UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NATALIE DENISE CLIETT,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-16-0128-I-1

DATE: December 1, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Natalie Denise Cliett, Fort Valley, Georgia, pro se.

Gregory Lloyd, Esquire, Robins Air Force Base, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed her removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the administrative 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under section 

1201.115 for granting the petition for review. Therefore, we DENY the petition 

for review. Except as expressly MODIFIED by this Final Order to discuss and 

dismiss the appellant’s assertions of a potential constructive adverse action, we 

AFFIRM the initial decision. 

BACKGROUND

¶2 The agency removed the appellant, an Electronics Mechanic at Robins Air 

Force Base, Georgia, based on two charges, unauthorized absence from June 15 to 

July 20, 2015, and failure to properly request leave for that time period. Initial 

Appeal File (IAF), Tab 5 at 17-21, 98-100. In her appeal, the appellant claimed 

that she requested leave without pay (LWOP) based on her repeated assertions 

that she was not safe in the office and further asserted that the agency “never 

addressed the issues making it unsafe at work” in denying her request. IAF, 

Tab 1 at 5. She did not request a hearing. Id. at 2. 

¶3 The agency responded in support of its action, noting that the appellant 

failed to provide any specific information regarding her expressed concerns for

her personal safety. IAF, Tab 5. In her response to the agency’s statement, the 

appellant reiterated the information she gave the agency about the threat to her 

safety and explained that in May and June 2015, she was trying to have 15 days 

of leave that she had taken in March of that year changed to leave under the 

Family and Medical Leave Act of 1993 (FMLA). IAF, Tab 6 at 4-8. She 

explained that an agency official “led me to believe that I could change leave I 
3

took during my mother’s illness2to FMLA, so I would have some LWOP.” Id.

at 7. She again claimed that the agency ignored her contentions that she was not 

safe at work. Id. at 8. 

¶4 In her initial decision, the administrative judge found that the agency 

proved its charges because the record reflected both that the appellant failed to 

request leave in accordance with agency procedures and the agency properly 

denied her request for LWOP. IAF, Tab 1, Initial Decision (ID) at 6-8. The 

administrative judge further found that the appellant failed to prove her 

affirmative defenses of hostile work environment and procedural error because 

the vague and unsubstantiated assertions she made about not being safe at work 

precluded the agency from investigating her claims and the appellant identified 

no regulation or procedure that required the agency to do such an investigation 

before effecting her removal. ID at 8-9. The administrative judge reiterated her

earlier determination, to which neither party objected, that because unauthorized 

absences like the one here disrupt the efficiency of the service by their very 

nature, nexus is present in this matter. ID at 9-10; IAF, Tab 10. The 

administrative judge also determined that the agency properly weighed the 

relevant Douglas factors, such as the mitigating effect of the appellant’s 10 years 

of satisfactory performance, and that the penalty of removal did not exceed the 

limits of reasonableness under the circumstances. ID at 10-11. 

¶5 In her petition for review, the appellant claims that the agency and the 

union have engaged in a “well organized type of harassment” against her. 

Petition for Review (PFR) File, Tab 1 at 4, 7-10. She argues that the harassment, 

which she states “was based on Dates and numbers; speaking often about negative 

things, like sickness, around me; and on music and famous singers” was difficult 

to detect. Id. at 5. She disputes her referral to the agency’s Employee Assistance 

Program as “inaccurate and wrong” and describes the agency’s request for her t o 

 

2

The appellant asserts in her petition for review that her mother passed away on 

March 25, 2015. Petition for Review File, Tab 1 at 6.
4

submit an FMLA package in support of her request as yet another form of 

harassment. Id. at 6-8. Lastly, she corrects several alleged factual errors in the 

initial decision. Id. at 11. The agency responds in opposition to the appellant’s 

petition for review and the appellant provides a reply to the agency’s response. 

PFR File, Tabs 3-4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 To prove a charge of unauthorized absence, the agency must show by 

preponderant evidence that the employee was absent, and that her absence was 

unauthorized or that her request for leave was properly denied. Wesley v. U.S. 

Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003). It is undisputed that the appellant 

was absent on all the dates for which she was charged, and that the agency did not 

authorize those absences. IAF, Tab 10; ID at 9. However, when an employee has 

requested leave to cover her absences, such a charge will be sustained only if the 

agency establishes that her requests were properly denied. Ferguson v. 

Department of the Navy, 43 M.S.P.R. 143, 144 (1990). Moreover, if the 

employee requested LWOP for the periods when she was placed in an absent 

without leave status, the Board will examine the record as a whole to determine if 

the denial of LWOP was reasonable under the circumstances. E.g., Joyner v. 

Department of the Navy, 57 M.S.P.R. 154, 159 (1993). 

¶7 Thus, we must determine whether the administrative judge correctly found

that the agency’s denial of LWOP was reasonable under the circumstances. ID 

at 7; e.g., Joyner, 57 M.S.P.R. at 159. Agency policy provides that LWOP 

requests made for reasons other than those set forth in its LWOP policy “should 

be granted only when it is apparent that it will result in increased job ability, 

protection or improvement in the employee's health, or retention of a desirable 

employee.” ID at 4; IAF, Tab 3, Subtab 7 at 3-4. The appellant’s stated reasons 

for requesting LWOP, as set forth in her July 30, 2015 email, are too vague to 

meet even those relatively broad factors. IAF, Tab 3, Subtab 1 at 17-19. The 
5

appellant essentially claims that the Government has organized her coworkers to 

do things that might normally happen in an office and a parking lot, like walking 

or driving past her, to startle her and cause an accident.3 Id. As the 

administrative judge noted, however, the evidence indicates that the agency 

attempted to investigate the appellant’s claims, but the information she provided 

was too vague and unspecific such that it could not substantiate her allega tions. 

ID at 9; IAF, Tab 5 at 112. The appellant’s correspondence with her union also 

indicates that it was unable to investigate the appellant’s claims, and that it had 

determined that her written claims did not reflect that she was in danger. IAF, 

Tab 11 at 58. We agree. 

¶8 An agency bears the burden of proving that, in taking a leave-related 

disciplinary action, it properly denied an eligible employee leave under the 

FMLA. Burge v. Department of the Air Force, 82 M.S.P.R. 75, 84, ¶ 13 (1999). 

Furthermore, an employee who informs the agency that she will be absent and 

states a reason that might justify granting leave need not actually verbalize that 

she was requesting FMLA leave. E.g., Ellshoff v. Department of the Interior, 

76 M.S.P.R. 54, 76 (1997). As noted above, the appellant asserted that she 

wished to convert leave she already had taken to FMLA leave. IAF Tab 6 at 7. 

However, an employee may not retroactively invoke her entitlement to family and 

medical leave. 5 C.F.R. § 630.1203(b). Moreover, there is nothing in the record 

to indicate that the appellant informed the agency that she would be absent for a 

reason that might qualify for FMLA leave before the time that her mother passed 

away, and although the death of a family member is traumatic, it is not a statutory 

or regulatory reason for invoking the provisions of the FMLA. Young v. U.S. 

Postal Service, 79 M.S.P.R. 25, 38 (1998). The appellant filed her only request 

for FMLA leave on June 1, 2015, after her mother died, and she subsequently told 

 

3

The appellant asserted in a December 2, 2013 letter to Amnesty International that the 

agency was conducting a psychological experiment on Robins Air Force Base. IAF, 

Tab 11 at 72. 
6

the agency that she “personally did not need FMLA [leave] for any type of 

medical treatment.” IAF, Tab 5 at 55, 91. Because it was therefore too late for 

the appellant to invoke the FMLA regarding her mother’s illness and she 

specifically eschewed FMLA leave based on her own health concerns, we find 

that the agency properly denied the appellant’s FMLA leave request. 

¶9 Finally, although the appellant never argued that the agency constructively 

suspended or constructively removed her, and the administrative judge did not 

provide her with notice on how to establish such a claim, the agency observed in 

its supplementary statement at the close of the record that, for her to argue that 

such an action occurred based on her contentions of intolerable working 

conditions, she must demonstrate that the agency made those working conditions 

so difficult that a reasonable person in her position would not have come to work. 

IAF, Tab 12 at 5; E.g., Markon v. Department of State, 71 M.S.P.R. 574, 577-78 

(1996); Heining v. General Services Administration, 68 M.S.P.R. 513, 519-20

(1995). While an appellant must receive explicit information on what is required 

to establish an appealable jurisdictional issue, an administrative judge’s failure to 

provide such notice may be cured if, as here, the agency’s pleadings contain the 

notice that was lacking in either the orders or the initial decision issued in the 

appeal. Id.; see, e.g., Burgess v. Merit Systems Protection Board, 758 F.2d 641, 

643‐44 (Fed. Cir. 1985); Parker v. Department of Housing & Urban 

Development, 106 M.S.P.R. 329, ¶ 8 (2007). An appellant is entitled to a hearing 

on the issue of Board jurisdiction over an appeal of an allegedly involuntary 

resignation or retirement only if she makes a nonfrivolous allegation casting 

doubt on the presumption of voluntariness. Burgess, 758 F.2d at 643. Whether 

allegations are nonfrivolous is determined based on the written record. See 

Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994). 

¶10 The Board has explained that, although various fact patterns may give rise 

to an appealable constructive removal or suspension, all such claims are premised 

on the proposition that an absence that appears to be voluntary actually is not. 
7

Thomas v. Department of the Navy, 123 M.S.P.R. 628, ¶ 12 (2016); 

Rosario‐Fabregas v. Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015), 

aff’d, 833 F.3d 1342 (Fed. Cir. 2016). To demonstrate that an absence from work 

was not voluntary, and is instead an actionable constructive suspension, an 

appellant must show that: (1) she lacked a meaningful choice in the matter; and 

(2) it was the agency’s wrongful actions that deprived her of that choice. Id.;

Romero v. U.S. Postal Service, 121 M.S.P.R. 606, ¶ 8 (2014); see Moore v. U.S. 

Postal Service, 117 M.S.P.R. 84, ¶ 11 (2011) (stating that an appellant is entitled 

to a jurisdictional hearing in a constructive suspension appeal based upon 

intolerable working conditions when she makes nonfrivolous allegations that her 

working conditions were so intolerable that a reasonable person in her position 

would have been compelled to absent herself from the workplace). Assuming that 

the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of 

these two things is sufficient to establish Board jurisdiction. Rosario-Fabregas,

122 M.S.P.R. 468, ¶ 8; Romero, 121 M.S.P.R. 606, ¶¶ 8-9. Our reviewing court 

has specifically stated that the jurisdictional analysis set forth above is 

appropriate. Rosario-Fabregas, 833 F.3d at 1346-47. 

¶11 It is well settled that, in a constructive adverse action appeal, if an appellant 

makes a nonfrivolous allegation of fact establishing Board jurisdiction, she is 

entitled to a hearing at which she must prove jurisdiction by preponderant 

evidence. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344 

(Fed. Cir. 2006) (en banc) (holding that, in a constructive adverse action appeal, 

“[a] denial of a request for a [jurisdictional] hearing would be proper where the 

claimant has failed to make allegations that, if proven, could satisfy one or more 

of the elements necessary to establish Board jurisdiction”). As noted above, the 

appellant did not request a hearing, IAF, Tab 1 at 2, and we agree with the 

administrative judge that the appellant’s vague, unsubstantiated claims, which are 

set forth in the initial decision, ID at 5, 8-9 & n.6, do not state a legally 

cognizable claim that the agency wrongfully caused her absence or acted in a way 
8

that deprived the appellant of a meaningful choice in the matter. Thus, we find 

that the appellant failed to make a nonfrivolous allegation that the agency took a 

constructive adverse action against her. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit. You must submit your request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11.
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If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board