MSPB CLARIFIES WHEN AN AGENCY CAN TERMINATE FOR LEAVE ABUSE
A GS-14 Supervisory Administrative Specialist at the SBA sustained a compensable injury requiring surgery and leave. When she was cleared by her doctor to return to work, she requested a reasonable accommodation, including substantial approval of sick, annual, and LWOP to cover her future absences. The agency denied most of her requested leave and by the time she returned to work she had accumulated 400 hours of AWOL. So, the agency removed her and the MSPB Administrative Judge (AJ) sustained the removal. But when the case went before the full Board, it reversed the judge and spelled out why as follows. This is a critically important case for any union rep defending an employee being disciplined for leave abuse.
According to the Board, the AJ erred by sustaining the AWOL charge solely on the grounds that “the appellant was scheduled to work, she was absent, and the appellant’s absence was not authorized.” That is too simplistic of an analysis and denies the employee her rights under the law. The Board wrote “that, in order to prove a charge of AWOL, an agency must show ‘that the appellant was absent, and that [her] absence was not authorized, or that [her] request for leave was properly denied.’” However, in a case such as this, where the employee requested leave to cover her absences, an AWOL charge will be sustained only if the agency establishes that it properly denied those leave requests. “An AWOL charge resulting from the denial of sick leave will not be sustained if an appellant presents administratively acceptable evidence to show that she was incapacitated for duty during the relevant time and she had sufficient sick leave to cover her absences.” Moreover, the Board wrote that, “Whether the agency properly denied the appellant’s leave requests—which included requests for sick leave, annual leave, and LWOP—is a matter in dispute. To the extent the appellant contends that the denial of her leave requests was the result of a prohibited personnel practice under 5 U.S.C. § 2302(b), and thus improper, further adjudication is needed to determine the merits of the prohibited personnel practice claims….”
Consequently, when defending an employee accused of leave abuse of any kind, the union should put a lot of effort into showing that the leave was not properly denied. In this case the employee raised several discrimination claims, but a union could also look to whether the leave was denied consistent with agency regulations, past practice, workload impact, or an unannounced agency policy.
For more details, check out Carmencita Wilson v. SBA, 2024 MSPB 3 (2024)
