             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                       05-3381


                                  LYNDA L. WIENS,

                                               Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                               Respondent.

                           ____________________________

                               DECIDED: April 4, 2006
                           ____________________________


Before NEWMAN, LOURIE, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Lynda Wiens (“Wiens”) appeals from the final decision of the Merit Systems

Protection Board (the “Board”) sustaining her dismissal from the Department of the

Treasury (the “Agency”).    Wiens v. Dep’t of the Treasury, No. SF-3443-04-0667-I-1

(M.S.P.B. Aug. 3, 2005). We affirm.

                                   BACKGROUND

      Wiens was formerly a phone assistor in the cold call unit of the compliance

department at the Internal Revenue Service’s Fresno campus. Wiens v. Dep’t of the

Treasury, No. SF-3443-04-0667-I-1, slip op. at 1-2 (M.S.P.B. Nov. 19, 2004) (“Initial
Decision”). One of her responsibilities was to field “cold call” questions on various types

of audits over the phone. Effective June 24, 2004, the Agency removed Wiens from her

position based on a charge of absence without leave (“AWOL”), supported by 12

specifications consisting of 111 hours of AWOL over a month and a half-period from

December 15, 2003, to January 30, 2004. Id. On each of the 12 occasions of AWOL

that led to her removal, Wiens did not report for duty. Id., slip op. at 2. On one

occasion, January 21, 2004, she told an acting supervisor that she did not feel well but

did not contact her actual supervisor to request leave, as she was advised to do. Id.

Because no leave was granted, she was charged with 10 hours of AWOL for that day.

Id. On another occasion, Wiens requested that her scheduled day off be changed from

January 30, 2004, to January 26, 2004, and that request was granted by her supervisor,

Dawn Hall (“Hall”). Id. However, Wiens did not report for work on January 30, 2004, did

not contact Hall or otherwise request leave, and was therefore charged with 10 hours of

AWOL for that day. Id.

       On the other 10 occasions (December 15, 16, 17, and 18, 2003, and January 14,

15, 20, 22, 27, and 29, 2004), Wiens did not report for duty. Id. On those days, she

called in and left voice-mail messages for her supervisor that she was stranded on the

highway, not feeling well, or would be a little late.        Id.   However, Wiens did not

specifically request leave on any of those 10 occasions, and, with the exception of 9

hours granted to her on January 14th, 2004, none was granted, resulting in the

accumulation of 111 hours of AWOL. Id. In addition, Wiens had no sick or annual leave

available for her use on any of the dates in question. Id.




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       On February 12, 2004, the Agency notified Wiens that it was proposing to

remove her for repeated AWOL, supported by the 12 specifications as well as two

previous disciplinary actions she received for AWOL: a Letter of Reprimand dated

September 24, 2002, and a five-day suspension effective June 23, 2003. The Agency

then removed Wiens, effective June 24, 2004. She timely appealed to the Board.

       The Administrative Judge (“AJ”) sustained the Agency’s charge and concluded

that the penalty of removal was reasonable. Id., slip op. at 5-6. First, the AJ sustained

the charge of repeated AWOL because Wiens did not dispute that she was absent on

the day in question underlying the 12 specifications, and she did not request leave or

have any leave to request on those days. Id., slip op. at 5. The AJ then rejected Wiens’

arguments that she had requested leave without pay (“LWOP”) instead of AWOL, and

that the Agency did not properly grant her leave pursuant to the Family Medical Leave

Act of 1993 (“FMLA”), 5 U.S.C. § § 6381-87. Id., slip op. at 3-5. The AJ found that

there was no indication that Wiens had requested LWOP, and even if she had, it was

within the Agency’s discretion not to grant it in light of her previous reprimand, five-day

suspension, and four previous sick restriction letters. Id., slip op. at 3. The AJ also

determined that Wiens had been granted more than the maximum amount of FMLA

leave within the 12-month period preceding her termination, and thus the Agency’s

failure to grant additional FMLA leave was not unreasonable. Id., slip op. at 5.

       In addition, the AJ rejected Wiens’ argument that the Agency’s failure to grant her

FMLA leave was the reason for her earlier reprimand and suspension for AWOL. Id.,

slip op. at 4. The AJ observed that Wiens had applied for FMLA leave on February 26,

2002, and was approved for 200 hours of such leave for chronic migraine headaches.




05-3381                                 -3-
Id. The AJ found, however, that Wiens did not apply for additional FMLA leave at the

end of that 200-hour period, despite repeated notification and advice from her manager

to do so. Id. The AJ then determined that Wiens received the Letter of Reprimand on

September 24, 2002, only after the 200 hours of FMLA leave had expired. Id., slip op.

at 4.

        Finally, the AJ concluded that the penalty of removal was reasonable because

one of the purposes of Wiens’ position was “to unburden higher-graded tax examiners

by having lower-graded clerical workers, such as [Wiens], act as phone assisters,

fielding ‘cold call’ questions on numerous types of audits,” and her repeated absences

placed an undue burden on higher-graded personnel that affected the efficiency of the

service. Id., slip op. at 6.

        Wiens sought review by the full Board, the Board denied her petition, and the

AJ’s decision became the final decision of the Board. See 5 C.F.R. § 1201.113(b).

Wiens timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     DISCUSSION

        The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

        On appeal, Wiens argues that the Board failed to take into account her February




05-3381                                 -4-
26, 2002, request for FMLA leave, and that if she had been granted the 480 hours of

FMLA leave at that time rather than the 200 hours which she did receive, she would not

have incurred the charges that led to her removal. According to Wiens, her doctor

advised her to take leave under FMLA and she submitted the required documentation to

support 480 hours of FMLA leave on February 25, 2004. Wiens also contends that the

Agency violated FMLA regulations when it approved only 200 hours of FMLA leave

rather than the 480 hours she had requested in her FMLA application. In addition,

Wiens asserts that the Agency violated her rights by using her FMLA entitlements “in a

negative factor.” Finally, Wiens argues that her employment records submitted to the

Board were “inaccurate” and that “modifications” were made to her attendance records.

      The government responds that the Board properly considered Wiens’ request for

FMLA leave in determining that her removal was reasonable. The government also

argues that the Agency acted properly in addressing Wiens’ request for FMLA leave in

February 2002 because the doctor did not certify a number of hours for FMLA leave and

she did not reapply for more FMLA leave after the 200 hours she was granted had

expired. In addition, the government asserts that Wiens was not penalized for leave

she took pursuant to the FMLA: her removal was based on excessive AWOL when she

was not taking or entitled to FMLA leave. Finally, the government argues that there was

no evidence in the record that the Agency’s employment records for Wiens were

inaccurate or that her attendance records had been modified.

      We agree with the government that the Board did not fail to take into account

Wiens’ February 26, 2002, request for FMLA leave. The Board specifically considered

her request for FMLA leave and found that the specifications of AWOL that led to her




05-3381                               -5-
removal occurred after she had exhausted the 200 hours of FMLA that was approved.

Initial Decision, slip op. at 3-4.

       We also agree with the government that the Agency did not act improperly in

addressing Wiens’ February 26, 2002, request for FMLA leave.                   5 C.F.R.

§§ 6310.1203(a)(4) provides that eligible federal employees are “entitled to a total of 12

administrative workweeks of unpaid leave during any 12-month period for . . . [a] serious

health condition of the employee that makes the employee unable to perform any one or

more of the essential functions of his or her position.” However, an agency may require

that a request for leave under § 631.1203(a)(4) “be supported by written medical

certification,” and also require “subsequent medical recertification on a periodic basis,

but not more than once every 30 calendar days, for leave taken for purposes relating to

. . . chronic conditions.” 5 C.F.R. §§ 630.1207(a), (j) (2005).

       Here, there is evidence in the record to suggest that Wiens initially requested 480

hours of leave in her February 26, 2002, application, and the Agency later determined

that her request was for 200 hours. However, nothing in the FMLA regulations requires

that agencies must grant 480 hours of FMLA leave for a 12-month period every time an

employee applies for it. Moreover, Wiens’ physician did not indicate a number of hours

of FMLA leave in his medical certification. Thus, the Agency did not act improperly in

granting Wiens 200 hours of FMLA leave, and then requiring Wiens to submit further

medical certification for additional leave.

       Further, there is no merit to Wiens’ argument that she was not given notice when

she had exhausted the 200 hours of FMLA leave. On March 5, 2002, Wiens received

notice that she had been approved for 200 hours of FMLA leave. At the end of that




05-3381                                   -6-
200-hour period in July 2002, Wiens was informed by her supervisor that she would

need to provide a doctor’s note in order to be recertified. See 5 C.F.R. § 630.1203(g)

(2005) (“Each agency shall inform its employees of their entitlements and

responsibilities under [the FMLA regulations], including the requirements and obligations

of employees.”). Even though Wiens was notified of the requirements for obtaining

additional FMLA leave, she failed to reapply or re-certify. Thus, the Agency was entitled

to consider Wiens’ absences after her FMLA leave expired to be AWOL.

      Finally, we reject Wiens’ argument that the Board violated her rights by using her

FMLA entitlements “in a negative factor.” Wiens was not penalized for leave she took

pursuant to the FMLA. Rather, the Agency removed Wiens based on her repeated

occasions of AWOL when she was not taking or entitled to FMLA leave. There is also

no evidence to support Wiens’ assertion that her employment records were inaccurate

and her attendance records were modified. Whether the records were accurate is a

credibility determination based on conflicting testimony, and we defer to the trier of fact

on that issue. See Hambsch v. Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)

(credibility determinations “virtually unreviewable” on appeal).      Here, there is no

evidence in the record that the employment records were inaccurate or that the

attendance records had been modified.         Therefore, we conclude that the Board’s

determination that the records were accurate was not “unsupported by substantial

evidence.”

      We have considered Wiens’ remaining arguments and find them unpersuasive.

We therefore affirm the Board’s decision.




05-3381                                 -7-
