- Police Officer's Fitness-for-Duty Examination Did Not Violate ADA or FMLA, Ninth Circuit Rules
- August 18, 2010 | Authors: Mark S. Askanas; Michael A. Griffin
- Law Firms: Jackson Lewis LLP - San Francisco Office ; Jackson Lewis LLP - Seattle Office
The City of Yakima, Washington did not violate the Americans with Disabilities Act by requiring a police officer to undergo a fitness-for-duty exam (“FFDE”) after he repeatedly exhibited emotionally volatile behavior, a federal appeals court in San Francisco has held. Brownfield v. City of Yakima, No. 09-35628 (9th Cir. Jul. 27, 2010). The Court also rejected the officer’s claim that the City violated the Family and Medical Leave Act by requesting the FFDE. Accordingly, the Court affirmed summary judgment in favor of City. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
A year after he began working as a police officer for the Yakima Police Department in 1999, Oscar J. Brownfield suffered a head injury in an off-duty car accident. He recovered and returned to work in 2001.
Beginning in 2005, Brownfield began displaying behavior his employer found troubling. In one early incident, during a meeting with his supervisors to address his difficulty with a co-worker, Brownfield became angry, swore at a supervisor, and left the meeting room against his superior’s direction. As a result, he was temporarily suspended for insubordination. Brownfield’s volatile behavior then escalated: he argued with another officer during a pre-shift squad meeting, he reported that he was “losing control” during a traffic stop, his estranged wife filed a domestic violence report against him, and another officer reported hearing him make disturbing statements (including, “it’s not important anyway,” “I’m not sure if it’s worth it,” and “it doesn’t matter how this ends”). Brownfield was placed on administrative leave and ordered to undergo an FFDE.
The initial examining physician, Dr. Decker, conducted the FFDE on Brownfield in October 2005. She determined that he was suffering from a mood disorder that manifested itself in “poor judgment, emotional volatility, and irritability,” perhaps related to his 2000 head injury. She concluded he was unfit for police duty and his disability was permanent. Brownfield was transferred from administrative leave to FMLA leave.
In February 2006, Brownfield’s primary care physician, Dr. Gondo, released Brownfield back to work following treatment for minor injuries from another off-duty car accident. Without addressing Brownfield’s psychological problems, Dr. Gondo’s signed statement said Brownfield “[could] perform the physical activities described in the job analysis.” When asked whether he would defer to findings in Dr. Decker’s report, and if not, to provide his mental health qualifications and basis for disagreement, Dr. Gondo refused to defer or respond to the request for his mental health qualifications.
Before a pre-termination hearing in May 2006, Brownfield submitted an opinion from a third physician, Dr. Mar. While Dr. Mar agreed with Dr. Decker that Brownfield was unfit for duty due to his “emotional, cognitive, behavioral, and physical problems,” he believed that Brownfield could be treated. In response to this opinion, Yakima adjourned the hearing pending treatment and further evaluation by Dr. Mar and Dr. Decker. Five months later, Dr. Mar reported that Brownfield was progressing well and would be able to return to duty at an unspecified date.
The City asked Brownfield to return to Dr. Decker for another FFDE, but Brownfield refused, so the City referred him another doctor. After attending an initial exam, Brownfield refused to complete the evaluation. Despite warnings he would be terminated if he did not cooperate in the FFDE, Brownfield refused and was terminated on April 10, 2007.
Brownfield sued Yakima for, among other things, violations of the ADA and FMLA. The district court granted Yakima’s motion for summary judgment, and Brownfield appealed.
ADA Business Necessity Requirement
Under the ADA, a medical examination to determine whether an employee is disabled must be “job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The “business necessity” standard, according to the appeals court, “is quite high, and is not to be confused with mere expediency.”
Brownfield argued that the FFDE did not satisfy the “business necessity” standard. The Court disagreed, saying the business necessity standard “may be met even before an employee’s work performance declines if the employer is faced with significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.” The Court further explained, “An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.”
The Court concluded that Yakima had an “objective, legitimate basis to doubt Brownfield’s ability to perform the duties of a police officer.” It further noted that the consideration of the “FFDE’s legitimacy” was “heavily colored by the nature of Brownfield’s employment.” The Court observed, “[P]olice officers are likely to encounter extremely stressful and dangerous situations during the course of their work.” Importantly, in analyzing whether the medical examination violated the ADA, the court compared Brownfield’s situation to cases involving public employees in law enforcement or education. The Court specifically reiterated the high standard an employer must meet to show that a medical examination is job related and consistent with business necessity. In Brownfield’s case, the City of Yakima met that high standard, and therefore prevailed on the ADA claim.
FMLA Second Opinions
Under FMLA regulations, “[n]o second or third opinions on a fitness-for-duty certification may be required.” 29 C.F.R. § 825.312(b). Brownfield argued that Yakima violated this provision by requiring him to submit to the FFDE after Brownfield’s primary care physician allegedly cleared him for duty.
The Court rejected this argument, concluding, “No reasonable juror could misread [the] letter as stating that Brownfield had recovered from the psychological issues that rendered him unfit for duty.” Indeed, Yakima did not request “second or third opinions” after Brownfield’s primary care physician refused to clarify his statement. Rather, Yakima gave Brownfield several, additional opportunities to obtain a proper clearance by referring him to other physicians. The Court concluded the FMLA did “not impose liability for such conduct.”