Agencies: Take care disciplining employees with PTSD

Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

The Office of Personnel Management (OPM) recently announced that 31 percent of new executive branch employees hired in fiscal year 2013 were veterans, marking the fifth consecutive year that the veteran hiring rate has increased. In making this announcement, OPM highlighted how the 2013 fiscal year rate represented the “highest percentage of military veterans [hired by the executive branch]since 1974.” It is important for federal managers to be cognizant of that fact that many veterans in this current wave of new hires will be grappling with a condition that technically did not exist when that older wave rose in the wake of the United States’ involvement in Vietnam.

As military veterans continue to represent a growing share of the executive branch’s new hires, federal agencies may find themselves more frequently dealing with employees suffering from post-traumatic stress disorder (PTSD). An estimated 11 percent of Afghanistan war veterans and 20 percent of Iraq war veterans suffer from PTSD, according to the National Institute of Health. While an estimated 31 percent of Vietnam veterans suffer from PTSD, this disorder was not added to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders until 1980. Before that time, PTSD was considered a “gross stress reaction” known as “stress response syndrome.”

I would hope that medical science’s better understanding of this mental condition would enable federal agencies to better manage employees diagnosed with PTSD. But that is not always the case. Sometimes agencies fail to recognize PTSD as a disability and discriminate against employees in violation of the Rehabilitation Act. Other times, agencies fail to properly consider an employee’s PTSD when deciding how severely to and discipline him or her.

A Merit Systems Protection Board (MSPB) judge in Social Security Administration v. McQuary (2011) defined PTSD as “an anxiety disorder that develops as a result of exposure to a traumatic incident, and manifests in symptoms such as anger dyscontrol, sleep problems, and hypervigilence or paranoia, including defensiveness.” Employees diagnosed with this disorder can be protected against disability discrimination so long as their PTSD qualifies as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” In McQuary, for instance, the MSPB judge acknowledged that “this condition can limit [an employee’s]work and other major life activities.”

However, it should be noted that a PTSD diagnosis does not mean an employee is disabled, so far as the Rehabilitation Act is concerned. For instance, in Stocketta v. U.S. Postal Service (1994), the Equal Employment Opportunity Commission (EEOC) found that even a Vietnam veteran whose PTSD afforded him a 30 percent permanent disability rating from the Veterans Administration did not make him a qualified person with a disability because he could not perform an essential function of his position (i.e., computer work) and his proposed accommodations were not reasonable. In Sublette v. Department of the Army (1995), the MSPB refused to attribute misconduct, such as making sexist comments to female co-workers, to a purported disability when there was no evidence that an appellant “was angry, under stress, or otherwise affected by his PTSD or depression, as he engaged in this behavior.”

Given how anger dyscontrol and defensiveness are common symptoms of PTSD, agencies must be careful when disciplining employees diagnosed with this condition. Even if a disciplinary action against employees diagnosed with PTSD cannot be challenged as disability discrimination, “it may be considered in determining an appropriate penalty,” the MSPB judge in McQuary noted. For instance, the agency in McQuary wanted to suspend for 10 days an administrative law judge who had disrupted a hearing. The MSPB judge found that the employee had stopped taking his anxiety medication, which could have prevented his temper from flaring up, and concluded “PTSD contributed to his misconduct.” Further, the MSPB judge noted it is sufficient “to give…weight to…PTSD as a mitigating fact…if a condition influenced, played a part in, or contributed to, the misconduct at issue.” Consequently, the MSPB judge said a five-day suspension without pay would be more appropriate.

Veterans have much to offer the federal government. The skills and knowledge they acquire in the military have great value in both the private and public sectors, and veterans diagnosed with PTSD should not let federal agencies diminish that value by engaging in disability discrimination.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.