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Gallegos v. Department of Interior

Administrative judge did not abuse his discretion in affirming agency's decision to dismiss employee for being absent without leave following the birth of her child and agency's refusal to grant leave beyond that allowed under FMLA, because employee failed to prove her affirmative defense of retaliation for her complaints of discrimination against agency.

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Kellie Y. Gallegos seeks review of the final decision of the Merit Systems Protection Board (“Board”), which adopted the initial decision of the administrative judge as final. Gallegos v. Department of the Interior, No. DE0752990257-I-1 (MSPB May 24, 2000) (final order). In the initial decision, the administrative judge affirmed the Department of the Interior’s (“agency”) decision to dismiss Ms. Gallegos for being absent without leave (“AWOL”). Gallegos v. Department of the Interior, No. DE0752990257-I-1 (MSPB Oct. 14, 1999) (initial decision). Because Ms. Gallegos has not established error in the Board’s decision, we affirm.

I.

Before her removal, Ms. Gallegos was employed by the agency as a Contract Specialist in the Bureau of Indian Affairs, Aberdeen Area Office in Aberdeen, South Dakota. Ms. Gallegos left work in early August 1998, following the birth of her third child. Desiring time to breast-feed her child away from the stress of work, Ms. Gallegos requested additional leave for the November 9, 1998, to February 27, 1999, time period. These additional leave requests were beyond the twelve weeks of maternity leave allowed for under the Family and Medical Leave Act (“FMLA”) codified at 5 U.S.C. � 6382(a)(1)(A). Ms. Gallegos’ supervisor, Mr. Zephier, denied these additional leave requests and informed her that agency work demands necessitated her return in November 1998.

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