Professional Documents
Culture Documents
3d 1351 (2009)
22 A.D. Cases 464
No. 20083117.
|
Aug. 25, 2009.
Synopsis
Background: Former employee of Postal Service
petitioned for review of decision of Merit Systems
Protection Board (MSPB), 107 M.S.P.R. 249, affirming
her removal from employment.
Public Employment
Harmless, prejudicial, and reversible
error
It is not reversible error if the Merit
Systems Protection Board (MSPB) fails
expressly to discuss all of the Douglas factors
in determining the reasonableness of the
penalty imposed by an agency employer for
charged conduct; rather, the Board need only
determine that the agency considered the
factors significant to the particular case.
[1]
Public Employment
Grounds for and Propriety of Adverse
Action
[4]
Public Employment
Remand
Remand
was
warranted
for
Merit
Systems Protection Board (MSPB) to
give consideration and weight to former
Postal Service employee's voluminous medical
evidence regarding her mental impairment, as
mitigating factor in assessing reasonableness
of her removal from employment due to
her disrespectful statements and inadequate
performance that impacted efficiency of
service, where MSPB's decision contained
no analysis of employee's extensive medical
documentation. 5 U.S.C.A. 7513(a),
7701(c)(1)(B).
1 Cases that cite this headnote
[5]
Public Employment
Grounds for and Propriety of Adverse
Action
Mental impairment, when present, warrants
consideration and weight in assessing the
reasonableness of the agency employer's
adverse action taken against employee.
2 Cases that cite this headnote
[6]
Public Employment
Requisites and sufficiency of hearing
Public Employment
Proceedings on Review; Hearing
At hearing before administrative judge (AJ) or
on appeal to Merit Systems Protection Board
(MSPB), regarding an employee's challenge
to federal agency employer's adverse action,
toleration is given to less than optimum
responses by employee who may be mentally
impaired.
Cases that cite this headnote
BACKGROUND
Ms. Malloy entered employment with the USPS on
October 18, 1980. At the time of the events at issue she
was in the position of data collection technician at the
Seattle Bulk Mail Center. In November 2005 Ms. June
D. Hamilton became Ms. Malloy's immediate supervisor.
Because Ms. Malloy and Ms. Hamilton usually worked
on different shifts, they communicated primarily by
email. The email evidence and other records before the
Board show severe tensions and sharp exchanges, relating
primarily to Ms. Malloy's requests for medical and dental
leave, but also concerning the quality or timeliness of Ms.
Malloy's work.
The record contains excerpts from Ms. Hamilton's
electronic work journal, emails, and notes. For example,
on February 2, 2006 (Thursday) Ms. Malloy submitted
leave slips requesting LWOP (leave-without-pay) for the
following week, February 5 to February 9. Ms. Hamilton
denied the request on February 6, 2006 (Monday) and
charged Ms. Malloy with AWOL on each requested day.
Ms. Hamilton's journal entry on February 6 states:
Karla left leaves slips for full week
LWOP, No prior approval, I put her
down as AWOL. I was on leave on
Friday, so I was not able to call her
(I also believe that she knew I was
taking leave on Fridays until the end
of the month)
Ms. Hamilton did not contact Ms. Malloy during her
absence to inform her of the denial of the request and the
AWOL designation.
On February 16, 2006 Ms. Malloy requested leave for
various purposes and Ms. Hamilton denied the request.
Ms. Hamilton's journal entry states:
Karla left leave slips for taking 9
Feb [sic: 19 Feb] off because 20 was
her holiday. I denied for needs of
the serviceshe also put leave in
ANALYSIS
A decision of the Board is reviewed to determine whether
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); see also Cheeseman v. Office
of Pers. Mgmt., 791 F.2d 138, 140 (Fed.Cir.1986).
[1] An employing agency must establish three criteria
when taking an adverse action against an employee.
First, it must establish by preponderant evidence that
the charged conduct occurred. 5 U.S.C. 7701(c)(1)(B).
Second, it must show a nexus between that conduct and
the efficiency of the service. Id. 7513(a). Third, it must
demonstrate that the penalty imposed was reasonable in
light of the relevant factors set forth in Douglas v. Veterans
Admin., 5 MSPB 313, 5 M.S.P.R. 280, 30708 (1981). The
AJ found that the USPS met all three criteria.
It is not disputed that the charged conduct occurred. The
AJ found that it impacted the efficiency of the service
due to the tremendous amount of time required to deal
with the events. Initial Decision at 1314. However, Ms.
[6]
The record before us does not show what
consideration or argument may have been given to the
medical evidence by the AJ, or on appeal to the full Board.
The AJ stated only that the evidence was not submitted
until the day of the hearing, and had been reviewed.
Mental impairment is recognized as a mitigating factor,
and even if this submission were tardy (the AJ did not so
state) Douglas and other precedent counsel toleration of
less than optimum responses by a petitioner who may be
mentally impaired. Cf. French v. Office of Pers. Mgmt.,
810 F.2d 1118, 1119 (Fed.Cir.1987) (We hold that it
[3] [4] The decision of the MSPB contains no analysis is patently unreasonable and fundamentally unfair to
require or allow an incompetent to act as advocate in such
of the medical evidence, although the medical evidence
a setting where even a sane attorney would be confronted
in the record is voluminous and on its face may relate
with a difficult task.).
to Ms. Malloy's inappropriate behavior. Although the AJ
stated that all of the Douglas factors were considered, the
Accordingly, we vacate the decision of the Board and
eleventh Douglas factor, 5 MSPB 313, 5 M.S.P.R. at 305
remand for consideration of Ms. Malloy's evidence of
(mitigating circumstances such as unusual job tensions,
mental impairment, and reapplication of the Douglas
personality problems, mental impairment, harassment, or
factors in light of this evidence.
bad faith, malice or provocation on the part of others
involved in the matter), appears to be directly relevant,
VACATED AND REMANDED.
but is not mentioned and is not shown to have been
considered. 2
All Citations
[5] It is established that mental impairment, when
present, warrants consideration and weight in assessing
the reasonableness of the action taken. See Roseman
Footnotes
*
1
Honorable Robert W. Gettleman, United States District Court for the Northern District of Illinois, sitting by designation.
Defined as: a chronic condition which:
(1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition): and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
Definition under the Family and Medical Leave Act in Certification of Health Care (form provided by the United States
Department of Labor), for Ms. Malloy by Dr. Sarah Nyland, at 4.
This court has long held: It is not reversible error if the Board fails expressly to discuss all of the Douglas factors. The
Board need only determine that the agency considered the factors significant to the particular case. Kumferman v. Dep't
of Navy, 785 F.2d 286, 291 (Fed.Cir.1986) (citations omitted); see also Connolly v. Dep't of Justice, 766 F.2d 507, 514
(Fed.Cir.1985) ([I]t is not per se reversible error for the board not to address the Douglas factors specifically.); Nagel
v. Dep't of Health & Human Servs., 707 F.2d 1384, 138687 (Fed.Cir.1983) (holding that the Board is not required to
articulate irrelevant factors when applying the Douglas analysis). In this case, the decision of the MSPB contains no
analysis of the medical evidence submitted by Ms. Malloyeven though the medical evidence in the record is voluminous
and on its face may relate to Ms. Malloy's inappropriate behavior. This lack of any analysis in the face of such evidence,
coupled with the Board's statement that Ms. Malloy failed to provide any medical documentation that could justify or
excuse her behavior, leads us to conclude that both the AJ and the full Board failed to consider the medical evidence
provided by Ms. Malloy.
End of Document