A recent court decision upholds the removal of a Fort Sam Houston Army employee for several instances of AWOL. (Townsend v. Department of the Army, C.A.F.C. No. 06-3074 (non-precedent), 8/11/06) The facts are related in the court’s decision affirming the agency and the Merit Systems Protection Board.
The Fort Commander removed Townsend from her position as an office automation assistant with the Equal Employment Opportunity Office for being AWOL on six separate days and for failing to adhere to proper procedures for requesting leave. In her appeal, Townsend argued, among other things, that the evidence did not support the AWOL charge since she had provided medical support for her absences.
However, neither the MSPB nor the court found the medical evidence particularly persuasive. It consisted of notes from a doctor simply stating that she was under the doctor’s care during the timeframe in question and that she was taking medicine that “may cause sleepiness so that when she takes certain medication, she should not be driving or operating hazardous equipment.” (Opinion p. 5)
The Administrative Judge pointed out that these notes did not address why Townsend could not be at work on the days in question. The AJ also pointed out that Townsend earlier had explained two of her absences as due to car trouble, which was inconsistent with the medical excuse that she was now offering.
The court sided with the MSPB in affirming Townsend’s removal: “We agree with the Board that the doctor’s notes are insufficient because they do not indicate the dates on which Townsend was medically prevented from being at work or when Townsend was able to return to work, nor do they explain why leave was not requested in advance.” (Opinion p. 6)
Townsend also argued to the court that the penalty of removal was not appropriate. Pointing out that penalty determinations are within the “sound discretion of the employing agency,” the court declined to disturb the removal penalty in this case. The court cited the AJ’s finding that Townsend had an attendance problem which “was serious and of a repeated nature.” (Opinion pp. 6-7)
