Tammy_R Rodden v. Department of Veterans Affairs, CH-0714-19-0340-I-1

Tammy Renee Rodden, a GS-6 Practical Nurse with the Department of Veterans Affairs (VA), was removed from her position for various attendance-related violations after being placed under a leave restriction due to suspected sick leave abuse.
The VA charged her with failure to follow the sick leave restriction memorandum, absence without leave (AWOL), and failure to follow leave requesting procedures, based on events from November 2018 to March 2019.
Rodden challenged her removal before the Merit Systems Protection Board (MSPB), alleging harmful procedural error, violation of the Family and Medical Leave Act (FMLA), and harmful error under the collective bargaining agreement.
An administrative judge (AJ) affirmed all but a few of the specifications and found the penalty of removal reasonable. Rodden petitioned for Board review, specifically citing FMLA violations and procedural errors related to her union’s Master Labor Agreement.
While the case was pending, applicable case law changed the required standard of review for VA disciplinary actions (Rodriguez and Connor), necessitating remand for further proceedings to determine if the agency’s application of the wrong standard was harmful and if the Douglas factors were properly considered.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of FMLA Evidence	Rodden argued the AJ wrongly excluded her late FMLA evidence, harming her defense.	VA argued exclusion was proper due to untimeliness and lack of prejudice to outcome.	AJ did not abuse discretion; exclusion was warranted and harmless.
Collective Bargaining Agreement Violations	Rodden alleged harmful error based on supervisor's use of unofficial notes and use of approved absences as discipline.	VA argued any error was not harmful, and discipline was for procedural failures, not for taking leave itself.	No harmful procedural error; agency actions distinguished between leave and procedure.
Application of Proper Burden of Proof (Substantial vs. Preponderant Evidence)	Rodden asserted the agency improperly used a lesser standard (substantial evidence) for its decision.	VA followed existing (but later overruled) law applying substantial evidence in §714 removals.	Remanded to determine if this was harmful error, per Rodriguez and Semenov.
Consideration of Douglas Factors in Penalty Selection	Rodden argued the agency/Board did not properly consider mitigating factors as required.	VA claimed relevant factors were considered, but did not specifically cite Douglas in removal decision.	Remanded to clarify if agency considered Douglas factors, as now required by Connor.

Dias v. Department of Veterans Affairs, 102 M.S.P.R. 53 (MSPB 2006) (agency’s burden to prove compliance with FMLA for leave-based charges)
Bowen v. Department of the Navy, 112 M.S.P.R. 607 (MSPB 2009) (agency’s duty in FMLA leave-based discipline)
Wilkinson v. Department of the Air Force, 68 M.S.P.R. 4 (MSPB 1995) (distinguishing taking leave from failure to follow leave procedures)
Douglas v. Veterans Administration, 5 M.S.P.R. 280 (MSPB 1981) (sets forth nonexhaustive factors for determining appropriateness of penalties in federal employment actions)