Adverse Action Not Permitted for Use of Approved Leave

In Ryan v. Department of the Air Force, 2007 M.S.P.R. 240 (October 4, 2007), the MSPB overturned the agency’s removal of the appellant on charges of excessive use of leave. Appellant, a GS-12 Aerospace Engineer, suffered from herniated discs in his back. From July 24, 2005, through November 18, 2005, the appellant used sick leave to work a reduced schedule. From November 18, 2005, through January 2, 2006, appellant used a combination of sick, annual, holiday and other leaves. The agency issued a notice of proposed removal on January 20, 2006, and removed the appellant on March 21, 2006.

The administrative judge (AJ) upheld the removal based on a charge of excessive absence. In so holding, the AJ applied Cook v. Department of the Army, 18 M.S.P.R. 610 (1984). As a general rule, an agency’s approval of leave for unscheduled absences precludes the agency from taking an adverse action on the basis of those absences. Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401, 404 (1997). The Board in Cook carved out an exception to the general rule whereby to sustain an action based on excessive approved absences, an agency must establish that:

• an employee was absent for compelling reasons beyond his control so that agency approval or disapproval of leave was immaterial because the employee could not be on the job;
• 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
• the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

Cook, 18 M.S.P.R. at 611-12. The AJ in Ryan failed to apply the caveat to this exception. Under Holderness, the Board held that this exception only applies in a situation where the employee’s absence was due to excessive use of unscheduled leave without pay (LWOP). Holderness, 75 M.S.P.R. at 404.

Here, the agency presented no evidence that the appellant was ever on LWOP. Because the agency was unable to show that any of the appellant’s leave was LWOP, the Board overturned the AJ’s decision. While the Board upheld the part of the AJ’s decision that found against the appellant’s affirmative defenses of discrimination, the Board ordered that the appellant be reinstated and awarded back pay, interest and benefits for the period he was separated.