NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOROTHY BURKS (THOMAS),
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2014-3115
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-12-0577-I-1.
______________________
Decided: December 8, 2014
______________________
DOROTHY BURKS (THOMAS), of Phoenix, Arizona, pro
se.
WILLIAM P. RAYEL, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, and
PATRICIA M. MCCARTHY, Assistant Director.
______________________
2 BURKS (THOMAS) v. USPS
Before DYK, WALLACH, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Dorothy Thomas was removed from the United States
Postal Service for failure to be regular in attendance. Ms.
Thomas was absent during a period of at least six weeks
and failed to respond to the Postal Service’s repeated
requests to justify this absence. After a hearing, the
Merit Systems Protection Board concluded the Postal
Service met its burden to prove the charge and to estab-
lish the penalty of removal was reasonable. Because the
Board’s decision was supported by substantial evidence
and did not involve an abuse of discretion, we affirm.
I
Ms. Thomas is a former employee of the Postal Ser-
vice. She worked as a Part Time Flexible City Carrier in
the Riverdale, Georgia, post office. On April 2, 2010, the
Postal Service decided to separate Ms. Thomas due to her
absence without leave for more than a year. Ms. Thom-
as’s union filed a grievance arguing the Postal Service
failed to follow required procedures. On June 17, 2010,
the Postal Service rescinded its separation decision. As a
result, Ms. Thomas remained an employee on leave with-
out pay.
More than a year later, on January 24, 2012, the
Postal Service sent a letter to Ms. Thomas asking her to
provide medical documentation supporting her “continued
absence from work which began prior to January 2011.”
J.A. 65. On February 3, 2012, the Postal Service sent
another letter instructing Ms. Thomas to report to the
Riverdale office for an investigative review regarding her
absence. Both letters were mailed to Ms. Thomas’s ad-
dress of record in Atlanta, Georgia, and copies were sent
to her union. Ms. Thomas did not respond to either. On
March 13, 2012, the Postal Service sent a Notice of Re-
moval for “failure to respond to official directives” and
BURKS (THOMAS) v. USPS 3
“absen[ce] and unavailab[ility] for duty without official
leave.”
On March 14, 2012, after learning of this notice from
a union representative, Ms. Thomas called a manager at
the Riverdale post office to explain she had moved to
Indiana and therefore did not receive the letters or the
Notice of Removal. Ms. Thomas agreed to submit the
requested medical documentation promptly. The Postal
Service rescinded its Notice of Removal on March 20,
2012.
The same day, the Postal Service sent a new letter to
Ms. Thomas, this time to her Indiana address, instructing
her to report to the Riverdale post office for an investiga-
tive interview regarding her prolonged absence. The
letter warned that failure to attend would result in “cor-
rective action.” Ms. Thomas did not report for the inter-
view, call to reschedule, or submit any medical
documentation supporting her continued absence.
On April 6, 2012, the Postal Service issued a Notice of
Proposed Removal. The charges were “Failure to be
Regular in Attendance” and “Absen[ce] Without Official
Leave (AWOL).” See U.S. Postal Service, Employee and
Labor Relations Manual § 665.41–665.42. The Notice
alleged Ms. Thomas had been “absent and unavailable for
duty since prior to January 2011,” “failed to provide any
documentation to substantiate or support” this absence,
and “failed to respond to previous official directives . . . .”
J.A. 74. Neither Ms. Thomas nor her union responded to
this notice.
On May 4, 2012, the Postal Service issued a decision
letter informing Ms. Thomas she would be removed from
the Postal Service effective May 11, 2012. The deciding
official found the uncontested charges supported by the
evidence, but noted Ms. Thomas had been “absent and
unavailable for duty since February 26, 2012,” instead of
4 BURKS (THOMAS) v. USPS
“since prior to January 2011,” as claimed in the Notice of
Proposed Removal.
Ms. Thomas appealed this decision to the Merit Sys-
tems Protection Board. After a hearing, an Administra-
tive Judge found the Postal Service had established the
charge of failure to be regular in attendance. The Admin-
istrative Judge found Ms. Thomas was absent from at
least January of 2011 until her removal in May of 2012.
Further, the Administrative Judge found that the Postal
Service had established a nexus between this prolonged
absence and the efficiency of the service, and that the
penalty of removal was reasonable under the circum-
stances.
Ms. Thomas filed a petition for review. The Board
denied the petition and affirmed the Administrative
Judge’s decision, with one modification. Because the
Postal Service’s final removal decision states that
Ms. Thomas had been absent since February 26, 2012, the
Board changed the Administrative Judge’s finding of
absence since January of 2011 to a finding of absence
since February 26, 2012. Ms. Thomas now appeals to this
court. We have jurisdiction under 5 U.S.C. § 7703.
II
Our review of Board decisions is limited by statute.
See 5 U.S.C. § 7703(c). We must affirm the Board’s factu-
al findings as long as they are supported by substantial
evidence, or “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Abrams v. Soc. Sec. Admin., 703 F.3d 538, 542 (Fed. Cir.
2012) (internal quotation marks and citation omitted).
We must affirm the Board’s decision to sustain the penal-
ty imposed unless the penalty was “so harsh and uncon-
scionably disproportionate to the offense that it amounts
to an abuse of discretion.” Parker v. U.S. Postal Serv., 819
F.2d 1113, 1116 (Fed. Cir. 1987) (internal quotation
marks and citation omitted).
BURKS (THOMAS) v. USPS 5
III
The Postal Service has the burden to prove its charge
of “failure to be regular in attendance” by a preponder-
ance of the evidence. See Vaughn v. U.S. Postal Serv., 109
M.S.P.R. 469, 476 (2008). It must also establish that any
disciplinary action “promotes the efficiency of the service
and that the imposed penalty is reasonable.” Id. at 476–
77.
To take disciplinary action against an employee for
absences, the Postal Service must show each absence “was
not requested and approved in advance . . . .” Stratton v.
U.S. Postal Serv., 89 M.S.P.R. 337, 342 (2001) (citing
Williams v. U.S. Postal Serv., 68 M.S.P.R. 150, 156
(1995)). The Board found, and Ms. Thomas does not
contest, that Ms. Thomas was absent for approximately
six weeks from February 26, 2012 until April 6, 2012,
when the Postal Service issued its Notice of Proposed
Removal. There is no evidence in the record that Ms.
Thomas’s absences were specifically requested or ap-
proved in advance. To the contrary, the record shows the
Postal Service repeatedly instructed Ms. Thomas, by mail
and by phone, to justify her continued absence. The
Postal Service warned that failure to do so would result in
disciplinary action. Ms. Thomas failed to respond to these
requests or to otherwise communicate with the Postal
Service. Accordingly, substantial evidence supports the
Board’s determination that Ms. Thomas’s absences were
actionable.
The Board has previously held that “numerous in-
stances of absence and tardiness” constitute a failure to
be regular in attendance. Brin v. U.S. Postal Serv., 49
M.S.P.R. 549 (1991). It has relied on fewer than six
weeks of absences in previous cases. See, e.g., Jones v.
U.S. Postal Serv., 110 M.S.P.R. 674, 675 (2009) (eleven
unscheduled absences during a three-month period);
Stratton, 89 M.S.P.R. at ¶ 10 (sixteen incidents of absence
6 BURKS (THOMAS) v. USPS
and tardiness); Byers v. U.S. Postal Serv., 78 M.S.P.R.
456, 458, 463–64 (1998) (nine or fewer incidents of un-
scheduled leave during a four-month period, in addition to
a prior disciplinary record based on attendance). Here,
we find that Ms. Thomas’s absence for at least six weeks
provides substantial evidence to support the Board’s
finding that she failed to be regular in attendance.
Ms. Thomas suggests that even if she failed to be reg-
ular in attendance, the penalty of removal was unreason-
able. She notes the Administrative Judge misstated her
length of service, one of the factors used to determine the
appropriate penalty. See Douglas v. Veterans Administra-
tion, 5 M.S.P.R. 280, 305 (1981). The Administrative
Judge found that Ms. Thomas had twelve years of gov-
ernment service. In fact, Ms. Thomas had approximately
twenty eight years of combined civilian and military
service in the government.
We find that this error was harmless. “In assessing
the appropriateness of the agency’s penalty selection, the
most important factor is the nature and seriousness of the
misconduct . . . .” Jinks v. Dept. of Veterans Affairs, 106
M.S.P.R. 627, 635 (2007). The Administrative Judge
properly found that Ms. Thomas’s failure to be regular in
attendance without any justification for her absences was
a serious offense that merits removal. An additional
sixteen years to an already long period of service would
not have altered this conclusion. Accordingly, we find the
Board’s affirmance of the penalty of removal was not an
abuse of discretion
IV
We have considered Ms. Thomas’s remaining argu-
ments and find them without merit. Because substantial
evidence supports the Board’s conclusion that Ms. Thom-
as failed to be regular in attendance, and because its
decision to affirm the penalty of removal was not an abuse
of discretion, we affirm.
BURKS (THOMAS) v. USPS 7
AFFIRMED
No costs.