Federal Circuit Upholds MSPB Decision on PTSD Defense
A Department of Veterans Affairs employee challenged a suspension through an Individual Right of Action, claiming whistleblower retaliation, and also challenged his removal from federal employment through an MSPB appeal. The two challenges were joined at the MSPB. An MSPB administrative judge declined to order corrective action regarding the suspension, and sustained the removal, finding that mitigating factors such as the employee’s chronic post-traumatic stress disorder (PTSD) were not enough to overcome the seriousness of the charges, including disruptive behavior and use of profane language. On April 17, 2020, the Federal Circuit affirmed the MSPB administrative judge’s decision, finding that there was no reversible error in the Administrative Judge’s balancing of the employee’s PTSD against other factors.
The employee argued that the administrative judge improperly discounted medical evidence, and the appeals court admitted that the administrative judge’s analysis was “cursory.” But while the employee argued that the administrative judge’s analysis amounted to “even if [the employee] had PTSD, [the employee] was still responsible for the words he spoke,” the appeals court held that the Board “did not apply a per se rule that a person suffering from mental illness is always responsible for his misconduct.”
The appeals court noted that the administrative judge would have committed error had the analysis ended with the statements in the decision that “neither the Rehabilitation Act nor the ADA immunize disabled employees from discipline for their misconduct in the workplace,” and “an agency is never required to excuse a disabled employee’s violation of a uniformly-applied, job-related rule of conduct, even if the employee’s disability caused the misconduct.” The appeals court found that the administrative judge considered PTSD as a mitigating factor, but ultimately concluded that removal was “a reasonable and appropriately penalty in view of the [VA Medical Center’s] ‘top priority’ to keep its employees safe, ‘especially in light of the plague of workplace violence which afflicts our nation.’”
The employee argued that this case was similar to two recent Federal Circuit opinions that the appeals court remanded for consideration of medical evidence after administrative judges failed to consider that evidence, Malloy v. U.S. Postal Service, 578 F.3d 1351 (Fed. Cir. 2009), and Bal v. Department of the Navy, 728 F. App’x 923 (Fed. Cir. 2018). But the appeals court found that both the agency’s deciding official and the MSPB “acknowledged [the employee’s] PTSD amd expressly considered it as a mitigating factor in assessing the reasonableness of [the employee’s] removal.” The appeals court also found other reasons to distinguish those cases from the employee’s case.
Next, the appeals court held that the Administrative Judge did not abuse his discretion by excluding testimony of two individuals regarding the agency’s “institutional motive to retaliate that was material to [the employee’s] defense,” citing procedural, rather than substantive, reasons for both exclusions.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the MSPB administrative judge’s decision.
Read the full case: Higgins v. Department of Veterans Affairs.
This case law update was written by Conor D. Dirks, 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.