The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 49
Docket No. SF-0752-12-0208-I-1
Ellis A. Archerda,
Appellant,
v.
Department of Defense,
Agency.
July 11, 2014
Brook L. Beesley, Alameda, California, for the appellant.
Christine J. Kim, Stockton, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review, and the appellant has filed a
cross petition for review, of the initial decision that reversed the agency’s
removal action and denied the appellant’s disability discrimination claim. For the
following reasons, we GRANT the petition for review and DENY the cross
petition for review. As explained below, we REVERSE the administrative
judge’s finding that the agency failed to prove its charge, and modify the
administrative judge’s disability discrimination analysis, still finding that the
appellant did not prove his claim that the agency violated the Rehabilitation Act
of 1973.
2
BACKGROUND
¶2 The appellant was employed as a GS-0081-07 Firefighter at the agency’s
facility in San Joaquin, California. Initial Appeal File (IAF), Tab 6, Subtab 4A.
He was previously a U.S. Air Force Reservist Firefighter, deployed for overseas
service in that capacity. IAF, Tab 15 at 28. As a result of his overseas
deployments, he suffered from post-traumatic stress disorder (PTSD). Id.
¶3 In August 2009, the appellant left an agency training because of severe
emotional distress and was precluded from safety sensitive duties. Hearing
Compact Diskette (CD) (testimony of the agency physician). During this
timeframe, the appellant was admitted for in-patient psychiatric care at a
Department of Veterans Affairs (VA) hospital and continued to receive treatment
for PTSD thereafter. IAF, Tab 15 at 28. In February 2010, the appellant’s
physician explained that the appellant was taking several medications to manage
his PTSD but that his medications had not produced any noticeable side effects.
Id. at 22. The record reflects the appellant was returned to regular work that
month with no restrictions. Id. at 23.
¶4 Following a September 2, 2010 medical examination, during which he
self-reported a 50 percent VA disability rating for PTSD, the appellant was
returned to full duty with no restrictions based on an agreement that he would
provide the disability report for his new VA rating to the physician assistant. Id.
at 24-25; Hearing CD (testimony of the agency physician assistant). The
appellant, however, was restricted to administrative duties that same month after
he failed to submit the disability report. Hearing CD (testimony of the agency
physician assistant). In March 2011, a U.S. Air Force psychiatrist completed a
temporary disability retirement list narrative summary for the appellant based on
his PTSD. IAF, Tab 15 at 28-30. The psychiatrist stated that the appellant had a
combined disability rating of 70 percent with 50 percent attributed to his PTSD.
Id. at 29.
3
¶5 On September 21, 2010, the agency conducted an annual medical
examination at a clinic located at the Defense Distribution Depot in San Joaquin,
California. IAF, Tab 6, Subtab 4G at 1, Subtab 4H at 1. During the annual
medical examination, the appellant notified the agency’s physician assistant that
he had recently received a disability retirement from his Firefighter position with
the U.S. Air Force Reserve. Id., Subtab 4G at 1, Subtab 4H at 1. Based on this
information, the clinic requested that the appellant provide a copy of the medical
documentation from the VA related to his military disability retirement in order
to complete the medical examination and to find that he had the continuing
capacity to meet the physical and medical requirements of his position. Id.,
Subtab 4G at 1, Subtab 4H at 1; Hearing CD (testimony of the agency physician
and the agency physician assistant). When the appellant did not comply with the
clinic’s request, the agency issued the appellant a March 8, 2011 Request for
Additional Medical Information asking that he provide this documentation
directly to the clinic. IAF, Tab 6, Subtab 4O. Effective June 6, 2011, the agency
suspended the appellant for 14 days for failure to follow the instructions in the
March 8, 2011 Request for Additional Medical Information. Id., Subtabs 4I, 4J,
4L.
¶6 On June 20, 2011, the agency issued the appellant another Request for
Additional Medical Information. Id., Subtab 4H at 1-2. Thereafter, the agency
proposed to remove the appellant from his position based on the charge of failure
to follow instructions. Id., Subtab 4G. In support of its charge, the agency
provided a narrative setting forth background information and specifying that the
appellant had failed to comply with the June 20, 2011 Request for Additional
Medical Information. Id. at 1.
¶7 After providing the appellant with an opportunity to respond to the notice
of proposed removal, the deciding official issued a decision letter sustaining the
proposed penalty of removal. Id., Subtab 4B at 1-6. The appellant was removed
effective December 7, 2011. Id., Subtab 4A.
4
¶8 The appellant filed an appeal of his removal. IAF, Tab 1. In his appeal,
the appellant asserted that the agency had discriminated against him based on his
alleged disability and his performance of military duties. Id. at 3-4. Further, the
appellant asserted that he was subjected to double punishment for the same
misconduct and that the agency retaliated against him for engaging in protected
equal employment opportunity (EEO) activities. IAF, Tab 15 at 12-13, Tab 16 at
6.
¶9 Following a hearing, the administrative judge issued an initial decision
reversing the agency’s removal action. IAF, Tab 27, Initial Decision (ID) at 1,
31. The administrative judge found that the appellant failed to follow the
instructions set forth in the specification listed by the agency in support of the
charge. ID at 13. However, the administrative judge found that the agency failed
to show that its instructions to the appellant in the June 20, 2011 Request for
Additional Medical Information were proper. ID at 17. Specifically, the
administrative judge found that the agency failed to show that it had the authority
to require the appellant to produce documentation regarding his PTSD. ID at 17.
Thus, the administrative judge did not sustain the agency’s charge. ID at 17.
Furthermore, the administrative judge found that the appellant failed to establish
his affirmative defenses by preponderant evidence. 1 ID at 18-31.
¶10 The agency filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant subsequently moved to dismiss the agency’s petition,
claiming that the agency failed to comply with the administrative judge’s interim
relief order. PFR File, Tab 3. In addition, the appellant filed a response to the
1
On review, the appellant does not challenge the administrative judge’s findings
regarding his claims that the agency discriminated against him based on his
performance of military duties, subjected him to double punishment for the same
misconduct, and retaliated against him for his protected EEO activities. In any event,
we discern no basis for disturbing the administrative judge’s findings that the appellant
failed to establish these affirmative defenses.
5
agency’s petition for review and a cross petition for review. PFR File, Tab 4.
Thereafter, the agency responded to the appellant’s motion to dismiss and cross
petition for review. PFR File, Tabs 6, 8.
ANALYSIS
The agency properly provided the appellant with interim relief.
¶11 As a preliminary matter, we address the appellant’s motion to dismiss the
agency’s petition for review due to its alleged failure to provide interim relief.
PFR File, Tab 3. Where, as here, the appellant is the prevailing party in an initial
decision that grants interim relief, any petition or cross petition for review filed
by the agency must be accompanied by a certification that the agency has
complied with the interim relief order either by providing the required interim
relief or by satisfying the requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B).
Tisdell v. Department of the Air Force, 94 M.S.P.R. 44, ¶ 6 (2003); 5 C.F.R.
§ 1201.116(a). In an appeal from an adverse action that was reversed, the
agency’s evidence must show, at a minimum, that it has appointed the appellant
to a position carrying the appropriate title, grade, and rate of pay, effective as of
the date of the initial decision. Moore v. U.S. Postal Service, 78 M.S.P.R. 80, 83
(1998).
¶12 We reject the appellant’s contentions that the agency failed to comply with
the interim relief order. PFR File, Tab 3. Along with its petition for review, the
agency provided a Standard Form 50 (SF-50) showing that it had returned the
appellant to his GS-07 Firefighter position effective November 19, 2012—the
date of the initial decision. PFR File, Tab 1 at 8; ID at 1. The SF-50 indicates
that the agency provided the appellant with the same rate of pay that he had been
receiving prior to his removal. PFR File, Tab 1 at 8; IAF, Tab 6, Subtab 4A.
Further, the agency submitted documentation showing that the appellant was
6
placed in a paid administrative leave status beginning November 19, 2012. 2 PFR
File, Tab 6 at 2, Exhibits 2-3.
¶13 Although the appellant argues that the agency failed to provide him with
the required pay, this argument does not establish that the agency failed to
provide interim relief. PFR File, Tab 3 at 4. Contrary to the appellant’s
assertions, the agency is required only to take appropriate administrative action
by the deadline for filing the petition for review that will result in the issuance of
a paycheck for the interim relief period and is not required to have paid the
appellant by the deadline. Tisdell, 94 M.S.P.R. 44, ¶ 8.
¶14 Further, the appellant’s contention that he was entitled to overtime pay
during the interim relief period is unpersuasive. PFR File, Tab 3 at 4. Overtime
pay is only to be provided pursuant to an interim relief order when the appellant
proves that he is entitled to it as a term or condition of employment by virtue of
law, rule, regulation, collective bargaining agreement, or binding agency policy.
Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 8 (2005). While the appellant
claims he was entitled to overtime pay pursuant to a collective bargaining
agreement, the provisions of the agreement he submitted do not guarantee
overtime. Rather, they state that “overtime shall be assigned on a rotational
basis” and that “[m]andatory overtime will be required anytime that a shift is
below minimum staffing requirements and no other employee has volunteered to
work the overtime.” PFR File, Tab 3 at 12-13. Accordingly, the appellant has
not established that he is entitled to overtime pay. See Tisdell, 94 M.S.P.R. 44,
¶ 7 (finding that the appellant failed to establish that he was entitled to overtime
2
The appellant contends that the agency failed to return him to work or make an “undue
disruption” determination. PFR File, Tab 3 at 2-3. The agency, however, could not
return the appellant to work because he was never medically cleared for performing his
Firefighter duties. PFR File, Tab 6 at 5-6; Hearing CD (testimony of the Chief of
Safety and Emergency Services).
7
pay where the relevant collective bargaining agreement did not guarantee
overtime).
¶15 Because the agency has submitted sufficient evidence showing that it
complied with the administrative judge’s interim relief order, the appellant’s
motion to dismiss the agency’s petition for review is denied. See Neuman v.
U.S. Postal Service, 108 M.S.P.R. 200, ¶ 5 (2008) (deciding not to dismiss the
agency’s petition for review where the agency presented sufficient evidence to
show that it had complied with the interim relief order).
The agency proved its charge of failure to follow instructions.
¶16 To prove a charge of failure to follow instructions, an agency must
establish that: (1) the employee was given proper instructions, and (2) the
employee failed to follow the instructions, without regard to whether the failure
was intentional or unintentional. Hamilton v. U.S. Postal Service, 71 M.S.P.R.
547, 556 (1996). As discussed below, the agency proved its charge of failure to
follow instructions under this standard.
¶17 Contrary to the administrative judge’s finding in the initial decision, the
agency’s instructions in the June 20, 2011 Request for Additional Medical
Information were proper. Pursuant to 5 C.F.R. § 339.301(b):
[A]n agency may require an individual who has applied
for or occupies a position which has medical standards
or physical requirements or which is part of an
established medical evaluation program, to report for a
medical examination:
....
(2) [o]n a regularly recurring, periodic basis after
appointment . . . .
It is undisputed that, as a Firefighter, the appellant occupied a position which had
medical standards and physical requirements. ID at 14; Classification &
Qualifications, General Schedule Qualification Standards, Fire Protection and
Prevention Series, 0081, OPM.GOV , http://www.opm.gov/policy-data-
oversight/classification-qualifications/general-schedule-qualification-
8
standards/0000/fire-protection-and-prevention-series-0081/ (last visited May 13,
2014). Accordingly, the agency had authority under 5 C.F.R. § 339.301(b)(2) to
require the appellant to report to a periodic medical examination.
¶18 The appellant’s position as a Firefighter required him to function without
supervision while under extreme stress in emergency lifesaving situations and as
the sole medical authority available. IAF, Tab 6, Subtab 4H at 4. As part of his
duties, he was responsible for assessing any particular emergency situation to
establish medical priorities without advice or direction and for directing any
personnel present and the movement of equipment to effect life-saving
operations. Id.
¶19 The agency physician and the agency physician assistant who conducted
the appellant’s periodic medical examination on September 21, 2010, testified
that they needed medical documentation from the VA relating to the appellant’s
military disability retirement in order to complete the medical examination and to
find that the appellant had the continuing capacity to meet the physical and
medical requirements of his position. Hearing CD (testimony of the agency
physician and the agency physician assistant). In particular, the agency physician
and agency physician assistant testified that they had significant concerns about
the appellant’s PTSD and the reasons for his retirement from the U.S. Air Force
as a Reservist Firefighter. Id. The agency physician testified that a 50 percent
VA disability rating based on PTSD, as reported by the appellant during a
September 2, 2010 examination, represented a significant social and/or cognizant
impairment for a chronic relapsing disorder. Id. The physician explained that the
appellant had changed medications by his September 2010 examination and was
taking a number of significant psychotropic drugs that could cause fatigue and
affect coordination and cognitive memories. Id. He explained that, because
PTSD symptoms ebb and flow, the ongoing use of these medications indicated
significant, and possibly worsening, symptoms. Id. He further testified that,
although he had reviewed a February 9, 2010 letter from the appellant’s
9
physician, it lacked the details necessary for the agency clinic to evaluate the
appellant objectively for safety-sensitive duties in light of the diagnosed PTSD.
Id. The physician also explained that a diagnosis and PTSD rating alone were
insufficient to determine whether the appellant was impaired. Id.
¶20 When the appellant failed to comply with the clinic’s request that he
provide information relating to his military disability retirement, the agency
issued the appellant a March 8, 2011 Request for Additional Medical Information,
followed by a June 20, 2011 Request for Additional Medical Information, seeking
this information. IAF, Tab 6, Subtabs 4H, 4O. Specifically, the agency stated in
the June 20, 2011 Request for Additional Medical Information that an agency
physician assistant and an agency physician needed further information regarding
the reason for the appellant’s disability retirement from the U.S. Air Force
Reserve and the supporting documentation to ensure the appellant met the
standards of his position as a Firefighter. Id., Subtab 4H.
¶21 The agency was entitled to request medical documentation related to the
appellant’s military disability retirement as part of the periodic medical
examination, and he was obligated to provide the documentation as part of his
duty to cooperate with the examination. See 5 C.F.R. § 339.102(c) (an employee
may face an adverse action if he refuses “to be examined in accordance with a
proper agency order”). Moreover, the agency’s request for the disability
retirement documentation from the appellant in the June 20, 2011 Request for
Additional Medical Information was job-related and consistent with business
necessity and was narrowly tailored to its specific concerns regarding the
appellant’s ability to meet the requirements of his Firefighter position. See
5 C.F.R. § 339.103 (actions under 5 C.F.R. Part 339 must be consistent with
Equal Employment Opportunity Commission (EEOC) Americans with Disabilities
Act (ADA) regulations, citing to the predecessor to the current ADA regulations);
29 C.F.R. §§ 1630.13(b), 1630.14(c) (generally, a disability-related inquiry or
medical examination must be “job-related and consistent with business
10
necessity,” and an employer “may make inquiries into the ability of an employee
to perform job-related functions”). Because the agency’s request for additional
medical documentation was job-related and necessary to make an informed
management decision, the agency was authorized to require the appellant to
produce medical information relating to a psychiatric condition, and to discipline
the appellant for refusal to do so. Cf. Scott v. Napolitano, 717 F. Supp. 2d 1071,
1083-85 (S.D. Cal. 2010) (recognizing that an employer does not violate the ADA
by conducting a narrowly tailored mental examination where there is a reasonable
concern about an employee’s mental health, but finding the particular questions
posed to be broader and more intrusive than necessary). Accordingly, under the
circumstances in this case, we find that the agency’s request for the appellant’s
medical documentation in the June 20, 2011 Request for Additional Medical
Information was proper. 3
¶22 In order to prove a charge of failure to follow instructions, the agency must
also establish that the employee failed to follow the instructions at issue. See
Hamilton, 71 M.S.P.R. at 556. Here, the administrative judge correctly found
that the appellant failed to follow the instructions in the June 20, 2011 Request
for Additional Medical Information. In the June 20, 2011 instructions, the
agency asked that the appellant submit the following information from his
physician: (1) a history of the appellant’s medical condition; (2) a diagnosis and
prognosis, including an estimated date of full or partial recovery, if any;
3
In the initial decision, the administrative judge cited to Doe v. Pension Benefit
Guaranty Corporation, 117 M.S.P.R. 579 (2012), in finding that the agency’s
instructions in the June 20, 2011 Request for Additional Medical Information were not
proper. ID at 14, 17. However, Doe is inapposite to this case because the appellant in
Doe was not subject to medical standards or physical requirements. See Doe,
117 M.S.P.R. 579, ¶ 28. Unlike the appellant in Doe, the appellant in the instant case
was subject to periodic medical examinations under 5 C.F.R. § 339.301(b)(2). ID at 14;
see Doe, 117 M.S.P.R. 579, ¶¶ 27-28 (distinguishing situations involving medical
standards or physical requirements).
11
(3) identification of specific restrictions, which related to the attached position
description; and (4) a determination of whether the appellant was able to perform
in a light duty capacity. IAF, Tab 6, Subtab 4H at 1.
¶23 Although the appellant argues both below and on review that he submitted
a February 9, 2010 letter from his physician, the administrative judge properly
found that this letter did not provide the medical information requested by the
agency. ID at 13; IAF, Tab 15 at 22; PFR File, Tab 4 at 4. Although the letter
explained the medications the appellant was taking to manage his PTSD, it did
not provide a history of his medical condition and a diagnosis and prognosis, or
set forth any restrictions associated with the attached position description. 4 IAF,
Tab 6, Subtab 4H at 4-10, Tab 15 at 22. Because the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions, we discern no reason to disturb the administrative judge’s
finding that the appellant failed to follow the instructions as set forth in the
specification listed by the agency in support of its charge. See Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987); see also
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997). Based on the
foregoing, we sustain the agency’s charge of failure to follow instructions.
The agency established nexus and that the penalty of removal was reasonable.
¶24 We find that that the agency has met its burden to establish nexus here
because the charge of failure to follow instructions relates directly to the
efficiency of the appellant’s service. See Howarth v. U.S. Postal Service,
77 M.S.P.R. 1, 7 (1997) (finding that there was nexus between the appellant’s
refusal to comply with the agency’s legitimate instruction to submit for alcohol
4
The February 9, 2010 letter indicated that the appellant’s condition did not interfere
with use of certain equipment or with driving. IAF, Tab 15 at 22. However, it neither
affirmatively stated that the PTSD caused no other restrictions related to his position
nor represented that he had no such additional restrictions. Id.
12
testing and the efficiency of the service because failure to follow instructions
inherently affects the agency’s ability to carry out its mission). Furthermore, as
discussed below, we find that the agency-imposed penalty of removal was within
the tolerable limits of reasonableness.
¶25 Where, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Woebcke v. Department of Homeland Security,
114 M.S.P.R. 100, ¶ 7 (2010); Douglas v. Veterans Administration, 5 M.S.P.R.
280, 306 (1981). In determining whether the selected penalty is reasonable, the
Board gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency. Woebcke,
114 M.S.P.R. 100, ¶ 7. The Board recognizes that its function is not to displace
management’s responsibility or to decide what penalty it would impose but to
assure that management judgment has been properly exercised and that the
penalty selected by the agency does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty only when it finds
that the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id.
¶26 After reviewing the record in this case, we find that the deciding official
properly considered the relevant Douglas factors in making his penalty
determination, including the nature and seriousness of the offense, the appellant’s
position as a Firefighter, the appellant’s past disciplinary record, the clarity of
being on notice, and the potential for rehabilitation. IAF, Tab 6, Subtab 4B at 4.
Regarding the nature and seriousness of the offense, the deciding official stated
that the agency needed the medical documentation requested in the June 21, 2011
Request for Additional Medical Information to make an informed decision
regarding whether the appellant could be returned to full duty. Id. The deciding
official also considered that the appellant had recently been suspended for 14
13
days for failure to follow instructions regarding his medical clearance.5 Id. The
deciding official also considered mitigating factors, including the appellant’s
length of service and performance on the job. Id. In this regard, the deciding
official noted that the appellant had an excellent work record with a long history
of “fully successful performance.” Id. The deciding official, however, found that
these mitigating factors did not outweigh the seriousness of the appellant’s
misconduct. Id.
¶27 Based on the foregoing, we find that the deciding official considered the
relevant Douglas factors and that the agency properly exercised management
discretion in imposing the penalty. Thus, under the circumstances in this case,
we find that the penalty of removal was within the tolerable limits of
reasonableness. See Hernandez v. Department of Agriculture, 83 M.S.P.R. 371,
¶¶ 12-13 (1999) (finding that the administrative judge erred in mitigating a
penalty of removal for failure to follow instructions and fiscal irregularities based
solely on the employee’s years of service and his satisfactory performance);
Thompson v. U.S. Postal Service, 50 M.S.P.R. 41, 46 (1991) (finding removal to
be a reasonable penalty where the appellant failed to follow his supervisor’s
instructions), aff’d, 965 F.2d 1065 (Fed. Cir. 1992) (Table).
The appellant failed to establish his claim of disability discrimination.
¶28 In his cross petition for review, the appellant contends that the
administrative judge erred in denying his affirmative defense of disability
discrimination. PFR File, Tab 4 at 5-6. In finding that the appellant failed to
establish his affirmative defense of disability discrimination, the administrative
judge applied a disparate treatment analysis. ID at 25-31. However, to the extent
that the appellant is asserting that the agency discriminated against him on the
5
The notice of proposed removal referenced the appellant’s 14-day suspension for
failure to follow instructions. IAF, Tab 6, Subtab 4G at 1-2.
14
basis of his disability by requiring him to submit medical documentation
regarding his PTSD, the administrative judge should have applied a different
standard to the appellant’s claim. See Clark v. Potter, EEOC Appeal No.
01992682, 2001 WL 1526433, at *3-*4 (E.E.O.C. Nov. 20, 2001) (finding that
the administrative judge erred in applying a disparate treatment analysis to an
employee’s claim that the agency discriminated against him by requiring him to
undergo a fitness-for-duty examination); see also Southerland v. Department of
Defense, 119 M.S.P.R. 566, ¶ 20 (2013) (the Board generally defers to the EEOC
on issues of substantive discrimination law unless the EEOC’s decision rests on
civil service law for its support or is so unreasonable that it amounts to a
violation of civil service law). Specifically, as discussed below, the
administrative judge should have determined whether the agency’s medical
inquiry was “job-related and consistent with business necessity.” See Clark,
2001 WL 1526433, at *4. For the following reasons, we find the appellant has
not prevailed on his disability discrimination claim under this standard.
¶29 “The ADA imposes significant restrictions on an employer’s freedom to
make medical inquiries of employees.” 6 Watkins v. Potter, EEOC Appeal No.
01981800, 2001 WL 1097442, at *2 (E.E.O.C. Aug. 29, 2001). Under 42 U.S.C.
§ 12112(d)(4)(A), an employer “shall not require a medical examination and shall
not make inquiries of an employee as to whether such employee is an individual
with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business
6
As a federal employee, the appellant’s claim of discrimination on the basis of
disability arises under the Rehabilitation Act of 1973. However, the regulatory
standards for the ADA have been incorporated by reference into the Rehabilitation Act,
and the Board applies them to determine whether there has been a Rehabilitation Act
violation. 29 U.S.C. § 791(g); Pinegar v. Federal Election Commission, 105 M.S.P.R.
677, ¶ 36 n. 3 (2007); 29 C.F.R. § 1614.203(b).
15
necessity.” The EEOC has promulgated regulations implementing this statutory
provision. See 29 C.F.R. §§ 1630.13(b), 1630.14(c).
¶30 Generally, a disability-related inquiry or medical examination may be
“job-related and consistent with business necessity” if an employer “has a
reasonable belief, based on objective evidence, that: (1) an employee’s ability to
perform essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medical condition.” Watkins,
2001 WL 1097442, at *2. “Direct threat means a significant risk of substantial
harm to the health or safety of the individual or others that cannot be eliminated
or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r).
¶31 It is the employer’s burden to show that its disability-related inquiries and
requests for examination are job-related and consistent with business necessity.
Watkins, 2001 WL 1097442, at *2. The appellant alleges that the agency
regarded him as disabled, and therefore he is an individual with a disability
within the meaning of the ADA. PFR File, Tab 9 at 3-4. However, the ADA’s
restrictions on disability-related inquiries and medical examinations apply to
individuals both with and without disabilities. Watkins, 2001 WL 1097442, at *2.
Therefore, the appellant is protected by these restrictions regardless of whether he
qualifies as disabled within the meaning of the ADA.
¶32 Upon review of the record, we find that the agency has met its burden of
showing that its June 20, 2011 instructions to the appellant were job-related and
consistent with business necessity. The agency has not presented sufficient
evidence to satisfy the second prong, that it had a reasonable belief, based on
objective evidence, that the appellant posed a direct threat due to a medical
condition. There is no evidence that the appellant was violent or posed a
significant risk of substantial harm. See Clark, 2001 WL 1526433, at *4 (finding
that the agency failed to show that the complainant posed a direct threat due to a
medical condition where there was no evidence that the complainant was
physically violent or would do any harm). However, as discussed below, the
16
agency has shown that it had a reasonable belief, based on objective evidence,
that the appellant was unable to perform the essential job functions of his
Firefighter position due to his PTSD.
¶33 Record and testimonial evidence indicates that the appellant suffered from,
and was being treated for, PTSD since at least 2009. As previously noted, the
agency issued its June 20, 2011 instructions requesting information relating to the
appellant’s PTSD. An agency physician and physician assistant testified that they
needed additional information to medically clear the appellant based on their
significant concerns regarding his PTSD and the reasons for his retirement from
the U.S. Air Force as a Reservist Firefighter. Hearing CD (testimony of the
agency physician and the agency physician assistant). The agency physician
further testified that, although he had reviewed a February 9, 2010 letter from the
appellant’s physician, the letter lacked the details necessary for the agency clinic
to objectively evaluate the appellant for safety-sensitive duties in light of the
diagnosed PTSD. Id.
¶34 We find that the agency has shown that it had a reasonable belief that the
appellant was unable to perform the essential job functions of his Firefighter
position due to his PTSD. In particular, the documentation provided by the
appellant did not provide sufficient information regarding his PTSD and whether
he was impaired. See Calicott v. Potter, EEOC Appeal No. 01A01169, 2003 WL
21634364, at *2 (E.E.O.C. Jul. 2, 2003) (finding that the agency had a sufficient
basis for ordering a fitness-for-duty examination where the medical
documentation provided by the employee lacked relevant facts and information
regarding his current medical status). The agency had a sufficient basis for
seeking clarification about the appellant’s PTSD based on the agency physician’s
and the physician assistant’s significant concerns regarding the appellant’s
psychiatric condition. See id.
¶35 Because the agency’s June 20, 2011 instructions to the appellant were
job-related and consistent with business necessity, the agency did not violate
17
42 U.S.C. § 12112(d) and 29 C.F.R. §§ 1630.13(b), 1630.14(c), when it ordered
the appellant to submit medical documentation relating to his PTSD. The
appellant, therefore, has failed to establish his disability discrimination claim.
ORDER
¶36 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the EEOC. See Title 5 of the United States Code, section 7702(b)(1) (5
U.S.C. § 7702(b)(1)). If you submit your request by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
18
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.