NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JESSICA J. HESLOP,

Petitioner

v.

INTERNAL REVENUE SERVICE,

Respondent

______________________

2020-1314

______________________

Petition for review of an arbitrator’s decision in No. 

2016-21857 by Claude Dawson Ames.

______________________

Decided: December 9, 2020

______________________

KATHRYN W. BAILEY, Office of General Counsel, National Treasury Employees Union, Washington, DC, for petitioner. Also represented by LARRY JOSEPH ADKINS,

GREGORY O'DUDEN. 

 STEPHANIE FLEMING, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by REGINALD 

THOMAS BLADES, JR., JEFFREY B. CLARK, ROBERT EDWARD 

KIRSCHMAN, JR. 

 ______________________

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2 HESLOP v. IRS

Before PROST, Chief Judge, MAYER and MOORE, Circuit 

Judges.

PER CURIAM.

Jessica J. Heslop seeks review of an arbitrator’s decision sustaining her removal from her position with the Internal Revenue Service (“IRS” or “agency”). For the 

reasons discussed below, we affirm.

BACKGROUND

Heslop, who worked as an IRS Revenue Agent in San 

Diego, California, began taking leave for a chronic migraine condition. J.A. 42–45. By early 2016, she had used 

all the leave available to her and began to request leave 

without pay. J.A. 7. Between March 2015 and January 

2017, she was absent for approximately 2,445 hours, which 

represented nearly eighty-five percent of her regular days 

of work. J.A. 12. The IRS determined that Heslop was absent without leave for many of these absences. See J.A. 15–

16.

The IRS warned Heslop that her absences were excessive and instructed her to return to work. See J.A. 5–7. On 

March 10, 2017, the agency proposed to remove Heslop 

from her position, asserting that she had been absent without leave and had “been excessively absent beyond a reasonable period of time.” J.A. 2. Although Heslop and her 

union representative submitted an oral response to the 

agency’s proposed removal action, see J.A. 79, she was removed from her position effective January 19, 2018, see

J.A. 78. Heslop’s removal notice stated that the IRS had 

concluded that her “continuous prolonged and extended 

unscheduled absences” had put “a severe undue burden on 

the Agency” and “undermine[d] the public’s confidence in 

the Agency’s ability to deliver quality service.” J.A. 79.

Heslop appealed her termination, but an arbitrator 

sustained the agency’s removal decision. See J.A. 1–24. 

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HESLOP v. IRS 3

The arbitrator concluded that the agency’s charges of excessive absence and absence without leave were supported

by a preponderance of the evidence, J.A. 11–16, and that 

Heslop’s “inability to perform her duties as a Revenue 

Agent greatly impacted her group’s morale and placed an 

undue burden on other members of the group to perform 

audit examinations and other duties that would have been 

assigned to and performed by [Heslop], but for her excessive absences due to her chronic migraine medical condition.” J.A. 12.

Heslop then filed a timely petition for review with this 

court. We have jurisdiction under 5 U.S.C. §§ 7121(f), 

7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).

DISCUSSION

This court will set aside “an arbitrator’s ruling only if 

it is arbitrary, capricious, an abuse of discretion, contrary 

to law, unsupported by substantial evidence, or obtained 

without following procedures required by law.” Ramirez v. 

DHS, 975 F.3d 1342, 1347 (Fed. Cir. 2020); see 5 U.S.C. 

§ 7121(f). In her briefing to this court, Heslop advances two 

principal arguments. First, she contends that the charge 

of excessive absence should be set aside because the IRS 

failed to establish that her position needed to be filled by 

another regularly available employee. Second, she asserts 

that the arbitrator should have mitigated the agency’s penalty of removal because she produced competent evidence 

showing that her medical condition had improved. We address each of these arguments in turn.

In Cook v. Department of Army, the Merit Systems Protection Board (“board”) held that an agency could not take 

an adverse action against an employee based on the excessive use of leave unless the agency could show, among other 

things, that the absent employee’s position “needed to be 

filled by an employee available for duty on a regular, fulltime or part-time basis.” 18 M.S.P.R. 610, 612 (1984); see

also Combs v. SSA, 91 M.S.P.R. 148, 153 (2002) 

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4 HESLOP v. IRS

(“[P]rovided that certain criteria are met, an agency can 

bring an action against an employee for excessive approved 

absence.”). Assuming arguendo that this court agrees with 

Cook, which we do not decide, substantial evidence supports the arbitrator’s determination that the agency 

needed to fill Heslop’s position.

During the arbitration proceedings, Heslop’s supervisors testified that IRS audits and examinations are time 

sensitive and that Heslop’s repeated and extended absences had placed an undue burden on other agency employees. See J.A. 5–6, 12. Although “budgetary and hiring 

restrictions” prevented the IRS from immediately hiring a 

replacement for Heslop after her termination, J.A. 13, this 

failure to hire a replacement does not, standing alone, establish that the agency had no need to fill Heslop’s position. 

To the contrary, the fact that the IRS had been forced to 

spend considerable sums to transport agents from other offices to San Diego to take over Heslop’s case assignments 

during her extended absences, see J.A. 5, 13, strongly supports the conclusion that the agency had the need for an 

employee to fill her position. In this regard, we note that 

the board has determined that the Cook standard can be 

satisfied when, as here, an employee’s extensive absences 

undermine agency functioning and force other agency employees to take on significant additional responsibilities. 

See, e.g., Gartner v. Dep’t of Army, 104 M.S.P.R. 463, 469 

(2007) (sustaining an excessive absence charge where an 

employee’s “absences from work had an adverse impact on 

the [agency’s] operations”); Combs, 91 M.S.P.R. at 154 (sustaining an excessive absence charge where an employee’s 

absences caused another employee to become “backlogged” 

and use overtime); see also Hines v. England, No. 05-CV1370-IEG (BLM), 2007 WL 9776571, at *6 (S.D. Cal. June 

28, 2007) (“The Cook test does not require the employer 

prove that the employee’s position was filled by an outside 

hire or show that the employer could not cope with the employee’s absence.”).

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HESLOP v. IRS 5

We likewise reject Heslop’s contention that the arbitrator erred in failing to properly consider post-removal evidence of her improved medical condition. The arbitrator 

expressly considered whether Heslop’s medical condition 

had improved and whether she would “be able to resume 

her job duties without [extensive] absences in the future.” 

J.A. 23. To support her claim that her improved medical 

condition warranted mitigation of the penalty of removal, 

Heslop submitted a 2018 letter from her physician stating 

that she had “no limitations in her ability to perform her 

job on the basis of her migraines.” J.A. 85. The letter further stated that while Heslop’s migraine condition had “periods of exacerbation,” she was undergoing “an effective 

medical regimen” that served to “limit the [migraine] episodes.” J.A. 85. Notably, however, this letter did not indicate that Heslop no longer suffered from severe migraines, 

but instead stated only that her current treatment regimen 

served to “limit” her migraine episodes. J.A. 85. Furthermore, the letter failed to address Heslop’s current or future 

ability to undertake all the specific duties required of an 

IRS Revenue Agent. See J.A. 85.

Heslop’s supervisor testified that he considered sanctions other than removal, but that he “could not identify 

any adequate alternative.” J.A. 22. He further stated that 

“there . . . was no way to rehabilitate [Heslop] because she 

simply could not come to work” and that “there was no reasonable accommodation that would have permitted [her] to 

perform the essential functions of her position.” J.A. 21. 

Under such circumstances, the arbitrator had ample support for his conclusion that mitigation of the penalty of removal was “inappropriate based on the seriousness of 

[Heslop’s] excessive absences and [the] lack of any effective 

rehabilitation measures to ensure her regular attendance.” 

J.A. 23; see Zingg v. Dep’t of Treasury, 388 F.3d 839, 844 

(Fed. Cir. 2004) (emphasizing that an agency has “broad

discretion to determine the appropriate penalty”). We have 

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6 HESLOP v. IRS

considered Heslop’s remaining arguments but do not find 

them persuasive. 

CONCLUSION

Accordingly, the arbitrator’s decision is affirmed.

AFFIRMED

COSTS

No costs.

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