Teresa J. Washington v. Department of the Army

813 F.2d 390, 1987 U.S. App. LEXIS 167
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 11, 1987
DocketAppeal 86-1460
StatusPublished
Cited by15 cases

This text of 813 F.2d 390 (Teresa J. Washington v. Department of the Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Teresa J. Washington v. Department of the Army, 813 F.2d 390, 1987 U.S. App. LEXIS 167 (Fed. Cir. 1987).

Opinions

FRIEDMAN, Circuit Judge.

The petitioner challenges a decision of the Merit Systems Protection Board (Board) sustaining her removal from her position with the United States Army Corps of Engineers (agency) for absence without leave, 30 M.S.P.R. 614 (1986). We affirm.

I

The petitioner had been employed as a secretary with the agency since 1980. In January of 1985, the petitioner learned that she was pregnant but did not notify her superior of her condition. In early March the petitioner requested five months of leave without pay but did not give any reason for such leave. The agency denied the request and informed the petitioner that leave without pay would not be approved unless she could provide acceptable documentation that the absence was medically necessary.

[392]*392On March 25, the petitioner informed her supervisor, Mr. Stephan R. Fleener, that she was pregnant, and requested seven months of leave without pay (from May 1, 1985 through January 6, 1986) and thirty days of sick leave. In support of her request, she presented Mr. Fleener with a note dated March 22, 1985, from a Dr. Savarese, stating that the petitioner was pregnant and that her expected date of confinement was September 25, 1985. Dr. Savarese stated that “[b]ecause this is [the petitioner’s] third pregnancy and because she has high risk of having premature infants (last delivery 2 months early, 4V2 lbs), I have recommended that she stop work on 5/1/85 and return to work 1/6/86.”

In a letter dated March 29, 1985, Mr. Fleener denied the sick leave requested. He explained that the petitioner had accumulated only twenty hours of sick leave, and that he was unable to advance her sick leave because he had “serious doubt” that she would return to duty after her “period of disability” — a doubt that was “fortified” by the petitioner’s “instable behavior” that he had witnessed since January 1983, and about which he twice had written to the petitioner.

Mr. Fleener told the petitioner that he would “favorably consider” her request for leave without pay, provided that she furnish him with more specific medical documentation, which he itemized in detail. This included the history of the petitioner’s medical condition, clinical findings from the petitioner’s most recent medical examination, and an explanation whether the petitioner would suffer harm from performing her duties with the agency, with or without accommodations for her condition. The letter informed the petitioner:

You must furnish this medical documentation prior to your period of expected absence in order to obtain approval of Leave Without Pay. I emphasize that you are responsible for obtaining this medical information from your doctor. I will not intervene or attempt to obtain it myself. If you do not comply, I will change any absence to Absent Without Leave (AWOL). AWOL charges constitute reason to take disciplinary action up to removal from the Federal Service.

Mr. Fleener suggested that the petitioner take the letter to her doctor so that the doctor would understand the medical information that was necessary for approval of leave. The petitioner admits, however, that she never presented the letter to her doctor or asked him to supply the information requested by the letter.

The petitioner alleges that during the weekend prior to April 22, 1985, she began to experience abdominal pains. The petitioner did not report to work on April 22, but telephoned Mr. Fleener and advised him that she was ill and could not report. In response, Mr. Fleener requested that he be provided with documentation of her illness. On April 25, the petitioner informed Mr. Fleener that her physician had advised her not to return to work until January 1986. Mr. Fleener informed the petitioner that unless she provided adequate medical documentation she would be considered absent without leave beginning April 22, 1985.

On April 26, the petitioner delivered a second note from Dr. Savarese to Mr. Fleener’s office. The note stated only that the petitioner was four-and-one-half months pregnant, that her due date was September 25, 1985, and that maternity leave should start April 22, 1985 and continue until January 5, 1986.

On May 3, Mr. Fleener telephoned the petitioner and again informed her that he needed proper medical documentation of her illness. The petitioner did not provide that information, and by letter dated June 13, 1985, Mr. Fleener informed the petitioner that because of her continuing absence without leave and her “conscious refusal to provide documentation” of her illness, he was proposing her removal.

The agency removed the petitioner, and the Board upheld that action. The presiding official of the Board noted that a request for leave without pay is a matter of administrative discretion, ruled that in view of the petitioner’s failure to furnish administratively acceptable documentation of her disability, the agency did not abuse its dis[393]*393cretion in denying her leave without pay, and upheld the penalty of removal for absence without leave as reasonable. The full Board denied review of the presiding official’s decision.

II

In reviewing a Board decision sustaining the removal of an employee, the decision must be affirmed unless we find it to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, or not supported by substantial evidence. See 5 U.S.C. § 7703(c) (1982 & Supp.1985); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Ped.Cir.1984); Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 (Fed.Cir.1982).

The petitioner makes two principal arguments in challenging her removal. First, she argues that the finding she was absent without leave from April 22 to June 13, 1985, cannot stand because she was incapacitated and unable to work during that period. Second, she contends that the agency erroneously considered her prior use of approved sick leave and leave without pay in selecting removal as the penalty for her absence without leave. She also argues that removal was an excessive penalty for her absence without leave.

A. Incapacitation During Period of Absence. The petitioner argues that because she was “totally incapacitated” from April 22 to June 13, 1985, she was improperly found to have been absent without leave for that period. The record, however, does not support her contention that she was totally disabled or show that she presented to the agency adequate medical documentation of that claim.

The only evidence before the agency relating to the petitioner’s alleged medical incapacitation for work were two short statements from her physician that she was pregnant, that she had a high risk of a premature birth, and that she should be on maternity leave for an extended period. Although her supervisor gave the petitioner detailed information about the data he would require to grant her leave without pay and suggested that she show the letter to her doctor, the petitioner did not show the doctor the letter or furnish the medical data.

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Teresa J. Washington v. Department of the Army
813 F.2d 390 (Federal Circuit, 1987)

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Bluebook (online)
813 F.2d 390, 1987 U.S. App. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teresa-j-washington-v-department-of-the-army-cafc-1987.