Scott v. United State Postal Service ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3172
ANTONIO R. SCOTT,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Antonio R. Scott, of Stone Mountain Georgia, pro se.
Teresa A. Gonsalves, Appellate Counsel, Law Department, United States Postal
Service, of Washington, DC, for respondent. With her on the brief were Lori J. Dym,
Chief Counsel, and Gregory G. Katsas, Assistant Attorney General, Civil Division,
United States Department of Justice, of Washington, DC. Of counsel was James W.
Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3172
ANTONIO R. SCOTT,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
AT0752070616-I-1.
__________________________
DECIDED: September 4, 2008
__________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and WALKER, ∗ Chief
District Judge.
PER CURIAM.
Antonio R. Scott petitions for review of the final decision of the Merit Systems
Protection Board (“Board”), affirming his removal for violation of a last chance
agreement and failure to maintain regular attendance. Scott v. United States Postal
Service, AT-0752-07-0616-I-1 (M.S.P.B. Aug. 7, 2007) (“Initial Decision”). Because we
∗
Honorable Vaughn R. Walker, Chief Judge, United States District Court for
the Northern District of California, sitting by designation.
conclude that the AJ correctly interpreted the last chance agreement and that his
decision sustaining Scott’s removal was supported by substantial evidence, we affirm.
I.
Scott was a Postal Service Level 7 Vehicle Operations Assistant at the Atlanta
Bulk Mail Center, and at the time of his removal, he had been with the Postal Service for
approximately 22 years. On June 28, 2006, the Postal Service (“agency”) and Scott
entered into a last chance agreement to settle a prior adverse action. Under that
agreement, Scott agreed to maintain regular attendance, defined as “no more than (3)
three unscheduled absences during any six (6) month period of this agreement and no
instances of AWOL.” The agreement defined unscheduled absences as “any absence
not scheduled and approved in advance of Appellant’s scheduled reporting time.” The
parties agreed that the last chance agreement would be in effect for five years from the
date of execution.
On January 26, 2007, the agency proposed to remove Scott for violation of the
last chance agreement and for failure to be regular in attendance based on four periods
of unscheduled absences, totaling 26 days, from July 2006 to January 2007. On March
19, 2007, the agency issued a letter of decision, removing Scott effective March 20,
2007.
Scott appealed to the Board. The Administrative Judge (“AJ”) found that the
agency provided sufficient evidence to sustain the charges that Scott violated the last
chance agreement by having too many unscheduled absences and that he failed to
maintain regular attendance. The AJ also found that Scott did not have sufficient hours
to qualify for Family and Medical Leave Act (“FMLA”) leave and that Scott did not show
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that his leave had been FMLA approved. The AJ also found that Scott was not denied
due process where the deciding official had previously concurred in the proposed
removal notice. Finally, the AJ found that removal was a reasonable penalty.
Scott petitioned the full board for review, but the full board denied his petition,
concluding that Scott had not presented any new, previously unavailable evidence or
shown that the AJ made a legal error. Scott timely appealed to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our review of Board decisions is limited by statute. “We must affirm the Board’s
decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by substantial evidence.” Campion v.
Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).
On appeal, Scott argues that the AJ erred in finding that Scott did not have
sufficient hours to qualify for FMLA leave. An employee must have 1,250 hours of
service in the previous 12-month period to be eligible for FMLA leave. 29 U.S.C.
§ 2611(2)(A)(ii). The AJ found that Scott did not request FMLA leave until November
2006, and that at the time of Scott’s absences, he did not have the requisite hours to
qualify for FMLA leave.
We conclude that the AJ’s determination that Scott had worked insufficient hours
to qualify for FMLA was supported by substantial evidence. The government submitted
as evidence employee reports showing that at the time of each of his absences, Scott
had worked less than 900 hours (well below the 1,250 hour requirement) in the
2008-3172 3
preceding twelve months; a November 6, 2006 letter denying Scott’s request for FMLA
leave because he had worked insufficient hours and estimating that Scott would be
eligible for FMLA leave on February 3, 2007; an FMLA data report indicating that at the
time of Scott’s November 2006 FMLA leave request, he had worked only 868 hours in
the preceding year; and testimony from the agency’s FMLA coordinator. We conclude
that this evidence is sufficient to support the AJ’s finding.
Next, Scott argues that he did not violate the last chance agreement. That
agreement required that Scott have “no more than (3) three unscheduled absences
during any six (6) month period of this agreement and no instances of AWOL.” Scott
argues, as he did before the AJ, that the six-month period in the last chance agreement
is measured from the date of that agreement, and after that initial period has run, a new
six-month period begins. Put another way, according to Scott, if he had three
unscheduled absences during the period from June 28, 2006 (the date of the
agreement) to December 28, 2006, he would start with a clean slate on December 29,
2006, and a fourth absence in the new period would not violate the agreement
regardless of its temporal proximity to the absences in the prior period.
The AJ held that under the plain language of the agreement, Scott could have no
more than three unscheduled absences in “any” six-month period, such that if Scott had
four such absences during any rolling six-month period, he would be in violation of the
agreement. We agree that the AJ’s interpretation comports with the plain language of
the agreement, and that the agreement contemplates a rolling six-month period rather
than discrete six-month increments. We note that the last chance agreement was not
2008-3172 4
effective indefinitely, but for a five-year term, which reinforces that “any” six-month
period under the agreement is a rolling rather than discrete time increment.
Finally, we have reviewed Scott’s remaining arguments and conclude that they
lack merit. Because we hold that the AJ correctly interpreted the last chance agreement
and that his decision sustaining Scott’s removal was supported by substantial evidence,
we affirm.
2008-3172 5