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.