Taylor v. United States Postal Service , 393 F. App'x 717 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
AVERY K. TAYLOR,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2010-3090
__________________________
Petition for review of the Merit Systems Protection
Board in case No. DA0752090155-I-1.
__________________________
Decided: September 10, 2010
__________________________
AVERY K. TAYLOR, of Houston, Texas, pro se.
DAVID C. BELT, Appellate Attorney, Office of General
Counsel, United States Postal Service, of Washington,
DC, for respondent. With him on the brief was LORI J.
DYM, Chief Counsel, Office of General Counsel, United
States Postal Service, of Washington, DC, and TONY
WEST, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC. Of counsel was SCOTT A.
TAYLOR v. USPS 2
MACGRIFF, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC.
__________________________
Before RADER, Chief Judge, FRIEDMAN and LINN, Circuit
Judges.
PER CURIAM.
Avery Taylor appeals a final decision of the Merit Sys-
tems Protection Board (“Board”), which affirmed his
removal from his position as a letter carrier with the U.S.
Postal Service (“Service”) for unexcused absences. Taylor
v. U.S. Postal Serv., No. DA-0752-09-0155-I-1 (M.S.P.B.
Dec. 17, 2009) (“Decision”). Because the Board’s opinion
was supported by substantial evidence and was not arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law, we affirm.
Taylor joined the Service in October 1993. In Sep-
tember 2005, he stopped reporting for work, claiming that
he suffered from job-related stress. Between November
2005 and July 2007, the Service sent Taylor multiple
letters asking that he report for duty or provide medical
documentation of his condition. In response to each
request, Taylor submitted letters from his doctor that
described his illness, and the Service took no action to
remove him. By June 2006, Taylor exhausted all of his
paid leave, so the Service placed him on leave without pay
(“LWOP”) status.
In September 2007, the Service sent Taylor another
letter asking him to report or furnish medical documenta-
tion, at the risk of losing approved leave. Taylor re-
sponded in writing, saying that his medical condition had
not changed since July 2007, but without providing evi-
dence. In November 2007, the Service ordered Taylor to
3 TAYLOR v. USPS
report for a fitness for duty (“FFD”) medical examination.
The designated physician, Dr. Charles Covert, submitted
a report, which a Service physician used to make a medi-
cal assessment, deciding that Taylor was fit for duty.
Taylor objected to filling out a consent form prior to the
examination and claims that Covert never examined him.
According to the government, Service officials received
only the final assessment, not Covert’s initial FFD report.
Decision at 11 n.6.
On November 21, 2007, the Service sent Taylor a di-
rective informing him of the results of the medical as-
sessment and ordering him to report on November 26,
2007 or be considered absent without leave (“AWOL”) and
face removal. Taylor never reported or responded to this
directive. On April 8, 2008, the Service issued a notice of
proposed removal based on the charge of “Unsatisfactory
Attendance – AWOL.” After the ten-day deadline to
answer the notice, Taylor submitted a letter from his
physician that stated that Taylor was still unable to work.
On June 13, 2008, the Service removed him. On appeal,
the Board affirmed the Service’s ruling. Taylor timely
appealed the Board’s final decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
We affirm a Board decision unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C. §
7703(c). To take an adverse action against an employee,
an agency must (1) “establish by preponderant evidence
that the charged conduct occurred,” (2) “show a nexus
between that conduct and the efficiency of the service,”
and (3) “demonstrate that the penalty imposed was rea-
sonable in light of the relevant factors set forth in Doug-
las v. Veterans Admin., 5 M.S.P.R. 280, 307-08 (1981).”
TAYLOR v. USPS 4
Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir.
2009).
“In order to prove a charge of AWOL, an agency must
show by preponderant evidence that the employee was
absent, and that his absence was not authorized or that
his request for leave was properly denied.” Wesley v. U.S.
Postal Serv., 94 M.S.P.R. 277, 283 (2003). An AWOL
charge automatically satisfies the nexus requirement
because “any sustained charge of AWOL is inherently
connected to the efficiency of the service.” Davis v. Veter-
ans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986).
Taylor argues that the Service improperly changed
his status from LWOP to AWOL because Covert never
actually examined him before clearing him for duty. In
response, the government claims that Covert’s report is
“not directly relevant” because Service officials did not
receive or rely on it, only the final medical assessment.
Resp’t’s Br. 26-27. This assertion is suspect: the assess-
ment cited Covert’s evaluation, and both the November
21, 2007 directive and the notice of proposed removal
referred to the “medical evaluation by Dr. Charles Cov-
ert.” Regardless, the Board found that Taylor never
requested extra leave or provided evidence of illness for
the period from November 26, 2007 to April 8, 2008.
Decision at 9-10. Taylor does not dispute these facts.
Under these circumstances, the Service had discretion to
deny Taylor additional leave based on his failure to pro-
vide requested documentation. See Washington v. Dep’t of
Army, 813 F.2d 390, 393 (Fed. Cir. 1987) (affirming denial
of LWOP where the employee failed to submit “material
necessary to support her claim that she was incapacitated
for work”). There was substantial evidence for the Board
to conclude that Taylor was indeed absent without per-
mission.
5 TAYLOR v. USPS
Taylor also claims that the Service denied him mini-
mum due process because he never had an opportunity to
rebut Covert’s report. To the contrary, Taylor received
multiple opportunities to present documentation of con-
tinuing illness both before and after the medical assess-
ment. He claims that he believed that the doctor’s letter
he submitted in July 2007 obviated the need for further
documentation. However, the Service requested addi-
tional medical evidence in September 2007 prior to order-
ing the FFD examination. Taylor responded in writing
(which shows that he received the letter) but never pro-
vided the requested information. He also acknowledged
receipt of the Service’s directive of November 21, 2007—
which informed him of the medical assessment and or-
dered him to report to work—but did not reply or request
additional leave without pay. Taylor then attended an
investigative interview with his Postmaster in February
2008 but did not offer new medical evidence. Decision at
7. Not until May 9, 2008 did Taylor supply another
physician’s letter, when it was too late to respond to the
notice of proposed removal.
As to the penalty of removal, the Board properly bal-
anced the relevant Douglas factors. It credited Taylor’s
fifteen years of service and clean disciplinary record, but
noted testimony by Service officials that a letter carrier’s
absence creates serious hardships, and that Taylor could
not be rehabilitated. We discern no clear error in the
Board’s review of the Service’s penalty. Cf. Law v. U.S.
Postal Serv., 852 F.2d 1278, 1279 (Fed. Cir. 1988) (affirm-
ing the Service’s removal of a mailhandler for “for irregu-
lar attendance and for an instance of AWOL”).
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
TAYLOR v. USPS 6
COSTS
No costs.