Supervisors need to share leave rights

A recent decision by the Merit Systems Protection Board (MSPB) shows that federal employees are entitled to the protections under the Family and Medical Leave Act (FMLA) of 1993 and that government supervisors are expected to know these rights.

The case in point involved John Landahl, who was a GS-13 computer specialist at the Commerce Department's Northwest Fisheries Science Center. Last year, Landahl resigned from his position and subsequently filed an appeal with the Seattle MSPB field office. He requested a hearing, claiming that his resignation was involuntary.

The administrative judge in MSPB's Seattle office told Landahl that unless he could prove coercion, his appeal might not fall within the jurisdiction of the MSPB. However, the judge gave Landahl an opportunity to prove that his resignation was involuntary and that as a result the MSPB had jurisdiction over the appeal.

Landahl claimed that his resignation was submitted under duress because management reassigned him to duties that previously were performed by a GS-7 technician, did not accommodate his illnesses—depression and heart disease—and denied his request for extended sick leave or leave without pay under the FMLA.

The administrative judge found that when the Fisheries Science Center was reorganized on Sept. 28, 1997, Landahl's job was changed from regional information technology coordinator to computer specialist with no change in grade or pay. However, the judge found that Landahl had been assigned appropriate duties.

Landahl was unhappy with his reassignment, the judge found, because he believed that his duties were not appropriate to his GS-13 rank and because he suffered from "job burnout." On April 6, 1998, Landahl began to use extensive sick leave. Soon after, in an April 27 meeting, Landahl's superiors asked him for medical documentation to justify any absences that occurred after that date. They told Landahl to perform his duties or make a final decision on whether to stay. Shortly thereafter, Landahl resigned.

The judge found that Landahl could not prove any specific claims of agency wrongdoing and thus failed to establish that his resignation was involuntary because of duress.

He also found that Landahl did not show that his resignation was involuntary because of time pressure exerted on him by his superiors to resign. As a result, the judge dismissed Landahl's appeal because of a "lack of jurisdiction."

Disagreeing with just about everything the administrative judge had said, Landahl asked the full MSPB to review the decision. The full MSPB agreed to consider Landahl's appeal, primarily because it suspected that Commerce failed to grant Landahl leave as required by the FMLA.

The MSPB reasoned that if an employee resigns, his resignation is presumed to be voluntary unless it is shown to be a response to coercion, duress or misrepresentation. Prior case law had established that a resignation obtained in violation of the regulations for granting leave might be considered coercive.

Under the FMLA, an employee is entitled to unpaid leave, or paid leave if earned, for a period of 12 weeks in any 12-month period because of a serious health condition that makes him unable to perform his job. A serious health condition is defined as "an illness, injury, impairment or physical or mental condition that involves continuing treatment by a health care provider."

When an employee requests leave under the FMLA, the agency is required to provide the employee with "guidance concerning the employee's rights and obligations" under the FMLA. However, an employee is not required to explicitly invoke the FMLA when requesting covered leave.

In other words, agency officials are expected to know what the FMLA requires and must abide by it. That means not giving an employee the runaround and not taking advantage of his ignorance of the law. It is sufficient that the employee make the agency aware of circumstances that would warrant leave under the FMLA.

In this case, Landahl claimed that his supervisors knew that he suffered from depression, took medication for his condition and considered applying for disability retirement. He also claimed that when he met with his supervisors on April 27, 1998, he was not yet under an obligation to provide medical documentation for his absences. Landahl asserted that during that meeting, he informed his superiors that he had 240 hours of annual leave and more than 1,100 hours of sick leave and asked whether extended leave might be available to him. He claimed that they said no or shook their heads and that there was no mention of the FMLA.

Landahl said he was discouraged from pursuing FMLA leave further because his superiors denied his request for extended leave. That denial, combined with the request that he make a decision "soon and final" on whether to perform the duties of the position to which he had been reassigned, were material to Landahl's decision to resign shortly after the April 27 meeting.

Clearly, what Landahl claimed was within the administrative judge's jurisdiction, and an attempt should have been made early on to get at the facts. Even without the FMLA, an employee is entitled to apply for sick leave and be treated with respect. It does not look like that happened in this case.

The full MSPB (John T. Landahl vs. Department of Commerce, docket number SE-0752-98-0236-I-1, July 19, 1999) determined that if Landahl could prove his claims, there would be an open-and-shut case that his agency knew or should have known that he was requesting long-term leave under the FMLA and that he was entitled to such leave.

The MSPB said Landahl had made a nonfrivolous claim that his agency had failed to provide him with "guidance concerning [his] rights and obligations" under the FMLA, that he relied on this failure in his decision to resign and that the agency therefore obtained his resignation in violation of the regulations for granting FMLA leave.

Accordingly, the MSPB ruled that Landahl was entitled to a hearing on whether his resignation was voluntary and remanded the case to the MSPB Seattle field office for further adjudication by the administrative judge.

Chalk one up for the good guys.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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