A recent MSPB decision further validated that an employee’s depression is a legitimate mitigation factor in personal actions, even if it does not become known until after the action was taken.

In Bowman v. SBA, 2015 MSPB 18 (2015) the Board confronted a case where a manager had been fired for excessive absences.  Representing himself before the Board, the employee explained that his absences were due to his depression.  The agency objected to even consideration of that because the employee never told it of his depression until after he was a fired.

The Board quickly tossed aside the agency’s objections with two firm declarations.  First, it ruled that, “…where new evidence supporting mitigation of the penalty is presented to the Board, the evidence must be considered in determining whether the agency’s penalty was reasonable.”  Consequently, if a union rep comes across new evidence even after the final decision has bene issued in an adverse action the agency and even arbitrators are required to consider it.

Second, the Board reiterated that, “…evidence that an employee’s medical condition or mental impairment played a part in the charged conduct is ordinarily entitled to considerable weight as a mitigating factor.”  In this case, the employee was able to show through the proximity in time, testimony, or other evidence not only a link to the relevant period of his unexcused absences, but also that his mental illness played a significant part in his absence.

Although this was an adverse action case, union reps should raise the defense whenever an employee suffers something unfortunate, e.g., a lowered evaluation, sick leave restrictions, etc.  MSPB pointed out that the medical condition need not rise to the level of a disability to be persuasive

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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