Court Report

Fitness-for-duty exam can be based on concern about volatile behavior; ineffective accommodation may be challenged; more.

Nov 1, 2010

Fitness-for-Duty Exam Can Be Based On Concern About Volatile Behavior

Brownfield v. City of Yakima, 9th Cir., No. 09-35628 (July 27, 2010).

The 9th U.S. Circuit Court of Appeals has held—as an issue of first impression for that court—that an employer can require an employee to undergo a fitness-for-duty examination as a "pre-emptive" measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work.

Oscar Brownfield began working as a police officer for the Yakima Police Department in Yakima, Wash., in 1999. In 2000, he suffered a closed head injury in an off-duty car accident, which resulted in symptoms including reduced self-awareness. He returned to work and, during the following three years, received positive performance reviews and several commendations.

Professional Pointer: Clear, concise and objective documentation of incidents that form the reason for a fitness-for-duty examination can help avoid, or effectively defend against, an employee’s claims under the Americans with Disabilities Act.

In 2004, Brownfield began to complain to his supervisor about another officer, alleging various "shortcomings" on the other officer’s part, and began to document those perceived failings. In May 2005, after he was reprimanded for a performance issue, Brownfield forwarded his notes to the police chief. During a subsequent meeting among Brownfield and two of his supervisors, Brownfield used profane language and left the meeting after being asked to stay. Brownfield was temporarily suspended for insubordination after that incident.

In September 2005, four additional incidents occurred involving Brownfield. First, he engaged in a "disruptive argument" with another officer; second, Brownfield reported that he felt himself "losing control" when a young child was "taunting him" during a traffic stop; third, the Yakima Police Department received a domestic violence call from Brownfield’s estranged wife after Brownfield allegedly struck her by closing a door on her; and fourth, an officer reported several statements made by Brownfield, including a statement that "It doesn’t matter how this all ends." Those incidents, taken together with the May incident, led the police department to send Brownfield for a fitness-for-duty examination.

The diagnosis offered by one doctor, who conducted the fitness-for-duty examination in October 2005, was mood disorder that manifested itself in "poor judgment, emotional volatility and irritability" and that was related to Brownfield’s 2000 head injury. The doctor determined that Brownfield was unfit for police duty and was permanently disabled.

Brownfield subsequently got a second opinion from another doctor, who agreed that Brownfield was unfit for duty but believed that Brownfield’s condition might improve with treatment. In December 2006, the second doctor reported that Brownfield was improving and could return to duty, but at an unspecified date. The police department scheduled another fitness-for-duty examination, this time with a third doctor. Although Brownfield attended an initial session with this doctor, he refused to return to complete the evaluation. His employment ultimately was terminated.

Brownfield sued, alleging that the police department had violated the Americans with Disabilities Act (ADA) by requiring him to submit to a fitness-for-duty examination. The district court granted summary judgment in favor of the city, and Brownfield appealed. The 9th Circuit upheld the lower court’s dismissal.

The ADA requires that a medical exam be "job-related and consistent with business necessity." The 9th Circuit found that the ADA’s business necessity standard was high, but that the ADA does not require an employer to wait until a perceived threat becomes real or to allow questionable behavior to result in injuries before sending an employee for a fitness-for-duty examination, particularly when the employee is engaged in dangerous work.

In interpreting "business necessity," the court cautioned that it should not be confused with mere expediency and that using medical exams to harass employees or to "fish" for non-work-related medical issues could, in fact, violate the ADA. The behavior that triggers such fitness-for-duty examinations cannot be merely annoying; rather, there must be some objective reason to doubt whether the employee can perform job-related functions.

Because the employer bears the burden of demonstrating a job-related reason for a fitness-for-duty examination, employers should understand the relevance and parameters of the concept of business necessity, especially when used as a basis for a pre-emptory fitness-for-duty examination.

By Maria Greco Danaher, an attorney with Ogletree Deakins in Pittsburgh.

Ineffective Accommodation May Be Challenged

EEOC v. UPS Supply Chain Solutions, 9th Cir., No. 08-56874 (Aug. 27, 2010).

As recently highlighted by the 9th U.S. Circuit Court of Appeals, failure to adequately monitor the effectiveness of accommodations offered to employees with disabilities can give rise to legal problems.

Professional Pointer: The interactive process is critical in Americans with Disabilities Act compliance efforts. In addition to being a legal obligation, the process helps define the accommodation requirements of an employee and monitor the effectiveness of such efforts over time.

For approximately eight years, Mauricio Centeno worked as a clerk in the accounts payable division of a UPS facility in Gardena, Calif. Since birth, Centeno has been deaf; his primary language is American Sign Language. Although Centeno was able to perform his job without the assistance of an interpreter, a dispute arose as to whether an interpreter was required for staff meetings, disciplinary sessions and job training.

UPS held weekly and monthly staff meetings for employees. The meetings were mandatory, with topics including human resource issues, general announcements and group discussions. Initially, UPS offered Centeno notes in advance of and following these meetings. However, the notes allegedly did not always capture all of the meeting content.

In response to Centeno’s request for an interpreter at the meetings, UPS provided an employee to take contemporaneous notes. Centeno argued that the notes did not always encompass all of the meeting content.

The appeals court held that a jury must be permitted to determine whether UPS went far enough in fulfilling its accommodation obligation. It noted that the accommodations offered by UPS were arguably ineffective.

By Scott M. Wich, an attorney with Clifton Budd & DeMaria LLP in New York.

Female Technician Can Proceed to Trial in Sex Harassment Case

Pucino v. Verizon Communications Inc., 2nd Cir., No. 07-7176 (Aug. 13, 2010).

In a sexual harassment case, the 2nd U.S. Circuit Court of Appeals reversed a New York federal district court’s grant of summary judgment in favor of Verizon and ruled that a former female employee can proceed to trial.

Professional Pointer: Employers should ensure that employees serving in supervisory capacities—men and women alike—are acutely aware that a pattern of non-sexual acts may culminate in a sexual harassment claim.

Joan Pucino, a field technician for Verizon, was one of approximately five women who worked with 60 to 100 male co-workers at the company’s technician garage in Newburgh, N.Y.

Pucino alleged that she was often assigned less-desirable work than that assigned to male co-workers. She also alleged that, unlike the men who worked at her garage, she was:

  • Assigned to work alone in unsafe parts of Newburgh.
  • Denied assistance on difficult jobs.
  • Monitored by her supervisors.
  • Routinely skipped over when it was her turn to receive overtime assignments.
  • Denied access to the tools and equipment she needed to perform her work properly.

In addition, Pucino averred that she was often reprimanded for behavior that was commonplace among men and subject to harsh public criticism. Specifically, Pucino alleged that while male co-workers were criticized in private for their mistakes, she was singled out for intense public criticism and constantly referred to as a "b----" and "stupid."

Pucino commenced a Title VII gender discrimination action against Verizon based on disparate treatment and a sexually hostile work environment. The federal district court granted summary judgment to Verizon, and Pucino appealed.

The 2nd Circuit vacated and reversed the summary judgment order, thereby ruling that Pucino could proceed to trial on her complaint.

In support of its decision, the 2nd Circuit held that Pucino had proffered sufficient evidence to allow a trier of fact to find that there was a hostile work environment that was "sufficiently severe or pervasive to alter the conditions" of her employment. The 2nd Circuit concluded that the evidence was sufficient to demonstrate that Pucino was treated differently than similarly situated male co-workers.

Furthermore, the 2nd Circuit disagreed with the district court’s position that the challenged conduct was nothing more than minor annoyances. The court held that a trier of fact could easily find that the harassment and abuse were sufficiently severe and pervasive enough to alter Pucino’s working conditions.

By Scott Johnson Jr., managing partner of PCT Law Group PLLC in Alexandria, Va.


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