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Miianc v. United States Postal Service

February 08, 1999


Before Schall, Circuit Judge, Smith, Senior Circuit Judge, and Bryson, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.


Jon V. Miianc petitions for review of the decision of the Merit Systems Protection Board in Docket No. DE-0752-98-0252-I-1 upholding his removal from the United States Postal Service. We affirm.


The Postal Service employed Mr. Miianc as a Distribution Clerk in Denver, Colorado. In early December 1996, Mr. Miianc ceased reporting for work. For each missed work day from then until early March 1997 he informed his unit by telephone that he would not be in attendance for reason of mental illness. Mr. Miianc then discontinued his daily phone call. In April 1997, Mr. Miianc moved to El Paso, Texas, without informing anyone at the Denver Postal Service facility and without leaving a forwarding address.

On three separate dates, March 11, June 28, and August 7, 1997, the Postal Service sent a duty status letter, by regular and certified mail, to Mr. Miianc's Denver address informing him that he had not submitted the required documentation to substantiate the justification for his absence, requiring him to report to his place of employment on the next scheduled duty day, and predicating his return to work on his presentation of appropriate documentation of his alleged mental illness. Each letter also set forth the requirements for obtaining leave under the Family Medical Leave Act.

The Postal Service issued a notice of proposed removal on November 10, 1997. The notice identified two bases for removal: Mr. Miianc's absence for 11 months without official leave and his failure to follow the instructions set out in each duty status letter. The notice was sent to Mr. Miianc's Denver address. On February 18, 1998, the Postal Service removed Mr. Miianc from his position as of February 27, 1998.

Mr. Miianc filed a timely appeal of his removal with the Merit Systems Protection Board. After conducting an evidentiary hearing, an administrative Judge upheld the removal, finding that the Postal Service had established both reasons for removal -- absence without leave and failure to follow instructions -- by a preponderance of the evidence. The administrative Judge credited the testimony of Postal Service personnel and found Mr. Miianc's testimony to be unworthy of credit. The administrative Judge also found that the agency had shown that Mr. Miianc's removal promoted the efficiency of the Postal Service and was appropriate under the circumstances. The initial decision became final in accordance with 5 C.F.R. § 1201.113.


Mr. Miianc argues that he can document that he incurred a mental illness that caused him to miss work. Mr. Miianc identifies a letter "to whom it may concern" from a registered nurse at the Denver Medical Center of the Department of Veteran Affairs (DVA). The letter states that Mr. Miianc was received at the Medical Center when he complained of depression and stress on December 12, 1996, and that he was referred to a Mental Health Clinic. The letter does not diagnose the severity of the condition about which Mr. Miianc complained.

Mr. Miianc asserts that he sent the DVA letter to the Denver Postal Service facility along with a Family Medical Leave Act form. The Board considered and rejected Mr. Miianc's version of events on the basis of a credibility determination. The mere existence of the DVA letter is insufficient to cast doubt upon the decision made by the fact finder that the letter was not provided to the Postal Service.

Mr. Miianc also seeks to substantiate his past illness by pointing to a DVA decision rating him 30 percent disabled by paranoid schizophrenia. Even if the rating decision established that Mr. Miianc was suffering from a mental illness, however, it does not show that he followed the required procedures in applying for leave or that he submitted any documentation of his condition to the Postal Service as he was directed to do. The rating decision, which is dated May 30, 1998, could not have been provided to the Postal Service during the relevant time period.

Mr. Miianc complains that the Postal Service witnesses who testified at the evidentiary hearing should not be credited because they were not his supervisors. The administrative Judge, however, found that the Postal Service was correct in identifying Mr. Miianc's supervisors during the time in question, and Mr. Miianc has not provided a sufficient basis for overturning that decision. In fact, in his testimony Mr. Miianc identified one of the two witnesses as his immediate supervisor and claimed that she had told him to quit calling in to report his absences. She denied having given him that instruction; the administrative Judge credited her testimony and not his.

The testimony of the Postal Service's witnesses provided substantial evidence for the Board to conclude that Mr. Miianc was absent without leave and did not follow properly issued instructions. As Mr. Miianc does not argue that his removal was an inappropriate penalty or that it will not promote the efficiency of the Postal ...

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