Scott v. United State Postal Service

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3172

ANTONIO R. SCOTT,

Petitioner,

v.

UNITED STATES POSTAL SERVICE,

Respondent.

Antonio R. Scott, of Stone Mountain Georgia, pro se.

Teresa A. Gonsalves, Appellate Counsel, Law Department, United States Postal
Service, of Washington, DC, for respondent. With her on the brief were Lori J. Dym,
Chief Counsel, and Gregory G. Katsas, Assistant Attorney General, Civil Division,
United States Department of Justice, of Washington, DC. Of counsel was James W.
Poirier, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3172

ANTONIO R. SCOTT,

Petitioner,

v.

UNITED STATES POSTAL SERVICE,

Respondent.

Petition for review of the Merit Systems Protection Board in
AT0752070616-I-1.

__________________________

DECIDED: September 4, 2008
__________________________

Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and WALKER, ∗ Chief
District Judge.

PER CURIAM.

Antonio R. Scott petitions for review of the final decision of the Merit Systems

Protection Board (“Board”), affirming his removal for violation of a last chance

agreement and failure to maintain regular attendance. Scott v. United States Postal

Service, AT-0752-07-0616-I-1 (M.S.P.B. Aug. 7, 2007) (“Initial Decision”). Because we

∗
Honorable Vaughn R. Walker, Chief Judge, United States District Court for
the Northern District of California, sitting by designation.
conclude that the AJ correctly interpreted the last chance agreement and that his

decision sustaining Scott’s removal was supported by substantial evidence, we affirm.

I.

Scott was a Postal Service Level 7 Vehicle Operations Assistant at the Atlanta

Bulk Mail Center, and at the time of his removal, he had been with the Postal Service for

approximately 22 years. On June 28, 2006, the Postal Service (“agency”) and Scott

entered into a last chance agreement to settle a prior adverse action. Under that

agreement, Scott agreed to maintain regular attendance, defined as “no more than (3)

three unscheduled absences during any six (6) month period of this agreement and no

instances of AWOL.” The agreement defined unscheduled absences as “any absence

not scheduled and approved in advance of Appellant’s scheduled reporting time.” The

parties agreed that the last chance agreement would be in effect for five years from the

date of execution.

On January 26, 2007, the agency proposed to remove Scott for violation of the

last chance agreement and for failure to be regular in attendance based on four periods

of unscheduled absences, totaling 26 days, from July 2006 to January 2007. On March

19, 2007, the agency issued a letter of decision, removing Scott effective March 20,

2007.

Scott appealed to the Board. The Administrative Judge (“AJ”) found that the

agency provided sufficient evidence to sustain the charges that Scott violated the last

chance agreement by having too many unscheduled absences and that he failed to

maintain regular attendance. The AJ also found that Scott did not have sufficient hours

to qualify for Family and Medical Leave Act (“FMLA”) leave and that Scott did not show

2008-3172 2
that his leave had been FMLA approved. The AJ also found that Scott was not denied

due process where the deciding official had previously concurred in the proposed

removal notice. Finally, the AJ found that removal was a reasonable penalty.

Scott petitioned the full board for review, but the full board denied his petition,

concluding that Scott had not presented any new, previously unavailable evidence or

shown that the AJ made a legal error. Scott timely appealed to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II.

Our review of Board decisions is limited by statute. “We must affirm the Board’s

decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; obtained without procedures required by law, rule, or

regulation having been followed; or unsupported by substantial evidence.” Campion v.

Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).

On appeal, Scott argues that the AJ erred in finding that Scott did not have

sufficient hours to qualify for FMLA leave. An employee must have 1,250 hours of

service in the previous 12-month period to be eligible for FMLA leave. 29 U.S.C.

§ 2611(2)(A)(ii). The AJ found that Scott did not request FMLA leave until November

2006, and that at the time of Scott’s absences, he did not have the requisite hours to

qualify for FMLA leave.

We conclude that the AJ’s determination that Scott had worked insufficient hours

to qualify for FMLA was supported by substantial evidence. The government submitted

as evidence employee reports showing that at the time of each of his absences, Scott

had worked less than 900 hours (well below the 1,250 hour requirement) in the

2008-3172 3
preceding twelve months; a November 6, 2006 letter denying Scott’s request for FMLA

leave because he had worked insufficient hours and estimating that Scott would be

eligible for FMLA leave on February 3, 2007; an FMLA data report indicating that at the

time of Scott’s November 2006 FMLA leave request, he had worked only 868 hours in

the preceding year; and testimony from the agency’s FMLA coordinator. We conclude

that this evidence is sufficient to support the AJ’s finding.

Next, Scott argues that he did not violate the last chance agreement. That

agreement required that Scott have “no more than (3) three unscheduled absences

during any six (6) month period of this agreement and no instances of AWOL.” Scott

argues, as he did before the AJ, that the six-month period in the last chance agreement

is measured from the date of that agreement, and after that initial period has run, a new

six-month period begins. Put another way, according to Scott, if he had three

unscheduled absences during the period from June 28, 2006 (the date of the

agreement) to December 28, 2006, he would start with a clean slate on December 29,

2006, and a fourth absence in the new period would not violate the agreement

regardless of its temporal proximity to the absences in the prior period.

The AJ held that under the plain language of the agreement, Scott could have no

more than three unscheduled absences in “any” six-month period, such that if Scott had

four such absences during any rolling six-month period, he would be in violation of the

agreement. We agree that the AJ’s interpretation comports with the plain language of

the agreement, and that the agreement contemplates a rolling six-month period rather

than discrete six-month increments. We note that the last chance agreement was not

2008-3172 4
effective indefinitely, but for a five-year term, which reinforces that “any” six-month

period under the agreement is a rolling rather than discrete time increment.

Finally, we have reviewed Scott’s remaining arguments and conclude that they

lack merit. Because we hold that the AJ correctly interpreted the last chance agreement

and that his decision sustaining Scott’s removal was supported by substantial evidence,

we affirm.

2008-3172 5