasive evidence that she could perform the essential functions

of her position with or without an accommodation, and her supervisor indicated

that she could not perform her essential functions remotely. See RFR File, Tab 9

9

at 105 (the supervisor’s November 7, 2011 email), 107 (January 4, 2010 denial of

the appellant’s request to telecommute); see also id. at 108-11 (excerpt of the

appellant’s position description). Additionally, the agency’s doctor consulted

with the appellant’s doctor and then concluded that there was “no apparent

medical basis for teleworking” 2 days per week. RFR File, Tab 7 at 114-15. The

appellant has presented no persuasive evidence or argument to show that the

agency’s characterization of her duties was erroneous or that her supervisor

improperly concluded that she could not perform her essential functions

remotely. 4 Accordingly, we find that she has failed to prove that the agency

improperly denied her request to telework as a reasonable accommodation.

¶14 The appellant also asserted that the agency improperly denied her request

for a flexible work schedule and that the agency’s decision to allow her to report

by 9:30 a.m. as a result of her third accommodation request “was no

accommodation at all since she could already start at 9:30 [a.m.]” due to her

flexitour schedule. 5 RFR File, Tab 7 at 42. We cannot discern if she raised this

issue during the NGP. See 5 C.F.R. § 1201.155(c). In any event, she has not

persuaded us that the agency improperly denied her such an accommodation. The

record reflects that: (1) on May 2, 2012, the appellant requested an

“[a]ccommodation to address medical condition,” RFR File, Tab 7 at 116;

(2) progress notes from the agency’s Human Resources Specialist indicate that

she and the appellant discussed a flexible work schedule on June 5, 2012, RFR

4

The record contains assertions that other agency employees may have been permitted

to telework. See, e.g., RFR File, Tab 7 at 209 (the appellant’s response to the notice of

proposed removal). There is no evidence that these other employees had the same job

functions or duties as the appellant. Moreover, the appellant does not challenge the

arbitrator’s evaluation of her disparate treatment disability d iscrim ination claim, and we

need not discuss it further.

5

A flexitour schedule means that an employee may vary her arrival time within 1 hour

before or after her selected starting time. The parties do not dispute that, pursuant to a

flexitour schedule, the appellant was expected to arrive at work between 7:30 a.m. and

9:30 a.m.

10

File, Tab 9 at 120; (3) a subsequent email from the Human Resources Specialist

to the appellant stated that she “will have to get back to [the appellant] on the

core hours [the appellant] can work,” id. at 137; and (4) the agency granted the

appellant’s accommodation request for a flexible schedule, so that the appellant

could start as late as 9:30 a.m. and as early as 7:30 a.m., which would allow her

to take her prescribed medication as needed and treatment, RFR File, Tab 7

at 116.

¶15 The appellant correctly noted that the agency was required to enter into the

interactive process to identify the precise limitations resulting from the disability

and potential reasonable accommodations that could overcome those limitations,

RFR File, Tab 7 at 42-43 (citing 29 C.F.R. § 1630.2(o)(3)). However, the

appellant also has an obligation to assist in the search for an appropriate

accommodation in good faith, see Collins v. U.S. Postal Service, 100 M.S.P.R.

332, ¶ 11 (2005). A reasonable accommodation request does not have to be in

writing, White v. Department of Veterans Affairs, 120 M.S.P.R. 405, ¶ 15 n.6

(2013), but it appears that the appellant did not clearly communicate with the

Human Resources Specialist that she wanted to be able to arrive at work after

9:30 a.m. The medical evidence that she provided to the agency sheds no light on

this issue. Notably, her doctor’s notes state that she should be permitted to come

in “late,” but do not explain what “late” means. See RFR File, Tab 7 at 140-42.

Additionally, the appellant’s testimony about the nature of her accommodation

request was confusing:

Q: Did you ask for [a] flexible work schedule?

A: I asked for a flex schedule for a reasonable accommodation. I

already had a flex schedule.

Q: You had a flex tour schedule?

A: Yes, that’s what I said, my regular tour. That was something I

already had. I asked for a reasonable accommodation flex.

Id. at 95. At another point in the hearing, the appellant testified that she “asked

for more flexible hours” as a reasonable accommodation but that she also “asked

11

for a flexi tour for a reasonable accommodation.” Id. at 97. Under these

circumstances, we cannot discern if the appellant clearly communicated and the

agency understood that she was seeking to arrive at work at a later time than

9:30 a.m. prior to the accommodation being awarded. 6 Moreover, there is no

evidence that, between the agency’s decision on June 18, 2012, to grant her an

accommodation of a flexible work schedule, and July 2, 2012, when she was

placed on leave following the issuance of the notice of proposed removal, RFR

File, Tab 9 at 17-23, she ever communicated to the Human Resources Specialist

that the approved accommodation was not what she was seeking. To the

contrary, the record reflects only that she raised this issue in her response to the

notice of proposed removal. See RFR File, Tab 7 at 208. Given the confusing

nature of her testimony and the lack of supporting documentation in the record,

we cannot discern whether the appellant communicated and/or the agency

understood that her request for a flexible schedule was a request to come to work

after 9:30 a.m. Because we cannot conclude that the appellant clearly

communicated the nature of the flexible work schedule that she was seeking, we

also cannot conclude that the agency improperly denied her a reasonable

accommodation. See White, 120 M.S.P.R. 405, ¶¶ 11-15 (finding that because the

appellant failed to fulfill his obligations in the interactive accommodation

process, he failed to establish that the agency violated its duty of reasonable

accommodation). 7

6

The appellant asserted in her request for review that the agency’s Human Resources

Specialist d id not know about flexitour. See RFR File, Tab 7 at 6-7. We are unable to

make a determ ination on this assertion based on the current record.

7

The appellant also appeared to argue that her due process rights were violated when

the agency improperly considered her performance in its decision and the arbitrator

erred because he made no reference to the role performance allegedly played in the

agency’s decision. See RFR File, Tab 7 at 7, 39-41. We find no evidence of a due

process violation in this regard. The arbitrator referenced the appellant’s performance

issues in the background of his decision and the deciding official’s consideration of the

appellant’s performance in his penalty analysis. See RFR File, Tab 8 at 24-26, 32-35,

77. It is not clear from the lim ited record provided to us by the appellant whether she

12

Because the arbitrator made an error in civil service law in his analysis of the

penalty, we vacate his penalty determination.

¶16 The arbitrator found that the deciding official reasonably exercised his

discretion and weighed the various factors under Douglas v. Veterans

Administration, 5 M.S.P.R. 280 (1981), and he affirmed the removal. See RFR

File, Tab 8 at 75-78. The appellant argued in her request for review, however,

that the deciding official and the arbitrator improperly failed to consider her

medical conditions as a mitigating factor. See RFR File, Tab 7 at 8. She also

alleged that the arbitrator erred when he found that the failure to follow

instructions charge corresponded to the charge of “disregard of a directive”

(offense 19) in the agency’s table of penalties instead of “failure to follow

established leave procedures” (offense 1(b)). Id. at 6-8; see RFR File, Tab 9

at 140, 142. She further alleged that, in making the determination of the proper

corresponding offense in the agency’s table of penalties, the arbitrator improperly

considered a post-hearing declaration from an agency official, which she states

constitutes a due process violation. See RFR File, Tab 7 at 8.

¶17 The deference that is due to an arbitrator’s findings extends to findings

related to penalty determinations. Cambridge v. Department of

Justice, 111 M.S.P.R. 152, ¶ 15 (2009). In making these findings, arbitrators are

required to apply the same rules that the Board applies. Id. When the arbitrator

does not apply those rules, his penalty determination is not entitled to deference,

and the Board will conduct its own analysis. Id.

¶18 We agree with the appellant that the arbitrator’s penalty analysis contains

an error in civil service law because it does not appear that he considered all of

the relevant Douglas factors. In particular, the U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) has held that “when mental impairment or illness

explicitly raised a due process vio lation before the arbitrator, but in any event, the

notice of proposed removal discusses the effect of the appellant’s absences on her

ability to perform her duties, and she addressed her job level and performance in her

response to the proposed removal. See RFR File, Tab 9 at 21, 67.

13

is reasonably substantiated, and is shown to be related to the ground of removal,

this must be taken into account when taking an adverse action against the

employee.” Malloy v. U.S. Postal Service, 578 F.3d 1351, 1356 (Fed. Cir. 2009).

Neither the deciding official nor the arbitrator explicitly considered as a

mitigating factor the appellant’s numerous, documented medical conditions,

which are clearly related to the two charges that led to her removal. We find that

the arbitrator’s failure to consider this evidence is contrary to the Federal

Circuit’s directive in Malloy and constitutes an error of civil service law. Thus,

the arbitrator’s penalty determination is not entitled to deference.

Removal is a reasonable penalty for the sustained misconduct.

¶19 The Board will review an agency-imposed penalty only to determine if the

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. As noted

above, the agency, like the arbitrator, failed to consider the appellant’s numerous

medical conditions. Thus, we independently evaluate the penalty.

¶20 The Board and the Federal Circuit have found that the sustained offenses

are serious. See, e.g., Tate v. U.S. Postal Service, 495 F. App’x 72, 74-76 (Fed.

Cir. 2012) (in affirming the agency’s decision to remove the appellant based on a

single charge of failure to maintain a regular work schedule, the court implicitly

affirmed the agency’s determination that the charge was serious); Hernandez v.

Department of Agriculture, 83 M.S.P.R. 371, ¶¶ 2, 9 (1999) (failure to follow

instructions is a serious charge).

¶21 We have considered the following aggravating factors: (1) the appellant’s

disciplinary history, which includes a September 16, 2011 Official Reprimand

based on charges of absence without leave and failure to comply with a leave

restriction memorandum, RFR File, Tab 9 at 48-50; (2) records of her prior

performance; (3) the deciding official’s statement that he no longer had

confidence in the appellant’s ability to perform her job and that she had no

potential for rehabilitation, id. at 74; and (4) the fact that the appellant was on

14

notice, through various leave restriction memoranda and the Official Reprimand,

that continued absences and failure to follow the agency’s leave restrictions could

lead to more discipline.

¶22 We also have considered mitigating factors, in particular, the appellant’s

17 years of federal service and her numerous medical conditions, which clearly

played a part in the sustained misconduct. See Malloy, 578 F.3d at 1356.

¶23 We further find that the charge of failure to follow instructions is more akin

to the offense of “disregard of a directive” in the agency’s table of penalties and

offenses (offense 19), rather than the offense of “failure to follow established

leave procedures” (offense 1B). The proposal notice states that the appellant was

placed on a leave restriction because she did not comply with established leave

procedures. See RFR File, Tab 9 at 21. The appellant’s subsequent failure to

follow the leave restriction memorandum cannot also be viewed as a failure to

follow established leave procedures, particularly when the leave restriction

memorandum was only directed to her. 8 The agency’s table of penalties and

offenses states that, for a first offense of a disregard of a directive offense, the

penalty ranges from a 5-day suspension to a removal for a first offense. See id.

at 142.

¶24 We also have considered the duration of the appellant’s absences. As

discussed above, the arbitrator found that the appellant took 1800 hours of

leave—excluding FMLA and OWCP leave—over a 2 ½ year period, see

supra ¶ 9, which means that the appellant was absent for approximately one-third

of the time during the relevant period.

¶25 Based on our review of these factors, we conclude that removal is a

reasonable penalty for the sustained misconduct. See, e.g., Schultz v. Department

of the Navy, 810 F.2d 1133, 1137 n.* (Fed. Cir. 1987) (an agency can bring a

removal action against an employee for prolonged absences, even if the absences

8

In light of our disposition, we need not consider the post-hearing declaration admitted

by the arbitrator.

15

are attributable to poor health); Combs v. Social Security

Administration, 91 M.S.P.R. 148, ¶¶ 1, 11-21 (2002) (sustaining the appellant’s

removal based on charges of inability to maintain regular attendance and inability

to perform assigned duties for medical reasons).

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

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

16

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.