By William Wiley, October 14, 2020

Last month, the Federal Circuit issued Ramirez v. DHS, No. 2019-1534 (Sept. 15, 2020), which dealt with the concept of an “unfit” termination.

What the court is calling an “unfit” termination is more precisely a “medical inability to perform” removal. This is a somewhat standard, though relatively infrequent, cause for firing someone from a government position. One can be unfit because he sustained an injury and can no longer physically do the work that’s assigned. Or, as charged in this case, the employee can be unfit for mental reasons. Although DHS chose the less common word “unfit,” the more classical term of “medical inability to perform” is commonly found in the case law. We can’t tell you exactly how often these are done relative to other 752 removals, because the Board does not parse them out, but they do not stand out as unusual by any means. FELTG has been teaching how to conduct these sorts of removals for several years now as part of our weeklong Absence, Leave Abuse & Medical Issues Week. [Editor’s note: Save the date! The next AMI Week will be held April 16-21, 2021.]

How do these compare to other types of 752 removals? The agency has to have preponderant proof that the employee is medically unable to perform, just as the agency would have to have preponderant evidence that the employee was absent from work, stole from the supply locker, or beat up a coworker. The agency must also follow the reasonable accommodation process to determine whether the employee can be reassigned to a position he can perform within his medical restrictions.

The main difference with these types of removals is that medical evaluations by health case “experts” often are more subjective in nature, and can easily be in conflict with each other, even when performed in good faith. That’s when arbitrators and judges have to resolve a battle of the experts and decide which conclusions seem to make the most sense based on the objective medical findings. As you can imagine, its exceedingly difficult to make these sorts of judicial determinations. The arbitrator is not trying to decide who is telling the “truth” as is his responsibility in routine misconduct cases, but whose medical judgment is most likely to be correct. Even highly trained medical experts cannot always agree on that.

In some ways, this makes it easier for the employee to defend himself in an unfit for duty removal as compared to a misconduct termination. If you fire me for theft and you have video of me stealing the laptop, there’s not much I can do to defend myself. However, if you fire me because of a subjective medical assessment of my behavior by your expert, I can relatively easily find my own expert who will view the same behavior and subjectively assess it as not warranting removal. Read the legendary Woebcke v. DHS for a mind-blowing subjective medical assessment.

The Ramirez case is categorized as a precedential ruling from the Federal Circuit, but it is new only in that it addresses the specific evidence derived from a third-party psychological exam relied on by the agency to fire an employee. The legal principle put into motion in making this assessment is as old as the hills. Our Constitution requires agencies to produce all the important evidence it relies on to fire a federal employee. The cases cited by the Federal Circuit are as foundational to civil service law as legal precedent can be, several going back to the early 70s and one even dated 1959. That’s how well-established this bedrock principle is.

Had the psychological exam (MMPI) been interpreted independent of the agency, I doubt that the court would have ordered its production by the agency for evaluation by the appellant’s expert. For example: If a state revokes an employee’s driver’s license, and the agency fires him because he needs a license to perform his job duties, it does not have to produce the evidence relied on by the state in revoking the license. It is free to accept the results of the state’s decision as an independent assessment. In comparison, the MMPI in this case was ordered by the agency. Therefore, it is agency-controlled and should have been produced as evidence relied on.

In my view, the agency had an obligation from the beginning to produce the evidence of the MMPI assessment. It caused the assessment to be done, it controlled who did the assessment, and the assessment was at the heart of the reason for firing the guy. Bottom line: The court’s holding is “new” in a very limited sense of the specifics, but the legal principle of due process that controls the outcome of this decision goes back to the second Magna Carta, the one issued in 1215. Wiley@FELTG.com

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