REINSTATED DESPITE 939 HOURS OF UNSCHEDULED LEAVE IN ONE YEAR

This employee worked only three full pay periods over the course of a year. In all the others, he called in from home or wherever to ask for annual, sick or whatever kind of leave the agency would grant him, including AWOL. The agency put him on leave restriction letters twice during that time and suspended him twice for a total of 17 days without pay for failure to follow proper leave procedures and the suspension notices “clearly state[d], ‘[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you’” for not following leave procedures. Finally, they fired him in June 2016. Most union reps would look at those facts and conclude that the best thing they could do for this guy is get him a clean record if he resigns. But they would be wrong because the MSPB said he should be reinstated. See Christopher M Robinette v. Dep’t. of the Army, MSPB Doc. No. AT-0752-16-0633-I-1 (May 11, 2022) Here is why.

Case law says that an employee can be fired for excessive absences—even those that include approved annual, sick, and LWOP—if the agency can prove that:

(1) the employee was absent for compelling reasons beyond his control so that the agency’s approval or disapproval of leave was immaterial because the employee 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 the employee became available for duty on a regular, full‑time, or part-time basis; and

(3) the position needed to be filled by an employee available for duty on a regular, full-time, or part-time basis. Combs v. Social Security Administration, 91 M.S.P.R. 148 (2002)

In this case, however, the agency failed to meet the second of those criteria.   MSPB wrote,

“We agree with the administrative judge that, while this letter contained warnings that the appellant’s failure to follow the procedures prescribed for requesting leave could lead to “consideration of disciplinary action,” the notice did not address any such action for excessive absences, even if the appellant complied with the restrictions…Thus, because the warnings the appellant received were insufficient to notify him that his approved absences could lead to removal for excessive absenteeism, the administrative judge correctly found that the agency failed to meet the second prong in Cook.”

There you have it.  The law holds that there is a difference between excessive absences and a failure to follow leave procedures.  Call it a technicality if you want, but it is a very important one.

So, now Mr. Robinette gets to confront the “problem” of figuring out what to do with eight years of back pay, interest on that money, retroactive annual and sick leave, health benefits, retirement contributions, etc.