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"What's disabled?"

A case recently decided by the Merit Systems Protection Board (MSPB) once again demonstrates how difficult it can be for feds to receive fair treatment from their supervisors. The case in point involves Kimberly Craig, who worked as a secretary for the Bureau of Prisons in Leavenworth, Kan. She reported that an associate warden sexually harassed her, beginning in October 1996. She said he made advances, fondled her and requested sexual favors. When she avoided him, he threatened to make her lose her job.

The harassment became so severe that it caused her to miss significant amounts of work on approved leave. Craig testified that things reached a crisis in May and June of 1997, after the associate warden pressured her into accompanying him on a business trip to California. She said the associate warden stalked her, had other people follow her, slashed the tires of her automobile and threatened to have her killed by inmates at the penitentiary.

On June 15, 1997, she notified the warden of the situation. Craig was referred to the agency's Employee Assistance Program and never returned to a duty status after June 16, 1997.

She was treated by her regular physician and a psychiatric social worker. Beginning in June 1997, they both submitted reports excusing Craig's absence for medical reasons. In 2000, the social worker said Craig suffered from post-traumatic stress disorder and panic disorder and recommended that Craig not return to work.

Craig filed a grievance and a discrimination complaint against her employing agency and resigned effective July 8, 1998. On Feb. 10, 1999, Craig applied to the Office of Personnel Management for disability retirement. In its Oct. 5, 2000, decision, OPM denied the application on the basis that her medical evidence did not substantiate that she had a medical condition that prevented her from performing the critical or essential duties of her position, or that excluded her from the workplace altogether. So Craig appealed to the MSPB. Following a hearing, the board's administrative judge issued an initial decision finding that Craig failed to prove her entitlement to disability retirement benefits.

Fortunately, Craig petitioned the full board for review. The board said Craig established by preponderant evidence that her medical condition rendered her unable to perform useful and efficient service in her position. The board also pointed out that there was no evidence that Craig declined any offer of reassignment to a vacancy in the Bureau of Prisons in the Leavenworth area. And finally, the board found no support for a conclusion that Craig failed to avail herself of appropriate medical treatment, or that she failed to show that her medical conditions would not have improved with more aggressive treatment.

The MSPB ordered OPM to grant Craig's application for disability retirement. And in an indication of the board's disapproval, OPM was ordered to complete its action no later than 20 days after the date of the decision.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at [email protected]


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