Experienced federal managers are very familiar with the mitigating factors that must be considered when determining employee discipline. What you may not know is that an employee’s medical condition is entitled to “considerable weight as a mitigating factor.” That’s how the MSPB described it in a recent case, Bowman v. Small Bus. Admin., MSPB No. AT-0752-13-0538-I-1 (2015). In this blog we will describe the Bowman case, along with other recent legal rulings on this issue.
In Bowman, the agency removed a Supervisory Construction Analyst for excessive unauthorized leave and failure to follow proper leave requesting procedures. The MSPB agreed that Bowman deserved to be disciplined, but the removal action was reduced to a 30-day suspension without pay.
The key mitigating factor was Bowman’s medical condition. The medical record showed that Bowman’s major depressive disorder played a significant part in his absence. Because of this nexus between the employee’s medical condition and the charged misconduct, the board determined that mitigation of punishment was appropriate. Accordingly, the board canceled the removal action and instead substituted a 30–day suspension without pay.
Significantly, the medical evidence in Bowman was not presented by the employee as part of the proposed removal process. Agency managers were generally aware that Bowman was experiencing medical difficulties, but no medical information was presented by Bowman as part of the disciplinary process. It was only later, at the MSPB hearing, that Bowman introduced medical information as a mitigating factor. The board’s decision in Bowman shows that new medical information about an employee may justify mitigation of penalty. (Indeed, one MSPB board member dissented from the Bowman decision because the employee’s medical information was not presented to management for consideration.)
The Bowman decision continues a line of board cases that emphasize the potential mitigating effect of medical evidence. Woebcke v. Department of Homeland Security (114 M.S.P.R. 100 (2010)) is an important board decision in this line. Woebcke, a federal air marshal with the Transportation Security Administration, was removed from his position for conduct unbecoming an FAM, and for missing a mission, in connection with the employee’s arrest for public street solicitation of prostitution. Woebcke alleged that the penalty of removal was unreasonable. The MSPB agreed, focusing on testimony from Woebcke’s psychologist indicating that the employee’s depression was a “contributing factor to the misconduct in question,” and that the risk of recurring misconduct was “nil to nonexistent.” According to the board, the agency gave insufficient mitigating force to the employee’s medical condition, which contributed to the misconduct. The board reduced the removal action to a 14–day suspension without pay.
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That is, the board in Woebcke held that because the misconduct was linked to a medical condition, the medical evidence was entitled to “considerable weight” as a mitigating factor—so considerable, the board held, that that evidence, along with other factors, rendered the removal of a law enforcement officer who had been arrested for solicitation of prostitution (and who missed his assigned shift as a consequence of this arrest) “beyond the tolerable limits of reasonableness.” The board reversed the removal action notwithstanding the importance of Mr. Woebcke being dependable, the public safety nature of his job, and the ignominy of his arrest.
To be sure, there may come a point where a medical condition that contributes to an employee’s misconduct might call into question his or her fitness for duty. So too, given the significance of medical evidence as a mitigating factor, it is possible that an employee could try to attribute virtually any charged misconduct to a medical condition. (Indeed, that was the concern of the dissenting board member in Bowman, who questioned why the medical evidence in that case was first presented at the MSPB hearing, and not to the agency when it proposed the employee’s removal or even in the employee’s previous disciplinary actions based on similar charges.)
While these are legitimate concerns, the overarching point is that the board requires agency managers to give “considerable weight” to evidence that a medical condition played a part in charged misconduct. Put simply, the board will not hesitate to overturn an agency-imposed penalty if it finds that appropriate weight was not given to medical evidence.
The Bowman decision follows an important federal circuit decision in Norris v. Securities & Exchange Comm. The MSPB in Bowman relied on the Norris decision on this key point: even if the medical condition was not previously known to the agency, if evidence of a condition that bears on the charged conduct is presented on appeal to the board, that mitigating factor must be considered. Bowman, 2015 WL 740256 ¶ 11 (citing Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1355–57 (Fed.Cir.2012)). (Note: our law firm handled the federal circuit appeal in Norris.)
In sum, it may not be enough for agency managers to simply assert that an employee’s medical condition has been considered as a possible mitigating factor. Legal decisions such as Bowman, Woebcke and Norris show that an employee’s medical condition is entitled to “considerable weight as a mitigating factor.” In practical terms, this means that managers should explain in adequate detail their careful weighing of medical information. The MSPB may no longer accept management’s rote recitation that all “Douglas factors” were considered in determining the disciplinary action to impose.
