shaw bransford & roth case law update

Federal Circuit: MSPB Wrong to Reject Evidence of Depression as Mitigating Factor

A Materials Engineer fired from the Department of the Navy for being absent without leave and falsifying time records successfully appealed the decision of the Merit Systems Protection Board to affirm his removal.

On March 30, 2018, in a non-precedential decision, the United States Court of Appeals for the Federal Circuit vacated the Board’s decision and remanded the case so that the Board could properly consider evidence relevant to mitigating circumstances.

On appeal to the Federal Circuit, the employee argued that the Board improperly discounted his evidence of depression as a mitigating factor in determining the reasonableness of his removal under Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981). Although the employee provided ample evidence of treatment for depression, the Board found that none of the evidence submitted on the issue was from or near the time of misconduct, and was not persuasive that the depression was linked to his commission of misconduct.

The appeals court held that the Board’s finding that none of the evidence submitted on the issue was from or near the time of the misconduct was inconsistent with the record. Citing the employee’s treatment from a psychiatrist starting just one month after his misconduct and two months prior to the agency’s proposal to remove the employee, the appeals court found that the psychiatrist’s reports indicated the employee had been suffering from depression for many months, starting with a work incident the prior year before his misconduct. The appeals court also held that the doctor directly linked the employee’s misconduct to his depression, counter to the Board’s finding.

The appeals court further held that the Board erred when it required the employee’s depression “to be so severe as to incapacitate” the employee. That finding “infected” the Board’s findings regarding the reasonableness of the removal, according to the appeals court. The appeals court held that contrary to the Board’s incapacity requirement, Douglas “merely requires consideration of whether ‘mental impairment’ was a mitigating factor to the charged misconduct.” The appeals court cited its ruling in Malloy v. U.S. Postal Serv., 578 F.3d 1351 (Fed. Cir. 2009), which held that “when mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against the employee.” Finding that the Board decision was devoid of any substantive discussion of the employee’s doctor’s reports diagnosing him with major depression and linking that depression to the misconduct, the appeals court held that the Board should have explained why the employee’s evidence of mental impairment was insufficient to establish a mitigating circumstance under Douglas.

With regard to other Douglas factors, the appeals court held that the Board “completely ignored” the evidence presented by the employee of his potential, and actual, rehabilitation, including evidence that showed the employee promptly returned to work, made improvement in his assignments, showed remorse, offered to repay his time with annual leave, sought counseling, and made behavioral changes. Likewise, the appeals court held that the Board’s final decision contained no analysis of two other relevant Douglas factors, Douglas factors seven (consistency of the penalty with any applicable agency table of penalties) and twelve (the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee and others). The appeals court held that the Board gave insufficient consideration of the evidence relevant to these additional mitigating factors, and that the Board’s “mere statement that it considered all the relevant Douglas factors” was not enough to meet its requirement for consideration.

For the above stated reasons, the United States Court of Appeals for the Federal Circuit vacated the Merit Systems Protection Board’s decision and remanded the decision for further proceedings consistent with its opinion.

Read the full case: Bal v. Department of the Navy


This case law update was written by James P. Garay-Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, Navy



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