Opinion

Macaulay Williams v. Department of Commerce

2024 MSPB 8

Court: Merit Systems Protection Board
Filed: Apr 23, 2024
Status: Published
Cited by: 13 cases
Authority: More cited than 75.1%

setting forth the elements of an AWOL charge

How later courts described this case

setting forth the elements of an AWOL charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 8

Docket No. DC-0752-17-0595-I-1

Macaulay Williams,

Appellant,

Department of Commerce,

Agency.

April 23, 2024

Macaulay Williams , South River, New Jersey, pro se.

Josh Hildreth , Esquire, and Chieko Clarke , Esquire, Alexandria, Virginia,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained his removal for excessive absences. For the reasons set forth below, we

DENY the petition for review and AFFIRM the initial decision as MODIFIED by

this Opinion and Order, clarifying the Board’s case law on the requirements for

proving a charge of excessive absences.

BACKGROUND

¶2 The appellant was a Patent Examiner with the U.S. Patent and Trademark

Office. Initial Appeal File (IAF), Tab 1 at 1. On July 7, 2016, the agency

proposed his removal for improper conduct, including, among other things,

excessive absences. IAF, Tab 8 at 68-75. The proposal notice indicated that the

appellant had been absent with no foreseeable end for over 1 year, or 2,840 hours,

due to his health condition and had been granted a significant amount of leave

without pay (LWOP). Id. As described in the initial decision and undisputed by

the parties, the appellant orally responded to the proposed removal, indicating

that he was ready to return to work, and later provided a medical note in support.

IAF, Tab 59, Initial Decision (ID) at 4. He later returned to work on a part-time

intermittent schedule from September 6 to November 3, 2016. Id. Thereafter, the

appellant began requesting leave again due to his medical condition. ID at 4-5.

On March 1, 2017, the agency rescinded the July 7, 2016 notice of proposed

removal and issued a new proposal to remove the appellant for excessive

absences. IAF, Tab 7 at 37-44. The March 1, 2017 proposal charged the

appellant with being absent from work for 2,741.25 hours since July 7, 2015,

excluding leave taken pursuant to the Family and Medical Leave Act (FMLA).

Id. at 37-40. On May 9, 2017, the appellant presented an oral and written reply.

Id. at 21, 25-36. The deciding official sustained the charge and removed the

appellant effective June 7, 2017. Id. at 21-22.

¶3 The appellant filed a Board appeal challenging his removal and raising

affirmative defenses of whistleblower reprisal, retaliation for equal employment

opportunity (EEO) activity, failure to accommodate, and discrimination based on

age, race, and national origin. 1 IAF, Tabs 1, 45. After the appellant withdrew his

request for a hearing, IAF, Tab 45 at 16, Tab 51 at 1, the administrative judge

issued an initial decision sustaining the removal on the written record, see ID.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 3.

The appellant also argued that the agency constructively suspended him. The

administrative judge found that the appellant did not prove his constructive suspension

claim, and the appellant has not contested this finding on review. See 5 C.F.R.

§ 1201.115 (“The Board normally will consider only issues raised in a timely filed

petition or cross petition for review.”).

ANALYSIS

¶5 As a general rule, an agency may not take an adverse action based on an

employee’s use of approved leave. Coombs v. Social Security Administration,

91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists 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 he

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

became 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 v. Department of the Army,

18 M.S.P.R. 610, 611-12 (1984). This exception is applicable only under unusual

circumstances, such as when the employee is unable to return to duty because of

the continuing effects of illness or injury. Id.

¶6 In this case, the administrative judge found that all three of these criteria

were met and that the agency proved excessive, approved absences of more than

2,300 hours between July 14, 2015, and February 3, 2017. ID at 12, 14, 20, 25.

We agree with the administrative judge that the appellant was on approved leave

during the time periods she indicated and that his absences were for compelling

reasons beyond his control. However, we find that the appellant was not

adequately notified, until well after this period began, that he could be disciplined

for excessive, approved absences. We hold that, to prove a charge of excessive

approved absences, an agency cannot rely on absences that predate the warning.

The Board’s case law has previously suggested as much, see Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶ 31 (2015), overruled in part on

other grounds by Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 23-25, but in this case we make such a holding explicit.

¶7 In support of this finding, we observe that the primary dictionary definition

of “warn” is “to give notice to beforehand especially of danger or evil.” Warn,

Merriam-Webster.com, https://www.merriam-webster.com/dictionary/warn (last

visited Apr. 23, 2024). It would be a stretch to consider a notification of potential

discipline as a “warning” to the extent that the notice was given after the

underlying conduct already occurred. Furthermore, under that interpretation, the

notice of proposed adverse action itself could satisfy the warning requirement,

thereby rendering this criterion superfluous.

¶8 This is not to say that an agency is required to ignore any absences that

predated the warning. Prewarning absences may still be relevant for other

purposes, such as evaluating medical evidence or determining whether the

absences have a foreseeable end. However, they cannot be used to support the

charge itself. Rather, a charge of excessive absences will only be sustained when

the post-warning absences were themselves excessive.

¶9 In this case, the agency first warned the appellant of the possibility of

attendance-related discipline on July 8, 2015. IAF, Tab 9 at 26-27. However,

this letter warned the appellant that he was in an absence without leave (AWOL)

status and that he could be disciplined for AWOL. It said nothing about

discipline for approved absences and therefore did not satisfy the notice

requirement of the Cook exception. Id.; see Fox v. Department of the Army,

120 M.S.P.R. 529, ¶ 32 (2014).

¶10 The next time that the agency attempted to warn the appellant about

attendance-related discipline was on February 10, 2016. IAF, Tab 8 at 78-80.

The February 10, 2016 letter was of the type contemplated in Cook. Id. It would

have constituted adequate notice had the appellant received it, but the appellant

denied receiving it. IAF, Tab 56 at 7. Nevertheless, in her initial decision, the

administrative judge found it more likely than not that the appellant received the

agency’s letter. ID at 21-24. Her conclusion was based on several factors,

including that the appellant’s statement to the contrary was unsworn. Id. On

petition for review, the appellant points out that his denial of receipt was

supported by a sworn declaration. PFR File, Tab 1 at 11-12; IAF, Tab 56 at 23.

Because the administrative judge overlooked this evidence, we must reexamine

the issue on review.

¶11 The Board has held that sworn statements that are not rebutted are

competent evidence of the matters asserted therein. Aldridge v. Department of

Agriculture, 110 M.S.P.R. 21, ¶ 9 (2008). We have considered the appellant’s

sworn statement that he did not receive the February 10, 2016 letter, but we find

that this statement is still insufficient in light of the other considerations

identified by the administrative judge. The record shows that the letter was

delivered to the appellant’s street address on February 12, 2016, and left at the

front door. 2 IAF, Tab 8 at 81-82. Furthermore, in neither of his responses to the

notices of proposed removal did the appellant deny receiving the letter,

even though his receipt of the letter was clearly at issue both times. IAF,

Tab 7 at 25-26, 39, Tab 8 at 66-67, 73; see Reynolds v. Department of Justice,

63 M.S.P.R. 189, 195 (1994) (finding the appellant’s allegations less credible

when he raised them for the first time during his Board appeal); Abatecola v.

Veterans Administration, 29 M.S.P.R. 601, 607 n.3 (same), aff’d, 802 F.2d 471

(Fed. Cir. 1986) (Table). Also, during the second oral response, the appellant’s

representative affirmatively stated that the appellant had received the letter, and

the appellant said nothing to correct or contradict his representative’s statement.

IAF, Tab 7 at 26. For these reasons, and in light of all the evidence on the issue,

including the appellant’s sworn declaration, we find it more likely than not that

the appellant received the agency’s letter on February 12, 2016, when it was

delivered to his home.

¶12 The agency charged the appellant with being absent from work in a leave

status for a total of 2,741.25 hours during various specified periods from July 7,

2015, through February 3, 2017. IAF, Tab 7 at 37-38. For the reasons explained

above, because the appellant was not warned of the possibility of discipline for

The delivery notice does not indicate that the letter was delivered to a specific unit of

the building. ID at 23. However, there is insufficient evidence about the nature of the

building for the Board to judge how likely this would have been to result in nonreceipt.

approved leave until February 12, 2016, the leave that he took on or before that

date cannot be used to support the charge. Therefore, we do not sustain the

specifications concerning 264 hours of leave from July 7 through August 27,

2015; 584 hours of leave from September 7 through December 15, 2015; and

344 hours of leave from December 16, 2015, through February 12, 2016. IAF,

Tab 7 at 37, Tab 8 at 29-33. Still, the remaining specifications concern an alleged

1,549.25 hours of leave taken over about 1 year from February 13, 2016, through

February 3, 2017. The administrative judge found preponderant evidence to

prove that the appellant was on LWOP for at least that many hours during that

period. ID at 14-19. We agree, for the most part; 3 however, for the following

reasons, we find that only 1,109.25 hours of leave taken from February 13, 2016,

through February 3, 2017, are appropriately considered towards the excessive

absences charge. 4

¶13 The appellant argues that some of these absences were covered under the

FMLA and therefore cannot be used to support his removal. PFR File, Tab 1

at 8-11; see McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 11

(2011) (holding that FMLA-covered leave cannot be used to support an excessive

absences charge). The record contains the following evidence on the issue. On

The administrative judge observed that the timesheets that the agency submitted

reflected a greater amount of LWOP for certain periods than did the notice of proposed

removal. She found that the agency proved LWOP as reflected in the timesheets. ID

at 15 & nn.10-11. However, the timesheets show the appellant in an LWOP status on

several Federal holidays, IAF, Tab 8 at 33, 41, 44, 54, 57-58, and this appears to be the

reason for the discrepancy. In any event, regardless of what the timesheets indicate, we

decline to consider any absences that were not included in the charge. See Fitzgerald v.

Department of the Army, 61 M.S.P.R. 426, 428-29 (1994) (“[T]he Board will not sustain

an action on the basis of charges that the agency could have brought but did not.”).

The administrative judge relied, in part, on the parties’ stipulations in finding that the

appellant was on LWOP on the days and times alleged. ID at 14-17. On review, the

appellant argues, correctly, that some of the stipulations upon which the administrative

judge relied had been withdrawn. PFR File, Tab 1 at 4-6; IAF, Tab 45 at 3-8, Tab 50

at 5-6. We have therefore reevaluated the agency’s evidence without regard to the

withdrawn stipulations. We find that the timesheets themselves are sufficient to support

the agency’s allegations. IAF, Tab 8 at 33-59.

November 10, 2016, the appellant requested leave for the period beginning

November 4, 2016. IAF, Tab 47 at 45-46. The appellant’s supervisor informed

him that the leave would be covered under the FMLA and requested that the

appellant provide an end date. Id. at 45. The appellant responded that he wished

to take leave until January 24, 2017, and he provided a health professional’s note

to support the request. Id. at 44-45.

¶14 The administrative judge acknowledged that the supervisor’s email at least

implied that the appellant’s leave would be covered under the FMLA.

ID at 18-19. However, she found that the appellant was ineligible for FMLA

protection because he had not worked at least 1,250 hours in the preceding

12 months. ID at 19. This analysis is incorrect because, like most non-Postal

Service Federal employees, the appellant was covered under FMLA Title II,

which does not contain the 1,250-hour eligibility requirement. See 5 C.F.R.

§ 630.1201(b); compare 29 U.S.C. § 2611(2) (eligibility requirements for Title I

employees), with 5 U.S.C. § 6381(1) (eligibility requirements for Title II

employees). Furthermore, even if the appellant were for some other reason not

entitled to FMLA-covered leave for this period, we would still decline to include

it in the calculation; by assuring the appellant that his leave would be

FMLA-covered, the appellant’s supervisor was effectively promising him that he

could not be disciplined for taking it. Therefore, none of the leave charged to the

appellant between November 4, 2016, and January 24, 2017, will be considered

towards sustaining the excessive absences charge. 5

¶15 The agency did not charge the appellant with any leave taken from

November 4 to 13, 2016. IAF, Tab 7 at 38. But it did charge him with leave from

November 14, 2016, through January 24, 2017. Id. Although the appellant’s

timesheets show that he was carried in a LWOP status for 416 hours during that

period, we will not consider these hours towards sustaining the excessive

This is a period of slightly less than 12 weeks, but it is all that the appellant’s request

encompassed.

absences charge. IAF, Tab 8 at 54-59. Further, although the appellant was

carried in an LWOP status on three Federal holidays (February 15, May 30, and

July 4, 2016) during the remaining period of fairly charged excessive absences,

we will exclude those 24 LWOP hours from our consideration. Id. at 33, 36, 44.

Therefore, we find that the agency’s charge is supported by 1,109.25 hours of

approved LWOP (1,549.25 – 416 – 24 = 1,109.25) that the appellant took between

February 13, 2016, and February 3, 2017. Although these absences are less

extensive than the total number of absences with which the appellant was

charged, we nevertheless find that they continued beyond a reasonable time. 6 See

Gartner v. Department of the Army, 104 M.S.P.R. 463, ¶ 10-11 (2007) (sustaining

an excessive absences charge based on 333.5 hours of absence during a 6-month

period).

¶16 Regarding the final requirement of the Cook exception, we agree with the

administrative judge that the appellant’s position needed to be filled by

an employee available for duty on a regular basis. ID at 24-25. The appellant

argues that the agency had 51 other Patent Examiner vacancies that it was unable

to fill. PFR File, Tab 1 at 12-13. However, we agree with the administrative

judge that the existence of these vacancies is immaterial and does not mean that

the agency did not need to fill the appellant’s position. This is particularly so

considering evidence that the agency had a backlog of cases and was attempting

to hire hundreds of new Patent Examiners to handle them. ID at 24-25. We

therefore find that all of the Cook criteria are satisfied, and we sustain the charge.

¶17 The appellant raised several affirmative defenses, including claims of

discrimination based on race, age, national origin, and disability (under a

The appellant alleges that an agency regulation requires employees to obtain prior

approval from their director before taking LWOP in excess of 5 days and that his

supervisor approved extended LWOP without the director’s permission. He argues that

the charge cannot be sustained because the LWOP was not approved by the correct

official. PFR File, Tab 1 at 6; IAF, Tab 57 at 5. Even assuming that such a regulation

exists, the appellant’s argument would require the Board to add a fourth condition to the

Cook exception, i.e., that the leave was approved according to correct procedures. We

decline to do so.

reasonable accommodation theory), retaliation for EEO activity, and

whistleblower retaliation. 7 For the reasons explained in the initial decision, we

agree with the administrative judge that the appellant did not prove these claims. 8

ID at 27-36.

¶18 The appellant does not otherwise challenge the administrative judge’s

finding that the penalty of removal was within the tolerable limits of

reasonableness, and we affirm that finding on review. ID at 36-39. Although we

have not sustained certain specifications of the excessive absences charge, we

find that the analysis of the reasonableness of the penalty is not materially

affected. As we have explained above, the agency established that the appellant

was absent from work for 1,109.25 hours, or about 138 days, in a 1-year period,

which is a substantial amount of absence. We have considered the appellant’s

arguments on review and the record in this matter, and we find that the penalty of

removal is reasonable given the proven specifications of the excessive absences

charge and the relevant penalty factors. E.g., Byers v. U.S. Postal Service,

78 M.S.P.R. 456, 463-64 (1998) (holding that, when all of an agency’s charges

are sustained, but not all of the underlying specifications, the agency’s selected

penalty is entitled to due deference and should be reviewed to determine its

reasonableness for the sustained specifications).

Regarding the appellant’s claim of retaliation for EEO activity, to the extent that this

activity was protected under the Rehabilitation Act, the appellant would need to prove

that retaliation was a but-for cause of his removal. Pridgen, 2022 MSPB 31, ¶¶ 45-46.

The administrative judge’s finding that the appellant failed to prove motivating factor

causation necessarily means that he failed to prove but-for causation. See Desjardin v.

U.S. Postal Service, 2023 MSPB 6, ¶ 33.

The appellant argues, among other things, that the administrative judge should have

granted his motion to compel discovery of information pertaining to a potential

comparator. PFR File, Tab 1 at 15. However, the appellant has not explained what

information he was denied or how it would have changed the outcome of the appeal. In

any event, because the agency provided most of the requested information and indicated

that the remainder was not in its possession, we find that the administrative judge did

not abuse her discretion in denying the motion. IAF, Tabs 35, 43.

ORDER

¶19 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 9

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 10 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the