In John Doe v. Pension Benefit Guaranty Corporation, 2012 MSPB 42 (3/27/12), the MSPB ruled that the Pension Benefit Guaranty's Corporation's ordering of an appellant to undergo a fitness for duty examination (FFD exam) and concomitant suspensions (including some time in AWOL status) was improper, as it did not fit into the narrow circumstances set forth by the Office of Personnel Management for permitting FFD exams.
In this case, in February 2009, John Doe (appellant's real name withheld on privacy grounds and also used for females) contacted the agency's deputy inspector general, claiming that her house had been broken into several times after she had released information to the deputy inspector general's former colleague. This email was followed by a March 2009 email in which the appellant accused her supervisor of harassing her, and also accused the supervisor of contacting a transit official and informing him of the train number on which she had been riding the previous evening. In the same email, she also told her supervisor that the "rumor mill" had informed her that the supervisor was attempting to have her fired. Lastly, in May 2009, in a meeting, the appellant accused a new supervisor of listening in on her conversations, and informed the supervisor that she knew about her "ear piece." The appellant followed up with the meeting by emailing the supervisor: "Hope you presented yourself well before the hidden camera." The appellant also accused the supervisor of having a "hidden agenda."
On May 28, 2009, the supervisor ordered the appellant to undergo a FFD exam with an agency medical consultant. The agency placed the appellant on administrative leave pending the results of the exam. The medical consultant indicated that she was suffering from a psychotic delusional disorder, and should not return to work. On June 29, 2009, the appellant's supervisor proposed that the appellant be placed on enforced leave until she could submit medical documentation indicating that she was fit to come back to work. On August 4, 2009, the agency placed the appellant on enforced leave. On September 21, 2009, the agency rejected the appellant's medical documentation, and on October 1, 2009, ordered the appellant to undergo a follow-up FFD exam and psychiatric evaluation. The appellant underwent the exam, and on October 13, 2009, the agency once again deemed her unfit for duty. Under the threat of AWOL, the agency gave the appellant a new ultimatum regarding subsequent mandatory psychiatric evaluations. The appellant did not comply with the ultimatum, and was placed on AWOL.
The appellant appealed her being placed on enforced leave and AWOL to the MSPB. In the initial decision, the administrative judge found that the agency did not have the authority to order the FFD exam. On appeal, the MSPB considered the question of when an agency has authority to order an FFD exam of an employee. At the outset, the MSPB deemed that this authority could derive from one of three (3) sources: 1. OPM; 2. the EEOC; or 3. an applicable collective bargaining agreement (CBA).
The MSPB cited OPM's regulations at 5 CFR §339.301(b)-(d), in which OPM states that an agency can only order an FFD exam in three circumstances: 1. Where an individual applied for or occupies a position with medical standards or physical requirements; 2. Where an employee has applied for or is receiving continuation of pay or compensation as a result of on-the-job injury or disease; and 3. Where an employee is released from his or her competitive level in a reduction in force and the position to which the employee has reassignment rights has medical standards or specific physical requirements which are different from the employee's previous position.
In applying OPM's regulations to the appellant's case, the MSPB concluded that clearly none of the three OPM conditions applied. Moreover, in looking at the EEOC regulations and whether an applicable CBA applied, the MSPB ruled that neither the EEOC, nor a bargained for rule regarding FFD exams could authorize a FFD exam where OPM had already prohibited one. Thus, the MSPB concluded that the administrative judge was correct in finding that the agency had no authority to order the FFD exam.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.