FSGB Case: Employee’s Mental Health Issues and Performance

 

Via FSGB Case No. 2016-043:

The Department denies that grievant’s 2013 EER is factually inaccurate, falsely prejudicial, or biased, and cites a series of interviews with her supervisors, subordinates, and colleagues to dispute her contentions about the unfairness and inaccuracy of the EER. In response to grievant’s allegation that she was inadequately counselled on the deficiencies described in her EER, the agency contends, based on statements from grievant’s rating officer, that she was in fact counselled, both formally and informally, during the rating period. With respect to grievant’s claim that she was bullied, ostracized, and treated unfairly by the Embassy community, which she alleges triggered her trauma symptoms, the Department provided input from the Ambassador, grievant’s rating officer, and the General Services officer, all of whom disputed grievant’s allegations.

In response to grievant’s claim that she suffered from then-undiagnosed mental health issues (including anxiety, depression and trauma symptoms), the Department counters with quotes from grievant’s rating officer who stated that “from the time REDACTED arrived at post, she appeared unhappy and talked of being stressed.” The rater recalled that some of her stress “appeared to be related to prior postings (including REDACTED, REDACTED, and REDACTED),” and said that “upon arrival she talked to me about how stressful she had found the 6 months of FSI [Foreign Service Institute] REDACTED language training, and told me she urgently needed a break.” The Department was not persuaded that grievant’s poor performance resulted from the medical condition with which grievant was diagnosed after she left REDACTED. The Department put less credence in the medical statement grievant provided from her post-REDACTED therapist, stating “grievant has not provided medical documentation substantiating her alleged diagnosis. Nor does grievant’s counselor provide such documentation; the counselor merely states that ‘I believe PTSD is the primary diagnosis.’”

FSGB BOARD:

In all grievances except those involving discipline, the grievant bears the burden of proving that her claims are meritorious.3 This case turns on whether the grievant’s EER is falsely prejudicial, and, whether any documented underperformance can be attributed to the grievant’s post-REDACTED diagnosis of mental health disorders. The Board notes that the record in this case is, unfortunately, sparse with respect to a diagnosis of grievant’s mental health issues. While the Department is correct in noting that grievant’s counselor noted only that “I believe that PTSD is the primary diagnosis,” the Department provides no opposing medical information whatsoever, relying solely on the observation of grievant’s Foreign Service colleagues in REDACTED.  Grievant’s licensed mental health counselor did in fact provide a detailed listing of grievant’s problems in REDACTED, and concluded that grievant suffered mental health disorders as a result thereof. We note that grievant’s counselor saw the grievant regularly over a period of more than a year. On balance, therefore, the Board is obliged to find grievant’s medical evidence preponderant. After careful examination of the ROP, the Board concludes that grievant’s 2013 EER cannot stand, because her performance during that period was likely influenced by her depression, anxiety, and trauma symptoms. We base our conclusion largely on the detailed statement submitted by grievant’s Licensed Professional Counselor (LPC), with whom grievant had at least 38 therapy sessions between April 2014 and August 2015, and to whom grievant was referred by a prior therapist who had diagnosed her with anxiety, depression, and trauma symptoms. In the Board’s view, this statement, written by a mental health professional who knows the grievant well, is entitled to more weight in the decision process than that of grievant’s rating and reviewing officers, or her colleagues at post. We also note that the Agency provided no contradictory medical opinion, or any information of a medical nature.

In her August 18, 2015, statement, grievant’s LPC states, in relevant parts:

She was referred to my center, the National Center for the Treatment of Phobias, Anxiety, and Depression in Washington DC by a previous therapist who had diagnosed her with anxiety, depression, and Trauma Symptoms. She also sees REDACTED , MD for medications at this center. I believe PTSD is the primary diagnosis and the depression and anxiety are symptoms of the PTSD. REDACTED described primitive and unsanitary living conditions that caused her to feel unsafe. She reported unsanitary water in her apartment, unsafe electrical problems, and other living conditions that prevented sleep, peace and support. While in the workplace, she felt she was targeted, bullied and marginalized. Because of the combination of insecurity in her home, insecurity in her workplace, and the stress of an extremely stressful foreign environment, began to suffer from PTSD symptoms. She became depressed and hopeless, developed panic attacks, difficulty sleeping, developed nightmares, and generalized anxiety.

It is my understanding that her evaluations from this period faulted her for having strained relations with her subordinates, program participants, and peers in Washington, as well as difficulty making contacts in the REDACTED media and discomfort speaking to media on the record. I did not observe REDACTED during this period, so I do not have an opinion on the accuracy of these criticisms, but, if true, each would in my opinion be related to the various symptoms of her previously-undiagnosed and untreated anxiety, depression and trauma symptoms. 

I do not believe a patient can work with very seasoned therapists or psychiatrists and hide character issues as described in the accusations towards REDACTED. However, I do believe that it would have been difficult, if not impossible, for REDACTED , while suffering the effects of PTSD, to maintain a high level of diplomacy, an ability to connect well with co-workers, and to utilize PR skills to connect at work well with the media.

Nightmares, panic attacks, depression, extreme fear, feelings of hopelessness and helplessness and not feeling respected or supported would prevent most people from working at a level of excellence which, to my knowledge, had been true for REDACTED before her REDACTED posting. I believe REDACTED ’s behavior while in REDACTED was mischaracterized at most and misunderstood at the least. This is my opinion based on working with many patients who suffer from trauma-related symptoms. 

We find the foregoing LPC statement to be a detailed professional observation, based on relatively long-term (at least 16 months’) observation of grievant, and thus accord it more weight than we do the statements offered by the Department from non-medical providers (her rater, the General Services officer (GSO), the Ambassador, and grievant’s subordinates). While the statement does not contain a definite diagnosis of grievant’s symptoms, we note it is from a licensed medical professional, and is countered by the Department only with comments from non-medical co-workers and colleagues.

THE BOARD’S DECISION:

Grievant has shown by preponderant evidence that she suffered from the effects of then undiagnosed mental health conditions including anxiety, depression, and potential Post Traumatic Stress Disorder (PTSD) during her tour in REDACTED and accordingly, her Employee Evaluation Report (EER) for 2013 must be expunged and replaced in her Official Personnel File (OPF) by a standard gap memorandum. Grievant has shown that she suffered from these conditions and that they affected her performance in ways that contributed to the negative statements in her EER. If she is not promoted by reconstituted Selection Boards for the years 2014 -2017, her Time in Class shall be extended by one year.

One more: “as a general matter, an EER is inherently false, even though it accurately describes an employee’s performance, if that poor performance was the result of the employee’s serious illness.”

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