Poor Attendance Can Result in Removal--And Withstand Court Review
By Susan Smith
Tuesday, February 21, 2006
The first involved removal of an employee from his position as a part-time Regular Mail Processing Clerk for unsatisfactory attendance. (Hite v. United States Postal Service, U.S.C.A.F.C. No. 05-3268 (non precedent), 2/21/06)
After issuing three disciplinary letters due to unscheduled absences and tardiness—each of which warned Mr. Hite that he could be subject to more severe discipline—the agency removed him based on 26 new occasions on which he was absent or late. The agency noted that even though most of the occasions were approved for pay purposes, that they were still grounds for discipline. The final decision notice pointed out that Mr. Hite’s continued unsatisfactory attendance impacted productivity, increased costs, were a detriment to employee morale, negatively impacted the timely processing of mail, and required others to work overtime to make up for his missed work. (Opinion pp. 2-3)
On appeal to the Merit Systems Protection Board (MSPB), the Administrative Judge looked at each of the 26 absences and concluded that only 10 of them should have been relied upon by the agency.
Considering these 10 instances together with the long history of attendance problems, the prior discipline, and the clarity of the agency’s warnings to Mr. Hite, and analyzing the Douglas factors, the Administrative Judge (AJ) concluded that removal was reasonable. (p. 4) When the full Board declined to review the AJ’s decision, Mr. Hite went to the appeals court, arguing that the Board should have mitigated the penalty and citing certain Douglas factors that should have been considered.
The court disagreed with Mr. Hite’s argument that the Board failed to consider whether he was aware that his absences were not approved and could lead to discipline, given the three letters that the AJ found had been issued to him which spelled out exactly this point.
The court quoted from the AJ's decision that the letters clearly stated, “unscheduled leave, even if approved, could lead to disciplinary action.” (p. 6) Further, the court had no problem with the AJ’s decision to uphold removal based on only 10 of the absences that were upheld, finding that the decision “contains a careful balancing of the relevant Douglas factors and therefore, should not be overturned.” (p. 7)
In the second case (McMillian v. United States Postal Service, U.S.C.A.F.C. No. 05-3196 (non precedent), 2/21/06), the court upholds the Board’s dismissal of McMillian’s constructive suspension and discrimination claims for lack of jurisdiction.
The claims stem from the agency’s denial of the letter carrier’s request for a light-duty assignment since it had no such assignments in the Mobile, Alabama area that fit his physical restrictions. Pointing out that the employee in such a case must establish the Board’s jurisdiction by preponderant evidence, the court concluded that the Board’s finding that there were no available light-duty assignments consistent with McMillian’s physical condition is supported by substantial evidence.
Thus, there was no constructive suspension, which in turn means there was no Board jurisdiction to hear that claim or the constructive discrimination claim. (Opinion, p. 3)
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