Vivian R. Moss, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionDec 28, 2001
01993351 (E.E.O.C. Dec. 28, 2001)

01993351

12-28-2001

Vivian R. Moss, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.


Vivian R. Moss v. Department of Justice (Federal Bureau of Investigation)

01993351

December 28, 2001

.

Vivian R. Moss,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Federal Bureau of Investigation),

Agency.

Appeal No. 01993351

Agency Nos. F-975028; DOJ 187-2-3881

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted

pursuant to 29 C.F.R. � 1614.405. Complainant alleged that she was

discriminated against based on disability (schizophreniform disorder)

when, by letter dated March 3, 1997, she was not allowed to return to

work pending the agency's receipt and consideration of a current medical

evaluation requested from her.

The record reveals that complainant commenced employment with the agency

in 1969, and in 1985 became a GS-13 Computer Specialist. In January,

1995, complainant apparently began to have hallucinations that she was

hearing voices while in her apartment, and temporarily moved to a hotel

as a result. In a March 22, 1995 letter to the Supervisor Special Agent

(SSA) who served as the agency's Chief, Personnel Administration and

Benefits Section, complainant revealed that she heard a voice, that the

voice identified himself as working for the agency, and that the voice

informed her that a telecommunications device was being used on her.

Complainant also submitted to the SSA a log of various incidents,

which stated, inter alia, that the voice was trying to enlist her in a

mission to steal secrets, had threatened her, had sent her tape recordings

infected with the AIDS virus. On April 2, 1995, complainant advised her

supervisor that she was again hearing voices, and at his recommendation,

complainant then met with the SSA, who referred her to a psychiatrist

(doctor 1) in the agency's Employee Assistance Program for an emergency

psychiatric assessment.

Doctor 1 determined that complainant's symptoms indicated a possible

psychotic disorder, and that she should be removed from work immediately

and obtain a full psychiatric evaluation as soon as possible.

The SSA met with complainant to place her on sick leave,<2> and at

that meeting complainant continued to speak, as she had previously,

of an agency mind-reading machine and an agency special agent with AIDS

who was �trying to get her.� Record of Investigation (ROI) Tab 31 at 2.

Complainant was subsequently evaluated by a private psychiatrist (doctor

2) to whom she was referred by her internist. He prescribed medication

and scheduled a return visit, but complainant refused to attend the

subsequent appointment. On April 14, 1995, complainant called the SSA

and advised him that she was still hearing voices, and that she was

hiring a lawyer to find out what the agency was doing to her.

On April 24, 1995, complainant tried to enter the agency headquarters

building, but was denied access. At the time, she was argumentative and

delusional, claiming that she could hear the pigeons talking, and she

held in her hand a public transportation fare card which she said was

recording the conversation. By letter dated April 26, 1995, the agency

notified complainant that she must provide medical certification of

fitness for duty before she could return to work. In response, doctor

2 prepared a letter to the agency dated May 10, 1995, stating that he

had prescribed medication for complainant, and that he felt she could

return to work effective May 15, 1995.

The agency contends that as of May 15, 1995, it had not yet received

doctor 2's May 10, 1995 letter, and that when complainant again tried

to enter the headquarters building on that day, she was denied access.

The SSA, complainant's supervisor, and an administrator from the Health

Care Unit were called to meet with complainant, and when they explained

that she could not return to duty without a doctor's report or assessment

that she was fit for duty, complainant did not provide doctor 2's May

10 letter, and she was belligerent and threatening, at one point saying

to the Health Care Unit administrator present �I'll take you down with

the rest of them.�

When the agency thereafter received doctor 2's letter, doctor 1 met with

complainant on June 8, 1995 to assess her fitness for duty. He learned

that complainant had not been taking the medication prescribed by doctor

2, and had no intention of seeing him for follow-up treatment. Doctor 1

therefore found that complainant was not fit for duty, based on her

�extremely poor reality testing,� her �persistent paranoid delusions,�

and her belief in an �active conspiracy against her� perpetrated by the

agency. On June 21, 1995, the agency sent complainant a letter advising

her that she had been found not fit for duty based on this examination

by doctor 1, and that in order to return to work she would be required

to submit documentation from doctor 2 certifying that she had complied

with medical treatment and was capable of resuming her job duties.

On August 30, 1995, doctor 3, an agency social worker associated with

doctor 1, examined complainant and found that her symptoms had not abated,

including her delusions about a �dream machine� and �radio frequency

signaling� operated by the agency.

In October, 1995, doctor 2 wrote a letter to the agency again stating

that he believed complainant could return to work. He stated that

complainant had advised him that she had not taken her medication

for two months and had not experienced any more symptoms, delusions,

or hallucinations. Doctor 2 found that complainant's diagnosis at this

juncture was �Schizophreniform Disorder, Resolved.� Doctors 1 and 3

then examined complainant but both disagreed with doctor 2, and found

complainant still not fit for duty. Accordingly, on December 26, 1995,

the agency ordered complainant to undergo a fitness for duty examination

by yet another doctor in order to address the difference of opinion.

This examination was conducted on February 6 and 7, 1996, by doctor 4,

an Emeritus Professor of Psychiatry at the University of North Carolina at

Chapel Hill. By letter dated February 19, 1996, Doctor 4 concluded that

complainant was not fit for duty, providing an extensive recounting of his

sessions with complainant. See ROI at Exhibit 30. In particular, doctor

4 noted that complainant denied that she had any psychiatric condition,

and that she had a�massive distortion of reality� which could lead to

violent behavior, as indicated by her specific statements to doctor 4

regarding possible violence against at least one agency official. Doctor

4 specifically concluded that complainant could be a danger to other

agency employees.

Based on the conclusions of doctors 1, 3 and 4, the agency in April

1996 proposed to the Department of Justice that complainant's security

clearance be revoked, but in November 1996, the Department of Justice

instead advised that the agency pursue adverse action procedures to

terminate complainant. On March 7, 1997, the agency sent complainant

a letter requesting updated medical information, and stating that

complainant could not return to work until this documentation was

received. The agency contends that it did this in order to determine

whether complainant was a �qualified individual with a disability�

who could be accommodated under the Rehabilitation Act rather than

be terminated. Complainant was subsequently evaluated by doctor 5,

a psychiatrist whom she selected. Doctor 5 issued an interim report to

the agency stating that complainant had �paranoid delusions� involving the

agency, had a cognitive impairment, and was not fit for duty. By letter

dated September 30, 1997, the agency advised complainant that doctor 5's

final report had not been received, and that if it was not received by

October 10, 1997, a determination regarding whether she could return to

work pursuant to the Rehabilitation Act would be made based on the doctor

5's interim report and doctor 4's February, 1996 report, both of which

concluded that complainant was not fit for duty. The agency did not

receive a final report from doctor 5, and by letter dated December 15,

1997, the agency advised complainant of her proposed removal.

Complainant sought EEO counseling and subsequently filed a formal

complaint on August 27, 1997, alleging that the agency's issuance of

the March 7, 1997 letter requiring further medical information before

complainant would be allowed to return to duty was discriminatory. At the

conclusion of the investigation, complainant was informed of her right to

request a hearing before an EEOC Administrative Judge or alternatively,

to receive a final decision by the agency. Complainant requested that

the agency issue a final decision.

In its FAD, the agency concluded that the March 7, 1997 letter complainant

challenged did not constitute an �adverse action� subject to challenge

under the Rehabilitation Act, and further that complainant had not

established that she was a �qualified� individual with a disability

under the Act. On appeal, complainant has submitted extensive lists

of dictionary definitions of various terms, copies of some of her

performance appraisals, and other documents. The agency requests that

we affirm its FAD.

We find that the FAD erred in concluding that complainant had not alleged

an �adverse action� subject to challenge under the Rehabilitation Act

because her claim was limited to the receipt of a letter requiring

medical clearance prior to return to duty. Moreover, the FAD erred

in requiring that complainant demonstrate discriminatory intent.

In so concluding, the FAD overlooked complainant's claim that she was

improperly ordered to submit to a fitness for duty examination or

provide medical information. Such a claim is cognizable under the

Rehabilitation Act and, like claims regarding denial of reasonable

accommodation, does not require any showing of discriminatory intent.

An employer may not make disability-related inquiries or require a

medical examination of any employee unless the examination is job-related

and consistent with business necessity. See 29 C.F.R. � 1630.14(c);

see also EEOC Enforcement Guidance: Disability-Related Inquiries and

Medical Examinations of Employees Under the Americans With Disabilities

Act (July 27, 2000) at "General Principles" � B & n.3 (noting application

of ADA standard to Rehabilitation Act claims). Moreover, a complainant

need not establish that he or she is an individual with a disability in

order to raise such a claim under the Rehabilitation Act; the provisions

regarding when an employer may require a medical examination apply to

all employees, not solely to individuals with disabilities as defined

under the Rehabilitation Act. Id.

Under this standard, disability-related inquiries or medical examinations

are permitted only where the employer "has a reasonable belief that an

employee's present ability to perform essential job functions will be

impaired by a medical condition or that s/he will pose a direct threat

due to a medical condition." Id. at question 17. In the instant case,

the record indicates that there existed a sufficient basis for complainant

to have been required to provide additional, current medical information

regarding her impairment and resulting limitations, so that the agency

could determine whether complainant could return to work in any position.

Notwithstanding that one doctor had deemed complainant fit for duty,

three doctors had not done so at the time the agency determined to

send complainant its March 7, 1997 letter requesting current medical

information. These circumstances were sufficient to support a reasonable

belief, based on the objective evidence, that complainant's ability

to perform essential job functions may have continued to be impaired,

and that she may have posed a direct threat to safety, thus justifying

the request for medical documentation prior to permitting complainant

to return to work. At the time it sent the March 7, 1997 letter,

as it had continually since January 1995, the agency had a reasonable

belief that complainant's impairment would affect her ability to perform

the essential functions of any job, or pose a direct threat to safety,

and it therefore did not violate the Rehabilitation Act for the agency

to request a current medical assessment of fitness for duty. Further,

to the extent complainant's complaint can be read to fairly encompass

a claim of disparate treatment the agency's refusal to permit her

to return to work during the time in question, we find that assuming

arguendo complainant is an individual with a disability, the agency's

determination that she posed a direct threat to safety is established

by a preponderance of the evidence. See, e.g., Fabish v. United States

Postal Service, EEOC Appeal No. 01981273 (June 1, 2001) (circumstances

sufficient to warrant fitness for duty examination where complainant

advised the agency he needed to leave in the middle of his shift in

order to seek emergency psychological care, and then required a one week

absence due to what his doctor described as "severe stress"); Coffman

v. Department of Agriculture, EEOC Petition No. 03A00028 (July 27, 2000)

(individual experiencing delusional disorder with ongoing imminent risk of

workplace violence presented direct threat). Accordingly, for the reasons

set forth herein, we AFFIRM the agency's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 28, 2001

__________________

Date

1The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2During the following two years, complainant was on either on sick leave

or paid administrative leave continuously.