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U.S. Office of Personnel Management
Employee Relations Division
May 1999
LEAVE
GENERAL
As a general rule, an agency may
not take an adverse action against an employee based on the employee's
use of approved leave.
Wilkinson v. Air Force,
68 M.S.P.R. 4 (1995)
(Former employee petitioned for
review the agency's removal for failure to request leaves according to
established procedures.) As a general rule, agency's approval of leave
for unscheduled absences precludes agency from taking adverse action on
basis of those absences.
Webb v. USPS, 10 M.S.P.R. 536
(1982)
Agency removed employee based
on excessive absenteeism.) Agency's grant of leave without pay to employee
could not be used as specification in support of removal action, and adverse
action taken by agency against an employee based on periods of approved
leave would not be for such cause as would promote efficiency of the service.
There is a very rare exception to that
rule and the Board has identified specific criteria that must be met when
removing an employee on approved leave under this exception:
1. The employee must be absent
for reasons beyond his or her control; 2. the absence must have continued
beyond a reasonable period of time and the agency must warn the employee
of possible adverse action if the employee does not return to duty; and
3. the agency must show that it needs the employee's services on a regular
schedule.
Smisson v. Air Force, AT0752990177-I-1,
March 9, 2000
(Appellant removed for excessive
absences). Issue was whether the agency’s removal action satisfied the
crieria under Cook.
-Absences due to personal affairs
are not covered by the Cook exception.
(Discuss periods of interim leave)
(Part-time employee)
Gaskins v. Air Force, 36
M.S.P.R. 331 (1988)
Agency could remove employee for
continuous unscheduled absence on leave without pay, even though action
was based on approved leave, as employee was absent for compelling medical
reasons and agency approval or disapproval of her leave request was immaterial,
her absence continued beyond reasonable time and she was warned that adverse
action could be taken unless she became available for duty and agency established
that it needed to fill her position on regular basis.
Cook v. Army, 18 M.S.P.R. 610
(1984)
(Army Department employee was
suspended for 40 days for excessive absenteeism and non-availability for
work). The Board found that when an agency approves leave, it releases
the employee from the obligation to report, and therefore, such absence
is not considered to be a breach of the employer employee relationship,
and thus an adverse action based on a record of approved leave would not
promote the efficiency of the service. This should be applied only in unusual
cases, and is not warranted in this case.
The Board recently clarified that it
considers this exception only in situations where the employee is using
LWOP. It specifically denied the use of the exception in a situation where
the employee was using approved sick leave.
Holderness v. Defense Commissary
Agency, 75 M.S.P.R. 401 (1997)
(Exception agency did not charge
the employee with failing to properly request leave.) Where record showed
that employee was on sick leave for entire period of charged absences,
agency failed to prove that employee was on leave LWOP status during that
time, and thus Cook exception, which allows agency to take adverse action
based on approved unscheduled absences when employee makes excessive use
of unscheduled LWOP, didn't apply to allow employee's removal.
An agency may take an adverse action
against an employee only for such cause as will promote the efficiency
of the service (5 U.S.C. 7513 (a)). The Board and the courts have held
that an employee's unauthorized absence, by its very nature, adversely
affects the agency's ability to accomplish its mission and that disciplinary
action based on a charge of unauthorized absence is warranted to promote
the efficiency of the service.
Roberson v. Veterans Affairs,
27 M.S. P.R. 489 (1985)
Unauthorized absence from duty
is proper ground for removal since by its very nature, it disrupts efficiency
of the service.
Desiderio v. Navy, 4 M.S.P.R.
84 (1980)
Where evidence clearly established
employee's unauthorized absences from duty and that such absences increased
administrative costs and decreased productivity, there was no basis to
concluded that presiding official erred in
determining from the evidence
presented that employee's removal promoted efficiency of the service.
ANNUAL LEAVE
A supervisor has the discretion
to approve or disapprove the use of accrued annual leave based upon the
work needs of the office. In cases where annual leave has been denied and
adverse action is taken based on
an AWOL charge, the Board will review the agency's decision to ensure that
the leave was properly denied.
Dobert v. Navy, 74 M.S.P.R.
148 (1997)
Board will review agency's denial
of request for annual leave.
Unused annual leave does have cash
value upon separation, however, no payment is made for accumulated sick
leave when an employee retires or separates.
Coffey v. USPS, NY0752910454-X-3,
April 7, 2000
(Employee claimed that after interim
relief benefits terminated and before his retirement, he was forced to
begin using annual leave to remain in pay status, and that the agency made
him "forfeit" 641 hours of sick leave.)
-Board held that employee was incapaciated
for duty for the 13 week period that ended on April 29, 1994, that he should
be permitted to substitute whatever sick leave he had available for use
during that period for the annual leave that he used and that he is entitled
to payment for any resultant unused annual leave.
The issue of approval or denial of
annual leave in situations where an employee is incarcerated has been raised
at the Board in several cases. For example, an agency may not automatically
deny annual leave to an employee who must serve a jail sentence, but must
consider the impact of the employee's absence on agency operations and
the length of the potential absence.
Benally v. Interior, 71 M.S.P.R.
537 (1996)
(Appellant was arrested and driving
with revoked license, result of charge ordered to serve 7 days in jail
and drivers license revoked. Agency charged failure to maintain required
qualifications and AWOL. --Appellant requested annual leave supervisor
approved leave request but later denied the leave prior to its effective
date and charged the appellant awol for the period.) The Administrative
Judge erred in sustaining AWOL charge resulting from agency's denial of
employee's request for leave during seven-day period of his incarceration,
where agency did not make showing that at time, it had determined that
it needed employee on job, and where agency first approved employee's request
for annual leave before learning reason for request.
This is in contrast to the Board's
position when the employee facing incarceration does not have annual leave
available. The Board has found that the agency need not approve LWOP to
cover a period of incarceration nor does it have to justify its decision.
Johnson v. DLA, 54 MSPR
370 (1992)
Agency is not required to grant
an employee leave without pay to cover an absence due to his arrest and
incarceration. Agency authorization of LWOP is matter of discretion and
employees are not entitled as matter of right. When disciplinary action
is based on a charge of AWOL because of a denial of LWOP, board may review
surrounding circumstances to determine whether the denial was reasonable.
Hawkins v. Navy, 49 MSPR 501
(1991)
Agency did not have to grant employee
LWOP to cover his absence for 16 successive work days due to his arrest
and incarceration. (Agency denied request for LWOP to cover his absence
and placed him in AWOL status.)
When an employee is incarcerated, an
agency is not required to participate in a prison work-release program
(absent any agency regulation to the contrary). An AWOL charge will be
supported, even though the agency could have chosen to have the employee
work.
Huettner v. Army, 54 M.S.P.R.
472 (1992)
Agency was not obligated by law,
rule, or regulation to accept employee for duty under work-release program
so as to preclude AWOL charge, based on employee's absence of more than
one month resulting from his incarceration, and also was under no obligation
to provide information verifying his employment.
Abrams v. Navy, 22 M.S.P.R.
480 (1984)
Agency was not obligated by law,
rule, or regulation to accept employee for duty under work-release program
so as to preclude AWOL charge based on absence resulting from employee's
incarceration. (Court case affirmed B table)
Removal for AWOL will be sustained
when the appellant was sentenced to 10 years imprisonment and was immediately
placed under custody of the state authorities and, as a result, was unable
to report to duty.
Rojas, Jr. v. USPS, 74
M.S.P.R. 544 (1997)
(Employee sentenced to 10 years
imprisonment - agency removed for AWOL.) Agency established its AWOL charge;
it was undisputed that employee was sentenced to serve a 10-year prison
term and that he was immediately remanded to custody of Texas Department
of criminal justice, and it was also undisputed that, due to his incarceration,
employee was unable to report for duty.
SICK LEAVE
Generally, employees have a right
to use sick leave as needed for proper reasons. Moreover, an agency is
required to grant sick leave to an employee who provides administratively
acceptable evidence that he or she is incapacitated for the performance
of duties due to illness or injury. However, an agency may disapprove sick
leave in nonemergency situations or if an employee does not submit administratively
acceptable evidence. An employee must apply for sick leave within the time
limits set by the agency. In addition, an agency may request administratively
acceptable evidence for any duration of sick leave.
Rison v. Navy, 23 M.S.P.R.
118 (1984)
Agency is required to grant sick
leave when employee is incapacitated for performance of his duties due
to sickness; however, employee must apply for sick leave within time limits
set by agency, and agency may grant request for sick leave only when such
request is supported by administratively acceptable evidence.
Documentation that supports an absence
for sick leave purposes may be presented as late as the Board hearing and
if the Board finds the documentation to be administratively acceptable,
an agency’s AWOL charge would be reversed.
Carr v. Department of Defense,
61 M.S. P.R. 172 (1994)
In reviewing propriety of agency's
AWOL determination, the Board will examine medical evidence presented for
first time to Board, as well as any medical documentation presented to
agency. Submission of medical evidence that does not provide the agency
with sufficient information about the employee's prognosis, restrictions
of work duties, or expected return to duty may not be sufficient to support
the request for leave and the agency may deny the use of sick leave.
Riley v. Army, 53 M.S.P.R. 683
(1992)
-While an employee is required
to submit written application for sick leave within time limits set by
agency, agency must grant sick leave to an employee who has provided it
with administratively acceptable evidence that she was incapacitated for
performance of her duties due to illness or injury regardless of whether
employee has complied with applicable procedures.
-Employee presented administrative
acceptable evidence of physical incapacity during relevant time period,
charge of AWOL could not be sustained where doctor testified that entire
period of employee's absence was medically justified by employee's pregnancy
and delivery of baby.
Goens v. Army, 40 M.S.P.R. 456
(1989)
Removal of employee for excessive
unauthorized absence after receipt of additional medical documentation
did not deny employee due process; Deputy Commander had given employee
a couple more days to submit additional documentation after oral reply
and documentation submitted failed to inform agency of employee's prognosis,
restrictions on her performance of duties, or her expected return to duty.
LEAVE WITHOUT PAY (LWOP)
Agency authorization of LWOP is
a matter of discretion and employees are not entitled to it as a matter
of right.
Johnson v. DLA, 54 M.S.P.R.
370 (1992)
Agency authorization of LWOP is
matter of discretion and employees are not entitled to it as matter of
right.
Kelmon v. Justice, 27 M.S.P.R.
581 (1985)
Agency's decision whether to grant
advanced sick leave may be analogized to its decision whether to grant
LWOP, since employees in both situations have no right to the leave on
demand.
Note: For decisions on the Family and
Medical Leave Act of 1993 (FMLA), refer below under "Family and Medical
Leave Act."
DENIAL OF LWOP
When an agency bases a disciplinary
action on a charge of AWOL because of a denial of LWOP, the circumstances
of the denial will be reviewed by the Board to determine if the denial
was reasonable. A denial of LWOP may be supported when there is no foreseeable
end in sight to the absence and the agency demonstrates that the ongoing
absence has resulted in a burden to the agency.
Young v. Veterans Affairs,
83 M.S.P.R. 187 (1999)
Denial of leave without pay (LWOP)
is reasonable even in the fact of medical evidence showing that the employee
is unable to work if there is no foreseeable end in sight to the employee’s
absence and the absence is a burden to the agency.
Bologna v. Department of Defense,
73 M.S.P.R. 110 (1997)
There was no foreseeable end to
employee's absence and his absence was burden to agency, and thus agency
did not act improperly in denying employee's request for leave without
pay and in removing him on charge of absence without leave; physician's
reports indicated that employee was totally and permanently disabled.
Joos v. Treasury, 69 MSPR 398
(1996)
(holding same as above)
Joyner v. Navy, 57 M.S.P.R.
154 (1993)
Where disciplinary action results
because leave without pay is denied and employee is placed on AWOL, the
Board will review circumstances to determine if denial was reasonable.
Fisher v. Department of Defense,
54 M.S.P.R. 675 (1992)
When disciplinary action is based
on charge of absence without leave because of denial of leave without pay,
Board will review circumstances of denial to determine if denial was reasonable.
Haine v. Navy, 41 M.S.P.R. 462
(1990)
When disciplinary action is based
on charge of AWOL because of denial of leave, MSPB will review circumstances
to determine if denial was reasonable. (Removed for submitting false questionable
travel documentation, refusing to cooperate in an official investigation
and excessive unauthorized AWOL for more than five consecutive workdays.)
Henderson v. USPS, 36 M.S.P.R.
11 (1987)
When disciplinary action is based
on charge of AWOL because of denial of leave, circumstances of denial will
be reviewed to determine if denial of leave is reasonable.
Lehnerd v. OPM, 27 M.S.P.R.
525 (1985)
Inasmuch as agency's claim of
workload and backlog problem in processing retirement claims was supported
by the record and employee's ability to return to work was uncertain, due
to incapacitating back problem, agency denial of further leave without
pay was not an abuse of discretion; hence, employee's continued unauthorized
absence from retirement claims technician position warranted removal, since,
by its very nature, it disrupted efficiency of the service.
Kamer v. Navy, 6 M.S.P.R. 184
(1981)
Where employee had already been
absent from his position for two years due to on-the-job injury and he
was facing surgery with postoperative prognosis of 45% permanent disability,
agency acted reasonably in denying further leave without pay and in placing
employee on absent without leave status and thereafter removing him for
excessive unauthorized absence, there being no foreseeable end to employee's
disability and his absence having been shown to have become a burden to
the agency in getting its assignments done.
ABSENCE WITHOUT LEAVE (AWOL)
To prove a charge of AWOL, the agency
must show that the appellant was absent, and that his absence was either
not authorized, or that his request for leave was properly denied.
Digiulio v. Treasury, 66
M.S.P.R. 659 (1995)
(Dealing with attorney fees and
settlement). To prove absence without leave (AWOL) charge, agency was required
to show that employee was absent and either that her absence was not authorized
or that her request for leave was properly denied.
Castellanos v. Army, 62 M.S.P.R.
315 (1994)
Agency failed to establish charge
that employee wasAWOL and there was no record evidence that employee was
on leave restriction status that required him to document every unscheduled
leave request.
Boscoe v. Agriculture, 54 M.S.P.R.
315 (1992)
(Holding same as above)
Staten v. USPS, 26 M.S.P.R.
206 (1985)
(Holding same as above)
The Board may sustain a charge of AWOL
even when the agency fails to prove that the employee was AWOL for the
entire period.
Senior v. USPS, 85 M.S.P.R.
283 (2000)
The Board may sustain a charge
of absence without leave (AWOL) even when the agency fails to prove that
the employee was AWOL for the entire period.
It is permissible to take an adverse
action for AWOL and failure to follow established leave procedures, even
in cases where the absence is later approved by the agency or a third party.
In cases where the unauthorized absence is ultimately approved, the Board
will sustain the agency's charge of failure to follow established leave
procedures as long as the employee was on proper notice of the established
procedures.
Wilkinson v. Air Force, 68
M.S. P.R. 4 (1995)--non-Postal agencies
-Agency's approval of leave for
unscheduled absences precludes agency from taking adverse action on basis
of those absences.
-Agency could discipline employee
who was aware of requirement that he request leave for which leave had
not been previously approved, yet failed to follow those procedures.
-Charge of failure to properly request
sick leave, annual leave, or LWOP can be maintained by agency that is bound
by laws and regulations that govern leave administration in civil service,
even though agency eventually approves leave request, or the Board on review
determines that agency's denial of leave request was reasonable, so long
as employee is on notice of agency's requirement; (overruling Yartzoff,
38 M.S.P.R. 403, Young 36 M.S.P.R. 473
Fleming v. USPS., 30 M.S.P.R.
302 (1986)--Postal Service only
-(Modifying Webb, Postal Service
employees have neither a statutory nor regulatory entitlement to use of
annual or sick leave.)
-(Postal Service may not discipline
on basis of approved leave, its permissible to predicate discipline on
failure to follow leave requesting procedures providing employee is on
clear notice of such requirements and discipline for continued failure
to comply.)
-(Postal Service properly removed
employee on basis of unscheduled nature of his 35 absences notwithstanding
employee's use of approved leave repeated and clear counseling regarding
probability of punishment for continued offenses.)
However, distinguish Westmoreland
v. DVA, 83 M.S.P.R. 625 1999. In that case, the Board applied long-standing
charging rules and found the two charges must be merged because the agency
gave as its sole reason for the AWOL charge the employee's failure to follow
leave requesting procedures. In supporting the two charges, an agency must
distinguish the lack of approval that supports the one charge from the
failure to follow specific rules that supports the other.
Charges of failure to follow leave-requesting
procedures and absence without leave would be merged where they did not
involve different misconduct or element of proof i.e. the charge of AWOL
was based solely on the employee's failure to follow leave-requesting procedures.
Law enforcement officials may be held
to a higher standard of conduct than other Federal employees, even for
charges of AWOL.
Hartigan v. Veterans Affairs,
39 M.S.P.R. 613 (1989)
Law enforcement official may be
held to higher level of conduct than other Federal employees.
In very rare cases, an agency can charge
AWOL even if an employee is physically present, on the basis that the employee
is not reporting for duty at the location where he is assigned. These situations
are unique and there is little case law to review. For example, an AWOL
charge was sustained in case where appellant reported for duty but left
the worksite. Evidence supported the finding that the employee was required
to request leave for his absence and that he was properly charged with
failure to obtain leave for his absence.
Meads v. Veterans Affairs,
36 M.S.P.R. 574 (1988)
Evidence supported finding that
employee was AWOL for two and one-half hours on particular day he reported
for appointment at agency's clinic; even assuming that employee told a
clinic technician that he was going to the canteen for lunch or that his
name was not paged over the loudspeaker, employee did not have permission
to leave the clinic where he was supposed to be and he did not reasonably
explain the need for his absence from the clinic.
A charge of AWOL was sustained for
appellant who failed to report to work for a temporary duty assignment,
notwithstanding the fact that he continued to report to duty at his previous
office. The Board held that an employee cannot choose where to work in
derogation of an agency order.
Rodriquez v. Agriculture,
27 M.S.P.R. 78 (1985)
Employee was AWOL where he failed
to report to work for temporary duty assignment, notwithstanding that he
continued to report for duty at his previous office.
Removal of appellant is sustained in
case where employee failed to report for assigned overtime work.
Abrams v. Navy, 12 M.S.P.R.
515 (1982), aff'd 22 M.S.P.R. 40 (1984)
Where employee explained his unexcused
absence by attendance on his sick father and a bedside visit to his wife's
uncle who was critically ill and hospitalized, but record was devoid of
hospital records, statements and testimony of doctors, nurses, hospital
administrators, employee's father and wife or other witnesses to support
his explanation, employee failed to provide satisfactory documentation
for unscheduled absence and agency did not abuse its discretion in denying
employee leave without pay and in charging him with AWOL. (Employee was
removed from position of painter on charges of second offense of being
away from assigned job during working hours without proper permission,
unexcused absence from assigned overtime, office-duty misconduct in which
he shot and wounded another person, resulting in his criminal conviction
of five charges, and his excessive unauthorized absence.)
Farrell v. Veterans Administration,
14 M.S. P.R. 94 (1982)
Employee who had volunteered to
work overtime, but then failed to appear without any request to be excused,
was properly charged with failure to call or report for overtime duty as
scheduled, notwithstanding provision of collective bargaining agreement
permitting employee to be excused from overtime upon request.
A charge of AWOL cannot be sustained
if the employee's claim with the Office of Workers' Compensation (OWCP)
is approved.
Parkinson v. USPS, 55 M.S.P.R.
552 (1992)
Removal based on AWOL cannot be
sustained if employee show that his absence was substantially related to
compensable injury, fact that Office of Workers' Compensation Programs
(OWCP) awarded employee compensation for absence resulting from a work-related
injury will not excuse other absence.
Mainor v. Navy, 38 M.S.P.R.
528 (1988)
Charge of AWOL cannot be sustained
where OWCP determines that compensation is payable for period covered by
the charge.
Stith v. HUD, 21 M.S.P.R. 328
(1984)
Charge of failing to follow order
to report for work and of being AWOL could not be sustained, given decision
of OWCP that employee's compensation claim was payable for time period
which included entire interval during which the charged conduct occurred.
FAMILY AND MEDICAL LEAVE ACT (FMLA)
The Board held that it has jurisdiction
over FMLA claims and that because FMLA has its own leave requesting procedures,
an AWOL charge will be reviewed in light of an appellant's right to absence
under the Act. FMLA does not augment an employee's leave balance; rather,
it only entitles an employee to approved absence, under which the employee
could substitute accrued paid leave.
Young v. Veterans Affairs,
83 M.S.P.R. 187 (1999)
Where employee’s unpaid leave
lasted for more than 12 weeks, the Family and Medical Leave Act (FMLA)
did not preclude sustaining charge of excessive use of unpaid leave.
Jefferies v. Navy, 78 M.S.P.R.
255 (1998)
Agency bears the burden of proving
that, in taking a leave-related disciplinary action, it properly denied
an "eligible" employee leave under the Family and Medical Leave Act. (Removal
for excessive unauthorized absence and for failure to follow leave procedures.)
Joos v. Treasury, 74 M.S.P.R.
684 (1997)
Based on employee’s medical submissions
and doctor’s submission indicating that employee had been in his continuing
care, employee met requirement for leave under Family and Medical Leave
Act, thus further supporting finding that agency was unreasonable in its
denial of leave without pay status, in contravention of provision of settlement
agreement, in light of agency’s refusal to supply FMLA application forms
requested by employee.
Crutchfield v. Navy, 73 M.S.P.R.
444 (1997)
Family and Medical Leave Act (FMLA)
does not argument employee's leave balance; it merely entitles employee
to approved leave for certain covered reasons and gives employee option
of using accrued paid leave or leave without pay (LWOP).
Ramey v. USPS, 70 M.S.P.R. 463
(1996)
On appeal from removal action,
Postal Service employee could rely on Family and Medical Leave act as defense
against charge of absence without leave, where employee alleged that his
AWOL as well as his irregular attendance resulted from his depressive illness;
since FMLA had its own procedures for both requesting and granting of leave,
employee might have qualified for FMLA leave for time which had been charged
as AWOL.
Recent decisions by the Board have
placed a burden on the agency to inquire whether an employee's request
for leave constitutes a request under FMLA (see Burge and Fairley below).
Burge v. Air Force, 82
MSPR 75 (1999)
Agency bears burden of proving
that in taking a leave-related disciplinary action, it properly denied
an "eligible" employee leave under Family and Medical Leave Act.
Fairley v. USPS, 82 MSPR 588
(1999)
Where the facts, either specifically
raised by the appellant or otherwise shown by record evidence, implicate
the Family and Medical Leave Act (FMLA) relative to a leave related charge,
the Board will consider and apply the FMLA without shifting the burden
of proof to the employee.
Gardner v. USPS, 79 M.S.P.R.
9 (1998)
Where the facts, either specifically
raised by the appellant or otherwise shown by record evidence, implicate
the Family and Medical Leave Act (FMLA) relative to a leave related charge,
the Board will consider and apply the FMLA without shifting the burden
of proof to the employee.
Gross v. Justice, 77 M.S.P.R.
83 (1997)
Agency bears burden of proving
that it properly denied Family and Medical Leave Act (FMLA) leave in taking
absent without leave (AWOL) action against employee who is eligible for
leave under FMLA.
In a last chance settlement agreement
case the agency has the burden of proof to show that it did not interfer
with the appellant’s FMLA rights in taking its action.
Covington v. Army, AT0752000124-I-1,
April 22, 2000
-The Board found that the appellant’s
allegations, if proven, may establish a prima facie case that she was not
AWOL and that the agency breached the settlement agreeement by charging
her with 5 hours’ AWOL and removing her, when the agency knew or should
have known that she was requesting leave under the FMLA for that time period
and that she was entitled to such leave.
-The appellant made a nonfrivolous
allegation that the agency breached the parties’ settlement agreement by
charging her with 5 hours of AWOL and removing her, requiring a jurisdictional
hearing.
An agency may apply its own leave procedures
to leave requests under FMLA but an agency may not apply a more restrictive
leave policy than that provided under FMLA.
Burge v. Air Force, 82
MSPR 75 (1999)
Agency may apply its own leave
procedures to leave requests under FMLA but agency may not apply a more
restrict leave policy than that provided under FMLA and may not deny empoyee
leave under FMLA for failure to follow agency’s leave procedures.
An employee is not required to explicitly
invoke FMLA in requesting covered leave. It is sufficient that the employee
make the agency aware of circumstances that would warrant leave under FMLA.
Landahl v. Commerce, 83 M.S.P.R.
40 (1999)
An employee is not required to
explicitly invoke the FMLA in requesting covered leave, it is sufficient
that the employee make the agency aware of circumstances that would warrant
leave under the FMLA.
Gross v. Justice, 77 M.S.P.R.
83 (1997)
Employee is not required to explicitly
invoke FMLA in requesting covered
Ellshoff v. Interior, 76 M.S.P.R.
54 (1997)
Employee’s failure to explicitly
invoke Family and Medical Leave Act (FMLA) in her notice of intended leave
due to depression did not render that notice deficient under FMLA.
The Board has jurisdiction to hear
Family and Medical Leave Act (FMLA) claims raised in a petition for enforcement
or a petition for review propely before it.
Moore v. USPS, 83 M.S.P.R.
533 (1999)
Board has jurisdiction to hear
Family and Medical Leave Act claims raised in a petition for enforcement
or a petition for review properly before it.
An employee is "eligible" for FMLA
leave if he was employed for at least 12 months by the employer from whom
leave is requested and performed at least 1,250 hours of service during
the 12-month period prior to the leave request.
Moore v. USPS, 83 M.S.P.R.
533 (1999)
With respect to provision of the
Back Pay act stating that "for all purposes" an employee is deemed to have
performed service during the period for which the employee received back
pay, the phase "for all purposes" encompasses the eligibility requirements
of the Family and Medical Leave Act.
The Court of Appeals for the Ninth
Circuit reaffirmed that Federal employees who believe their rights under
FMLA have been violated must pursue a remedy through appropriate grievance
procedures and may not file suit against the Government in court.
Russell v. United States,
191 f.3d 1016 (sept. 14, 1999)
INABILITY TO MAINTAIN A REGULAR
WORK SCHEDULE
Ramey v. USPS, 70 M.S.P.R.
463 (1996)
Agency removed for failure to
satisfactorily maintain a regular schedule owing to the use of unscheduled
leave.
Lucas v. USPS, (1989) 39 M.S.P.R.
459 (1989)
Employee was removed for continuous
absence without official leave and for failure to maintain a regular schedule/absenteeism.
case went to arbitration then to MSPB.
Simms v. USPS, 39 M.S.P.R. 308
(1988)
Removal for failure to maintain
assigned schedule and absence without leave (AWOL).
Hayslett v. USPS, 38 M.S.P.R.
267 ((1988)
In effecting removal agency also
considered elements of past disciplinary record and a letter of warning
for failure to maintain a regular work schedule.
Henderson v. USPS, 36 M.S.P.R.
(1987)
Removal for failure to maintain
a regular schedule.
Krainz v. Army, 33 M.S.P.R.
554 (1987)
Employee appealed his removal
for failing to maintain proper work schedule. Allegedly handicapped employee
failed to show that agency failed to accommodate his handicap, and thus
agency could remove him for failing to maintain proper work schedule; while
employee alleged that he would have been able to work on some occasions
when he was absent had agency accommodated him by means of temporary detail
or permanent reassignment to light duty position, employee presented no
evidence that either of those accommodations would have fully restored
his ability to be regular in attendance.
Fleming v. USPS, 30 M.S.P.R.
302 (1986)
Appellant notified in proposal
that the reason for the removal included unscheduled absences in context
with the charge of continued failure to be regular in attendance and AWOL
Rabago v. Department of Army,
28 M.S.P.R. 403 (1985)
Agency charged appellant failed
to maintain a proper work schedule.
VOLUNTARY LEAVE TRANSFER PROGRAM
Where the denial of leave is reasonable
because there is no foreseeable end in sight to the absence, it is not
improper for an agency to deny the use of donated annual leave under the
leave transfer program.
Joyner v. Navy, 57 M.S.P.R.
154 (1993)
-Where employee who is incapacitated
for duty has exhausted all his/her leave, it is not improper to deny leave
without pay and place employee in AWOL status, where there is no foreseeable
end in sight to employee absence and employee's absence is burden to agency.
-Agency did not abuse its discretion
in declining to permit AWOL employee to receive donated annual leave under
voluntary leave transfer program; agency was not required to grant employee
LWOP and agency policy mandated that voluntary leave transfer program was
only available where LWOP was given.
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