More on Excessive Absence and the Third Cook Factor

By Barbara Haga, November 13, 2019

Following up on last month’s column, I continue to look at cases which further illustrate use of the Cook exception to remove an employee for excessive approved absence. In last month’s examples, the Army and Air Force were able to produce evidence regarding the problems created by their employees’ absences. This time, we look at cases where agencies didn’t succeed. To recap, Factor 3 is: The agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

In Walker v. Air Force, 84 FMSR 5882 (1984), the Board overturned the AJ’s decision to uphold Walker’s removal for excessive absence and AWOL. This decision is short and dispenses of the two issues quickly. Regarding the AWOL, the Board held that the Air Force should not have denied LWOP since Walker had already applied for disability retirement and the Air Force instruction in place at the time stated: “Leave without pay is appropriate “[f]or protecting an employee’s status and benefits pending final action by the [Office of Personnel Management] on his claim for disability retirement, after all sick and annual leave have [sic] been exhausted.”

More importantly for our analysis, the Board wrote the following:

The agency was well aware of the appellant’s pending application for disability retirement. Although it indicated, in the notice by which it disapproved the appellant’s request for leave without pay, that its disapproval was based on its belief that the appellant’s position “need[ed] to be filled by an employee who is available for duty on a regular full-time basis,” memorandum from G. Potter to appellant, August 11, 1983, the record shows that the agency had been able to assign the appellant’s duties to other personnel during the ten-month period prior to the disapproval, id. In addition, the agency has not disputed the appellant’s claim that, four and one-half months after the effective date of the removal, the appellant’s position still had not been filled. In view of these circumstances, we find that the agency’s disapproval of the appellant’s request for leave without pay constituted an abuse of discretion.

Unlike Gartner and Zellars reviewed last month, the Air Force, in this case, didn’t identify problems caused by Walker’s absence. The fact that the work was covered by other people and the job remained vacant without evidence of any adverse impact didn’t help the Air Force’s cause.  This concept that there was not a significant enough adverse impact appears in the Miles case discussed below, and, in fact, the Miles decision cites Walker on this point.

The case of Miles v. DVA, CH-0752-14-0374-I-2 (2016)(ID), which is an judge’s initial decision, incorporates the findings from Savage and McCauley regarding counting hours of excessive absence and is a good analysis of what can go wrong under several of the Cook factors.

Miles began his career with VA as a Program Support Clerk and was appointed to the position of Claims Assistant on April 22, 2012. He had a service-connected disability and verbally advised the agency of the disability during the interview for the Claims Assistant position. He requested reasonable accommodations shortly thereafter; his disability included injuries to both hands and wrists, requiring at least 12 surgeries between 2001 and 2013.  The reasonable accommodations included a different keyboard and some other furniture as well as voice-activated software. He was not provided the voice-activated software until roughly one year after his report date. When he did get the software, he reported problems with it and resorted to manual processing to avoid further problems with the hands and wrists, but he was advised that he still had to meet the performance standards for processing cases each day.

Eventually, he needed more surgery and needed to be out six months for recovery and resulting therapy.  Twelve weeks of that absence was covered under FMLA.  Once he recovered from that surgery, he was scheduled to have surgery on the other wrist.  The agency granted some additional LWOP, before taking action under Cook.  The agency’s handling of the balance of the leave for his recovery and the need for his services resulted in this ruling by the AJ:

Further, the undisputed evidence in the record indicates the absence at issue here cannot be described as having had no foreseeable end at the time of removal. The appellant provided the agency with information that the general recovery period for his right wrist replacement was six months, and the agency noted his inability to return for approximately six months in his monthly performance review. IAF-1, Tab 19, Ex. 5; Tab 43, pp. 302-03. I find nothing in the record suggesting the agency had such an urgent need to replace the appellant that it could not wait an additional few months for the appellant to recover fully. It had already granted the appellant over 1,000 hours of leave during the year prior to his removal. Despite the agency’s evidence it is operating at fifty percent staffing levels and is under tremendous internal and external pressure to reduce and eliminate its massive backlog of claims, Ms. Hamilton testified she would have considered granting the appellant additional leave. IAF-1; Tab 42, p. 34; see also, e.g., IAF-1, Tab 19, Ex. 42. Ena Lima, the Service Center Manager, acknowledged during her testimony the agency has remained at the fifty percent staffing level present at the time of the appellant’s employment. See IAF-1, Tab 42, p. 65. Furthermore, even with the reduced staff, the agency appears to have made great strides in reducing the number of pending cases from 15,000 at the time the appellant was working to approximately 8,000 current claims.

Thus, to be successful, agencies need to be able to show some real impacts of the absences – overtime money spent, temporaries or contractors utilized, employees detailed to cover the work of the employee on leave, other employees taken away from their work, deadlines missed that are attributable to the absence of the employee being removed, etc.  As shown above, backlog alone may not be enough.  As to recruitment, agency witnesses should also be ready to address the filling of the position.  Even if it has been a while, which unfortunately is all too common these days, they should be ready to talk about the steps they have taken to initiate recruitment and where they are in the process to ensure that they can establish that some urgency has been attached to the situation. Haga@FELTG.com