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Removal for 5 Hours of AWOL

The agency removed this employee for what amounted to 5 hours of AWOL. See how his appeals came out.

This case (Newman v Department of the Air Force (CAFC No. 2019-2297, No. 2019-2298 (nonprecedential) 1/26/21) involves two instances of AWOL by Mr. Newman, a sheet metal aircraft mechanic at Robins Air Force Base in Warner Robins, Georgia. Incident #1 involved 8 hours of AWOL; Incident #2 involved 5 hours of AWOL. In proposing removal based on these two incidents, the agency cited four previous disciplinary actions for AWOL and failure to follow leave procedures.

Once Newman had responded and the agency decided to remove him, the agency notified him it was cancelling the removal, restoring back pay, and placing him on paid leave status, because it found that the deciding official had ex parte discussions with Newman’s supervisors without providing Newman information on those discussions before making his final decision to remove. The agency documented its decision to cancel the removal with a Standard Form 50 that included in the reason block, “Agency error — violation of due process.” At the same time the agency informed Newman that it was still weighing disciplinary action against Newman for the offenses.

In fact, a couple of days following the cancellation of Newman’s removal, the agency issued another proposed removal action based on the same two instances of AWOL. Everything in the notice was pretty much the same as the original proposed removal notice, except the agency included the additional information provided by Newman’s supervisors to the deciding official. Newman submitted his replies to the notice, and the decision was made by the same deciding official to remove Newman based on Incident #2 (the five hours of AWOL), but considering Incident #1 (8 hours of AWOL) as an “aggravating factor.” Recall, the agency also cited four previous disciplinary actions for the same offenses.

Newman appealed both removal actions to the MSPB (Merit Systems Protection Board). The administrative judge consolidated both appeals into one hearing. When those appeals were unsuccessful, Newman took his case to federal court.

His first argument was that the agency had violated the Master Labor Agreement (MLA between Air Force and the American Federation of Government Employees or AFGE) by not bringing disciplinary action within 45 days. The court disposed of this argument easily, pointing out that the words in the MLA indicated the agency “will strive” to bring discipline within 45 days. However, this is a goal only —not a mandate. The court viewed it as “housekeeping” only. (Opinion p. 5) As for the fact that the agency re-issued a removal notice after cancelling the first action for due process concerns, this in and of itself did not constitute a violation of the 45 day guideline. It kept Mr. Newman informed every step of the way and had a reasonable explanation for its actions. The court found the MSPB did not err in finding no violation of the MLA’s 45 day goal under the circumstances. (Pp. 6-7)

Newman’s second argument was that the agency erred by re-issuing the first proposed removal notice rather than amending it. As the court reasoned it, Newman presented no explanation as to why an amended notice would uphold his rights but re-issuing the same notice violated his rights. The court saw “no legitimate reason for such a distinction.” In upholding Newman’s removal and MSPB’s decision, the court opined that “Mr. Newman received all the process he was due.” (P.7)

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.

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