Natalie Denise Cliett v. Department of the Air Force
Background
- Appellant Natalie Cliett, an Electronics Mechanic at Robins AFB, was removed for unauthorized absence from June 15–July 20, 2015, and for failing to properly request leave.
- Cliett contended she had requested LWOP and sought to convert earlier March leave to FMLA because she felt unsafe at work; she alleged coworkers/agency engaged in organized harassment.
- Agency denied LWOP/FMLA: it found Cliett’s safety complaints vague and unsubstantiated and that her FMLA request was untimely and she had disavowed needing FMLA for her own medical care.
- The administrative judge sustained the charges, found the denial of LWOP/FMLA reasonable, rejected hostile-work-environment and procedural defenses, and determined removal was within Douglas reasonableness.
- On petition for review, Cliett reiterated harassment claims; Board denied review, concluding she failed to make nonfrivolous allegations of a constructive adverse action or to show the agency wrongfully deprived her of meaningful choice to remain at work.
Issues
| Issue | Plaintiff's Argument (Cliett) | Defendant's Argument (Air Force) | Held |
|---|---|---|---|
| Were the absences unauthorized or was denial of leave improper? | Cliett says she requested LWOP and tried to convert March leave to FMLA; agency ignored safety concerns. | Agency contends requests were vague, untimely for FMLA conversion, and properly denied under policy. | Held: Absences were unauthorized; denial of LWOP/FMLA was reasonable and proper. |
| Did the agency have a duty to investigate claimed unsafe working conditions before denying leave/removing her? | Cliett argues agency ignored safety complaints and harassed her instead of investigating. | Agency: complaints were vague/unspecific and could not be substantiated; no regulation required the action claimed by Cliett. | Held: Agency’s attempts to investigate were sufficient given vagueness; no duty breach shown. |
| Could Cliett retroactively invoke FMLA for March leave or for the June–July absences? | Cliett sought to convert prior leave to FMLA and claimed entitlement tied to her mother’s illness and subsequent death. | Agency: FMLA cannot be invoked retroactively; no timely notice or qualifying reason shown for FMLA covering the charged absences. | Held: FMLA invocation was untimely/insufficient; denial was appropriate. |
| Did appellant make a nonfrivolous allegation of constructive adverse action (constructive suspension/removal)? | Cliett implied intolerable working conditions and harassment compelled her absences. | Agency: record lacks specific facts showing working conditions so intolerable that a reasonable person would be compelled to absent herself. | Held: Allegations were vague and unsubstantiated; no nonfrivolous claim for constructive adverse action; no jurisdictional hearing warranted. |
Key Cases Cited
- Wesley v. U.S. Postal Service, 94 M.S.P.R. 277 (discussing proof required for unauthorized absence) (MSPB)
- Ferguson v. Department of the Navy, 43 M.S.P.R. 143 (leave requested must be shown properly denied) (MSPB)
- Joyner v. Department of the Navy, 57 M.S.P.R. 154 (agency denial of LWOP reviewed for reasonableness) (MSPB)
- Burge v. Department of the Air Force, 82 M.S.P.R. 75 (agency bears burden when disciplining for leave-related reasons) (MSPB)
- Ellshoff v. Department of the Interior, 76 M.S.P.R. 54 (FMLA notice principles) (MSPB)
- Young v. U.S. Postal Service, 79 M.S.P.R. 25 (death of family member not alone a statutory FMLA reason) (MSPB)
- Rosario-Fabregas v. Department of the Army, 122 M.S.P.R. 468 (describing elements for constructive adverse action) (MSPB), aff’d, 833 F.3d 1342 (Fed. Cir.)
- Garcia v. Department of Homeland Security, 437 F.3d 1322 (en banc) (standard for nonfrivolous allegations and entitlement to jurisdictional hearing in constructive action claims)
- Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir.) (presumption of voluntariness and requirement for nonfrivolous allegation to obtain hearing)