Gina Short v. Department of Homeland Security
DC-0752-22-0467-I-2
MSPBMar 20, 2025Background
- Gina Short, a federal employee at DHS, was removed from service after extended periods of absence totaling over 950 hours from October 2020 to November 2021.
- The agency charged Short with excessive absence and multiple specifications of being absent without leave (AWOL).
- Short claimed her absences were due to significant mental health conditions (Major Depressive Disorder, GAD, PTSD) and requested accommodations including extended leave, telework, and reassignment.
- The agency granted extended leave and telework but denied her reassignment due to lack of an identified vacant, funded position.
- An administrative judge affirmed her removal; Short petitioned for review, arguing the agency erred in both the excessive absence/AWOL charges and in denying her disability discrimination defense.
- The Merit Systems Protection Board (MSPB) reviewed the petition, ultimately affirming the removal with some modifications to the findings on the charges.
Issues
| Issue | Short's Argument | DHS Argument | Held |
|---|---|---|---|
| Excessive Absence Charge | Agency cannot rely on all absences; removal not justified | Absences post-warning total 613 hours, showing justification | Charge sustained as to 613 hours post-warning |
| AWOL Specifications | Incapacity from health conditions excused AWOL dates | Only 2 dates excused; others not supported by evidence | 4 of 6 specifications proved |
| Disability Discrimination Affirmative | She is disabled and thus removal is discriminatory | Not a qualified individual; no vacant reassignment identified | Disability proved, but not a qualified individual |
| Reasonableness of Removal Penalty | Removal does not promote service efficiency | Absenteeism disrupted operations; penalty is appropriate | Removal penalty reasonable and affirmed |
Key Cases Cited
- Williams v. Department of Commerce, 2024 MSPB 8 (standards for excessive absence charges, including agency warnings and proof requirements)
- Gartner v. Department of the Army, 104 M.S.P.R. 463 (sustaining excessive absence charge based on comparable hours of absence)
- Atchley v. Department of the Army, 46 M.S.P.R. 297 (AWOL charge cannot be sustained if incapacity is documented)
- Payne v. U.S. Postal Service, 72 M.S.P.R. 646 (penalty deference when some but not all charge specifications are sustained)
- Casillas v. Department of the Air Force, 64 M.S.P.R. 627 (work capacity evaluations and their evidentiary value on recovery)