By Barbara Haga, May 15, 2019

This month, we look at cases where the condition needed to be met involves some sort of physical capability. Because the employees in these cases had previously performed at a fully successful or better level or the medical showed that they could perform at a fully successful level in the future, one might think there could be an issue in holding the employee to the medical standard. However, the MSPB and EEOC ruled otherwise in these situations.

Medically Unfit for Flying

Boulineau was a 51-year old GS-12 Army Helicopter Flight Instructor. His position had established medical standards. He was required to undergo annual flight examinations. During an examination conducted in 1989, it was discovered that he had an elevated coronary risk index. He underwent additional testing, including a treadmill test and a fluoroscopy. The latter test revealed a mild calcification of his coronary area. To confirm the existence of coronary artery disease, which was disqualifying for the appellant’s position, the Army asked that he undergo cardiac catheterization. Boulineau refused to do so and was removed consistent with the relevant Army Regulation (AR) 40-501.

Boulineau argued that the testing and evaluation program violated not only the Army regulation, but his civil rights. The Board found that AR 40-501 provided that a person is medically unfit for flying if he has suspected or proven to have coronary artery disease, and that a coronary risk index is presumptive evidence of such disease until further evaluation is done as needed. The Board also found that although Boulineau had performed his duties in an exemplary manner in the past, the Army reasonably suspected that he had coronary artery disease and that he was, therefore, medically unfit for flying. The Board did not concur that Boulineau’s civil rights had been violated and noted that medical examinations of the type in question were authorized by OPM. Boulineau v. Army, 57 MSPR 244 (1993).

Boulineau alleged age discrimination and that issue was ruled on by the EEOC in 1994.  Per the EEOC’s analysis, the reason for his removal was that he refused the heart catheterization procedure — not his age. Therefore, they did not find discrimination. Boulineau v. Dept of the Army, 1994 EEOPUB LEXIS 565.

Failure to Meet New Hearing Qualification

McAlexander was originally hired as a Police Officer in January 2002 by the Defense Protective Service (DPS). In response to the terrorist attack against the Pentagon on 9/11, DoD established the Pentagon Force Protection Agency. The new agency absorbed the Pentagon’s police force, formerly known as DPS, and its role of providing basic law enforcement and security for Pentagon and DoD interests in the National Capitol Region.

McAlexander had had no issues with qualifications prior to implementation of the new requirements. However, when he was tested subsequent to issuance of the new standards, he was found not qualified to hold the Police Office position.  According to the agency’s audiologist, McAlexander was “at risk for failure to recognize, discriminate, localize, and react appropriately to a variety of auditory stimuli.” The audiologist also found that the appellant would have “significant difficulty recognizing and discriminating speech as well as other auditory signals, particularly in the presence of background noise,” and stated further that he would be at a “greater than normal risk of being injured or of injuring others because of background noises he had missed or misunderstood in critical situations.” The audiologist stated that there were no hearing aids that could satisfactorily correct his hearing deficit.

DoD proposed removal, but offered another position. McAlexander was ultimately reassigned to a non-law enforcement position as a GS-07 Office Support Assistant, with retained pay, and the removal notice was rescinded.  The case was taken to arbitration where the agency’s action was upheld. The arbitrator found that the agency acted lawfully when it declined to waive its hearing requirement for McAlexander. The MSPB appeal was a request of a review of the arbitrator’s award and a claim that the reassignment was involuntary. The MSPB found that the agency’s auditory acuity qualification standard was job-related and consistent with business necessity and that McAlexander would pose a direct threat because of his lack of hearing acuity.  The Board also ruled that acceptance of the offered reassignment was not involuntary. McAlexander v. DoD, 2007 MSPB 103.

See also Holub v. Navy, PH-0752-03-0395-I-1, which has the same result for another Police Officer who failed to meet revised hearing acuity requirements.

Failure to Meet Requirements for Sea Duty Because of Prescribed Medication

Justice was a Utilityman in the civilian mariner pool with the Navy’s Military Sealift Command. This position required going to sea. Justice had previously experienced psychiatric and alcohol-related problems while on board a vessel. As a result, he was repatriated back to the U.S. for treatment.  He was diagnosed with Bipolar Affective Disorder. This condition was treatable with medication. Justice provided information from two treating physicians stating that he was being successfully treated with Depakote, a psychotropic drug. It was also noted that he would have to take this drug indefinitely, but he could resume his regular duties as long as he continued to take Depakote.

The agency medical officer found Justice disqualified for sea duty. He was removed, and he appealed that removal to the Board. The agency medical officer testified that she considered Bipolar Affective Disorder a disqualifying condition in itself under the agency regulations, and that the continued use of Depakote was a separate disqualifying factor under the agency regulations.  The agency medical officer stated “Depakote is a medication that requires some routine monitoring of blood levels to determine whether it’s a therapeutic level” and also noted that individuals taking psychotropic drugs are disqualified from sea duty because of the uncertainty such drugs present in terms of their effect on individuals who take them or who fail to take them, and because they could have some “rather significant side effects pertaining to alertness and judgment.” The medical officer also testified that the type of ships that Justice would be assigned to did not have the medical facilities to test the amounts of the drug in his system as would be required. She also noted that in a situation where the individual stopped complying with the medication, incidents requiring repatriation could occur again which could interrupt the mission of the ship, which could interrupt the mission of a battle group. The Board sustained the removal, although they overturned the construction suspension for the period prior to his removal. Justice v. Navy, 89 MSPR 379 (2001).

Next month we’ll look at cases involving security clearances and sensitivity determinations. [email protected].

See the first part of Barbara’s series on Conditions of Employment here and the second part here.

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