Christopher Robinette v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER M. ROBINETTE, DOCKET NUMBER
Appellant, AT-0752-16-0633-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 11, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher M. Robinette, Ariton, Alabama, pro se.
Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record cl osed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address a separate charge of absence without leave (AWOL) , we
AFFIRM the initial decision.
BACKGROUND
¶2 The agency issued the appellant a Notice of Leave Restriction on
February 17, 2015, which informed him that his chronic, unscheduled absences
were considered excessive and negatively affected the agency’s ability to
accomplish its mission. Initial Appeal File (IAF), Tab 4 at 32-34. On May 18,
2016, the agency issued a Notice of Proposed Removal (NOPR) for excessive
absenteeism, which specified that from February 21, 2015, through April 16,
2016, he was absent 939.30 hours out of a total of 2103.70 available duty hours
and that, of the 31 pay periods during that time, he worked only 3 full pay
periods. Id. at 26-27. The agency notified the appellant in a letter dated June 22,
2016, that his removal was effective June 24, 2016. Id. at 16-17.
¶3 The appellant filed an appeal with the Board’s Atlanta regional office, in
which he challenged his removal and argued that he was out of work due to
medical issues. He acknowledged that he was placed on leave restrictions , and he
asserted that he complied with the restrictions when he was capable of doing so.
IAF, Tab 1.
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¶4 In an initial decision, the administrative judge found that the agency’s
action was predicated upon approved leave, including annual leave, sick leave,
and leave without pay. IAF, Tab 7, Initial Decision (ID) at 4. 2 He observed that
an agency, generally, cannot take an adverse action for approved absences. Id.However, an exception exists for instances of excessive absences if, as pertinent
here, the agency provided the employee with notice that his failure to become
available to work could lead to an adverse action. Id. (citing Cook v. Department
of the Army, 18 M.S.P.R. 610, 611-12 (1984)). The administrative judge found
that the February 2015 leave restriction letter was insufficient notification to the
appellant that his approved absences could lead to removal. ID at 4-5. Thus, the
administrative judge found that the agency failed to present preponderant
evidence that the circumstances in this case justify an exception to the rule that
bars an agency from disciplining an appellant for approved leave during the
relevant period, and therefore, the administrative judge reversed the removal
action. ID at 5-6.
¶5 The agency has filed a petition for review challenging the administrative
judge’s decision. Petition for Review (PFR) File, Tab 1. The appellant has not
filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 As a general rule, an agency’s approval of leave precludes it from taking an
adverse action on the basis of those absences. Savage v. Department of the Army,
122 M.S.P.R. 612, ¶ 30 (2015), clarified by Gardner v. Department of Veterans
Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016). However, as the administrative
judge correctly found, an agency may take an adverse action based on excessive
use of leave if it can prove that: (1) the employee was absent for compelling
reasons beyond his control so that the agency’s approval or disapproval of leave
2
The appellant did not request a hearing, and thus, the administrative judge based his
decision on the written record. ID at 1; IAF, Tab 1.
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was immaterial because the employee could not be on the job; (2) the absences
continued beyond a reasonable time, and the agency warned the employee that an
adverse action could be taken unless the employee became available for duty on a
regular, full‑time, or part-time basis; and (3) the position needed to be filled by
an employee available for duty on a regular, full-time, or part-time basis. Combs
v. Social Security Administration, 91 M.S.P.R. 148, ¶¶ 12-13 (2002); Cook,
18 M.S.P.R. at 611-12.
¶7 On review, the agency argues that it warned the appellant that he could be
disciplined for excessive absences when it suspended him in November 2014 and
April 2015 and that the administrative judge erred in finding otherwise. PFR
File, Tab 1. The agency asserts that the record evidence shows that the appellant
was issued a 3-day suspension on November 3, 2014, and a 14-day suspension on
April 20, 2015, for failure to follow proper leave procedures and that the
suspension notices “clearly state[], ‘[y]ou are cautioned [that] any repetition of
this or similar offenses may result in more severe disciplinary action against
you.’” Id. at 8. The agency argues further that the “Administrative Judge
incorrectly creates a world in which the Appellant’s 2 letters of leave restriction
and 2 suspensions for failing to follow leave procedures and AWOL do not
constitute notice that the continued absences would result in additional
discipline.” Id. at 9. In support of this argument, the agency submits the Notice
of Decision letters for each of the suspensions with its petition for review. Id. at
12-16.
¶8 However, there is only one leave restriction letter in the record. IAF, Tab 4
at 32-34. Further, while the record below includes the Standard Form 50s
documenting each of the two suspensions, it does not include either of the
decision letters which the agency has submitted on review. Id. at 30, 36. Under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
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before the record was closed despite the party’s due diligence. Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980). In this case, the agency has made no
showing that these documents were unavailable despite its due diligence, nor has
the agency provided any explanation as to why these documents were not
submitted below. PFR File, Tab 1. Thus, we will not consider these documents
furnished for the first time on review. Accordingly, we limit our review of the
initial decision to the issue of whether, based on the e vidence in the record below,
the agency’s February 2015 leave restriction letter was sufficient to notify the
appellant that his approved absences could lead to removal.
¶9 The administrative judge found that the agency presented no evidence
showing that the appellant was warned he could be removed for excessive
absenteeism, and thus, the agency failed to meet its burden under the exception
set forth above in Cook, 18 M.S.P.R. at 611-12. Specifically, the administrative
judge found that the Notice of Leave Restriction failed to provide the appellant
with sufficient notice that he could be disciplined for excessive absenteeism, up
to and including removal, even if he followed the restriction procedures. ID at 5.
On review, the agency argues that the February 2015 leave restriction letter was
sufficient to notify the appellant that his excessive absences could result in
disciplinary action. PFR File, Tab 1 at 8-9.
¶10 We agree with the administrative judge that, while this letter contained
warnings that the appellant’s failure to follow the procedures prescribed for
requesting leave could lead to “consideration of disciplinary action,” the notice
did not address any such action for excessive absences, even if the appellant
complied with the restrictions. IAF, Tab 4 at 32-34. Thus, because the warnings
the appellant received were insufficient to notify him that his approved absences
could lead to removal for excessive absenteeism, the administrative judge
correctly found that the agency failed to meet the second prong in Cook.
¶11 Regarding the 13 hours of AWOL that the agency included in the charge of
excessive absences, we do not consider this leave under the Cook standard but
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will instead consider it as an AWOL charge. See Savage, 122 M.S.P.R. 612, ¶ 32.
To prove an AWOL charge, the agency must show that the employee was absent
and that his absence was not authorized or that his request for leave was properly
denied. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009).
The NOPR and removal decision state that the appellant was AWOL for 13 hours
but provide no additional details regarding these absences. IAF, Tab 4 at 16, 27.
¶12 The agency provided two charts below that reflect that the appellant was
designated as AWOL, id. at 40, 42, one indicating that he was AWOL for
13 hours, the second reflecting only 4 hours of AWOL for the same period, and
neither chart indicating specific dates, id. at 16-17, 40, 42. Further, while the
agency file documents which pay periods included the appellant’s absences, there
is only one pay period which reflects that he was in an AWOL status, and that
was for a total of .50 hours. Id. at 43. Finally, although the appellant appears to
have admitted in his response to the NOPR that he was “AWOL,” he did not
explain what he understood AWOL to mean and suggested that his absences were
for medical reasons. Id. at 24; compare Cole v. Department of the Air Force,
120 M.S.P.R. 640, ¶ 9 (2014) (explaining that an agency may rely on an
appellant’s admissions in support of its charge), with King v. Department of
Veterans Affairs, 105 M.S.P.R. 21, ¶ 16 n.2 (2007) (observing that an agency’s
generalized stipulation that the appellant engaged in whistleblowing was too
vague to constitute an admission of fact and that parties may not stipulate to legal
conclusions). Thus, we agree with the administrative judge’s finding that the
agency failed to prove a charge of AWOL.
¶13 Accordingly, the agency has provided no basis on review to disturb the
administrative judge’s findings and determinations .
ORDER
¶14 We ORDER the agency to cancel the removal action and to restore the
appellant effective June 24, 2016. See Kerr v. National Endowment for the Arts,
7
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶15 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶16 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶17 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal i f the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶18 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
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Board’s decision in accordance with the attached lists so that payment can be
made within the 60‑day period set forth above.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a state ment of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requireme nts. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a cou rt‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1‑7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.