A PS-6 Letter Carrier was removed from the Postal Service based on a charge of improper conduct when he used FMLA leave for reasons other than that for which it had been granted. 

On July 20, 2005, the appellant requested FMLA sick leave dependent care.  On July 29, 2005, during an investigative interview, the letter carriert stated that he had provided “all day” care for his wife on July 20, 2005.  After being shown a surveillance video of him and his wife leaving their home he changed his answer to state that his wife’s attack had lasted only a few hours. On July 27, 2005, the appellant requested FMLA sick leave dependent care.  After being shown a surveillance video of his wife leaving their residence at 12:08 p.m., he stated that probably she was “done with her attack.”  The Postal Service charged that the letter carrier did not notify management that he did not need FMLA or “all day” FMLA.

The Administrative Judge mitigated the penalty to a 14-day suspension. The Postal Service file a Petition for Review contesting the Administrative Judge’s decision. The Merit Systems Protection Board found that the employee’s staying at home without his wife did not fall within the definition of “needed to care for” and affirmed the Postal Service’s charge. The MSPB also determined that the employee’s 7 years of service with the agency did not mitigate the seriousness of the offense.

Excerpts from the MSPB decision:

The agency removed the appellant from the position of PS-6 City Letter Carrier on September 23, 2005.  It based the removal on a charge of improper conduct.  It specified that, on March 3, July 20, and July 27, 2005, the appellant used leave protected under the Family and Medical Leave Act (FMLA) for reasons other than that for which it had been granted. The appellant had been granted an FMLA certification to care for his wife

The administrative judge (AJ) sustained the March 3, 2005 specification (specification 1), but did not sustain the July 20 and 27, 2005 specifications (specifications 2 and 3).    Because she sustained specification 1, she sustained the charge. She found that nexus existed between the charge and the efficiency of the service.  She further found, however, that the agency had improperly relied on prior discipline and last‑chance settlement agreements (LCSAs) in imposing the penalty.  She concluded that a 14-day suspension was the maximum reasonable penalty for the sustained charge.  

The agency (Postal Service) has filed a PFR contesting the AJ’s decision not to sustain specifications 2 and 3 and the appellant’s removal.   The appellant has filed a motion to dismiss the PFR for failing to comply with the AJ’s interim relief order, a cross-PFR contesting her decision to sustain specification 1, and a response opposing the agency’s PFR.    The agency has filed a response opposing the appellant’s motion to dismiss and his cross-PFR. 

 Specifications 2 and 3:  Under specification 2, the agency stated as follows:  On July 20, 2005, the appellant requested FMLA sick leave dependent care.  On July 29, 2005, during an investigative interview, the appellant stated that he had provided “all day” care for his wife on July 20, 2005.  After being shown a surveillance video of him and his wife leaving their home at 12:42 p.m., he changed his answer to state that his wife’s attack had lasted only a few hours.  Under specification 3, the agency stated as follows:  On July 27, 2005, the appellant requested FMLA sick leave dependent care.  After being shown a surveillance video of his wife leaving their residence at 12:08 p.m., he stated that probably she was “done with her attack.”  The agency charged that the appellant did not notify management that he did not need FMLA or “all day” FMLA.  It stated that he was observed shopping, attempting to dine at a steak house, and engaging in other activities while inappropriately taking sick leave dependent care. 

We find that the agency-imposed penalty of removal for the sustained charge and underlying specifications is reasonable.  The record shows that [Deciding Official William] Bishoff weighed the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in deciding to remove the appellant.  Bishoff testified that the appellant’s offense was serious in relation to his duties as a Letter Carrier because unreliability hurt the agency’s ability to perform its mission.  In that regard, Bishoff testified that he had lost confidence in the appellant’s reliability.  Indeed, the AJ acknowledged that using FMLA leave for other than its intended purpose was a serious offense

Therefore, we conclude that removal is the maximum reasonable penalty in this case.

Jones vs U.S. Postal Service