The U.S. Court of Appeals for the Federal Circuit reversed the MSPB and found that a pro se appellant who was suffering from a mental impairment was entitled to have it considered as a mitigating factor in her removal. Malloy v. U.S. Postal Service, No. 2008-3117 (Fed. Cir. 8/25/09). The MSPB administrative judge (AJ) had determined that Ms. Malloy was disrespectful to a supervisor and failed to follow instructions although she presented extensive medical documentation indicating that she was having serious mental health issues. The full Board denied her petition for review.
The court found that while the charged misconduct was not disputed, it strongly disagreed with the AJ’s statement that Ms. Malloy’s representations about her medical condition were "not credible" as it "is so totally at odds with the medical records as to raise strong doubts as to the thoroughness of the AJ’s review." The court noted that where a "mental impairment or illness is reasonably substantiated," it "must be taken into account when taking an adverse action against the employee." The court went on to find that the AJ’s decision contained no analysis of the medical evidence although it is one of the Douglas factors for weighing discipline, number 11 which covers "mental impairment." The court concluded: "It is established that mental impairment, when present, warrants consideration and weight in assessing the reasonableness of the action taken."
In addition, the court noted that the Board should be more tolerant of responses from a mentally impaired appellant, citing French v. OPM, 810 F.2d 1118, 1119 (Fed. Cir. 1987). Therefore, the court of appeals vacated the Board’s decision and remanded the case for consideration of the appellant’s evidence of mental impairment and reapplication of the Douglas factors, citing Van Fossen v. HUD, 748 F2d. 1579, 1581 (Fed. Cir. 1984); Nagel v. HHS, 707 F2d. 1384, 1386-87 (Fed. Cir. 1983).
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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