The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYLER M. JONES, DOCKET NUMBER
Appellant, AT-0752-17-0799-I-1
v.
DEPARTMENT OF JUSTICE, DATE: February 21, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kristen Farr , Esquire, and Rosemary Dettling , Esquire, Washington, D.C.,
for the appellant.
Leslie A. Saint , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. For the reasons discussed below, we GRANT
the agency’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The agency issued a September 7, 2016 Letter of Requirement (LOR),
concerning the appellant’s use of unscheduled leave. Initial Appeal File (IAF),
Tab 6 at 69-71. In the LOR, the agency notified him of the specific requirements
he must follow to request leave of any type and explained that his continued
failure to maintain regular attendance or comply with established leave policy
may result in charges of absence without leave (AWOL) and his removal. Id. On
July 18, 2017, the agency proposed removing the appellant from his GS-12
Intelligence Analyst position for continued excessive and unexcused absences.
Id. at 6-7. After considering the appellant’s written and oral responses, the
agency removed him effective August 28, 2017. Id. at 12, 57-59.
The appellant filed a Board appeal and, after holding a hearing, the
administrative judge reversed the appellant’s removal. IAF, Tab 32, Initial
Decision (ID). The administrative judge interpreted the agency’s charge of
“continued excessive and unexcused absences” as a charge of “excessive
absences” and found that the agency failed to meet the first prong of that charge,
i.e., that the employee was absent for compelling reasons beyond his control so
that agency approval or disapproval of leave was immaterial because the
employee could not be on the job. ID at 2 (citing Cook v. Department of the
Army, 18 M.S.P.R. 610, 611-12 (1984) (finding an exception to the general rule
that an agency may not remove an employee for use of approved leave)).
In its petition for review, the agency asserts that it provided the required
interim relief, and argues that the administrative judge erred in interpreting the
charge as “excessive absences” because he ignored its contention that the
absences at issue were unexcused. 2 Petition for Review (PFR) File, Tab 3 at 6. It
argues that the Cook exception the administrative judge employed in adjudicating
the appeal only applies to a charge of excessive approved absences, not the
2
The appellant has not argued that the agency failed to provide proper interim relief;
thus, we do not address that issue.
3
unapproved instances of AWOL set forth in the notice of proposed removal. Id.
at 6-11. It also argues that the penalty of removal is reasonable under the
circumstances and promotes the efficiency of the service. Id. at 11-14. The
appellant has responded in opposition to the agency’s petition for review, and the
agency has filed a reply to the appellant’s response. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Cook exception does not apply to this charge.
For the following reasons, we agree with the agency that the instant appeal
is not governed by Cook. PFR File, Tab 3 at 6-11. In Cook, as noted above, the
Board found an exception to the general rule that an agency may not take an
adverse action based on an employee’s use of approved leave, determining that an
agency may remove an employee for such excessive absences when the following
criteria are met: (1) the employee was absent for compelling reasons beyond his
control so that agency approval or disapproval of leave was immaterial because
the employee could not be on the job; (2) the absences continued beyond a
reasonable time, and the agency warned the employee that an adverse action
could be taken unless he becomes available for duty on a regular full-time or
part-time basis; and (3) the agency showed that the position needed to be filled by
an employee available for duty on a regular, full-time or part-time basis. Cook,
18 M.S.P.R. at 611-12. Thus, Cook specifically concerned an employee’s
excessive use of approved leave. Cook, 18 M.S.P.R. at 611. To the extent that
periods of AWOL are included in an excessive absences charge, the Board will
not consider those periods under the Cook standard, but instead will consider
them as an AWOL charge. Savage v. Department of the Army, 122 M.S.P.R. 612,
¶ 32 (2015), overruled on other grounds by Pridgen v. Office of Management and
Budget, 2022 MSPB 31.
On review, the appellant argues that even if the Cook exception does not
apply in this case, the case cited by the administrative judge, Fox v. Department
4
of the Army, 120 M.S.P.R. 529 (2014), does. PFR File, Tab 5 at 10-11; ID at 2-3.
The appellant argues on review that in Fox, the Board required the agency to meet
the Cook test without distinguishing between approved and unapproved leave.
PFR File, Tab 5 at 11 (citing Fox, 120 M.S.P.R. 529, ¶ 31). We are
not persuaded.
The employee in Fox was not charged with unapproved absences, but rather
with an inability to work a regular schedule. 120 M.S.P.R. 529, ¶ 31. In
addition, contrary to the appellant’s claim, the employee’s leave in Fox
apparently was approved. Id., ¶ 15. In this matter, because every one of the
specifications that comprise the agency’s charge of “continued excessive and
unexcused absences” indicate that the agency considered the appellant AWOL,
the Cook exception does not apply. IAF, Tab 6 at 57-59; Savage, 122 M.S.P.R.
612, ¶ 32. Thus, even though the agency used the word “excessive” in its charge,
it also alleged that the absences were “unexcused,” and the administrative judge
should not have required the agency to establish that the appellant was absent for
compelling reasons beyond his control. ID at 3. Instead, this case is comparable
to Savage, and the administrative judge should have adjudicated the appeal on
that basis. Savage, 122 M.S.P.R. 612, ¶ 32.
Thus, we vacate the initial decision insofar as it ordered cancellation of the
appellant’s removal. Because the proper adjudication of the issue, as set forth
below, may involve further factual determinations and will require credibility
determinations that the administrative judge, who has held a hearing and
personally observed the relevant testimony, is in the best position to make, we
remand the appeal to the regional office for further adjudication. See, e.g., Taylor
v. Department of Homeland Security, 107 M.S.P.R. 306, ¶ 13 (2007) (remanding
an appeal for the administrative judge to make additional findings based on
credibility).
In order for an agency to prove AWOL, the agency must show that the
employee was absent, and that his absence was not authorized or that his request
5
for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277,
¶ 14 (2003). A charge of AWOL will not be sustained if the appellant presents
administratively acceptable evidence that he was incapacitated for duty during the
relevant period and had sufficient sick leave to cover the period of absence.
Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 5 (2010). The parties
stipulated to the fact that the appellant was absent on all the dates specified in the
notice of proposed removal, except for four dates on which the agency recorded
him as AWOL as a result of tardiness. ID at 3 n.1. However, the parties did not
agree on whether those absences were unexcused, and the appellant also argues
on review that the agency failed to show that it properly denied him leave. PFR
File, Tab 3 at 7-10, 15-16. By virtue of the September 7, 2016 LOR, the
appellant was on notice of the proper procedures to request leave and that he may
be disciplined for any failure to comply. IAF, Tab 6 at 69-71.
Although the administrative judge found it undisputed that the absences
specified in the notice of proposed removal were unexcused, he cited no evidence
in support of his finding. ID at 3. The appellant challenges this finding on
review. PFR File, Tab 5 at 7-9, 14-16. On remand, the administrative judge shall
determine whether the appellant properly requested leave on each of the instances
that he stipulated he was absent, and, if so, whether the agency properly denied
that request. Wesley, 94 M.S.P.R. 277, ¶ 14. The appellant also argues on review
that the agency should have to prove that his absences were “excessive.” Id.
at 4-5, 14. However, we do not interpret Savage to impose this additional
element. Savage, 122 M.S.P.R. 612, ¶ 32. Moreover, the notice of proposed
removal alleges that the appellant was AWOL for over 700 hours between
January 19 and June 9, 2017, which, if proven, would be excessive. IAF, Tab 6
at 57-58. Because he reversed the appellant’s removal, the administrative judge
did not consider the appellant’s allegation that the agency violated his right to
due process. ID at 9. He should consider the appellant’s due process claim
on remand.
6
The appellant did not prove his affirmative defenses of disability discrimination
or retaliation for equal employment opportunity activity.
The administrative judge found that the appellant failed to establish his
affirmative defenses of disability discrimination (under either a reasonable
accommodation or disparate treatment theory) or retaliation for equal employment
opportunity (EEO) activity. ID at 4-9. The appellant does not challenge these
findings on review. Upon remand, the administrative judge may readopt his
findings as appropriate, subject to reanalysis of the charge.
Concerning the appellant’s allegations of reasonable accommodation
disability discrimination, the administrative judge found that the agency had no
duty to accommodate the appellant. ID at 6-7. Specifically, he found no
evidence that the appellant had expressly or impliedly requested a reasonable
accommodation during the relevant time period. Id. The petition for review
provides no basis to disturb this finding. Nevertheless, because the appellant
argues that some of his absences should have been medically excused, and under
certain circumstances leave may be a reasonable accommodation, the
administrative judge should revisit his findings on this issue on remand in light of
his analysis of the AWOL charge. PFR File, Tab 5 at 15-16; see 29 C.F.R. app.
§ 1630.2(o) (explaining that leave may be a form of reasonable accommodation).
Likewise, the administrative judge found no evidence to support the
appellant’s claim of disparate treatment disability discrimination, and concluded
that the appellant failed to prove that his disability was a motivating factor in his
removal. ID at 7-8. We agree with the administrative judge’s analysis, which is
consistent with Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 35-42.
Regarding the appellant’s affirmative defense of retaliation for EEO
activity, the administrative judge found that the appellant failed to prove that his
EEO activity was a motivating factor in his removal. ID at 8-9. However, the
record reflects that the EEO activity at issue concerned alleged disability
7
discrimination, and thus was protected under the Rehabilitation Act. IAF, Tab 24
at 5, Tab 26 at 28. After the initial decision was issued, the Board overruled
previous case law and held that retaliation claims arising under the
Rehabilitation Act must be adjudicated under a but-for causation standard rather
than the less stringent motivating factor standard. Pridgen, 2022 MSPB 31,
¶¶ 44-47. Nevertheless, the appellant does not challenge the administrative
judge’s finding in his petition for review, and we find that analyzing the
appellant’s claim of retaliation for filing a disability discrimination complaint
under Pridgen does not require a different result. Thus, we affirm the
administrative judge’s finding, as modified, to find that the appellant did not
prove that his protected activity was a but-for cause of his removal. ID at 8-9.
The parties dispute on review whether the penalty of removal would be
reasonable for the charged misconduct. PFR File, Tab 3 at 11-14, Tab 5 at 16-18,
Tab 6 at 8-11. If the administrative judge finds that the agency proved its charge
on remand, he should determine whether the penalty of removal was appropriate.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.