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Smith v. Dept. of Veterans Affiars

Agency's removal of plaintiff as police officer affirmed because removal was based on substantial evidence of plaintiff's failure to follow leave procedures, was not contrary to law, and was not an abuse of discretion.

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Anthony A. Smith, Jr. seeks review of the final decision of the Merit Systems Protection Board (“Board”) affirming his removal from the Department of Veterans Affairs (“DVA”) for (1) failure to follow leave procedures and (2) absence without approved leave (“AWOL”) for forty-three days prior to the date of the proposed removal notice. Smith v. Dep’t of Veterans Affairs, No. SF-0752-99-0490-I-1 (November 21, 2000). Because there is substantial evidence of record supporting the Board’s determination, we affirm.

I. BACKGROUND

Mr. Smith was employed by the DVA as a Police Officer, GS-6. On January 5, 1998, the DVA suspended Mr. Smith for AWOL and failing to follow leave procedures. On April 23, 1998, the DVA issued Mr. Smith a written notice discussing his abuse of sick leave. The DVA advised Mr. Smith to improve his leave usage pattern. As of June 17, 1998, Mr. Smith had exhausted his annual sick leave. Nevertheless, on June 17 and 18, 1998, Mr. Smith requested additional sick leave. Because Mr. Smith had exhausted his sick leave, his supervisors changed the request to leave without pay (“LWOP”) in lieu of sick leave. On June 19, 1998, the DVA issued Mr. Smith a notice of request for medical certification. The notice informed Mr. Smith that he had used 62 hours of sick leave, 62.5 hours of annual leave in lieu of sick leave, and 46 hours of LWOP in lieu of sick leave (together, approximately twenty days). The notice required Mr. Smith to “submit a doctor’s certificate upon return to duty for all leave used due to illness and/or injury.”

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