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REMOVAL OF ARMY EMPLOYEE FOR BODY ODOR OVERTURNED; DEPRESSION WAS MITIGATING FACTOR

Government Employee Relations Report, July 20, 2004
MSPB - DISCIPLINE

An administrative Judge with the Merit Systems Protection Board has overturned the removal of an Army civilian equipment program technician, instead mitigating the penalty to a 90-day suspension.

The removal action followed a series of disciplinary actions and verbal reprimands for offensive body odor in the workplace. Prior discipline included a five-day suspension effective April 22, 2002, a letter of reprimand issued Jan. 18, 2003, a 10-day suspension effective March 10, 2003, according to the decision. The agency proposed to remove the appellant from her position in a notice issued April 28, 2003, following a fourth offense that occurred April 10, 2003.

At the hearing before AJ Terrence M. McStravick from the board's Philadelphia office, the employee did not contest her history of offensive body odor or that discipline could be imposed for her fourth offense. She also withdrew her allegation of handicap discrimination and conceded that the present infraction, as well as her past disciplinary record, merited some sanction. The only issue before the AJ was whether her removal was appropriate discipline.

The AJ concluded that the deciding official had considered the Douglas factors, but that the removal penalty was overly severe because the employee had presented evidence that her untreated depression was the cause of the four incidents of misconduct.

'Moody and Anxiety Disturbances.' Citing testimony from the appellant's psychologist, the AJ found that the appellant's depression caused "periods of mood and anxiety disturbances characterized by extreme mood liability, tearfulness, suicidal ideation, hopelessness, lack of motivation, poor self-esteem, poor self-care, poor self-worth, anxiousness, decreased energy, lack of pleasure, and panic attacks." These conditions resulted in the conduct that lead to both the present and past charges concerning the appellant's poor hygiene, the AJ said, again citing the psychologist.

"There is no question under ordinary circumstances a removal would be sustained in the instant case," the AJ said. "However, the appellant has presented evidence that her conduct was due to a medical condition which, prior to her latest hospitalization, had not been fully diagnosed or appropriately treated. The appellant has also presented evidence that she has insight into her problems, and , that with the assistance of her family and medical professionals she will be able to address her situation, including that related to work."

For these reasons, a 90-day suspension is the maximum reasonable penalty, the AJ said, adding that "[a]ny recurrence of conduct in the future would fully justify the penalty of removal."

Josh Bowers of Washington, D.C., the appellant's attorney, told BNA that the AJ based his decision on "a huge body of case law" from the board indicating that an appellant's medical condition can be a mitigating factor in misconduct cases.

"My client had 17 years of federal service, no prior discipline prior to the onset of depression, and successful performance appraisals throughout her career," he said. "On these facts, the MSPB has consistently mitigated removal to lesser penalties when it is demonstrated the employee is being successfully treated.

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