Psychiatric Examinations, the MSPB, and the EEOC

By Barbara Haga, July 19, 2017

Last month I began recounting the case of Ms Doe, whose employer the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  We pick up the case with the documentation of the issues with Ms Doe’s behavior and the medical review of that information.  Some of the specifics below come from the subsequent EEOC decision issued earlier this year, Marya S. v. PBGC, EEOC Petition No. 0320160066 (2017).

Documentation

Between February and May 2009. the agency had evidence of multiple exchanges that depicted several instances of behavior that seemed to indicate that there was an issue with her mental status.  These were recorded in e-mails and statements from those who participated in them.  They included the following:

• Ms Doe sent an e-mail to the Deputy IG claiming her home had been broken into several times since she released information to the IG office. Doe asked if any member of the Deputy IG’s staff had been in her home without her consent.
• Ms Doe sent an e-mail to her supervisor accusing the supervisor of harassing her and alleging that the supervisor had called a transit officer the previous evening and provided him with the number of the train car in which Ms Doe was riding. She went on to say that “I pray that whatever stronghold has you captive will set you free.” She copied EEO, the CIO, the DCIO, and the OIG on this e-mail.  Ms Doe went on to say that according to the rumor mill the supervisor was trying to get rid of her.
• In a meeting with her supervisor, Ms Doe accused the supervisor and another official of listening to her conversations and stated that she knew about the “ear piece”. Following the meeting, Ms Doe sent an e-mail to her supervisor in which she said that she hoped the supervisor had presented herself well in front of the hidden camera.

Medical Reviews

After the meeting with the supervisor in May 2009, the supervisor consulted with HR regarding the situation. HR forwarded the information to Federal Occupational Health (FOH) and an FOH physician completed a worksheet indicating he had spoken with HR regarding Ms Doe’s paranoid behavior and would recommend a fitness for duty examination (FFDE).  That physician had contact with Dr. Hibler, a psychologist, who would ultimately conduct the FFDE stating that the real issue was whether Ms Doe was a danger to herself or others.

On May 28, 2009 PBGC ordered Ms Doe to undergo a fitness for duty exam with Dr. Hibler, and placed her on administrative leave pending the results.  Dr. Hibler’s report of the examination stated that Ms Doe was experiencing a psychotic delusional disorder and was unfit.  He recommended that Ms Doe “not be considered for potential return to the workplace until a treating practitioner advises that she is stable and has the resources sufficient to perform her duties.”  He also suggested a follow-up FFDE at that time to objectively determine her emotional status and readiness to perform her duties.

Enforced Leave

Upon receipt of Dr. Hibler’s medical determination, PBGC utilized indefinite suspension procedures to put Ms Doe out of her own sick leave.  The action issued on June 29, 2009 stated that the condition which would end the enforced leave was that she submit documentation from her health care provider confirming that (1) her condition had stabilized, (2) she was no longer a danger to yourself or others in the workplace, and that (3) she was fit to return to work.

Ms Doe replied to the proposal asking for administrative leave for another two to three months so that she could locate a new primary care physician and make an appointment with a psychiatrist.  The agency declined to grant further administrative leave and put her on enforced leave in August 2009.

Medical Clearance to Return to Work

Ms Doe submitted a report in September 2009 from Dr. Schell (a psychiatrist) which stated she “… does not have a history of being a threat to others and is not a present danger to herself or others.  She is able to return [sic] to work without restriction.”  PBGC removed Ms Doe from enforced leave status and placed her on administrative leave pending Dr. Hilber’s review of Dr. Schell’s report.

Dr. Hilber’s letter dated September 14, 2009 regarding his review of the submitted documentation, stated, “Dr. Schell’s report does not contain details and an explanation that would be needed to sufficiently understand [the appellant’s] fitness for her return to work (whether with or without accommodation).”  Dr. Hilber recommended that Ms Doe be reevaluated by an independent medical examination sponsored by PBGC so that the perspectives offered by Dr. Schell are considered by an evaluator of the same professional discipline.

PBGC did as Dr. Hilber suggested and notified Ms Doe that she had two options:  1) to submit medical information that cured the deficiencies in the report Dr. Schell submitted or 2) submit to a follow-up examination with Dr. Hilber and a psychiatric evaluation with Dr. Allen.  Ms Doe chose the first option and submitted a progress note from Dr. Schell. Dr. Hilber reviewed the note and found that it did not address the deficiencies noted earlier.  On October 1, 2009 PBGC ordered Ms Doe to undergo the evaluation with Dr. Hilber on October 8, 2009 and an appointment with Dr. Allen on October 9, 2009.

Ms Doe attended the appointment with Dr. Hilber.  He found that she was still evidencing severe mental illness.  He went on to say that she was “too fragile to be safely returned to the workplace.”  Ms.Doe did not attend the appointment with Dr. Allen.

PBGC followed up with a notice to Ms Doe advising that she had two options, 1) to give consent for Dr. Hilber to consult directly with Dr. Schell to resolve the deficiencies in the medical report and evaluate her for return to work, or 2) undergo the psychiatric evaluation with Dr. Allen.  Ms Doe was given a deadline of November 6, 2009 to advise HR or her choice of option.  She was notified that if she did not elect one of the options and timely notify HR her status would be changed to AWOL.  Ms. Doe did not comply and her status was changed to AWOL beginning on November 9, 2009.

What Came Next?

Ms Doe filed two MSPB appeals, one on the enforced leave action and the second on her placement in AWOL status.  She later filed an appeal with the EEOC of the MSPB decision which found that there was no disability discrimination or retaliation in the PBGC’s actions.  We will review the decisions next time, and return to the issue of the problem with the OPM medical examination regulations.  Haga@FELTG.com