Macaulay Williams v. Department of Commerce
2024 MSPB 8
MSPB2024Background
- Macaulay Williams, a Patent Examiner with the U.S. Patent and Trademark Office, was removed from his position for excessive absences, many of which were medically related and approved as leave without pay (LWOP).
- The agency first proposed his removal in July 2016, later rescinded it, and then issued a new proposal in March 2017 for excessive absences, specifying over 2,700 hours (excluding FMLA leave).
- Williams challenged the removal, asserting he was ready to return to work at one point, raising affirmative defenses including whistleblower and EEO retaliation, failure to accommodate, and discrimination (age, race, national origin).
- The administrative judge upheld his removal, finding all criteria for removal based on excessive absences satisfied, but Williams petitioned for review, contesting notice and calculation of excessive absence hours.
- The Board clarified its precedent: only post-warning approved absences can support such a charge, and absences covered by FMLA or holiday leave cannot be counted. It ultimately found 1,109.25 hours of excessive absence appropriately charged.
- The Board affirmed removal, finding Williams did not prove his affirmative defenses, and deemed the penalty reasonable given the extent of sustained absences.
Issues
| Issue | Williams' Argument | Commerce's Argument | Held |
|---|---|---|---|
| Whether excessive, approved absences can be basis for removal | Absences were for compelling medical reasons and covered by approved LWOP or FMLA; improper notice. | Absences continued beyond reasonable time, agency need persisted, proper warning was given. | Only post-warning, non-FMLA, non-holiday approved absences are counted; charge sustained with reduced hours. |
| Sufficiency of notice regarding discipline for approved absences | No adequate warning for discipline on approved absences before many absences occurred. | Provided notice (Feb. 2016 letter), adequate under precedent. | Adequate warning occurred Feb. 12, 2016; only post-warning absences counted. |
| FMLA coverage of certain leave periods | Some absences were FMLA-covered and cannot support removal. | Williams was ineligible for FMLA, so all absences counted. | FMLA coverage applies (no 1,250-hr rule for Title II), so FMLA-eligible absences excluded. |
| Discrimination, retaliation, failure to accommodate | Removal was discriminatory and retaliatory; agency failed to accommodate. | No evidence of discrimination, retaliation, or failure to accommodate. | Williams did not prove affirmative defenses; findings affirmed. |
Key Cases Cited
- Coombs v. Social Security Administration, 91 M.S.P.R. 148 (2002) (general rule against discipline based on approved leave, subject to limited exceptions)
- Cook v. Department of the Army, 18 M.S.P.R. 610 (1984) (three-part test for excessive absences discipline involving compelling reasons, agency need, and notice)
- McCauley v. Department of the Interior, 116 M.S.P.R. 484 (2011) (FMLA-covered leave cannot be used to support excessive absences charge)
- Gartner v. Department of the Army, 104 M.S.P.R. 463 (2007) (what constitutes a 'reasonable time' for absences under the excessive absence doctrine)