                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2007-3324


                                 JESSE J. CORLEY,

                                                      Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                      Respondent.


      Jesse J. Corley, of Catonsville, Maryland, pro se.

      Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Franklin E. White, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

    United States Court of Appeals for the Federal Circuit

                                         2007-3324


                                    JESSE J. CORLEY,


                                                         Petitioner,
                                              v.

                        DEPARTMENT OF VETERANS AFFAIRS,

                                                         Respondent.


Petition for review of the Merit Systems Protection Board in DC075206881-I-1.

                            __________________________

                            DECIDED: May 27, 2008
                            __________________________


Before NEWMAN, and SCHALL, Circuit Judges, and ZOBEL, District Judge. ∗

NEWMAN, Circuit Judge.


       Jesse J. Corley seeks review of the decision of the Merit Systems Protection Board

affirming his removal from employment by the Department of Veterans Affairs, based on

thirty-two counts of absence without leave (AWOL). Corley v. Dep’t of Veterans Affairs,

DC075206881-I-1 (M.S.P.B. July 26, 2007). Mr. Corley states that the Board overlooked

certain factual and evidentiary issues, and that the totality of the evidence does not support

the removal action. On review of the issues and arguments, we affirm the Board’s decision.


∗    Honorable Rya W. Zobel, United States District Court for the District of
Massachusetts, sitting by designation.
                                        BACKGROUND

      Mr. Corley was employed as a GS-13 Supply Systems Analyst at the Office of

Prosthetics and Clinical Logistics of the VA. The record shows that on February 6, 2006

Mr. Corley began medical treatment at the United States Army Medical Department's

Kimbrough Ambulatory Care Center, where he was diagnosed with depression related to

stress at work, abnormal EKG, and atypical chest pain. It appears that he did not return to

work, for on February 15, 2006 Mr. Corley’s supervisor Doris Richardson issued a notice

that he was AWOL, stating that he had been absent from work since January 27, 2006 and

that he had exhausted all of his sick leave and annual leave. Nurse Janet Lee wrote to the

VA on February 21, 2006, stating that he was advised at his visit to Kimbrough to take

three weeks of sick leave for mental health reasons.

      On February 22, 2006 Mr. Corley returned to the Kimbrough Center, where Dr.

Madonna treated him “for anxiety and depression which he stated was due to stress at his

place of employment.” Dr. Madonna recommended a two-week period of sick leave; this

period ended on March 8. On March 15, 2006 Mr. Corley was assessed at the Kimbrough

Behavioral Healthcare Service, where Ms. Youle-Schoedel, Chief of Social Work Service,

recommended that Mr. Corley be placed on leave without pay status. On March 29, 2006

Mr. Corley’s supervisor Doris Richardson issued a memorandum stating that Mr. Corley

had again been absent from work since March 14, 2006 and that although she declined to

place him on leave without pay status, Mr. Corley could apply to up to twelve weeks of

unpaid leave under the Family and Medical Leave Act of 1993 (FMLA).

      Mr. Corley went to Dr. Madonna on March 29 to initiate the FMLA application. On

April 7 Dr. Madonna wrote in Mr. Corley’s “Certification of Health Care Provider” for the

FMLA application that “Mr. Corley has been diagnosed with anxiety disorder and

2007-3324                                   2
depression” and that his “prognosis is uncertain at this time.” In light of the uncertain

prognosis, Dr. Madonna was nonetheless “hopeful that he will be able to return to work

gradually by 3 months.” On June 20, 2006 supervisor Richardson notified Mr. Corley that

his twelve weeks of unpaid leave under the FMLA ended on June 5, 2006 and that he was

placed in AWOL status as of June 12, 2006. On June 29, Mr. Corley again visited Dr.

Madonna, who wrote in her report that “he told me that he was trying to change offices

within his place of employment . . . and that he is unable to return to work in the same

office.” Dr. Madonna’s notes also record that Mr. Corley “stated that trying to return to work

in the same office would certainly cause a recurrence of his anxiety and depression.” Dr.

Madonna requested forty-five days of LWOP on Mr. Corley’s behalf. This request was not

granted. On July 28, 2006 Ms. Richardson issued a Notice of Proposed Removal based on

thirty-two counts of AWOL.

       On August 16, 2006 Mr. Corley returned to Dr. Madonna, who wrote that he

“appeared more relaxed than he was at our first meeting and . . . repeated that he would

not be able to tolerate the stress of returning to his previous office and job.” Dr. Madonna

recommended that Mr. Corley “seek counseling with Behavioral Health at Kimbrough to

help define his diagnosis which should provide a basis for treatment and also help him

manage his situation.” Dr. Madonna also recommended that Mr. Corley be given sixty days

of leave without pay in order to continue treatment and further assessment. However, on

August 17, 2006, citing the sustained charges of AWOL, acting through Deputy Chief

Clinical Logistics Officer Peggy Thames, the VA removed Mr. Corley from employment

effective August 25, 2006.

       Mr. Corley appealed the removal action to the Merit Systems Protection Board,

stating that the VA had engaged in disability discrimination, retaliation for protected EEOC

2007-3324                                     3
activity, reprisal for whistleblowing, harmful procedural error, and that the penalty of

removal was not reasonable. The Administrative Judge (AJ) affirmed the removal, finding

that it was undisputed that Mr. Corley had been AWOL as charged, after exhausting his

annual leave, sick leave, and leave under the FMLA. The AJ found that Mr. Corley had not

proved disability discrimination, and that he did not allege, and the medical evidence and

physician's statements did not show, that his medical condition substantially limited any

major life activity. The AJ also found that Mr. Corley had not established retaliation,

whistleblower reprisal, or harmful procedural error.      The AJ found that the VA had

considered the Douglas factors, and that the penalty of removal was within the bounds of

reasonableness in view of the extent of the absence without leave. The full Board denied

review, and this appeal followed.

                                          DISCUSSION

       A decision of the Board is reviewed to determine whether it is "(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); see Cheeseman v. Office of

Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).

       Mr. Corley states that in early 2006 he made protected whistleblowing disclosures of

the VA's improper handling of medical recalls which negatively affected patient safety, and

that the removal action was a reprisal for this disclosure. The Office of Special Counsel, by

letter dated September 6, 2006, reported that Mr. Corley “alleged that the [VA’s] adoption of

a national tracking database created a substantial and specific danger to public health and

safety, because hospitals were not monitoring and answering the recall notices on the

database.” The Special Counsel found that “the information [Mr. Corley] provided is

2007-3324                                    4
insufficient for us to determine with a substantial likelihood that a substantial and specific

danger to public health or safety has occurred or continues to occur.” The Special Counsel

informed Mr. Corley that his file has been closed.

       The Board found that this purported whistleblowing was not a contributing factor to

the removal action because “[t]he agency has presented very strong evidence supporting

its unauthorized absence charge and removal and the appellant has not shown that

Richardson, Thames or any other official suffered any adverse consequences because of

his disclosure or otherwise had a strong motive to retaliate.” The Board stated: “Neither

has he identified any other similarly situated employees with such a lengthy absence and

AWOL who were not whistleblowers, but were not removed.” The Board held that the VA

had established by clear and convincing evidence that it would have removed Mr. Corley in

the absence of any whistleblowing. We discern no reversible error in the Board’s ruling

with respect to whistleblowing. Mr. Corley does not dispute the thirty-two counts of AWOL.

       Mr. Corley also states that the penalty of removal is disproportionate to the

sustained charges of AWOL. He points to his fourteen years of federal service and to his

outstanding overall evaluation ratings prior to his removal. He states that VA Handbook

5021, entitled “Range of Penalties for Stated Offenses,” provides that the maximum penalty

for a first offense of AWOL is a letter of reprimand. The deciding VA official Ms. Thames

declared to the Board that she “carefully reviewed the evidence record and the Douglas

factors, including his years of service, his past work record, the seriousness of the offenses

with which he was charged, and whether there were any mitigating factors justifying

mitigation of the proposed penalty.” Citing “the department’s workload, the need for Mr.

Corley’s services, his failure to complete [an assigned task], Ms. Richardson’s prior




2007-3324                                     5
warnings regarding excessive absences, and my uncertainty whether he was ever going to

return to work,” Ms. Thames determined that removal was warranted.

       The VA presented evidence that Mr. Corley had received multiple warnings

regarding the serious consequences of repeated AWOL. Mr. Corley does not argue and

the record does not show that the prognosis of Mr. Corley’s work-related anxiety and

depression ever became clear. In light of his own position against returning to work in the

same office, the deciding official Ms. Thames could have reasonably believed that Mr.

Corley might never return to work. The record contains a report from Dr. Madonna dated

August 30, 2006, summarizing Mr. Corley's medical history, and concluding: "I cannot

recommend that he is able to return to the same [work] environment."

       The Board held that the penalty of removal was justified. The Board emphasized that

the VA has wide discretion in maintaining employee discipline and overall efficiency, and

that managerial judgment had been properly exercised in removing Mr. Corley in the

situation of thirty-two counts of AWOL without any foreseeable resolution of his absences.

In Gonzales v. Defense Logistics Agency, 772 F.2d 887 (Fed. Cir. 1985) this court

discussed the appropriate standard for reviewing an employing agency’s choice of penalty:

       [T]he court will not disturb a penalty unless it exceeds the range of
       permissible punishment or is “so harsh and unconscionably disproportionate
       to the offense that it amounts to an abuse of discretion.” Penalty decisions
       are judgment calls best left to the discretion of the employing agency. The
       presumption is that government officials have acted in good faith.

Id. at 889 (citations omitted).     We conclude that the agency's action was within a

permissible range, and that error has not been shown in the Board's ruling sustaining the

removal. That ruling is affirmed.

       No costs.




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