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March 23, 1998

JESSE BROWN, Secretary, Department of Veteran Affairs, Defendant.

The opinion of the court was delivered by: CASTILLO

 Plaintiff Ernestine Ali worked for the Department of Veteran Affairs ("VA") as a medical clerk typist at the Veterans Affairs Hospital in Hines, Illinois from August 9, 1992 until October 31, 1994, when she was fired. In the termination letter, the VA pointed to Ali's year-long, unauthorized absence from work, her failure to request leave, and her unwillingness to obey supervisory instructions. Ali, however, challenged these articulated reasons, first, before the Merit Systems Protection Board ("MSPB"), second, before the EEOC, and now, in this Court. She claims in Count I of her complaint that her discharge was really motivated by disability, race, and religious discrimination, and was an act of retaliation for an earlier EEOC charge she had filed against a VA employee. In Count II, Ali seeks judicial review of the MSPB decision sustaining her termination. Before the Court is the VA's motion to dismiss or, in the alternative, for summary judgment on Count I, as well as the parties' cross-motions for summary judgment on Count II.


 Before Ali began working at Hines Hospital, she was a telephone operator for the VA. While in this position, Ali filed an EEOC complaint dated November 11, 1991 against her supervisor. She alleged that the supervisor's decision to place her on a rotated split work shift constituted race discrimination. (Def.'s Facts P 1.) The dispute settled in June 1992 after the VA agreed to reassign Ali to the medical/clerk typist position at Edward J. Hines Hospital. (Id.) Ali began working as a medical clerk/typist at Hines on August 9, 1992, and remained there until stress and anxiety caused her to leave in November 1993. (Pl.'s Facts P 2).

 In December 1993, Ali filed for workman's compensation with the Department of Labor, claiming that "while at work I suffered with a nervous stomach, headachs [sic], my nerves were bad, and I had hair loss. Felt better once I was away from MAS [the VA's Medical Administration Service]. I was under stress from the actions of Mr. Soltys, Ms. DeSantis and Ms. Lopez. Also the sexual harassment of Mr. Gilkey." Ali explained that she was afflicted with "major depression, single episode [and] severe general anxiety." (Def.'s Facts P 4.)

 The VA carried Ali on leave without pay status from November 29, 1993 to January 29, 1994, and granted her an extension to remain on leave without pay until February 28, 1994. (Id. P 5.) But the VA wanted more information about Ali's medical condition. (Id. P 6.) W.C. Soltys, the VA's Chief of Medical Administration Service, told Ali's supervisor, Mary Jo Lopez, that he would not approve Ali's future requests for leave without pay unless Ali's doctor began submitting monthly medical statements updating the VA on Ali's medical condition. (Id. P 7.) Thus, on January 31, 1994, Lopez wrote Ali and explained that, to continue her leave without pay, she needed to provide medical information in the form of monthly updates, to complete a memorandum requesting leave without pay, and fill out a Form SF 71. (Id. P 8.)

 Ali responded by submitting a physician's statement covering the period November 26, 1993 through March 15, 1994, but did not include a request for leave without pay or a completed SF 71. (Id. P 10.) Lopez wrote Ali on April 4, 1994, reiterating the documentation that Ali needed to submit to maintain leave without pay status. (Id. & Ex. 4X.) She told Ali that she would be carried on AWOL status until the VA received the required documentation. (Id.)

 On May 3, 1994, Ali finally submitted her request for leave without pay for the period March 16, 1994 through May 1, 1994. (Id. P 11.) Lopez sent Ali a letter on May 11, 1994 explaining that her past documentation was insufficient. The letter outlined what was required: a medical history of Ali's condition, clinical findings from Ali's most recent medical evaluation, an assessment of Ali's current health status, the doctor's diagnosis and prognosis, a memorandum requesting leave without pay, and a completed SF 71. (Id. Ex. 4V.) Lopez enclosed a description of Ali's position and its performance standards to "better enable your physician to respond to the requested information." (Id.) Lopez reminded Ali that she had been carried on AWOL status since March 1, 1994. She warned Ali that she could be disciplined if she failed to provide documentation excusing her post-March 1 absence within ten days. (Id.)

 Ali's husband, Hasan Ali, called the VA on May 31, 1994 to request more time to respond. (Def.'s Facts P 13.) He wrote the VA a letter to the same effect, explaining that his wife's doctor was on vacation and would provide the requested information "as soon as possible" after she returned. (Id. Ex. 4S-T.) He enclosed a completed SF 71 for the period April 16, 1994 through May 31, 1994 and a note that Ali's doctor, Sharon Lieteau, had written on a prescription pad:

To whom it may concern: Ernestine Ali is totally disabled and at the present time, I am unable to give a date to return to work. I will return paperwork as soon as possible.

 (Id. Ex. 4R.)

 On June 14, 1994, Lopez sent Ali a letter by certified mail seeking a completed SF 71 and a memorandum requesting leave from March 1, 1994 through June 30, 1994, noting that "I have received periodic SF 71s from you but none of them cover[s] this complete period of time." Lopez also asked Ali to file medical documentation, SF 71s and memos requesting leave for any future period of absence. (Id. P 15 & Ex. 4Q.) She informed Ali that all these documents had to be submitted monthly, and enclosed SF 71s and memoranda for Ali to complete and return. (Id.) When she did not hear from Ali, Lopez wrote Chief Medical Administrator Soltys on July 11, 1994, recommending that he deny Ali leave without pay and deem her AWOL for ignoring Lopez's repeated, detailed, instructions. (Id. P 16 & Ex. 4P.)

 On August 12, 1994, Lopez notified Ali that her sporadically filed medical documentation and leave requests neglected large periods of time, including March 1, 1994 through April 15, 1994; June 1, 1994 through June 30, 1994; and July 31, 1994 until the present. (Id. P 17.) Lopez directed Ali either to provide the missing information by the close of business on August 26, 1994, or face AWOL charges and appropriate disciplinary action, including possible removal. (Id.)

 Having received neither documentation nor explanation from Ali, Chief Medical Administrator Soltys sent her a Proposed Removal Notice on September 28, 1994. (Id. P 18.) Soltys identified three charges prompting Ali's proposed removal: AWOL, failure to follow proper leave requesting procedures, and deliberate failure to carry out supervisory directions. *fn2" (Id.) He also explained these charges, emphasized her rights to contest them and review the evidence, identified the time in which and the person to whom she had to respond, and delineated her rights to representation, to a written decision, and to file for disability retirement. (Id.) Ali responded to the proposed removal on October 5. She requested annual leave in lieu of sick leave, insisted that she had tried to comply with supervisory instructions, and declared that she "would like to return to work but not under that same stressful working environment which is causing most of her stress." (Id.)

 In addition, Dr. Sharon Lieteau wrote the VA on October 12, 1994. She diagnosed Ali with "Major Depression Single Episode Moderately Severe" and characterized her prognosis as "guarded." (Id. P 20.) Dr. Lieteau explained that Ali had become emotionally unable to tolerate her work environment because of a clear difference in treatment between her and her peers. Particularly disturbing to Ali was her designation as the solitary evening shift worker. Ali believed she was not included in the determination process because she was black and had a history of filing EEO complaints, *fn3" and told the doctor she was uncomfortable working with peers who had unilaterally selected her to work this shift. (Id.) This event so troubled Ali that she began having trouble sleeping, was irritable with her husband, and would vomit every Sunday, anticipating the workweek. (Id.) According to Ali's doctor, "this incident set the tone for her experience in her office"; she opined that things deteriorated still more after the VA transferred Ali to another section. (Id.)

 On October 25, 1994, Soltys wrote Dr. Lieteau and asked her to name an "expected" date for Ali's return. (Id. P 21.) Soltys also informed the doctor that Ali had not been to work since November 1993, and that Ali's version of events -- as recited in Dr. Lieteau's letter -- was "less than factual." (Id.) According to Soltys, Ali interpreted efforts to work with her on attendance as harassment. (Id.) Dr. Lieteau responded that Ali could return to work by November 1, 1994, but only if given a new work assignment. Resuming her old position would cause a relapse. (Id. P 22.)

 Soltys recorded a "Report of Contact" on October 28, 1994, noting that the VA could not accommodate Ali in a different position. (Id. P 23.) He wrote that "all positions are comparable to and as demanding as the Clinic Clerk position she is assigned, or other positions require specialized experience or education that Ms. Ali presently does not meet [sic]." (Def.'s Facts Ex. 4G.) Soltys stated that he had spoken with the VA's Director and Associate Director, who concurred that the VA could not accommodate Ali and should proceed with her removal. (Id.)

 On October 31, 1994, the VA's Associate Director sent Ali a removal decision letter terminating her employment effective November 4, 1994. (Def.'s Facts PP 24-25.) The decision rested on the three grounds identified in Ali's proposed removal letter: (1) her long, unauthorized absence (AWOL); (2) her repeated failure to follow proper leave procedures, and (3) her frequent and deliberate failure to carry out supervisory directions. (Id. P 26.) The letter went on to explain Ali's appeal rights. (Def.'s Facts Ex. 4C.)

 As was her right, Ali appealed the VA's decision to the Merit Systems Protection Board ("MSPB"), alleging that her removal was the result of religious, racial, marital status, and disability discrimination, and was illegal reprisal for former EEO activity. (Id. P 28.) On March 10, 1995, the MSPB ruled on Ali's appeal in favor of the VA. (Id. P 29.) After carefully chronicling the series of events and correspondence between November 1993 and September 28, 1994, the MSPB concluded that "the agency's denial of [Ali's] request for leave without pay was reasonable under all the circumstances of this case," and that "the agency has established that [Ali's] absence from March 1, 1994, through September 28, 1994, was unauthorized." (Id. at 2-5, 8.)

 First, Ali's medical documentation was insufficient. It "failed to explain how her condition was disabling, omitted her diagnosis and prognosis (until after the agency proposed her removal), and provided no foreseeable end to the appellant's absence." (Id.) Dr. Lieteau's October 12, 1994 medical report also ignored the questions outlined in the VA's May 11, 1994 letter to Ali, listing only a conclusory diagnosis unsupported by clinical findings. (Id.) The MSPB rejected Ali's contention that "it was improper for the agency to require her to identify her medical condition," explaining an agency can require such information when an employee requests extended periods of leave based on illness. (Id. at 7) (citing 5 C.F.R. § 630.403 (1994) (sick leave may be granted only when supported by administratively acceptable evidence)).

 Second, the MSPB found that Ali had disregarded the agency's leave-requesting procedures and deliberately ignored her supervisor's instructions. (Id.) It pointed to Lopez's letters telling Ali exactly what documents to submit and when. In response, the MSPB noted, Ali submitted several late SF-71 leave requests and some "conclusory" memoranda from her doctor -- submissions that did not comply with the VA's instructions. (Id. at 7-8.) Significantly, Ali was warned several times that withholding this information could precipitate AWOL charges, disciplinary action, and removal. (Id. at 8.)

 The Board saw no merit in Ali's argument that the VA improperly removed her while she was ill. Ali had no sick leave available, and the MSPB explained that the VA has discretion to charge an employee with AWOL in lieu of granting leave without pay, even when it has acceptable medical evidence of illness. (Id.) (citing Riley v. Department of Army, 53 M.S.P.R. 683, 689 n.4 (1992)). Ali also urged that "she should have been allowed to use annual leave," but the MSPB pointed out that she had only 18 hours of annual leave available as of March 1, 1994, leaving her AWOL for a significant time period. (Id.)

 As affirmative defenses, Ali raised her discrimination and retaliation claims. The MSPB found each of ...

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