Case: 20-1507 Document: 45 Page: 1 Filed: 11/02/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEITISHA MORENO,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2020-1507
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-18-0418-I-1.
______________________
Decided: November 2, 2021
______________________
DANIELLE ROSENTHAL, Robins Kaplan LLP, New York,
NY, argued for petitioner.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
JEFFREY B. CLARK, ALLISON KIDD-MILLER, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
Case: 20-1507 Document: 45 Page: 2 Filed: 11/02/2021
2 MORENO v. INTERIOR
STOLL, Circuit Judge.
Petitioner Leitisha Moreno appeals the Merit Systems
Protection Board’s decision affirming the Department of
the Interior’s action removing her from her position due to
unauthorized absence. Because we conclude that the
Board failed to provide a proper analysis of the Douglas
factors, we vacate and remand the Board’s decision.
BACKGROUND
I
Ms. Moreno was employed by the Department of the
Interior’s Appraisal and Valuation Services Office as a
Contract Specialist beginning in 2016. From July 24, 2017
to September 29, 2017, Ms. Moreno took leave under the
Family and Medical Leave Act “due to [a] serious health
condition that prevent[ed] [Ms. Moreno] from reporting to
work.” J.A. 304. Ms. Moreno returned to work part-time
from October 2, 2017 to October 13, 2017. On October 11,
2017, Ms. Moreno requested “a 5 day per week telework
schedule, on a temporary basis” and submitted medical
documentation in support of her request. J.A. 301–02. The
agency approved the request on October 17, 2017, permit-
ting Ms. Moreno to “telework from home for a temporary
time” until an office location was found for her to work in
at the Denver Federal Center. J.A. 298.
On November 15, 2017, Ms. Moreno provided support-
ing documentation of her physical and mental health con-
ditions and requested full-time telework from home
through January 5, 2018, which the agency granted. The
agency permitted her to work in an office space at the Den-
ver Federal Center that the agency had prepared as an ac-
commodation for her conditions until January 5, 2018.
On November 20, 2017, Ms. Moreno submitted another
letter requesting that the agency excuse her from all work
from November 20, 2017 to January 12, 2018. On Novem-
ber 20, 2017, the agency informed Ms. Moreno that she did
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MORENO v. INTERIOR 3
not have enough leave remaining to cover the eight-week
period requested by her medical documentation. On No-
vember 21, 2017, Ms. Moreno requested an additional 240
hours of advanced paid sick leave. The agency denied the
request and explained that she had to submit supporting
medical documentation with her request. She provided a
letter from her medical provider to the Human Resources
department on November 22, 2017, stating that she was
“currently unable to work due to her current serious medi-
cal condition” and that “[s]he is incapacitated for the per-
formance of her work duties until further evaluation by a
neurologist.” J.A. 275–76. This letter—like all the letters
provided by Ms. Moreno’s medical providers—did not spec-
ify when Ms. Moreno could be expected to return to duty in
a full-time capacity.
By November 28, 2017, Ms. Moreno’s supervisor had
not received the requested medical documentation but ap-
proved leave without pay (LWOP) on a weekly basis until
the documentation was received. Ms. Moreno was in-
formed that if she did not provide the documentation in an
administratively acceptable form, “the tentatively ap-
proved LWOP [could] be converted to AWOL [absence with-
out leave].” J.A. 279. She was also advised that, pursuant
to agency policy, her employer needed to know when she
could be expected to return to work because “[a]lthough su-
pervisors are encouraged to grant the maximum amount of
advance sick leave permissible, a supervisor may not ad-
vance sick leave to an employee when it is known or rea-
sonabl[y] expected that the employee will not return to
duty.” J.A. 278.
On December 8, 2017, Ms. Moreno submitted support-
ing documentation that described her medical condition as
“life-long,” but indicated that she would be incapacitated
until January 12, 2018 so she would have “time to be eval-
uated by a specialist.” J.A. 272–73. The supporting docu-
mentation also stated that Ms. Moreno should be
permitted to telework from her home on a full-time basis
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4 MORENO v. INTERIOR
when she is not incapacitated by her medical condition. On
December 22, 2017, the agency approved Ms. Moreno’s re-
quest for advance sick leave through January 12, 2018.
J.A. 268–69.
Ms. Moreno submitted a letter from her medical pro-
vider dated January 4, 2018, stating that she should be ex-
cused from work until January 26, 2018 “due to her medical
conditions that incapacitate her from completing her daily
work tasks.” J.A. 266. She did not return to work on Jan-
uary 12, 2018. Ms. Moreno submitted another letter from
her medical provider dated January 25, 2018, stating that
she was “incapacitated until further evaluation pending
follow-up on February 23, 2018[,]” but that she was “still
able to complete her full position description from home via
[t]elework.” J.A. 259. At the same time, the letter stated
that Ms. Moreno was “expected to have periods of incapac-
itation,” that her “conditions [we]re chronic,” and that
there was no “anticipated end date to this period of inca-
pacitation since her medical conditions [we]re ongoing and
the flare-ups [we]re unpredictable in both frequency and
duration.” Id. She submitted another letter from her med-
ical provider requesting that the agency “excuse [Ms.]
Moreno from work February 26, 2018 through April 6, 2018
due to her ongoing medical and mental health conditions,”
explaining that “[s]he [wa]s incapacitated from doing her
work duties and [wa]s on a temporary leave of absence.”
J.A. 254. The agency approved her request to “full time
telework from [] home on a trial basis” from February 26,
2018 to March 30, 2018, based on her medical provider’s
assurance that she was still able to complete her full posi-
tion description from home by telework. J.A. 256.
Though approved for full-time telework, Ms. Moreno
did not return to duty and accrued an additional 128 hours
of LWOP from February 27, 2018 through March 27, 2018.
On March 22, 2018, the agency informed Ms. Moreno that
she was expected to return to full-time duty by telework
starting on April 9, 2018, which was the first business day
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MORENO v. INTERIOR 5
after the incapacitation period identified by her medical
provider. The agency informed Ms. Moreno that no addi-
tional LWOP would be approved as a reasonable accommo-
dation.
On April 9, 2018, Ms. Moreno submitted a letter from
her medical provider stating that she would be on a tempo-
rary leave of absence from April 9, 2018 through June 1,
2018 due to her ongoing medical and mental health condi-
tions. In response, on April 23, 2018, the agency issued a
memorandum instructing Ms. Moreno to return to duty by
April 30, 2018 because her “absences ha[d] continued be-
yond a reasonable time, and [her] position need[ed] to be
filled by an employee available for duty on a regular full-
time basis.” J.A. 241–42. Continuing, the memorandum
stated in bold text: “You are hereby warned that fail-
ure to report to duty on a full-time basis or your con-
tinued absence, even if on approved leave, may
result in disciplinary action, up to and including re-
moval from Federal service.” J.A. 242. When she did
not return to work on April 30, 2018, the agency considered
her to be in an AWOL status.
On May 23, 2018, Ms. Moreno submitted a letter from
her medical provider stating that she could not work from
June 4, 2018 to June 8, 2018, but that she could return to
work part-time June 11, 2018 to July 27, 2018 for telework
from home only. This letter explained that Ms. Moreno
could return part-time for no more than twenty hours per
week. The agency did not approve any request for part-
time work.
The agency proposed to remove Ms. Moreno for exces-
sive absences and for AWOL on June 8, 2018. On June 11,
2018, Ms. Moreno returned to work on a part-time basis,
teleworking from home. On June 14, 2018, the agency re-
scinded and replaced its June 8 proposed removal with a
new proposed removal that continued to state that “[a]s of
today, you have failed to report for duty.” J.A. 187–94.
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6 MORENO v. INTERIOR
Among other things, the proposing official analyzed each of
the twelve factors set out in Douglas v. Veterans Admin-
istration, 5 M.S.P.R. 280 (1981), stating with respect to fac-
tor 11 (mitigating circumstances): “I acknowledge that you
have a medical condition(s) but the agency has accommo-
dated you by allowing you to telework from your home.”
J.A. 193. In her response to the proposed removal, Ms.
Moreno argued that she was not “approached about an al-
ternative to leave or other accommodations for [her] known
condition” and that she was now “back to work, showing
that with the appropriate measures in place, includ[ing]
leave as an accommodation, [she] was able to do [her] job.”
J.A. 687–88.
The deciding official sustained the excessive absence
and AWOL charges, removing Ms. Moreno from her posi-
tion. The deciding official examined each of the twelve
Douglas factors, J.A. 41–44, explaining that although
Ms. Moreno had no prior history of disciplinary actions or
unsatisfactory performance ratings, her prolonged unavail-
ability caused an extra workload for her colleagues, J.A. 42.
Regarding Douglas factor 11, the deciding official con-
cluded that Ms. Moreno’s medical conditions were neither
an aggravating nor mitigating factor. Explaining that
Ms. Moreno’s “medical provider maintained repeatedly
that [Ms. Moreno] could return to [her] Contract Specialist
position with additional time for recovery,” the official
noted that the medical documentation did not support her
inability to perform the essential duties of her position that
would initiate the process for a possible reassignment. J.A.
44. The deciding official also determined that the serious-
ness of the offense, Ms. Moreno’s position, effect on future
performance, clarity of notice, availability of alternative
sanctions, and potential for rehabilitation were aggravat-
ing Douglas factors.
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MORENO v. INTERIOR 7
II
In an initial decision, an Administrative Judge sus-
tained Ms. Moreno’s removal, but determined that the
agency had not established the excessive absences charge
because it could not rely on the 240 AWOL hours for both
charges. The Administrative Judge upheld the AWOL
charge, examining the two factors relevant to the charge:
(1) whether the employee was absent from duty; and
(2) whether the absences were not authorized or a request
for leave was properly denied. J.A. 8. The Administrative
Judge concluded that the first factor was satisfied, given
that neither party disputed that Ms. Moreno was absent
from duty for 240 hours from April 30, 3018 until June 11,
2018. Id.
Regarding the second factor, the Administrative Judge
found “no dispute that [Ms. Moreno] was incapacitated for
duty for the dates that the agency charged the appellant
with AWOL from April 30 through June 8, 2018” and that
Ms. Moreno had exhausted all her leave by April 30, 2018.
J.A. 9. The Administrative Judge then stated that “[t]he
only disputes are whether there was a ‘foreseeable end’ to
the absences and whether the appellant’s absences were a
burden.” Id. (quoting Joyner v. Dep’t of the Navy, 57
M.S.P.R. 154, 159 (1993)). The Administrative Judge de-
termined that the agency “had good cause to be weary of
the medical provider’s weak assurances” of Ms. Moreno’s
ability to return to work full-time after July 27, 2018. J.A.
9. The Administrative Judge then concluded that the
“agency’s position is persuasive and supported by prepon-
derant evidence.” J.A. 10. Subsequently, the Administra-
tive Judge concluded that Ms. Moreno’s absences were a
burden on the agency because the agency established by
preponderant evidence that Ms. Moreno’s unavailability
created a significant hardship on the agency.
Based on these findings, the Administrative Judge up-
held the AWOL charge and determined the agency had
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8 MORENO v. INTERIOR
established a nexus between the AWOL charge and the ef-
ficiency of the service. The Administrative Judge also con-
cluded that the agency met its burden to establish the
reasonableness of the removal penalty based on the AWOL
charge alone. Without independently analyzing the Doug-
las factors, the Administrative Judge determined that it
found “nothing unreasonable in the deciding official’s
weighing of the factors pertinent to the penalty.” J.A. 23.
Because of a lack of quorum at the Merit Systems Protec-
tion Board, this initial decision became the Board’s final
decision without further review.
Ms. Moreno appeals the Board’s decision. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
I
We must affirm the Board’s decision unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Higgins v. Dep’t of Veterans Affs.,
955 F.3d 1347, 1353 (Fed. Cir. 2020). We may set aside
agency determinations that fail to “examine the relevant
data and articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found
and the choice made.’” Motor Vehicle Mfrs. Ass’n. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).
To take adverse action against an employee, an agency
must (1) “establish by preponderant evidence that the
charged conduct occurred,” (2) “show a nexus between that
conduct and the efficiency of the service,” and (3) “demon-
strate that the penalty imposed was reasonable in light of
the relevant factors set forth in Douglas.” Malloy v. U.S.
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MORENO v. INTERIOR 9
Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009) (first cit-
ing 5 U.S.C. § 7701(c)(1)(B); and then citing Douglas, 5
M.S.P.R. at 307–08).
II
A
Agencies are required to demonstrate that they en-
gaged in reasoned decision-making when reaching a deter-
mination. See State Farm, 463 U.S. at 52. An agency
decision is arbitrary and capricious if the agency “entirely
failed to consider an important aspect of the problem, of-
fered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise.” Id. at 43. Here, Ms. Moreno urges us
to set aside the agency’s revocation of LWOP and charge of
AWOL because Ms. Moreno had a legitimate and docu-
mented medical reason for her absence.
To the extent Ms. Moreno suggests that an agency can-
not charge an employee with AWOL no matter the length
of the absence and other factors so long as there is a medi-
cal reason for the absence, we disagree. We are aware of
no such per se rule; nor does Ms. Moreno cite any case law
or other support for such a contention. Here, the agency
explained its reasons for charging AWOL in the April 23,
2018 memorandum, the Notice of Proposed Removal, and
the Decision on Proposed Removal. The Agency explained
that Ms. Moreno’s unavailability to work due to her medi-
cal condition created a significant hardship to her division
and co-workers, who were already short-staffed; that the
agency made attempts to accommodate Ms. Moreno by ap-
proving leave for six months and telework; that her posi-
tion needed to be performed full-time; and that her
absences continued beyond a reasonable time.
In this case, the agency’s explanation for charging
AWOL is sufficient for us to conclude that the removal was
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10 MORENO v. INTERIOR
the product of reasoned decision-making. Accordingly, we
affirm the Board’s decision sustaining the AWOL charge.
B
We nonetheless vacate the penalty of removal and re-
mand the case because the Board failed to provide a proper
analysis of the Douglas factors. When the Board sustains
fewer than all of the agency’s charges, it should determine
the maximum reasonable penalty unless the agency has in-
dicated that it desires that a lesser penalty be imposed on
fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260
(Fed. Cir. 1999). In this case, the agency did not indicate
that it desired a lesser penalty than removal in the event
the Board sustained only the AWOL charge. Thus, under
Lachance, the Board was in the position to determine the
maximum reasonable penalty. We have held that where,
as here, the Board must independently determine the pen-
alty, the Board is required to independently balance the
relevant Douglas factors. See Tartaglia v. Dep’t of Veterans
Affs., 858 F.3d 1405, 1408 (Fed. Cir. 2017) (explaining that
the Board is required to independently balance the rele-
vant Douglas factors when reviewing agency penalties
upon fewer charges than those brought by the agency) (cit-
ing Lachance, 178 F.3d at 1257).
The Board failed to do so here. Under Lachance and
Tartaglia, the Board should have independently consid-
ered all of the Douglas factors, including Ms. Moreno’s po-
tential for rehabilitation given that she had returned to
work part-time, whether Ms. Moreno’s medical conditions
were a mitigating factor, and whether lesser sanctions
than removal would have been adequate in Ms. Moreno’s
case. See Purifoy v. Dep’t of Veterans Affs., 838 F.3d 1367,
1372 (Fed. Cir. 2016). Instead, the Board merely listed the
factors the deciding official considered aggravating and
those he considered mitigating. Rather than an independ-
ent analysis, the Board then summarily concluded that it
“f[ound] nothing unreasonable in the deciding official’s
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MORENO v. INTERIOR 11
weighing of the factors pertinent to the penalty” and that
“the absences pertinent to [the AWOL charge] suffice to
render the agency’s removal penalty within the bound of
reasonableness.” J.A. 23. The Board’s remarkably short
and deferential analysis falls far short of what is required
under our precedent.
At oral argument, the Government urged our court to
piece together what we think would be the Board’s Douglas
analysis from statements in other portions of the Board’s
opinion. Oral Arg. at 23:30–25:30, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=20-1507_0506202
1.mp3. Citing Robinson v. Department of Veterans Affairs,
923 F.3d 1004 (Fed. Cir. 2019), the Government similarly
argued that we could glean the Board’s analysis from the
entirety of the opinion. See Resp. Br. 31. We decline the
Government’s invitation, particularly in this case where
the Board’s opinion leaves us unaware of its analysis of
Douglas factor 11—mitigating circumstances including
medical illness and mental impairment. Thus, the Board’s
analysis lacked the independent analysis required by Tar-
taglia and requires a remand.
On remand, we advise the Board to be mindful of its
treatment of Ms. Moreno’s medical evidence in its Douglas
analysis. We note that the deciding official’s treatment of
Ms. Moreno’s medical evidence in the context of the Doug-
las factors was seemingly inconsistent. On the one hand,
the deciding official stated: “The Agency was aware that
your absences were beyond your control due to your medi-
cal condition.” J.A. 41. Likewise, the deciding official
stated: “[Y]our supervisor and I have lost confidence in
your dependability, i.e., your ability to perform the duties
of your position on a consistent, full-time basis, due to your
excessive absences and the extended period of AWOL.”
J.A. 42. At the same time, however, in concluding that
Douglas factor 11, mitigating circumstances, was an aggra-
vating factor, the deciding official stated: “Your medical
provider maintained repeatedly that you could return to
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12 MORENO v. INTERIOR
your Contract Specialist position with additional time for
recovery from your medical conditions. The medical docu-
mentation did not support your inability to perform the es-
sential duties of your position . . . .” J.A. 44. In addition,
we ask that the Board more clearly address whether
Ms. Moreno’s ability to work part time supports rehabilita-
tion as a mitigating factor.
CONCLUSION
For the reasons set forth above, we vacate and remand
the Board’s decision.
VACATED AND REMANDED
COSTS
Costs to Petitioner.