Smith v. Department of Veterans Affairs

20 F. App'x 868
Court of Appeals for the Federal Circuit·Decided October 5, 2001·No. No. 01-3144·Published

Opinion

PER CURIAM.

Anthony A. Smith, Jr. seeks review of the final decision of the Merit Systems Protection Board (“Board”) affirming his removal from the Department of Veterans Affairs (“DVA”) for (1) failure to follow leave procedures and (2) absence without approved leave (“AWOL”) for forty-three days prior to the date of the proposed removal notice. Smith v. Dep’t of Veterans Affairs, 87 M.S.P.R. 533, No. SF-0752-99-0490-1-1 (November 21, 2000). Because there is substantial evidence of record supporting the Board’s determination, we affirm.

I. BACKGROUND

Mr. Smith was employed by the DVA as a Police Officer, GS-6. On January 5,1998, the DVA suspended Mr. Smith for AWOL and failing to follow leave procedures. On April 23, 1998, the DVA issued Mr. Smith a written notice discussing his abuse of sick leave. The DVA advised Mr. Smith to improve his leave usage pattern. As of June 17, 1998, Mr. Smith had exhausted his annual sick leave. Nevertheless, on June 17 and 18, 1998, Mr. Smith requested additional sick leave. Because Mr. Smith had exhausted his sick leave, his supervisors changed the request to leave without pay (“LWOP”) in lieu of sick leave. On June 19,1998, the DVA issued Mr. Smith a notice of request for medical certification. The notice informed Mr. Smith that he had used 62 hours of sick leave, 62.5 hours of annual leave in lieu of sick leave, and 46 hours of LWOP in lieu of sick leave (together, approximately twenty days). The [869]*869notice required Mr. Smith to “submit a doctor’s certificate upon return to duty for all leave used due to illness and/or injury.”

The DVA heard no response from Mr. Smith for several weeks. On July 10, 1998, Mr. Smith’s supervisor left several messages telling him to contact his supervisors if he could return to duty. Mr. Smith’s supervisor informed him to provide medical documentation to support his continued absence. On July 12, 1998, Mr. Smith left a voicemail message stating that he was waiting for medical clearance to return to work. However, Mr. Smith never returned to work, did not describe his current state of health, and did not provide any medical documentation. On July 23, 1998, the DVA informed Mr. Smith that he was being placed on AWOL status as of June 18, 1998 because he had failed to support his absence with a proper medical certification and had not properly requested leave. Mr. Smith was also ordered to report to work on July 29, 1998 or contact the Police Department chief. Mr. Smith did not comply with the order.

On August 18, 1998, the DVA issued a notice of proposed removal to Mr. Smith. The notice charged Mr. Smith with (1) failure to follow leave procedures and (2) AWOL for the period beginning June 18, 1998, through and including August 18, 1998. On August 27, 1998, Mr. Smith appeared at the agency work site to interview for another position in the police department. At that time, he did not attempt to contact his supervisor or the Police Department chief. Instead, he requested additional sick leave from another officer, Sergeant Mayberry. At this time, Mr. Smith also presented to Sergeant Mayberry a medical “visit verification” form issued on August 27, 1998 by a health maintenance organization. The “visit verification” form stated that Mr. Smith was first seen on August 27, 1998, but does not provide a diagnosis or identify any medical condition. ' Mr. Smith was terminated effective October 19, 1998.

Mr. Smith timely appealed to the Board. On May 1, 1998, an administrative judge (“AJ”) of the Board affirmed the decision to remove Mr. Smith. The AJ found that Mr. Smith did not appear for duty between June 18, 1998 and August 18, 1998. Moreover, the AJ found that the “visit verification” form was “not credible medical evidence showing that the appellant had any particular, identified medical condition or that that [sic] his unnamed condition precluded or limited his ability to do his work.” Thus, the AJ determined that Mr. Smith failed to provide an adequate medical certification for the period at issue. The AJ also found that the DVA had established that Mr. Smith failed to comply with the proper procedure for requesting leave. Accordingly, the AJ sustained the charges and determined that the penalty of removal was reasonable for the circumstances. On November 21, 2000, the decision became final when the full Board denied the petition to review the AJ’s decision. The Board determined that Mr. Smith had presented no new evidence and that the AJ had made no legal error affecting the outcome. Mr. Smith timely appealed to this court.

II. STANDARD OF REVIEW

This court’s scope of review over decisions of the Board is limited by statute. We must affirm the decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir. [870]*8701986). Our function as a reviewing court is to determine whether the Board’s findings are supported by substantial evidence; we do not perform a de novo review of the facts. Bevans v. Office of Personnel Management, 900 F.2d 1558, 1565 (Fed.Cir.1990). Thus, the Board’s decision must be sustained if it is supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.Cir. 1990).

III. DISCUSSION

The agency has the burden of proving its charges by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B) (1994). To sustain a charge of AWOL, the agency must show that the employee was absent and either that (1) the absence was unauthorized or (2) that request for leave was properly denied. Scorcia v. United States Postal Serv., 78 M.S.P.R. 588, 590 (1998). In this case, Mr. Smith argues that he properly requested leave, and that such request was improperly denied. In such instances, the agency must show by a preponderance of the evidence that its decision to deny leave was not arbitrary or capricious, and was based on legitimate management reasons. Cooke v. United States Postal Serv., 67 M.S.P.R. 401, 404 (1995). The AJ found that the DVA established by a preponderance of the evidence that Mr. Smith’s absence was unauthorized, and that the agency’s denial of leave was reasonable under the circumstances. In arriving at this determination, the AJ examined all of the relevant evidence, including the “visit verification” form submitted by Mr. Smith. However, the AJ determined that the “visit verification” form was not credible medical evidence demonstrating that Mr. Smith’s “unnamed condition precluded or limited his ability to do work.”

Mr. Smith argues that he properly informed the DVA that he was ill, and made an appropriate request for sick leave. Mr.

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Smith v. Department of Veterans Affairs, 20 F. App'x 868 (Fed. Cir. 2001).

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