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Medical Tests Used to Sack Federal Workers Set for More Scrutiny

Sept. 21, 2020, 2:16 PM

Federal employees will have an easier time challenging medical evaluations used as the basis for termination, attorneys said, based on an appeals court ruling that found a former U.S. Customs and Border Protection officer was entitled to review supporting documentation of a psychological review that led to his firing.

A three-judge panel at the U.S. Court of Appeals for the Federal Circuit ruled that an arbitrator wrongly rejected the officer’s request that the agency provide him with assessments and notes issued by a psychologist before it used the material to terminate him. Judge Jimmie Reyna noted in the Sept. 15 ruling that it was the first time the circuit addressed the question of when due process requires a government agency to provide an employee with psychological testing records supporting a fitness-for-duty evaluation that results in termination.

The decision could have ramifications for the way agencies across the federal government use psychological assessments in termination proceedings, and the way those processes are conducted and documented. A top federal union official said the ruling may also have bearing on the use of other types of expert testimony.

“After this decision, the employee, and the employee’s expert witness, will have a richer opportunity to challenge the government’s medical report, because they will have access to the raw data underlying the report,” Diane Seltzer Torre of the Seltzer Law Firm in Bethesda, Md., said.

“If the report is the main basis supporting the claim that the employee is not fit for duty but is shown to be based upon problematic data, it will be easier for the employee to challenge the removal,” added Seltzer Torre, who represents management and workers in employment disputes but wasn’t involved in the litigation. “If that data is flawed, incomplete, or subject to different interpretations, then the report could, in turn, be problematic and would be easier to attack and challenge.”

Allegation Spurs Case

Roberto Ramirez was fired by CBP after a psychiatrist recommended—based on a clinical psychologist’s initial findings—that he be restricted from carrying a firearm, a requirement for the position. The psychologist had determined Ramirez’s written responses showed extreme defensiveness and a lack of cooperation.

The agency had arranged for Ramirez to answer written questions based on a method commonly used to diagnosis mental disorders, after his wife alleged he had pointed a loaded gun at her—an allegation that police later concluded was unfounded, according to the court.

Ramirez, who was represented before the Federal Circuit by the National Treasury Employees Union, argued that CBP unfairly withheld the supporting material from him, because the psychologist’s assessment formed the basis of the agency’s decision to fire him.

“The court’s holding that due process required the agency to produce material underlying the psychologist’s conclusion will apply going forward in any case in which a similar psychological assessment is used,” Tony Reardon, the union’s president, said. “It could also apply in other situations involving expert opinions.”

Media representatives from CBP and the Department of Justice, which represented the agency, didn’t respond to requests for comment.

Ramirez, who was terminated in 2016, had provided the arbitrator with an evaluation of a separate test from his own expert that showed he was fit for duty. The arbitrator upheld his termination after ordering another psychiatrist to review the original evaluation, and that expert also wouldn’t sign off on Ramirez being fit to carry a gun. Ramirez challenged the arbitrator’s authority to take that step.

The court said the arbitrator didn’t exceed his authority by ordering a new evaluation, but also held that Ramirez was entitled to “a meaningful opportunity to review and challenge the written assessments underlying his adverse psychiatric evaluations.” It remanded the case back to the arbitrator for further proceedings.

William Wiley, a San Francisco-based management-side attorney who was formerly chief counsel to a Merit Systems Protection Board chairman, said the Federal Circuit likely would have ruled differently had CBP based its decision on an evaluation from an independent third party rather than medical professionals the agency itself had hired.

If the agency had, for example, fired an employee whose job required driving because they were unable to drive after losing their driver’s license, the court likely wouldn’t have asked for the documentation, he said.

“In my view, the agency had an obligation from the beginning” to produce the evidence, Wiley said. “It caused the assessment to be done, it controlled who did the assessment, and the assessment was at the heart of the reason for firing the guy,” he added. “Were I agency counsel, I could not have made a straight-faced argument that it need not be produced.”

‘Beneficial Ramifications’

Kevin Owen, an attorney at Gilbert Employment Law in Silver Spring, Md., said he believes the ruling will be useful in a pending case he’s handling that involves CBP and has a similar fact pattern. Owen wasn’t involved in the Ramirez case.

That case, now pending before the Merit Systems Protection Board, involves a CBP officer who was examined by government-hired doctors after allegedly displaying erratic behavior toward an ex-girlfriend. Owen declined to name the officer to protect his client’s privacy, and CBP didn’t respond to requests for comment on the case.

The agency fired the employee for being unable to carry out his job duties, according to Owen, following evaluations from a pair of psychiatrists hired by the agency who determined the officer couldn’t perform required job duties, such as carrying a weapon.

Owen, who is fighting to gain access to records of the evaluation, said the same psychologist who wrote the report in the Ramirez case also did the interpretation of his client’s written-test results.

“I expect that this decision will have beneficial ramifications for my client and for other federal employees in similar situations,” Owen said of the Ramirez ruling.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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