Jones v. Department of Veterans Affairs , 401 F. App'x 539 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SARAH L. JONES,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3140
__________________________
Petition for review of the Merit Systems Protection
Board in PH0752100038-I-1.
___________________________
Decided: November 9, 2010
___________________________
SARAH L. JONES, Jefferson, Maine, pro se.
AUSTIN M. FULK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director.
__________________________
JONES v. VA 2
Before BRYSON, PLAGER, and CLEVENGER, Circuit Judges.
PER CURIAM.
DECISION
Sarah L. Jones appeals the decision of the Merit Sys-
tems Protection Board upholding her removal from a
position with the Department of Veterans Affairs (“DVA”).
We affirm.
BACKGROUND
Ms. Jones was employed as a Nursing Assistant at
the Togus VA Medical Center in Augusta, Maine. In
September 2008, the DVA warned Ms. Jones about her
poor leave record and reminded her that absences based
on illness must be supported by documentation. In the
first half of 2009, Ms. Jones received a letter of admon-
ishment and later a letter of reprimand based on a series
of unexcused or unauthorized absences. On August 5,
2009, the DVA issued a notice of proposed removal to Ms.
Jones, charging her with being absent without leave
(“AWOL”) for 168 hours between July 2, 2009, and August
4, 2009. Ms. Jones did not respond to the notice, and the
DVA issued a removal decision on August 26, 2009,
effective September 23, 2009.
Ms. Jones filed a timely appeal with the Merit Sys-
tems Protection Board but did not make a timely request
for a hearing. After considering the evidence submitted
by both parties, the administrative judge upheld the
charge and ruled that it was reasonable for the DVA to
remove Ms. Jones. The administrative judge noted that
Ms. Jones had requested and been granted sick leave and
3 JONES v. VA
leave without pay on prior occasions, but that she was not
granted leave without pay for the time period relevant to
the AWOL charge. The administrative judge acknowl-
edged that the decision whether to grant leave without
pay is within the discretion of the agency, but that when
medical excuses are involved, the denial of leave without
pay must be reasonable, depending on the facts of each
case. In that regard, the administrative judge explained,
an agency acts reasonably in denying leave without pay if
the employee’s absence “has no foreseeable end, has been
continual, and the absence is a burden to the agency.”
The evidence in this case, according to the adminis-
trative judge, showed that Ms. Jones’s absences were
excessive and had no foreseeable end. In particular, the
evidence provided no indication of “when she believed she
would be able to return to work on a regular basis.” The
administrative judge also noted that the evidence did not
show that Ms. Jones’s physician found her unable to work
during the relevant time period, and that the medical
evidence as a whole did not “support[ ] a finding that the
agency acted unreasonably in denying any requests for
leave and placing her on AWOL.” Finally, the adminis-
trative judge found that Ms. Jones’s absences “caused
others to have to perform her duties.” Noting the Board’s
well-established rule that unauthorized absence, by its
very nature, disrupts agency operations, the administra-
tive judge held that there was a “clear nexus” between the
multiple instances of AWOL and the efficiency of the
service.
The administrative judge also addressed Ms. Jones’s
argument that the DVA removed her in retaliation for
alleged whistleblowing activities. The principal acts
asserted to constitute whistleblowing were three disclo-
sures that Ms. Jones made in 2007 regarding allegedly
JONES v. VA 4
improper behavior of staff and a patient in the Togus
facility. With respect to those disclosures, the adminis-
trative judge stated that “[e]ven if I were to assume for
purposes of this decision . . . that these disclosures were a
contributing factor in the decision to remove the appel-
lant, I would find that the agency has shown by clear and
convincing evidence that it would have taken the removal
action against the appellant absent any such disclosures.”
The administrative judge reached that conclusion based
on the volume of unexcused or unauthorized absences, the
lack of medical documentation for those absences, Ms.
Jones’s past history of attendance problems, and the
absence of any reason to believe Ms. Jones’s behavior
would change in the future. The administrative judge
found that other alleged disclosures by Ms. Jones—
complaints to supervisors about her work schedule,
letters written to outside groups about the DVA’s poor
treatment of her, and a general category of reported
problems in the facility not supported by documentation—
were not disclosures of a type that were protected by the
Whistleblower Protection Act. See 5 U.S.C. § 2302(b)(8).
Finally, the administrative judge determined that the
DVA had adequately addressed each of the relevant
Douglas factors in assessing the penalty, see Douglas v.
Veterans Admin., 5 M.S.P.R. 280 (1981), and concluded
that the penalty of removal was appropriate. The full
Board denied Ms. Jones’s petition for review. Ms. Jones
now petitions for review by this court.
DISCUSSION
On appeal, Ms. Jones raises three objections to the
Board’s decision. First, Ms. Jones contends that the
Board did not take into account a cassette tape of a
voicemail message left by a DVA employee during July
5 JONES v. VA
2009 telling Ms. Jones to submit medical certification
forms, presumably in connection with one of her absences.
The administrative judge considered the contents of the
tape but found that the tape “does not change the outcome
of this case,” as it simply suggests that the DVA was
aware that Ms. Jones may have been eligible for medical
leave at some point in time. We find no error in the
administrative judge’s apparent conclusion that the
cassette tape had little relevance to the charges against
Ms. Jones.
Second, Ms. Jones argues that she was on authorized
medical leave during the time for which she was charged
with AWOL. The administrative judge examined the
DVA’s attendance records and Ms. Jones’s medical evi-
dence and determined that Ms. Jones was AWOL during
the dates at issue in this appeal. In particular, the ad-
ministrative judge noted that Ms. Jones presented no
evidence indicating that she had been granted leave for
the relevant time periods. Nor did the administrative
judge find that there was any other reason, based on Ms.
Jones’s medical condition, that her absences could be
justified. The administrative judge’s analysis of Ms.
Jones’s arguments based on her medical condition is also
supported by the evidence.
Third, Ms. Jones appears to allege that her experience
in witnessing and reporting patient mistreatment by
fellow employees contributed to her medical problems.
The problem with that argument is that the administra-
tive judge found that Ms. Jones’s medical evidence did not
support a finding that the agency denied her requests for
leave during the period that she was charged with unau-
thorized absence. Even if Ms. Jones was suffering from a
medical condition that made it difficult or impossible for
her to be present during her prescribed working hours,
JONES v. VA 6
her remedy was to obtain leave for those periods, not to be
absent without leave. 1
The DVA established by a preponderance of the evi-
dence that Ms. Jones was AWOL for the dates charged.
As to whether the removal action promoted the efficiency
of the service, a finding required under 5 U.S.C. § 7513(a),
unauthorized absences plainly prejudice the efficient
functioning of an agency, particularly when the absences
are repeated over an extended period of time. Davis v.
Veterans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986). In
fact, we have held that “the nexus between the charged
offense and the efficiency of the service is automatic when
the charged offense is AWOL.” Bryant v. Nat’l Sci.
Found., 105 F.3d 1414, 1417 (Fed. Cir. 1997).
As to the appropriateness of the penalty, the choice of
penalty “is committed to the sound discretion of the
employing agency and will not be overturned unless the
agency’s choice of penalty is wholly unwarranted in light
of all the relevant factors.” Guise v. Dep’t of Justice, 330
F.3d 1376, 1382 (Fed. Cir. 2003). Ms. Jones’s removal
was not “wholly unwarranted” in light of her record of
chronic unauthorized absences and her prior disciplinary
record. See Davis, 792 F.2d at 1113.
Because the Board’s decision was based on substan-
tial evidence and was not legally erroneous, we sustain
1 Ms. Jones also requests back pay for allegedly au-
thorized medical leave taken prior to her removal. Leav-
ing aside the absence of evidence that Ms. Jones had any
unused sick leave for which she was not paid, the Board
lacks jurisdiction to award back pay for employment prior
to the date of an appealable adverse action. Hall v.
United States, 617 F.3d 1313, 1317 (Fed. Cir. 2010).
7 JONES v. VA
the decision of the Board upholding Ms. Jones’s removal.
See 5 U.S.C. § 7703(c).
No costs.
AFFIRMED