Failure to Sign Medical Release
On July 6, 2007, in Vickers v. Powell, Chairman, Federal Deposit Insurance Corporation, No. 06-5016, the United States Court of Appeals for the District of Columbia Circuit determined that a Merit Systems Protection Board (MSPB) decision, finding appellant’s refusal to sign a medical release form that did not protect her privacy interest was a firing offense, was arbitrary and capricious. The court vacated a decision granting summary judgment for the FDIC on a hostile work environment claim.
Appellant, for years, had a strained relationship with her direct supervisor which, she claimed, caused her to need medical leave for stress and depression. The supervisor requested that appellant sign two forms authorizing the release of her medical information, but she refused because they lacked sufficient safeguards to protect her privacy. When appellant’s supervisor retired, her new supervisor sent a letter demanding that she sign the forms and warning that failure to do so would “be grounds for disciplinary action up to and including removal.” Appellant again refused to sign either form and was then removed.
Appellant at first appealed to the MSPB, denying any wrongdoing and countering the accusations with affirmative defenses of discrimination and retaliation. Appellant alleged 13 incidents that make out her hostile work environment claim, including incidents by her first supervisor as well as his replacement. While the MSPB rejected the FDIC’s charge that appellant wrongly refused to sign one of the release form because it “was blank as to the name of the doctors/clinics [that] these forms would be sent and to whom the information would be released,” it did fault appellant for not signing the second form and, therefore, upheld the termination. The MSPB also rejected appellant’s affirmative defenses. Although Board decisions are generally reviewed by the Court of Appeals for the Federal Circuit, see 5 U.S.C. § 7703(b)(1), “mixed cases” that involve discrimination claims are reviewed in federal district court, see 5 U.S.C. § 7703(b)(2). The district court here granted the FDIC’s motion for summary judgment against appellant on all of her claims. The district court also rejected appellant’s harassment claim, finding that the allegations were untimely.
On appeal, the D.C. Circuit determined that the Board’s affirmation of the FDIC decision to fire the appellant was arbitrary and capricious in that the Board held, without explanation, that appellant was within her rights to refuse to sign a release form because it did not disclose where her medical records might be sent, but was wrong to refuse to sign an exam form, which had the same flaw. The court found that to protect her privacy, both forms should have specified the particular agency or point of contact. Further, the D.C. Circuit reversed the district court’s judgment on the hostile work environment claim, finding it was timely filed.
The Supreme Court has held “provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In other words, so long as at least one of the acts that contributed to the hostile environment occurs within the filing period, other acts that did not occur within the filing period may also be considered. The D.C. Circuit stated the key inquiry for purposes of determining which acts are time-barred is “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory [filing] time period.” The appeals court held it need not consider an incident if it had no relation to the other acts. The district court below determined that alleged incidents by the replacement supervisor were not part of the hostile work environment claim created by the first supervisor.
The D.C. Circuit, however, disagreed that the allegations against the second supervisor were so different in kind that they were not part of the same hostile work environment, finding that he was “perpetuating the environment by condoning the same.” The court further held that routine personnel actions such as a supervisor’s retirement cannot be the type of “intervening action[s] by the employer” that would sever the earlier incidents from the more recent incidents constituting the hostile environment claim. While the court found it “can easily imagine circumstances in which a change in managers might affect a hostile work environment claim,” it saw nothing in this case to suggest the succession in supervisors was in any way intended to address the environment.