A recent appeals court decision affirms the removal of a postal service employee who failed to follow required procedures for getting leave under the Family and Medical Leave Ace (FMLA). (Sullivan v. United States Postal Service, CAFC No. 2011-3220 (nonprecedential), 2/13/12)
When Sullivan submitted a FMLA request supported by a doctor’s certification that he suffered from gout and would need to miss work for 5-10 days every month, the USPS review committee decided to get a second medical opinion as is the agency’s right. Sullivan was told in writing to report on the date, time and place specified to be examined for the second opinion. The written notice warned that his failure to show up for the exam could lead to denial of the FMLA request. (Opinion p. 2)
Sullivan failed to show. The agency gave him a chance to explain why he missed the appointment. Sullivan claimed he had not received the agency letter ordering up the second exam. However, the agency FMLA coordinator had proof of delivery. The agency notified Sullivan that his conditional FMLA approval was withdrawn and that any additional leave requests would be denied. (p. 3)
Sullivan continued to submit no less than twenty additional requests for the next several months. All were denied as promised. The agency took progressive disciplinary action for Sullivan’s failure to follow required leave procedures—letter of warning, then a 7-day suspension, then a 14-day suspension. When Sullivan then racked up an additional 44 unscheduled absences without following required procedures, the USPS took action to remove him. (p. 3)
On appeal to the Merit Systems Protection Board, the Administrative Judge found that Sullivan “was on ‘clear notice’ that unscheduled absences could result in disciplinary action.” (p. 3) The MSPB sustained USPS’s removal of Sullivan.
The appeals court has now affirmed Sullivan’s removal: “we hold that substantial evidence supports the Board’s determination that USPS met its burden…and … that USPS did not violate Mr. Sullivan’s rights by withdrawing approval of FMLA leave for his gout condition.” (p. 4)
This case shows that it is in fact possible to successfully prosecute removal of an employee when the agency exercises patience and discipline in walking through the required procedures.
