New-Howard v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DEONNE R. NEW-HOWARD,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
______________________
2013-3180
______________________
Petition for review of the Merit Systems Protection
Board in No. PH0752070319-M-1.
______________________
Decided: November 10, 2014
______________________
DEONNE R. NEW-HOWARD, of Philadelphia, Pennsyl-
vania, pro se.
ELIZABETH ANNE SPECK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. DELERY, Assistant Attor-
ney General, ROBERT E. KIRSCHMAN, JR., Director, and
KIRK T. MANHARDT, Assistant Director.
______________________
2 NEW-HOWARD v. DVA
Before PROST, Chief Judge, NEWMAN and LINN, Circuit
Judges.
PER CURIAM.
Deonne New-Howard appeals from an order of the
Merit Systems Protection Board (“Board”) upholding her
removal upon finding that the agency properly denied her
requests for sick leave. See New-Howard v. Dep’t of
Veterans Affairs, PH0752070319-M-1 (M.S.P.B. June 27,
2013) (“Board Decision”). Because the Board’s decision is
supported by substantial evidence and is otherwise in
accordance with law, we affirm.
BACKGROUND
The facts of this case have been comprehensively re-
cited by the Board and the district court that Ms. New-
Howard previously appealed to. See Board Decision at 2–
9; New-Howard v. Shinseki, No. 09-5350, 2012 WL
2362546, at *1–5 (E.D. Pa. June 21, 2012). We provide
here a simplified overview of those facts, as is sufficient
for resolution of this appeal.
Ms. New-Howard was employed at the U.S. Depart-
ment of Veterans Affairs (“VA”), where she applied for
and was denied sick leave several times, including for the
following two periods: from October 24, 2005, to December
16, 2005, and from January 17, 2006, to February 27,
2006. Ms. New-Howard did not work during those peri-
ods, and having not been approved for sick leave, the VA
deemed her absent without leave (“AWOL”). The VA then
proposed to remove Ms. New-Howard from employment
based on the charges of AWOL and failure to follow leave
procedures. On June 30, 2006, the VA sustained the
charges and imposed the penalty of removal.
Ms. New-Howard filed an appeal challenging her re-
moval. She alleged, among other things, that the VA
discriminated against her and improperly denied her
NEW-HOWARD v. DVA 3
requests for sick leave. The Board affirmed the VA’s
removal and Ms. New-Howard appealed to the U.S.
District Court for the Eastern District of Pennsylvania.
The district court ruled against Ms. New-Howard,
granting summary judgment for the VA on all her claims
except sick leave. As to sick leave, the district court
remanded the matter to the Board “solely for the limited
purpose of making findings regarding the denial of Plain-
tiff’s requests for sick leave.” New-Howard, 2012 WL
2362546, at *1.
Upon remand, the Board determined that the VA
properly denied Ms. New-Howard’s request for sick leave
and again affirmed her removal. Instead of returning to
the district court, Ms. New-Howard appeals to this court.
DISCUSSION
As an initial matter, the VA asserts that this is a
“mixed case” involving allegations of discrimination and
that this court consequently does not possess jurisdiction
to hear this case. See, e.g., Kloeckner v. Solis, 133 S. Ct.
596, 607 (2012) (holding that “mixed cases” should be
appealed to the district court and not the Federal Circuit).
But Ms. New-Howard has expressly “waived her discrimi-
nation claim that the agency’s denial of her sick leave was
motivated by discrimination.” Pet’r’s Reply Br. 1. As
such, this case is no longer “mixed,” and although it may
have been more efficient for the district court to hear this
appeal, we do possess jurisdiction. See 5 U.S.C. § 7703;
Toyama v. Merit Sys. Prot. Bd., 481 F.3d 1361, 1365 (Fed.
Cir. 2007) (“[P]arties may appeal directly to this court if
willing to waive discrimination issues.”).
We turn now to the merits of the appeal. Our review
of Board decisions is limited by statute. Under 5 U.S.C.
§ 7703(c), we may only reverse the Board’s decision if we
find the decision to be (1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
4 NEW-HOWARD v. DVA
obtained without procedures required by law; or (3)
unsupported by substantial evidence. Ward v. U.S. Postal
Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011).
It is undisputed that the VA may grant sick leave only
when the request is supported by “administratively
acceptable evidence.” 5 C.F.R. § 630.405(a). As correctly
stated by the Board, “[m]edical documentation which fails
to, inter alia, inform the employer of an employee’s prog-
nosis, dates of incapacitation, restrictions on performance
of her duties, and expected return to duty has been
deemed to be administratively insufficient to support a
request for sick leave.” Board Opinion at 8 (citing Young
v. U.S. Postal Serv., 19 M.S.P.R. 25 (1998); Tackett v.
Dep’t of the Air Force, 76 M.S.P.R. 649, 657–58 (1997);
Goens v. Dep’t of the Army, 40 M.S.P.R. 456, 460 (1989)).
According to Ms. New-Howard, her “brief primarily is
an effort to discredit the [Board’s] conclusion that she did
not submit proper medical documentation.” Pet’r’s Reply
Br. 5. But this effort fails.
As found by the Board, the medical documentation
that Ms. New-Howard submitted with her sick leave
requests failed to indicate a prognosis, state that she was
incapacitated from working, or state when she would be
able to return to work. For example, to support her
request for the second period, Ms. New-Howard simply
provided a short note from her psychologist which stated
that Ms. New-Howard “was advised by me not to return to
work as she is not able to handle the demands of the work
environment.” Resp’t’s App. 152 (Letter from Dr. Melvin
Rogers, dated 1/17/06). The Board properly concluded
that such documentation was not administratively ac-
ceptable.
Ms. New-Howard also appears to argue that the VA is
lying when it states that it did not receive any additional
documentation from her. But Ms. New-Howard presents
insufficient evidence to support this allegation.
NEW-HOWARD v. DVA 5
We have considered Ms. New-Howard’s remaining ar-
guments and find them unpersuasive. Indeed, much of
Ms. New-Howard’s informal briefing appears to address
issues or claims that do not concern the sole issue proper-
ly on appeal: whether the VA properly declined her sick
leave requests. We thus do not address those arguments.
In sum, substantial evidence supports the Board’s
conclusion that Ms. New-Howard was properly denied
sick leave. And Ms. New-Howard has failed to point to
any part of the decision that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 7703(c).
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion.
AFFIRMED
COSTS
Each party shall bear its own costs.