SICK LEAVE ABUSE DURING THE PROBATIONARY PERIOD
What can an employee do who is fired for alleged sick leave abuse during her probationary period? One employee recently showed that she can get reinstated with full back pay, compensatory damages, and an order that the agency consider disciplining the manager who fired her. Here is a quick review of her alleged abusive sick leave usage and the arguments she used to win.
Alleged Sick Leave Abuse Usage
The employee, a corrections officer for the Federal Bureau of Prisons, used 81.5 hours of sick leave during her probationary period. She took off both December 24 and 25, giving her a four-day holiday, and again on December 28 and 31 giving her a four day weekend. Six months later she took another sick leave day on July 1, when her regularly scheduled days off were June 29 and 30. A supervisor spoke to her once about her leave usage during this time and a subsequent letter indicated that while it was not disciplinary in nature the agency wanted to “point out that a specific pattern of sick leave usage appears to be developing.” However, the employee followed leave procedures each time she took leave and even provided medical certificates when not required.
Despite getting three performance appraisals during her probationary year certifying that she was performing at a Satisfactory level and without any mention of a leave abuse problem, the agency terminated her in the 11th month of her probationary period.
With no access to arbitration and an absolutely heartless MSPB, the employee filed an EEO complaint alleging sex discrimination. She easily met the prima facie test for raising at least a suspicion of discrimination by proving the following:
- She was a member of a protected class, namely, women, but either gender would do;
- She was performing competently in her job;
- She suffered an adverse action; and
- Either similarly situated employees outside her protected class were treated differently or other circumstances suggest an inference of discrimination.
The agency’s response was that it had a legitimate reason for terminating her, namely, that she had a pattern of using sick leave during the holidays and in conjunction with her days off. That set the stage for the employee to try to prove that the agency’s stated reason was pretext, which is a legal term for “big fat lie,” and she did that many times over. EEOC has stated that an employee can prove pre-text (1) indirectly, by showing that the proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer. What follows are eight arguments that influenced EEOC to grant her appeal:
- The agency did not follow its own policy or the union agreement for addressing leave abuse matters, which EEOC said, “further brings into question the Agency’s stated rationale for terminating Complainant’s employment.”
- The employee not only submitted medical certification when it was not even requested or required, but when she tried to start a conversation with her manager about why she needed the leave, the manager stopped the conversation.
- When the employee once told a manager that she needed leave to take her child to the doctor, the manager concluded that was not a reason for taking sick leave. However, under agency policy it was.
- A manager emailed the employee’s father who also worked at the prison urging him to stay out of the dispute because females need to fight their “own battles or we will never get the respect we deserve.” EEOC took that as an indication that even management admits that women are not respected at the prison and likely held to higher standards.
- The agency has no formal policy prohibiting employees from using sick leave in conjunction with holidays or weekends.
- The evidence showed that there were similarly situated male employees who engaged in comparable sick leave usage who were never punished. One used sick leave to get a seven day holiday weekend and another used eight straight days of sick leave and FFLA sick days off without penalty.
- The evidence also showed that similarly situated employees used even more sick leave than the employee’s 81.5 hours with even getting the talking to that the employee did.
- While the employee was terminated for “one long period of sick leave in December,” another employee’s similar absence was not considered for disciplinary action because although he took several days off, at least “it was for one specific medical episode.”
With a year’s back pay, damages, and attorney fees this case likely will cost the agency (Dept. of Justice) well over $100,000.00. We have to wonder whether DOJ will use this case to instruct managers how to respond to unacceptable leave patterns properly. Terminating a probationary period employee borders on being impossible to screw up thanks to MSPB, FLRA and the courts. But DOJ managed to turn this one into a loser.
EEOC has not posted the decision yet, but if you need a copy ask for Appeal No. 0120130362, DOJ, Federal Bureau of Prisons.