Refusal to Telework During COVID

A Defense Department employee who refused to go into the office and refused to telework was removed for Absence Without Leave (AWOL).

The case is Carter v Department of Defense (CAFC No. 2022-1305 (nonprecedential) 6/14/2022). The summarized facts are from the court’s opinion.

Ms. Carter was an Acquisition and Financial Support Specialist with the Office of Net Assessment in the Department of Defense when the COVID situation arose. When the epidemic first hit, Carter was approved for “Weather and Safety Leave;” however, she was later told she could not simply stay out on leave. Instead she was approved to telework. This meant, under the DOD telework procedures, that she would be issued necessary equipment to work from home but would first have to complete telework training. When Carter did not reply to the Chief of Staff of ONA, he wrote her again with a specific deadline by which she would be required to complete the required training and a specific deadline by which she was to begin teleworking, January 4, 2021. He also informed her she would not be continued on administrative leave, although if she wanted to request annual leave, that was an option. 

On this go around, Ms. Carter responded in writing that same day: 

“Please stop asking about telework. … I am no longer interest [sic] in telework agreement. Do not schedule annual leave. I am already on weather and safety leave.”

(Opinion p. 3)

The Chief of Staff responded by again directing Carter in writing to complete the telework training and begin telework by the specific dates previously outlined to her, advising her that she was no longer on weather and safety leave, and advising her that her failure to comply with his instructions would lead to discipline “up to and including removal.” ( p. 3)

When Ms. Carter failed to complete the required training and failed to begin telework as of January 4, 2021, she was placed on AWOL as of that date. She did not report for telework until February 4, 2021; hence, she was placed on AWOL for that period of time. Several weeks later, the agency issued a notice of proposed removal citing multiple specifications of AWOL and failure to follow instructions. When the agency issued a final decision removing her for these sustained charges, Ms. Carter retired and appealed her removal. (P. 4)

On her appeal to the Merit Systems Protection Board (MSPB), Ms. Carter contended that DOD had no authority to require her to telework. The MSPB held that the agency had such authority as set out in DOD official policy. As to her argument that she had not received notice of her telework requirement until the day she reported for telework, the MSPB labeled that contention “incredible…” and “highly improbable” that she did not receive any of the earlier directives. It went on to find that she “simply refused to engage in any further conversations or communications … regarding telework.” (P. 5) In short, the MSPB found that the agency had proved its case, and the Board upheld her removal. 

Ms. Carter took her appeal to federal court. The court has now issued its opinion sustaining the MSPB’s decision that DOD had proved its case against Ms. Carter. 

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.