Macaulay Williams v. Department of Commerce , 2024 MSPB 8 ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 8Docket No. DC-0752-17-0595-I-1
Macaulay Williams,
Appellant,
v.
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,
2
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On March 1, 2017, the agency rescinded the July 7, 2016 notice of proposed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.
1
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.”).
3
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,
4
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.
5
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
2
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.
6
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
3
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.”).
4
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.
7
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
5
This is a period of slightly less than 12 weeks, but it is all that the appellant’s request
encompassed.
8
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
6
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.
9
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).
7
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.
8
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.
10
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).
9
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.
11
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
12
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
13
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
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
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.