leave determination is reviewed for reasonableness. (Id. at 5) (citing Fisher v. Department of Defense, 54 M.S.P.R. 675, 683 (1992)). In particular, the MSPB noted, "it is reasonable for an agency to deny an employee LWOP [leave without pay] where the employee has failed to return to work or to submit medical evidence to justify the absence after having been directed to do so and warned that failure to do so could result in discipline." (Id. at 6) (citing Fisher, 54 M.S.P.R. at 683). The MSPB held that the VA had proven its charges by a preponderance of the evidence, and held that the VA's decision to deny Ali's LWOP request was reasonable under the circumstances. (Id.)
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 them wanting. (Id. at 9-11).
In support of her claim for religious discrimination, Ali alleged that "Ms. Lopez did not like [Ali's] Moslem name and delayed [her] receipt of a badge." (Id. at 9.) The MSPB explained that these bare allegations, unsupported by any evidence, were insufficient to propel her religious discrimination claim. Assuming the allegations were true, they would constitute direct evidence of discrimination. But Ali's claim would still fail because the agency had ample nondiscriminatory grounds to remove her -- therefore, Ali could not show that religion was a "substantial factor" in the agency's termination decision. (Id.) (citing Johnson v. Defense Logistics Agency, 61 M.S.P.R. 601, 604 (1994)). Likewise, the MSPB found no evidence to support a religious disparate treatment claim. (Id.)
Ali's race discrimination claim alleged that, contrary to her experience, white employees were not continually required to provide medical documentation when requesting leave because of illness or injury. (Id.) This claim failed as well because Ali "has not identified the white employees, has not presented any evidence that they had extended, open-ended, and undocumented absences similar to [Ali's] or that they worked for Ms. Lopez." (Id. at 10.) Absent appropriate comparables, Ali could not show a discriminatory difference in treatment. (Id. at 9-10.)
Ali also failed to present any evidence supporting her allegation of marital status discrimination; as a result, the MSPB dismissed this claim. (Id. at 11.) Ali's disability discrimination claim suffered the same fate because Ali did not establish that she was disabled as defined by the Rehabilitation Act. (Id.)
Ali's last affirmative defense was that her removal was retaliation for filing the November 11, 1991 EEO complaint against her male supervisor for sexual harassment. (Id.) Although the MSPB determined that filing an EEO complaint constitutes "protected activity," it found that the complaint could not have precipitated her removal because the events were separated by over two years' time. (Id. at 12.) Consequently, Ali failed to forge the necessary causal link between the EEO complaint and her removal. (Id.)
Ali appealed the MSPB's decision to the EEOC. Reviewing de novo only the MSPB's determination of Ali's discrimination and reprisal claims, the EEOC affirmed. (EEOC decision at 5.) The Commission found that Ali failed to establish that the VA's proffered nondiscriminatory reasons for its actions were a pretext for race or religious discrimination
The record supports the agency's contention that [Ali] failed to comply with the agency's May 11, 1994 request that she submit detailed medical information in support of her request for LWOP and her continuing absence. Rather, [Ali] submitted brief, conclusory, and inadequate statements from [Dr. Lieteau] indicating only that she remained under the doctor's care and unable to work. We find nothing improper with the agency's request for more detailed information from [Ali] relative to her prolonged absence from the workplace. We further find nothing in the record to support [Ali's] contention that the agency removed her for reasons relating to her race or religion, that it treated similarly situated white employees more favorably, or that her supervisor became hostile after [Ali] married and took her husband's name.
(EEOC Decision at 6.) As for Ali's disability and reprisal claims, the EEOC concurred with the MSPB's conclusions that Ali did not meet Rehabilitation Act's "disability" definition, and that she failed to show the required link between her removal and her EEO filing over two years earlier. (Id. at 7-8).
A month after the EEOC handed down its decision, Ali filed a two-count complaint in this Court. Count I alleges employment discrimination arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; the Civil Rights Enforcement Statutes, 42 U.S.C. §§ 1981, 1983; and the Americans with Disabilities Act, 42 U.S.C. § 12112, based upon Ali's race, religion, and disability.
Count II requests judicial review of the MSPB's decision
under 5 U.S.C. § 7703. The VA has filed a motion to dismiss or, in the alternative, for summary judgment on Count I, and the parties have submitted cross motions for summary judgment on Count II. In light of the fact that both sides rely on documents outside the pleadings, the Court will evaluate Count I under Rule 56(c) summary judgment standards instead of Rule 12(b)(6) pleading standards. See FED. R. CIV. P. 12(b).
SUMMARY JUDGMENT STANDARDS
Summary judgment is proper when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all the evidence in a light most favorable to the nonmoving party, and draw all reasonable inferences from the evidence in the nonmovant's favor. Cincinnati Ins., 40 F.3d at 150. But if the evidence is merely colorable, or is not significantly probative, or just raises "some metaphysical doubt as to the material facts," summary judgment may be granted. Liberty Lobby, 477 U.S. at 261; Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The court's sole function is to decide whether sufficient evidence exists to support a verdict in the nonmovant's favor -- a standard that applies with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993).
When the parties submit cross-motions for summary judgment, the court is not required to grant judgment as a matter of law to one side or the other. Heublein Inc., v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). The court must evaluate each party's motion on its own merits, resolving factual uncertainties and drawing all reasonable inferences against the party whose motion is under consideration. Id; Buttitta v. City of Chicago, 803 F. Supp. 213, 217 (N.D. Ill. 1992), aff'd, 9 F.3d 1198 (7th Cir.1993).
I. Count I
Most of Count I can be disposed of summarily. Ali's complaint indicates that she has suffered discrimination on the basis of several protected characteristics,
but she pursues only Title VII race discrimination in her brief. Her failure to support the remaining claims with legal argument or authority waives them. See Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir. 1992) (plaintiff waived disparate impact claim alleged in complaint because she did not fulfill her "minimal responsibility of identifying the applicable law and arguing why the facts . . . fit into the parameters of that law."); see also Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 957 F.2d 302, 305 (7th Cir. 1992) ("We have no obligation to consider an issue that is . . . not developed  in a party's brief."). Indeed, Ali goes so far as to abandon explicitly her Title VII retaliation, disability discrimination, and §§ 1981 and 1983 claims, conceding that "it does not appear that [she] will be pursuing these areas at trial but limiting [sic] [her] claim under Count I" to race discrimination under Title VII. (Pl.'s Resp. Br. at 3-4).
Even in the absence of Ali's concession, we find that she offers no proof to substantiate retaliation,
or religious discrimination.
Ali cannot defeat summary judgment through "self-serving assertions without factual support in the record." Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (internal quotations and citation omitted). Moreover, "a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered . . . ." Reklau v. Merchants Nat'l Corp., 808 F.2d 628, 629 n.4 (7th Cir. 1986). Because Ali fails to provide any evidence or argument to support her discrimination claims based on disability, religion, retaliation, and 42 U.S.C. §§ 1981 and 1983, we enter summary judgment on these claims in favor of the VA.
Turning to Ali's race discrimination claim under Title VII, she argues that the VA discriminated against her in favor of white employees, who, in contrast to Ali, were not required to submit detailed medical information when requesting leave without pay. This claim cannot survive summary judgment, however, because (1) it is not backed by specific evidentiary facts, and (2) Ali presents no evidence that requiring this documentation was a pretext for race discrimination.
To defeat the VA's motion for summary judgment, Ali must establish that she was a victim of intentional race discrimination, using either direct or circumstantial proof. Ali offers no direct evidence of intentional discrimination; instead, she opts for the indirect, burden-shifting method of circumstantial proof articulated in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under McDonnell-Douglas, Ali argues that this Court must infer discrimination from her conclusory assertion that she was treated less favorably than white employees. We disagree.
To prevail under McDonnell-Douglas, Ali must first establish a prima facie case of discrimination through the following elements: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate expectations; (3) she suffered an adverse employment action, e.g., discharge; and (4) she has evidence from which it can be inferred that the adverse action sprang from a "legally forbidden ground," for example, more favorable treatment of similarly situated white employees. See Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59 (7th Cir. 1996); her employer treated similarly situated white employees more favorably. see also Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994). Once established, the prima facie case creates a rebuttable presumption of discrimination. The burden of production then shifts to the employer to produce evidence of a legitimate, non-discriminatory reason for the discharge. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the employer carries its burden, the presumption of discrimination disappears and plaintiff must show that the employer's proffered reason for the discharge is merely a pretext for intentional discrimination. Id. Although the burden of production shifts throughout the analysis, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993).
Ali's race discrimination claim fails at the prima facie case stage because she has not presented any evidence to support the fourth element -- a racial disparity in treatment. "The prima facie case requires evidence adequate to create an inference that an employment decision was based on an [illegal] discriminatory criterion," Leffel v. Valley Fin. Servs., 113 F.3d 787, 792 (7th Cir.) (internal quotations and citations omitted), cert. denied, 139 L. Ed. 2d 318, 118 S. Ct. 416 (1997); "bare assertions" without evidentiary support cannot create a genuine issue of material fact, see Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 708 (7th Cir. 1995). Ali does no more than allege that white VA employees on leave were neither asked for as much medical documentation as she, nor fired for failing to provide it. Ali identifies no white employees who took an extended period of leave similar to hers, much less white employees working for Lopez who took leave and were granted a reprieve from submitting the kinds of corroborating medical documentation that Ali was required to file. Simply put, Ali "must present affirmative evidence . . . and may not rest upon allegations or denials of the pleading." Valentine v. Joliet Township High Sch. Dist. No. 204, 802 F.2d 981, 986 (7th Cir. 1986) (internal quotations and citation omitted). Ali, however, has failed to present any evidence that white employees (or any other employees, for that matter) in her situation were treated more favorably.
Even if we assumed that Ali met her initial McDonnell-Douglas burden, summary judgment is in order because Ali cannot show that the VA's nondiscriminatory reason for terminating her was a pretext for race discrimination. The VA provides three nondiscriminatory justifications for terminating Ali's employment: (1) AWOL, (2) her failure to follow proper leave requesting procedures, and (3) her deliberate failure to carry out supervisory instructions on numerous occasions. Because the VA has produced evidence, through the parties' year-long correspondence, to support these nondiscriminatory reasons for terminating Ali's employment, the burden shifts to Ali to "move beyond the pleadings and . . . set forth specific facts from which it might reasonably be inferred" that invoking these policies in Ali's case was merely a pretext for discrimination. Wooten v. Acme Steel Co., 986 F. Supp. 524, 1997 WL 790408, at *10 (N.D. Ill. 1997) (internal quotations and citations omitted); cf. Jenkins v. Heintz, 124 F.3d 824, 831 (7th Cir. 1997). Ali may show pretext by demonstrating that (1) the VA's reasons have no basis in fact, (2) they did not actually motivate her removal, or (3) they are insufficient to warrant removal. See Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995).
Ali takes the third approach. She claims that the VA's "Table of Examples of Offenses and Penalties," a guide to determining the range of appropriate discipline for listed employee "offenses," does not permit termination as punishment for her alleged misconduct. Specifically, Ali claims that she committed only one listed "offense" -- a single unexcused absence (albeit one that lasted eleven months) -- which the VA impermissibly stretched into three offenses. According to Ali, the guidelines do not permit termination for a lone unexcused absence. As such, she claims, "there is a possibility that such an action was merely a pretext for discrimination." (Pl.'s Resp. Br. at 5.) This argument lacks merit.
The VA's "Table Of Examples Of Offenses And Penalties: Range Of Penalties For Stated Offenses" ("Table") lists three separate offenses that easily encompass the VA's stated reasons for terminating Ali: (1) AWOL is an "unexcused or unauthorized absence"; (2) Ali's failure to follow proper leave requesting procedures constitutes "deliberate failure or unreasonable delay in carrying out instructions"; and (3) Ali's deliberate failure to obey Lopez's directions is a "deliberate refusal to carry out any proper order from . . . immediate or other supervisor." (Pl.'s Resp. Br. Ex. C (Table)). The Table contemplates discrete disciplinary actions for each of these offenses, and each comes with its own range of suggested penalties -- including, in each case, a maximum penalty of removal for the third transgression:
1st Offense 2nd Offense 3rd Offense
Minimum Minimum Minimum
Nature of Offense Maximum Maximum Maximum
2. Unexcused or unauthorized Admonishment Reprimand 10 days
absence Reprimand 10 days Removal
12. Deliberate failure or Admonishment 3 days 10 days
unreasonable delay in Reprimand 10 days Removal
carrying out instructions
17. Deliberate refusal to carry Reprimand 10 days Removal
out any proper order from . . . Removal Removal
immediate or other supervisor . . . .
(Pl.'s Resp. Br. Ex. C (Table)).
The Table, however, does not truss the VA in shackles. The "Instructions for Use of the Table of Violations," provided to VA employees, explains that "the range of penalties indicated in this table is to be used as a guide in administering discipline . . . ." (Id. P 1.) (emphasis in original). Thus, it need not be followed to the letter. The instructions explicitly permit imposing penalties greater than those listed "when an employee has committed a combination or series of offenses . . .," id. P 3(d), and states although "disciplinary penalties will generally fall between the ranges indicated in the guide, in unusual circumstances greater or lesser penalties may be imposed." Id. P 3(f). Significantly, the VA may impose progressive discipline for unrelated offenses: "For example, an employee who has received an admonishment for AWOL can receive a reprimand for sleeping on duty, and possibly be suspended or removed for a third offense unrelated to the two previous infractions." Id. P 3(c). Removal may be administered if warranted under the circumstances, id. P 3(g), in recognition of the fact that the Table "is not an intended to be an exhaustive listing of all offenses." Id. P 3(a). Consequently, the guidelines make clear that the VA has considerable discretion in determining appropriate punishment for employee misconduct.
The undisputed facts show that Ali's removal was well within the VA's discretion. Her misconduct not only fits three separate offenses, she committed each offense numerous times. The parties' correspondence reveals that supervisor Lopez repeatedly asked Ali to submit memoranda requesting leave, to complete SF 71s, and submit detailed medical documentation from her physician on a monthly basis. In addition, Lopez told Ali no less than three times that the VA considered her AWOL as of March 1, 1994. The Table does not specify how to calculate unauthorized absences -- presumably the VA could consider each day Ali was absent without proper documentation to be a separate, punishable unauthorized absence. In any event, the guidelines make clear that the VA may impose progressive sanctions for unrelated offenses -- a process that, applied to Ali, explicitly authorizes her removal. Finally, even if the Table did not specifically encompass Ali's offenses, the VA had the discretion to remove her if "warranted by the facts" in her case. (Pl.'s Ex. C P 3(g)). Since the undisputed evidence casts no doubt on the veracity, legitimacy, or sufficiency of the VA's stated reasons for terminating Ali, she has not met her burden of demonstrating pretext. See Collier, 66 F.3d at 892.
In sum, we conclude that Ali has failed to set forth specific facts from which a fact finder may reasonably infer that the VA discriminated against her on the basis of race. Accordingly, Count I fails as a matter of law.
II. Count II
In Count II, Ali seeks review of the MSPB decision affirming her discharge. Normally, the Court of Appeals for the Federal Circuit has sole jurisdiction to hear appeals from the Board. See 5 U.S.C. § 7703(b)(1). But "mixed" cases, which both challenge the MSPB's decision affirming an adverse job action and present employment discrimination claims, may be brought in an appropriate federal district court. Afifi v. United States Dep't of Interior, 924 F.2d 61, 62-63 (4th Cir. 1991) (citing 5 U.S.C. § 7703(b)(2)); see Randle v. Bentsen, 19 F.3d 371, 374 (7th Cir. 1994).
Citing the Seventh Circuit's decision in Randle v. Bentson, the VA nonetheless suggests that our disposal of Ali's discrimination claims robs us of jurisdiction to review the MSPB's personnel action determination. But a careful reading of Randle undermines the VA's assertion. The court specifically declined to decide whether a district court presented with a "mixed" case may retain jurisdiction after dismissing the discrimination claims, "or whether jurisdiction then resides exclusively in the Federal Circuit." Randle, 19 F.3d at 374 n.2. Randle points to the "Fourth Circuit's decision in Afifi as guidance for future litigants facing this question." Id.
Afifi supports retaining jurisdiction in this case. It gives district courts a choice: "where the plaintiff's discrimination claim is not brought as a jurisdictional charade
but nonetheless quickly evaporates, we leave to the district court's discretion one of two alternatives -- (1) retain jurisdiction over the nondiscrimination claim, or (2) transfer the case to the Federal Circuit under 28 U.S.C. § 1631." 924 F.2d at 64. The court emphasized the importance of judicial economy to this decision:
How should district courts exercise this discretion? A fundamental consideration is the purpose of district court jurisdiction over mixed cases in the first place -- judicial economy. This purpose is strikingly similar to the rationale for district court jurisdiction over state-law pendent claims. Accordingly, we find much guidance in the factors commonly considered by federal courts when deciding whether to retain jurisdiction over pendent claims where the federal claims have been dismissed -- judicial economy, convenience, concerns for federalism, and fairness to litigants.
Id. With these objectives in mind, the Court finds it appropriate to exercise jurisdiction to review the MSPB's decision affirming the VA's personnel action.
Transferring this case to the Federal Circuit would not only waste the resources we have already committed to the case, it would also spawn duplicative efforts in the Federal Circuit. That court explained it best: "to split the discrimination and non-discrimination claims, which are closely related both logically and as a factual matter, would result in a tremendous waste of judicial resources while the district court and the court of appeals twice consider identical issues." Williams v. Department of Army, 715 F.2d 1485, 1490 (Fed. Cir. 1983). The Title VII pretext analysis -- that is, determining whether Ali cast doubt on the legitimacy of the VA's reasons for removal -- overlaps to a large extent with whether the MSPB properly sustained those reasons for Ali's removal. We spent considerable resources in addressing de novo the propriety of removal in the discrimination context; we will expend scant more if we retain jurisdiction to review it in the appellate context, where our inquiry is much less searching. See Mirza v. Department of Treasury, 875 F. Supp. 513, 521 (N.D. Ill. 1995) ("When considering a 'mixed' case, a federal district court reviews the discrimination claim de novo, and the nondiscrimination claim on the administrative record."). Moreover, it makes little sense to dismiss the removal action claim at this point only to have the Court of Appeals consider a factual scenario that has already been reviewed by the MSPB, the EEOC, and this Court. Finally, transfer will unfairly prejudice Ali, who would be left only with "a long-expired appeal . . . to the Federal Circuit." Afifi, 924 F.2d 61 at 63; see 5 U.S.C. § 7703(b)(1) (petition for review must be filed within 30 days after receiving notice of MSPB's final decision). We will thus proceed to review the MSPB's decision sustaining Ali's removal.
This Court must affirm the MSPB's decision unless it was (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) reached without following procedures required by law, rule or regulation; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c). Ali argues only the first -- that the MSPB's decision was arbitrary, capricious and an abuse of discretion. The arbitrary/capricious standard of review requires that the agency decision have a rational basis in the law. Hurley v. United States, 575 F.2d 792, 794 (10th Cir. 1978). It is a more lenient standard, for example, than the substantial evidence test. Substantial evidence "must do more than create a suspicion of the existence of the fact to be established . . . and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 83 L. Ed. 660, 59 S. Ct. 501 (1939). Conversely, "'an agency determination must [only] have some evidentiary basis to avoid being held arbitrary and capricious.'" KENNETH C. DAVIS & PIERCE RICHARDS, JR., ADMINISTRATIVE LAW TREATISE 202 (3d ed. 1994) (quoting Aman v. FAA, 856 F.2d 946, 950 n.3 (7th Cir. 1983)). We must therefore ask whether the MSPB decision upholding Ali's termination has some evidentiary support and a rational basis in the law.
The MSPB began its opinion by setting forth the legal standards -- articulated in Fisher v. Department of Defense, 54 M.S.P.R. 675, 679-83 (1992) -- governing agency removal based on the denial of leave without pay. First, it pointed out that the agency's denial of LWOP status must be "reasonable." (MSPB Decision at 5.) In particular, "where an agency denies an employee leave without pay because of allegedly inadequate medical documentation, the Board will examine the record as a whole to determine if the denial was reasonable under the circumstances." (Id. at 5-6.) The MSPB explained that "it is reasonable for an agency to deny an employee LWOP where the employee has failed to return to work or to submit medical evidence to justify the absence after having been directed to do so and warned that failure to do so could result in discipline." (Id.)
After thoroughly examining the parties' lengthy correspondence, the MSPB found that Ali's medical documentation was insufficient to justify her absence, that Ali had failed to follow proper leave procedures, had disobeyed her supervisor's direct orders, and had been duly warned that these actions could result in her removal. First, the MSPB found that Ali's medical documentation "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. at 6.) Second, the Board determined that Ali had been told repeatedly, beginning in January 1994, that she had to complete memoranda requesting leave and SF 71s, but deliberately ignored these instructions and filed only "belated" SF 71s and "conclusory" memoranda from her doctor. (Id. at 7-8.) Finally, the MSPB emphasized that Ali had been warned several times that withholding this information could lead to AWOL charges and disciplinary action. (Id. at 8).
The MSPB then concluded that the VA's denial of Ali's LWOP request was "reasonable under all the circumstances of this case":
The appellant did not return to work and her absence remained open-ended. She failed to present evidence to support her leave request after being directed to do so and being warned [that] the failure to do so could lead to discipline. Accordingly, the agency has established by preponderant evidence that the appellant's absence from March 1, 1994, through September 28, 1994, was unauthorized. The agency has also established that it provided the appellant with numerous warnings about the information required from her and her doctor and that the appellant failed to provide the information.
(Id. at 8) (citations omitted).
We conclude that this decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" because it has a rational basis in the law and contains at least some -- if not ample -- evidentiary support. The MSPB's opinion centers on the governing legal principle that an agency may terminate an employee who takes leave, and fails either to return or submit medical evidence to justify the absence after she is both told to do so and warned of the consequences. The evidence shows that this occurred in Ali's case.
To begin with, the record reveals that Ali's medical documentation did not support her requests for leave without pay. She provided nothing excusing her absence for seven months. In June 1994, her doctor finally sent the VA a note on a prescription pad with the conclusory statements that "Ali is totally disabled" and that the doctor could not predict a return date. The doctor presented no diagnosis, no information about Ali's disability, and no prognosis for recovery. Despite the VA's persistent attempts to obtain medical information substantiating Ali's disability, including a letter detailing the precise information the VA sought, the VA did not receive any more medical information until four months later, after Chief Medical Administrator Soltys proposed Ali's removal. Even this letter from Ali's doctor envisioned no end to Ali's absence.
The evidence also establishes that Ali failed to follow proper leave-requesting procedures, deliberately ignored her supervisor's instructions, and was fairly warned about the consequences. The record reveals the VA's herculean, nine-month effort, with letters every few weeks, to explain to Ali the procedural requirements for requesting leave without pay, and to obtain that documentation from her. Lopez even sent Ali the necessary forms. But Ali delayed in responding, and when she did, submitted forms that did not account for large periods of time. She was aware of this, because the VA wrote Ali to inform her that it had "received periodic SF 71s from you but none of them cover the complete period of time." Ali was also told numerous times that the VA considered her AWOL, and that AWOL can lead to disciplinary action, including removal.
Finally, we cannot conclude that removal was an unreasonable or irrational response to Ali's actions. She was absent for nearly a year, never returned to work in the interim, and did not explain why -- until the VA proposed her removal in September 1994. Even after she explained her absence, she did not provide an expected date for a return. The MSPB could rationally have determined that the VA was reasonable to think that simply reprimanding or temporarily suspending Ali when she was already absent for several months without authorization would not likely have prompted her to return or comply with leave procedures. Since AWOL is a serious charge, we cannot say that it was irrational to conclude that any disciplinary measures short of removal were inadequate. See Davis v. Veterans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986) (characterizing an eight-day AWOL as "serious" and warranting removal when combined with past disciplinary record).
In short, the evidence supports the MSPB's finding that the VA established both Ali's offenses and the reasons they warranted removal.
See Davis, 792 F.2d at 1113 ("The penalty assessed for employee misconduct is a matter of the exercise of the sound discretion of an agency in light of all relevant factors, mitigating and otherwise."); Douglas v. Veterans Administration, 5 M.S.P.B. 313, 324-25, 5 M.S.P.R. 280 (1981) (agency has the burden of proving factual basis for its charges by preponderant evidence, and its chosen disciplinary sanction cannot be arbitrary or capricious). The Board evaluated this evidence according to the governing legal requirements for employee removal, giving its decision a rational basis in the law.
Ali nonetheless argues that the MSPB's decision "was arbitrary, capricious and an abuse of discretion because the penalty exceeded policy guidelines for the sole of offense of an unexcused absence[,] especially for one that had no prior disciplinary record." Revisiting and elaborating upon her pretext argument, Ali contends that she committed only one actual violation, an unexcused absence; that the other alleged offenses (failure to follow proper leave procedures and carry out directions) were "really no more than a description of Ali's conduct that caused her to be guilty" of an unexcused absence; and that, even if each violation was a separate offense, all were one-time offenses, which carry a maximum penalty of admonishment or reprimand. She cites Power v. United States, 209 Ct. Cl. 126, 531 F.2d 505 (1976), for the proposition that "a penalty grossly exceeding that provided by an agency's standard table of penalties may for that reason alone be arbitrary and capricious, even though such a table only provides suggested guidelines." But the evidence demonstrates that, far from exceeding the guidelines, Ali's punishment fits squarely within them.
The MSPB had an evidentiary basis for determining that Ali committed three separate violations, and that these violations justified Ali's removal. As discussed above, the VA's Table of Offenses lists an unexcused absence, ignoring or delaying carrying out instructions, and deliberate refusal to carry out supervisor's orders as three separate offenses. Nothing in the Table or its instructions requires the VA to merge these offenses simply because they arise from a common course of conduct. Moreover, the instructions explicitly permit imposing penalties greater than those listed "when an employee has committed a combination or series of offenses. . .," including removal, if warranted by the facts of a particular case. Finally, the record supports a finding that Ali committed each of these offenses numerous times. Not only did the VA ask Ali to submit leave forms and medical documentation every few weeks, it asked her to provide those documents on a monthly basis. Ali ignored many of these requests and failed to furnish information for several of the months she was absent; the guidelines do not prohibit the VA from considering these to be separate transgressions.
In sum, the MSPB's decision is not arbitrary, capricious, an abuse of discretion, or contrary to law. Accordingly, we affirm the MSPB's decision sustaining Ali's removal.
We emphasize that we are not passing on the wisdom of the VA's procedures and requirements for requesting leave. Some may think them onerous, especially for a person experiencing deep depression, and already disillusioned with her employer. Nevertheless, there is no evidence that enforcing these requirements in Ali's case was discriminatory, arbitrary, or otherwise unwarranted. The VA followed its rules, and wanted Ali to abide them as well.
The VA's Motion for Summary Judgment on Counts I and II is granted, and Plaintiff's Cross Motion for Summary Judgment on Count II is denied. The Clerk of the Court is directed to enter judgment in favor of the defendant pursuant to Fed. R. Civ. P. 58.
United States District Judge
March 23, 1998
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED Summary judgment entered in favor of the defendant Jesse Brown, Secretary Department of Veteran Affairs and against the plaintiff Ernestine Ali on Counts I and II of the complaint.
This cause of action is dismissed in its entirety. There being no just reason for delay, this is a final and appealable order.