Teresa J. Washington v. Department of the Army

DAVIS, Circuit Judge,

dissenting in part.

In my view the penalty of removal was far too severe for the only offense committed by petitioner, failure to comply with the agency’s demand for a detailed specification of her condition. At least from March 22, 1985, when petitioner presented the first note from Dr. Savarese the agency knew that Ms. Washington was pregnant, that her expected date of confinement was late in September 1985, that she had a high *395risk of premature delivery, and that the doctor recommended she stop work May 1, 1985 and return on January 6, 1986. A second note from Dr. Savarese (delivered to the agency on April 26, 1985) informed the agency that her maternity leave should start April 22, 1985; this note was apparently in response to the agency’s demand that she furnish medical documentation for her statement to the agency that she began to experience abdominal pains during the weekend prior to April 22, 1985. There was no contrary evidence before the agency. I must conclude that by April 26, 1985 the agency “was well-advised of the seriousness of the petitioner’s condition” (to quote Foster v. Department of Health and Human Servs., 18 M.S.P.R. 339 (MSPB 1983). In Schultz v. United States Navy, 810 F.2d 1133 (Fed.Cir.1987), we recently held that a physician’s summary certification that the employee-petitioner was “totally disabled for her present position” (and work would cause her mental and emotional harm) was enough to alert that employing agency as to that employee’s condition and enough to found a grant of leave (which was denied there as here).

I agree that this agency could, if it wished and did, require further details and specifications before granting leave, but petitioner’s failure to supply those details is the only misconduct she committed. For that offense — minor in this instance because the agency clearly had no need of those details to decide that she was pregnant and was at risk of premature delivery and had already begun to experience some pains — the penalty of removal is much too severe. For me this case is parallel to Foster, supra, in which the Merit Systems Protection Board reduced a removal (for violation of the agency’s rules on requesting leave) to a suspension. Nor do I think that petitioner’s prior taking of leave, all of it approved, can transform the penalty for this minor offense into the major sanction of removal. That extreme sanction was an abuse of discretion in the circumstances existing here.