             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
                                       04-3461


                                   GARY WARREN,

                                                             Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                             Respondent.

                              ______________________

                              DECIDED: August 4, 2005
                              ______________________



Before MICHEL, Chief Judge, SCHALL and LINN, Circuit Judges.

PER CURIAM.

      Gary Warren petitions for review of the final decision of the Merit Systems

Protection Board, Docket No. AT-0752-01-0872-M-1, affirming his removal from his

position as Mailhandler with the United States Postal Service. We affirm.

                                           I.

      Mr. Warren was removed effective July 28, 2001 for unsatisfactory attendance

due to five unscheduled absences in April and May of 2001. Since 1999, Mr. Warren

attributed most of his absences to his medical condition, including “back, sinus, and

psychological” problems and has continuously stated that his absences qualify for leave
under the Family and Medical Leave Act (FMLA). In March 1999, following mediation,

Mr. Warren entered into an agreement with Postal Service management regarding his

attendance. The agreement stated that (1) Mr. Warren would recertify his qualification

for FMLA by providing new medical documentation every six months; (2) the Postal

Service would provide notice of the needed medical documentation thirty days prior to

the due date; and (3) the Postal Service would notify Mr. Warren when his work hour

balance was close to or fell below the 1,250 hours threshold required for FMLA.

      Between April 1999 and April 2000, Mr. Warren continued to be periodically

absent from work. In April 1999, Mr. Warren was absent for 17 days, claiming that he

was on FMLA.     However, the Postal Service deemed that Mr. Warren was Absent

Without Leave (AWOL) since he did not have enough hours to meet the requirement for

leave under the FMLA.     As a result, the Postal Service issued a letter of warning

notifying him that he could be disciplined for this type of behavior in the future. In

September 1999, the Postal Service imposed a 7-day suspension due to 44 cumulative

hours of unscheduled absences and tardiness during May to August 1999 and again

warned Mr. Warren of possible harsher disciplinary actions. Mr. Warren responded that

every one of the absences had been approved.         In April 2000, the Postal Service

imposed a 14-day suspension due to 1.34 cumulative hours of AWOL over six days

during January and February of 2000.      Mr. Warren replied that he was having car

problems.

      On April 28, 2000, Mr. Warren went on approved FMLA. By July 1, 2000, he had

used the maximum amount of leave (480 hours) allowed under the FMLA statute.




04-3461                                    2
When he tried to return to work on August 21, 2000,1 the Postal Service told him that he

needed to provide clearance from his doctor to return from FMLA leave. On September

21, 2000, Mr. Warren provided this clearance which allowed him to return to work on

September 25, 2000.       On November 11, 2000, the Postal Service terminated Mr.

Warren for unsatisfactory attendance from August 21 to September 25, 2000.          Mr.

Warren appealed this decision to the Board. On March 8, 2001, the Board reversed the

Postal Service’s decision and reinstated Mr. Warren retroactively effective to November

11, 2000. The Board held that as the Postal Service did not give Mr. Warren a deadline

to submit the doctor’s clearance, his removal was improper. Mr. Warren returned to

work on March 15, 2001.

      In his first two months back on the job, Mr. Warren incurred eight more

unscheduled absences. On the day of each absence, he called stating that he would

not be coming to work and seeking leave under FMLA. On April 25, 2001, the Postal

Service notified Mr. Warren that he did not meet the minimum “hours worked” for FMLA.

The first three absences were incorrectly approved by his new supervisor, Mr. Gould,

who did not know that Mr. Warren was ineligible for FMLA. As a result of Mr. Gould’s

error, the Postal Service did not charge Mr. Warren for these first three absences. Of

the last five absences, Mr. Warren’s supervisor approved four days as sick leave, since

Mr. Warren did not qualify for FMLA. The final absence was classified as AWOL since

Mr. Warren did not qualify for FMLA and he refused to provide supporting medical

documentation for sick leave.




1
  From the record, it is not clear what Mr. Warren’s status was from June 30, 2000 to
August 21, 2000.


04-3461                                    3
      In the end, the Postal Service removed Mr. Warren effective July 28, 2001 for

unsatisfactory attendance. Focusing on the “unscheduled” nature of the absences, not

whether they were later approved, the decision letter stated that these absences clearly

affected the efficiency of postal operations by placing a burden on the service and the

other employees.

      Mr. Warren appealed his removal to the Board and also alleged that his removal

was motivated by retaliation for filing a prior MSPB appeal. The Board upheld the

Postal Service’s action, finding that the agency had established Mr. Warren’s

unsatisfactory attendance, the existence of a nexus between the sustained charges and

the efficiency of the service, and finally the reasonableness of the penalty imposed by

the agency. The Board found that Mr. Warren did not establish that his removal was

motivated by retaliation, because he did not offer any evidence that the agency’s

removal was related to his prior MSPB appeal and because his supervisor at the time of

his removal played no part in and knew little about Mr. Warren’s history with the agency.

This appeal followed.

                                           II.

A.    Standard of Review

      When reviewing a decision of the Board, pursuant to 5 U.S.C. § 7703(c) (2000)

this court must hold unlawful and set aside any agency action, finding or conclusions

found to be (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.

Substantial evidence is defined as “such relevant evidence as a reasonable mind might




04-3461                                    4
accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor

Relations Bd., 340 U.S. 474, 477 (1950).

B.       Removal for Unsatisfactory Attendance

         To sustain removal, the Postal Service must prove three elements by

preponderance of the evidence: (1) the employee actually committed the charged

conduct; (2) a sufficient nexus exists between the conduct and the efficiency of the

Agency; and (3) the penalty is reasonable. See Pope v. U.S. Postal Serv., 114 F.3d

1144, 1147 (Fed. Cir. 1997). Mr. Warren does not appeal the Board’s findings on the

latter two elements.

         On the remaining point, Mr. Warren argues that the evidence clearly weighs

against the decision of the Board to hold him liable for unsatisfactory attendance. Mr.

Warren’s arguments fall into two main categories. We will discuss each in turn.

1.       Absences Not “Unscheduled”

         Mr. Warren contends that his absences were not “unscheduled” for three

reasons.2 First, Mr. Warren argues that his absences were not unscheduled since he

made his best effort to avoid absences and since he called before every shift that he

missed. Mr. Warren points to his Notice of Proposed Removal letter dated June 13,

2001 that quoted the Employee Labor and Relations Manual (ELM) 511.43 stating that

employees must make every effort to avoid unscheduled absences. Mr. Warren argues

that the Postal Service has no proof that he did not use “his utmost best effort in

advance notification.” As evidence of his best effort, Mr. Warren states that he called

“well prior” to his schedule reporting time. While the record does not reflect the Board’s



2
     At trial, Mr. Warren did not dispute that his absences were unscheduled.


04-3461                                       5
findings regarding the level of Mr. Warren’s effort, postal records do show that for the

absences in April and May 2001, Mr. Warren called the Postal Service no more than

four hours and fifteen minutes prior to his reporting time.3 The Board found that any

absence which is “not requested and approved in advance” is considered “unscheduled”

under ELM 511.41. The portions of the ELM in the record do not specify the amount of

advanced time required for approval of an absence, but presumably four hours

beforehand is not enough. The Postal Service did not dispute that Mr. Warren called

prior to each absence; rather, his many unscheduled absences represented a pattern of

misconduct which negatively affected the efficiency of the Postal Service. The Board

pointed to Mr. Warren’s repeated counseling on his unsatisfactory attendance and

found that Mr. Warren’s absences were unscheduled.

      Second, Mr. Warren contends that his absences were not “unscheduled”

because his type of condition should fall into the “emergency category.”      Per ELM

666.82, employees who fail to report for duty will be considered AWOL except in actual

emergencies which prevent them from obtaining permission in advance. Mr. Warren

states that he had actual emergencies on those five days which prevented him from

obtaining permission in advance.     However, Mr. Warren offers no proof as to the

emergency nature of these absences which, if they were true emergencies, presumably

would have required immediate medical attention creating acceptable documentation.

      Finally, Mr. Warren argues that as result of previously submitted medical

documentation, the Postal Service was on notice that he might regularly need to take



3
  Mr. Warren called forty minutes prior for the April 25, 2001 absence, two hours and
ten minutes prior for the May 9, 2001 absence, ten minutes prior for the May 15, 2001
absence, and four hours and fifteen minutes prior for the May 23-24, 2001 absence.


04-3461                                    6
leave due to his permanent disability and therefore his absences should not be

considered “unscheduled.” Mr. Warren submitted documentation on October 25, 1999

and April 25, 2001 from his doctor regarding his condition.     However, Mr. Warren

submitted this documentation for the purposes of qualifying for FMLA and attempting to

be placed in a light duty status. This previous documentation is not acceptable to

explain his later unscheduled absences. Notwithstanding, the Postal Service’s policy is

that acceptable documentation does not negate an unscheduled absence, it merely

allows for an employee to receive pay for the period of the absence.         Thus, the

previously submitted documentation is not relevant to whether or not his absences were

unscheduled.

      The Board had substantial evidence to find that Mr. Warren was absent on the

dates in question and that each absence was “unscheduled.” Mr. Warren’s arguments

on appeal ignore the distinction between “approved absences” and “unscheduled

absences.” Under Board precedent, the Postal Service may discipline an employee for

use of unscheduled leave even if that leave is later approved.         Prior to taking

disciplinary action, the Postal Service must show that the employee did not request

leave in accordance with the Postal Service’s leave-requesting procedures and the

employee was on clear notice that these unscheduled absences may result in

disciplinary action. Hamilton v. Merit Sys. Prot. Bd., 84 M.S.P.R. 635 (1999). Mr.

Warren does not dispute that he was absent from work on the days in question. Based

upon testimony of the Labor Relations Specialist, the Board found that Mr. Warren was

counseled in both his 7-day and 14-day suspension letters on the consequences of his

unsatisfactory attendance. Therefore, the Board had substantial evidence to support a




04-3461                                   7
charge of unsatisfactory attendance since Mr. Warren’s absences were unscheduled

and Mr. Warren had the proper notice of his possible removal.

2.    Absences Should Be Considered FMLA

      In addition, Mr. Warren contends that his absences should not be characterized

as unscheduled absences because they should have been approved as leave as under

FMLA.4 Mr. Warren argues that he has met the requirements for FMLA and therefore

should be eligible to take intermittent leave under the statute. At the Postal Service to

qualify for FMLA, an employee must have been employed by the Postal Service for at

least twelve months, must have incurred at least 1,250 hours of service during the

previous twelve months and must submit medical documentation of the condition which

qualifies for FMLA. No one disputes that Mr. Warren has been employed by the Postal

Service for at least twelve months.

      Mr. Warren maintains that he had nearly the 1,250 hours of service required by

the FMLA statute. Based on applicable twelve month period, the parties differ on how



4
   The Family and Medical Leave Act (FMLA) of 1993 states that an eligible employee
shall be entitled to a total of 12 work weeks of unpaid leave during any 12-month period
because of a serious health condition that makes the employee unable to perform the
functions of his position. 29 U.S.C. §§ 2611-2619(a)(1)(D) (2000). FMLA may be taken
all at once or “intermittently.” 29 C.F.R. § 825.203 (2004). As of February 5, 1994,
employees of the Postal Service subject to the collective bargaining agreement are
covered by FMLA. See Ramey v. U.S. Postal Serv., 70 M.S.P.R. 463 (1996).

       To be eligible for FMLA, an employee (1) must have been employed by the
employer for at least 12 months and (2) must have accrued at least 1,250 hours of
service during the previous 12-month period. 29 U.S.C. § 2611(2) (2000). Finally, the
employer may require that the employee who is requesting FMLA for a serious health
condition provide a supporting medical certification. 29 U.S.C. § 2613(a)-(b) (2000).
This documentation shall be sufficient if it states the date on which the condition
commenced, its probable duration, appropriate medical facts regarding the condition
and, in the case of certification for intermittent leave, the expected duration of the
intermittent leave. Id.


04-3461                                    8
Mr. Warren’s hours of service should be calculated. Under its calculation, the Board

found that Mr. Warren had at most 1240.49 hours of service, which is less than the

required 1,250 hours for FMLA.5 In his reply brief, Mr. Warren offers a new theory

arguing that the Board’s FMLA calculation is missing forty hours and therefore Mr.

Warren should be given credit for 1,280 hours of service.6 This court has held that a

party in an MSPB proceeding must raise an issue before the administrative judge if the

issue is to be preserved for review in this court. Bosley v. Merit Sys. Prot. Bd., 162 F.3d

665, 668 (Fed. Cir. 1998). From a review of the record, it does not appear as though

Mr. Warren argued this “missing forty hours” discrepancy before the administrative

judge; therefore, this court will not consider this argument.

       As part of his “missing forty hours” argument, Mr. Warren contends that the issue

of whether the definition of “hours worked” under FMLA statute includes hours on



5
    The Board based its calculation on the testimony of the Mr. Warren’s FMLA
coordinator. For the April 25, 2001 absence, the period in question in terms of
calculating FMLA is April 25, 2000 to April 25, 2001. Based on that period, the FMLA
coordinator testified that Mr. Warren should be credited with 328.49 hours for hours
worked from March 15, 2001 to June 1, 2001 and 704 hours for November 11, 2000 to
March 15, 2001 from his reinstatement by the Board, for a total of 1032.49 hours.
Normally, the FMLA coordinator testified, she does not include administrative leave
periods in the calculation for FMLA because this is a period that an employee is paid for
but does not actually work. However, even if Mr. Warren’s 208 hours of administrative
leave from September 24, 2000 to November 11, 2000 is included in the calculation, the
total hours of service is only 1240.49. Therefore, even under the more generous
standard, the Board found that Mr. Warren still had less than the required 1,250 hours.
6
    Mr. Warren bases his new calculation on a review of the calendar between
September 26 and November 11, 2001. Mr. Warren finds thirty-one working days,
which at eight hours per day of work, is a total of 248 hours. For the same period, the
Board had found only 208 hours. However, since this argument was not presented
before the Board it is not clear how Mr. Warren defines “working days” and whether this
definition includes the holidays of Columbus Day and Veteran’s Day or whether Mr.
Warren normally worked on weekends. As a result, this court does not have enough
information to properly evaluate this argument.


04-3461                                      9
administrative leave or other “forced leave” 7 is an issue of first impression for this court.

While this may one day be an issue for decision, the facts in this case do not require us

to decide this issue at this time. As noted, the Board found that even if the period of

administrative or “forced” leave were added, Mr. Warren would not have the requisite

1,250 hours necessary to be eligible for FMLA.

       Next, Mr. Warren argues that based on the mediation agreement from March

1999, he should have been given 30 days notice that his hours of service had fallen

below the threshold required for FMLA. Mr. Warren states that his first notice was in an

April 25, 2001 letter from his supervisor and thus the Postal Service should not consider

those absences from April 25 to May 25, 2001 for the purposes of his removal, as they

occurred within thirty days of his notice letter. However, Mr. Warren has misinterpreted

the mediation agreement.      The thirty-day notice period in the mediation agreement

applies to the requirement for recertifying medical documentation, not to the notification

of work hour balance. The mediation agreement is silent as to when the Postal Service

must notify Mr. Warren that he is close to or below the 1,250 hours requirement. As a

result, the April 25, 2001 letter meets the Postal Service’s notice obligation under the

medication agreement and Mr. Warren is not entitled to any grace period. Despite all

Mr. Warren’s arguments on appeal, the Board had sufficient evidence to find that Mr.

Warren lack the requisite number hours of service for FMLA.

       Finally, Mr. Warren argues that the medical certification he submitted on October

19, 1999 and again on April 26, 2001 meets the requirements for FMLA. While this may

be the case, this documentation does not specifically explain if the later five absences

7
  On appeal, Mr. Warren labels the period from September 26, 2000 to November 11,
2000 including the new forty hours as “forced leave.”


04-3461                                      10
from April and May of 2001 were actually related to Mr. Warren’s medical condition.

The Postal Service has the discretion to require specific documentation when an

employee requests FMLA to determine if the absence should be covered by FMLA.

The Postal Service requested documentation from Mr. Warren to explain these

absences and he did not provide it. Therefore, the previously submitted documentation

for FMLA is not sufficient to meet this requirement.

      The Board correctly noted that in the past it has considered the employee’s rights

and requirements under FMLA to be relevant and material considerations in determining

if the Postal Service has proven its charge of unsatisfactory attendance, provided that

the employee met the FLMA requirements. Hamilton, 84 M.S.P.R. at 635. However, in

order for an employee to be qualified for FMLA, that employee must meet the eligibility

requirements. As previously discussed, the Board properly found that Mr. Warren did

not qualify for FMLA.

      Most of Mr. Warren’s arguments center on his FMLA status or his light duty

status due to his condition and the associated documentation requirements for each. In

fact, the documentation requirements for either status are not relevant to his removal.

Mr. Warren was not dismissed due to his light duty status, nor was he dismissed for

failure to document his need for FMLA.       Rather, the Postal Service dismissed Mr.

Warren for unsatisfactory attendance due to his five unscheduled absences.

      Therefore, we affirm the decision of the Board since the Board had substantial

evidence to affirm a charge of unsatisfactory attendance and Mr. Warren did not appeal

the other elements of the analysis.

C.    Retaliation




04-3461                                     11
       To establish retaliation as an affirmative defense, the employee must show that:

(1) the employee engaged in a protected activity; (2) the accused official knew of that

protected activity; (3) the adverse action under review could have been retaliation under

the circumstances; and (4) there was a genuine nexus between the retaliation and the

adverse action. Webster v. Dep’t of the Army, 911 F.2d 679, 689 (Fed. Cir. 1990).

       Mr. Warren argues on appeal that there is “substantial competent evidence”

supporting retaliation in his case. Mr. Warren contends that there was “an undercurrent

of retaliatory animus” towards him due to his light duty status and his favorable decision

by the Board in his prior appeal. Highlighting coincidences in dates of personnel actions

against him, Mr. Warren supports his contention by arguing that his new supervisor was

influenced by others to harass him.

       Mr. Warren points to a coincidence that the Postal Service requested medical

documentation for his light duty status on May 31, 2001, the same day that his May 6,

2001 leave was disapproved for inadequate FMLA documentation. While the dates are

the same, it is not necessarily “retaliatory animus” for Mr. Warren’s supervisor to deal

with all of Mr. Warren’s personnel issues on the same day. Mr. Warren offers no proof,

other than this bare assertion, to support his claim.

       Mr. Warren argues that his new supervisor, Mr. Gould, was influenced and

assisted by others in retaliating against him. But, the Board found that as his new

supervisor after Mr. Warren was reinstated, Mr. Gould knew little about Mr. Warren’s

personnel history. The Board supported this finding by pointing to the incident in March

2001, when Mr. Gould mistakenly approved several of requests under FMLA when in

fact Mr. Warren was not eligible for FMLA. After this error and upon discovering Mr.




04-3461                                     12
Warren’s attendance history, it was reasonable for Mr. Gould to ask for assistance from

others regarding Mr. Warren’s case. As a result, the Board found that Mr. Gould was

not acting as though he harbored a retaliatory animus towards Mr. Warren.

       Finally, Mr. Warren charges that Mr. Gould continued to ask for documentation of

his medical condition through harassing and misleading letters. The letters which Mr.

Warren deems as “challenges” to his light duty and FMLA status, we hold, were

reasonable requests for updated information on his condition.           The mediation

agreement that Mr. Warren signed with the Postal Service on March 31, 1999 stated

that he was required to submit updated medication documentation to the Postal Service

every six months. Since the agreement was dated March 1999, Mr. Warren should

have been submitting documentation at six month intervals. In fact, Mr. Warren failed to

do so, since the only paperwork that he submitted was on October 15, 1999 and April

25, 2001.    Further, Mr. Leonard Coulombe, the Senior Manager for Distribution of

Operations and the Deciding Official in Mr. Warren’s removal, testified that even

approved permanent light duty employees must bring in updated documentation to see

if there have been any changes in their limitations. Finally, while the letter dated May

31, 2001 may have been misleading, due to a clerical error, this was not the only notice

that Mr. Warren received about the need for medical documentation. The Board found

that there was no evidence that any of the agency’s communications regarding Mr.

Warren’s light duty status had anything to do with his removal. Instead, the Board found

that these communications reflected a “broad and continuing frustration with [Mr.

Warren’s] failure to respond to repeated requests for medical documentation regarding

the nature of his condition.”




04-3461                                   13
       Above all, the Board found that Mr. Warren’s prior appeal to the Board was the

protected activity, not his light duty status. However, Mr. Warren offers no evidence that

the actions of the Postal Service in removing him could have been or were in fact

retaliation for his prior appeal to the Board. As a result, the Board found Mr. Warren

failed to establish the affirmative defense of retaliation. We find that the Board had

substantial evidence to support this finding.

       For these reasons, the decision of the Board is affirmed.




04-3461                                     14
