Karla Malloy entered employment with the USPS on October 18, 1980. At the time of the events at issue she was in the position of data collection technician at the Seattle Bulk Mail Center. In November 2005 Ms. June D. Hamilton became Ms. Malloy’s immediate supervisor. Because Ms. Malloy and Ms. Hamilton usually worked on different shifts, they communicated primarily by email. The email evidence and other records before the Board show severe tensions and sharp exchanges, relating primarily to Ms. Malloy’s requests for medical and dental leave, but also concerning the quality or timeliness of Ms. Malloy’s work.

The record contains excerpts from Ms. Hamilton’s electronic work journal, emails, and notes. For example, on February 2, 2006 (Thursday) Ms. Malloy submitted leave slips requesting LWOP (leave-without-pay) for the following week, February 5 to February 9. Ms. Hamilton denied the request on February 6, 2006 (Monday) and charged Ms. Malloy with AWOL on each requested day.

The situation led to an Investigative Interview held on May 8, 2006. Ms. Malloy left the interview shortly after it began, citing stress. Another Investigative Interview was held on June 7, 2006.

On August 29, 2006 USPS issued Ms. Malloy a Notice of Proposed Removal, charging her with disrespectful communication to a supervisor and failure to follow instructions. The notice listed seven specifications for the charge of disrespectful communication, all of which are emails or notes sent by Ms. Malloy to Ms. Hamilton, including those quoted ante. The charge of failure to follow instructions listed two specifications, including an April 3, 2006 email from Ms. Malloy refusing to follow Ms. Hamilton’s instruction concerning PS Form 1767 (entitled “Report of Hazard, Unsafe Condition or Practice”).

In response to the proposed removal, Ms. Malloy and her union representative met with Plant Manager Mr. Vendetti, and then provided a twenty-nine-page written response to Mr. Vendetti. The written response states, in part, that Ms. Malloy has been under medical care and that she has supporting medical documentation. Mr. Vendetti issued a letter of removal, stating that upon careful consideration of all the evidence in the record, including the mitigating factors argued by Ms. Malloy, he decided to remove Ms. Malloy for the following reasons: “your behavior at our meeting and the tone and content of your written response to me further defines and delineates the very problem that forms the basis of your removal — that being lack of common courtesy and a blatant disrespect for others.” The letter mentions medical concerns:

Her removal from employment was effective on October 6, 2006.

Ms. Malloy appealed to the MSPB. She did not dispute that her communications to Ms. Hamilton contain inappropriate language, but argued at the hearing that mental impairment caused her to sometimes act inappropriately.

Thus the record shows that Ms. Malloy was seen by mental health professionals and physicians on multiple occasions from 2006 to 2007, before, during, and after her removal. The record shows many patient visit notes and medical opinions. The record also contains lay evidence that Ms. Malloy was perceived by colleagues as having mental impairment, including Mr. Merlino’s Investigative Interview notes shown ante, describing Ms. Malloy as “extremely hyper” and “not mentally well.”

The AJ found that Ms. Malloy’s written communications were disrespectful and unprofessional, and sustained the removal. The AJ’s opinion states that Ms. Malloy stated that “she was under stress, depressed, could not think straight, concentrate or perform simple tasks.” The AJ found “the appellant’s assertions in this regard not credible and unsupported by the record.” The AJ did not mention any of the medical documents, although she stated that she had “reviewed her submissions.”

The record before us does not show what consideration or argument may have been given to the medical evidence by the AJ, or on appeal to the full Board. The AJ stated only that the evidence was not submitted until the day of the hearing, and had been “reviewed.” Mental impairment is recognized as a mitigating factor, and even if this submission were tardy (the AJ did not so state) Douglas and other precedent counsel toleration of less than optimum responses by a petitioner who may be mentally impaired. (“We hold that it is patently unreasonable and fundamentally unfair to require or allow an incompetent to act as advocate in such a setting where even a sane attorney would be confronted with a difficult task.”).

Accordingly, we vacate the decision of the Board and remand for consideration of Ms. Malloy’s evidence of mental impairment, and reapplication of the Douglas factors in light of this evidence.

see Malloy vs USPS