By Barbara Haga, August 16, 2017

This is the final installment of the review of the case of Ms. Doe, whose employer, the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  As recounted last time, this led to the PBGC sending her for a psychiatric fitness for duty exam which showed that she was not fit.  That determination resulted in an enforced leave action.  She appealed that action to the Board and filed another appeal about AWOL that resulted when she did not submit clarifying medical information to explain how her private physician had found her fit for duty.  After the two MSPB appeals, there was another case filed with the EEOC about whether the agency’s original order, sending her for a fitness for duty evaluation, constituted disability discrimination and/or reprisal.

MSPB Appeal I

Ms. Doe appealed the indefinite suspension action, which placed her in an enforced leave status.  She was on enforced leave for roughly thirty days.  The AJ overturned the action because of the OPM regulations, ruling that the agency didn’t have the authority to order the evaluation on which the suspension action was based.  In that appeal, she raised two affirmative defenses – harmful procedural error and disability discrimination.   The AJ found that she did not prove either of those defenses.

MSPB Appeal II

The second appeal covered the period of time that Ms. Doe was carried in an AWOL status, after she did not give permission for her doctor to talk directly to the agency’s psychologist or report for a psychiatric examination with Dr. Allen.   She appealed the AWOL period as a suspension, and in this appeal, she raised a number of defenses: harmful procedural error, “perceived” disability discrimination, retaliation for prior EEO activity and filing of grievances, and whistleblower reprisal.  The AJ again overturned the action because there was no authority to order the original examination and that since the action was tantamount to a suspension, she did not receive the necessary due process.

The 1984 Change to the OPM Regulations

The Board ruled on the two appeals in Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012). The decision includes a lengthy discussion of why the OPM regulations limit the use of ordered psychiatric examinations.  It’s a good history lesson if you are not familiar with the bad old days when agencies had authority to order psychiatric examinations.   I know I was abusing them like crazy.  I think I did three or four in my 20 years or so of working for the Navy – and one of them was almost a duplicate of the Doe situation, except that mine preceded the changes in the regulations.  The Board quotes from the Federal Register notice from January 1984, when the modified regulations were proposed.  OPM wrote, “The Part 339 regulations are explicitly intended to substantially constrain the number of situations where an agency may order an employee to undergo a medical examination.”  The Board’s decision also recounts that there was concern from Congress who had held hearings on the issue of ordered psychiatric FFD examinations, recommending statutory and regulation reforms to eliminate the potential for abuse of psychiatric FFD examinations.  (My emphasis.)

So, OPM’s response was basically to eliminate psychiatric examinations, not to build in procedural protections to deal with potential abuse.  That’s all fine on paper, but what is an agency supposed to do when dealing with someone in Ms. Doe’s situation?  You have someone reporting to work who is engaging in bizarre behavior which is at best distracting others, and you can’t reason with the individual because she is not in touch with reality.  Yes, you could take progressive discipline on the underlying misconduct, but the agency would be trying to handle responses and grievances from an employee the agency has already concluded is not in a position to effectively deal with such matters.

The Board concurred with the AJ on the issue of the ordered examination, stating that the agency could have offered the appellant a psychiatric evaluation pursuant to 5 CFR 339.302, but that they did not have the authority to order it.  The Board also concurred with the AJ that the AWOL could not be sustained.

The Disability Discrimination Issues

MSPB remanded the disability discrimination issues back to the AJ, although there is lengthy discussion about the matter in the portion of the consolidated decision relating to the enforced leave action.  The AJ found on remand that the agency regarded her as disabled, but did not prove that the agency’s actions constituted disability discrimination.  The Board’s 2016 non-precedential decision supported the AJ’s determination.  Doe v. Pension Benefit Guaranty Corporation DC-0752-09-0881-B-2, DC-0752-10-0223-B-2 (2016).

We won’t spend a lot of print on what the MSPB said on this topic, because the EEOC’s decision on this case has been issued. Marya S. v. PBGC, Petition No. 0320160066 (2017).

Did the Ordered Exam Violate the ADA/Rehabilitation Act?

No.  What did the EEOC say on the topic?  That medical examinations and disability-related inquiries may only be made when it is job-related and consistent with business necessity per 29 CFR 1630.13(b), 1630.14(c).  What does that entail?  The employer must have 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.  What is objective evidence?  Reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will impair her ability to perform essential job functions or will pose a direct threat.  The employer has the burden of showing that the inquiry or exam is job-related and consistent with business-necessity.

The EEOC concurred with the MSPB finding of no unlawful discrimination.  Here’s the paragraph that sums it all up:

Upon review of the record, we find that the Agency lawfully required Petitioner to undergo the Fitness For Duty Exams (FFDEs) because it had a reasonable belief, based on objective evidence, that she would pose a direct threat due to a medical condition. Specifically, the record reflects that, in her February to May 2009 email and in-person interactions with Agency employees, Petitioner accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda towards her. In addition, the record reflects that, after reviewing those emails, an Agency medical professional determined that Petitioner exhibited paranoid behavior, could be a danger to herself or others, and should undergo a FFDE. Moreover, the record reflects that the Agency relied on that determination in ordering Petitioner to undergo a June 2009 FFDE. Further, the record reflects that the Agency ordered Petitioner to undergo a follow-up FFDE in October 2009 to resolve conflicting information between D2’s June 2009 FFDE report and D3’s September 2009 medical report. Finally, to the extent that Petitioner argues that the Agency’s actions related to the FFDEs constituted harassment on the basis of disability, we decline to make such a finding based on our determination that the FFDEs were lawful.

Where does that leave us?

Knock, knock.  OPM?  Is anybody home? Your 339 regulations prevent agencies from utilizing medical examinations that the EEOC has said are not a violation of the Rehabilitation Act.  We could use some help here.

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