Court Upholds Removal for Absences Even When Excused for Health Reasons

The Federal Circuit Court of Appeals has ruled that a federal employee can be removed for excessive absences even if the absences are excused because of poor health.

A recent federal appeals court decision underscores the fact that it is possible to carry out a non-disciplinary removal of a federal employee for “non-availability” where her absences were excessive and ongoing, albeit excused for medical reasons beyond her control. (Zellars v. Department of the Air Force, C.A.F.C. No. 2006-3321 (non-precedent), 12/6/06). Here are the facts as related by the court in its decision.

Zellars worked for the Air Force as a GS-5 Office Assistant at Bolling Air Force Base in Washington, D.C. The Air Force proposed her non-disciplinary removal for her “non-availability” stemming from the fact that she had “failed to maintain a regular work schedule and had been absent excessively on an ongoing basis.” The agency’s notice acknowledged that Zellars’ absences were for medical reasons. Zellars did not respond to the notice and the Air Force removed her.

Zellars took her case to the Merit Systems Protection Board where a hearing was held before an Administrative Judge. The AJ’s decision affirmed the removal. (DC-0752050793-I-1 (M.S.P.B. Jan. 4, 1006))

When the full Board declined to overturn the AJ’s decision, Zellars took her case to the Federal Circuit Court of Appeals.

The court found that the Board decision was supported by substantial evidence, stating: “An agency can bring a removal action against an employee for excessive absences even if the absences are excused because of poor health…. Prolonged absences of an employee with no foreseeable end can provide just cause for removal because it constitutes a burden on the employing agency.” (citing Schultz v. United States Navy, 810 F.2d 1133, 1137 n. (Fed. Cir. 1987)) There was no question that Zellars had approved time off. However the agency was able to demonstrate it needed an employee in Zellars’ job who was able to perform it on a regular, full-time basis.

In short, the court upheld Zellars’ non-disciplinary removal.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.