NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

AVERY K. TAYLOR, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

2010-3090 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case No. DA0752090155-I-1. 

__________________________ 

Decided: September 10, 2010 

__________________________ 

AVERY K. TAYLOR, of Houston, Texas, pro se. 

DAVID C. BELT, Appellate Attorney, Office of General 

Counsel, United States Postal Service, of Washington, 

DC, for respondent. With him on the brief was LORI J.

DYM, Chief Counsel, Office of General Counsel, United 

States Postal Service, of Washington, DC, and TONY 

WEST, Assistant Attorney General, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC. Of counsel was SCOTT A.
TAYLOR v. USPS 2

MACGRIFF, Trial Attorney, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, of 

Washington, DC. 

__________________________ 

Before RADER, Chief Judge, FRIEDMAN and LINN, Circuit 

Judges. 

PER CURIAM. 

Avery Taylor appeals a final decision of the Merit Systems Protection Board (“Board”), which affirmed his 

removal from his position as a letter carrier with the U.S. 

Postal Service (“Service”) for unexcused absences. Taylor 

v. U.S. Postal Serv., No. DA-0752-09-0155-I-1 (M.S.P.B. 

Dec. 17, 2009) (“Decision”). Because the Board’s opinion 

was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law, we affirm. 

Taylor joined the Service in October 1993. In September 2005, he stopped reporting for work, claiming that 

he suffered from job-related stress. Between November 

2005 and July 2007, the Service sent Taylor multiple 

letters asking that he report for duty or provide medical 

documentation of his condition. In response to each 

request, Taylor submitted letters from his doctor that 

described his illness, and the Service took no action to 

remove him. By June 2006, Taylor exhausted all of his 

paid leave, so the Service placed him on leave without pay 

(“LWOP”) status. 

In September 2007, the Service sent Taylor another 

letter asking him to report or furnish medical documentation, at the risk of losing approved leave. Taylor responded in writing, saying that his medical condition had 

not changed since July 2007, but without providing evidence. In November 2007, the Service ordered Taylor to 
3 TAYLOR v. USPS

report for a fitness for duty (“FFD”) medical examination. 

The designated physician, Dr. Charles Covert, submitted 

a report, which a Service physician used to make a medical assessment, deciding that Taylor was fit for duty. 

Taylor objected to filling out a consent form prior to the 

examination and claims that Covert never examined him. 

According to the government, Service officials received 

only the final assessment, not Covert’s initial FFD report. 

Decision at 11 n.6. 

On November 21, 2007, the Service sent Taylor a directive informing him of the results of the medical assessment and ordering him to report on November 26, 

2007 or be considered absent without leave (“AWOL”) and 

face removal. Taylor never reported or responded to this 

directive. On April 8, 2008, the Service issued a notice of 

proposed removal based on the charge of “Unsatisfactory 

Attendance – AWOL.” After the ten-day deadline to 

answer the notice, Taylor submitted a letter from his 

physician that stated that Taylor was still unable to work. 

On June 13, 2008, the Service removed him. On appeal, 

the Board affirmed the Service’s ruling. Taylor timely 

appealed the Board’s final decision. We have jurisdiction 

under 28 U.S.C. § 1295(a)(9). 

We affirm a Board decision unless it is “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 5 U.S.C. § 

7703(c). To take an adverse action against an employee, 

an agency must (1) “establish by preponderant evidence 

that the charged conduct occurred,” (2) “show a nexus 

between that conduct and the efficiency of the service,” 

and (3) “demonstrate that the penalty imposed was reasonable in light of the relevant factors set forth in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 307-08 (1981).” 
TAYLOR v. USPS 4

Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 

2009). 

“In order to prove a charge of AWOL, an agency must 

show by preponderant evidence that the employee was 

absent, and that his absence was not authorized or that 

his request for leave was properly denied.” Wesley v. U.S. 

Postal Serv., 94 M.S.P.R. 277, 283 (2003). An AWOL 

charge automatically satisfies the nexus requirement 

because “any sustained charge of AWOL is inherently 

connected to the efficiency of the service.” Davis v. Veterans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986). 

Taylor argues that the Service improperly changed 

his status from LWOP to AWOL because Covert never 

actually examined him before clearing him for duty. In 

response, the government claims that Covert’s report is 

“not directly relevant” because Service officials did not 

receive or rely on it, only the final medical assessment. 

Resp’t’s Br. 26-27. This assertion is suspect: the assessment cited Covert’s evaluation, and both the November 

21, 2007 directive and the notice of proposed removal 

referred to the “medical evaluation by Dr. Charles Covert.” Regardless, the Board found that Taylor never 

requested extra leave or provided evidence of illness for 

the period from November 26, 2007 to April 8, 2008. 

Decision at 9-10. Taylor does not dispute these facts. 

Under these circumstances, the Service had discretion to 

deny Taylor additional leave based on his failure to provide requested documentation. See Washington v. Dep’t of 

Army, 813 F.2d 390, 393 (Fed. Cir. 1987) (affirming denial 

of LWOP where the employee failed to submit “material 

necessary to support her claim that she was incapacitated 

for work”). There was substantial evidence for the Board 

to conclude that Taylor was indeed absent without permission. 
5 TAYLOR v. USPS

Taylor also claims that the Service denied him minimum due process because he never had an opportunity to 

rebut Covert’s report. To the contrary, Taylor received 

multiple opportunities to present documentation of continuing illness both before and after the medical assessment. He claims that he believed that the doctor’s letter 

he submitted in July 2007 obviated the need for further 

documentation. However, the Service requested additional medical evidence in September 2007 prior to ordering the FFD examination. Taylor responded in writing 

(which shows that he received the letter) but never provided the requested information. He also acknowledged 

receipt of the Service’s directive of November 21, 2007—

which informed him of the medical assessment and ordered him to report to work—but did not reply or request 

additional leave without pay. Taylor then attended an 

investigative interview with his Postmaster in February 

2008 but did not offer new medical evidence. Decision at 

7. Not until May 9, 2008 did Taylor supply another 

physician’s letter, when it was too late to respond to the 

notice of proposed removal. 

As to the penalty of removal, the Board properly balanced the relevant Douglas factors. It credited Taylor’s 

fifteen years of service and clean disciplinary record, but 

noted testimony by Service officials that a letter carrier’s 

absence creates serious hardships, and that Taylor could 

not be rehabilitated. We discern no clear error in the 

Board’s review of the Service’s penalty. Cf. Law v. U.S. 

Postal Serv., 852 F.2d 1278, 1279 (Fed. Cir. 1988) (affirming the Service’s removal of a mailhandler for “for irregular attendance and for an instance of AWOL”). 

For the foregoing reasons, the decision of the Board is 

affirmed. 

AFFIRMED
TAYLOR v. USPS

6

COSTS

No costs.