Before moving on to the blog entry of the week, some of you may be wondering what happened to the comments section of the blog/website. The host of my blog/website has decided to discontinue that feature for the reasons mentioned here. While very few comments were made on each of the blog entries over the years, the ones that were posted were very incisive. I will miss them. What this means any updates to the blog entries will have to occur within the blog entry itself or be a separate blog entry linking to the prior blog entry. Also, some readers of the blog utilized the comments section as a way to reach out to me privately. You can still do that by emailing me at firstname.lastname@example.org. All of this will take some time getting used to for all of us. The host of the blog/website says that this adjustment will definitely improve the impact of the blog.
Today’s blog entry discusses the imposition of psychiatric exams on a federal employee as a matter of course without considering whether the exams were job-related and consistent with business necessity. The case is Litowitz v. Garland decided by the United States District Court for the District of Connecticut on August 19, 2021. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning mootness/standing (declaratory and injunctive relief); court’s reasoning monetary damages; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Since on or about April 6, 2003, the plaintiff has been employed by the Federal Bureau of Investigation (“FBI”) as a Victim Specialist. Within the United States Department of Justice, the FBI is responsible to the Attorney General of the United States. Since 2014, the plaintiff has been assigned to the New Haven Field Office. As a Victim Specialist, the plaintiff works directly with FBI Special Agents to ensure that victims of crimes investigated by the FBI are afforded their rights and are connected to necessary support, services, and resources. The plaintiff provides written and [*2] oral information to victims about their rights and available services, keeps victims informed about case status, provides on-scene assistance to victims, and creates and maintains an appropriate space within the FBI office for victims.
The Assessment and Therapeutic Intervention Program (“ATIP”) is a psychological fitness for duty examination composed of a questionnaire and a psychological assessment. The ATIP is administered by a third-party contractor, Modern Psych Network.
In 2019, the FBI required Victim Specialists to complete the ATIP questionnaire and then undergo a psychological assessment. The purpose of requiring Victim Specialists to participate in the ATIP was to uncover mental health disabilities and psychological impairments from which a Victim Specialist may be suffering, and the finding could result in alterations to conditions of employment or removal from the Victim Specialist position.
On October 19, 2018, Assistant Director of the Victim Services Division Kathryn M. Turman introduced the ATIP through a division newsletter. On November 23, 2018, Unit Chief Pamela S. Elton notified all Victim Services Division personnel that they must complete the ATIP as an annual [*3] performance assessment review objective, beginning in Fiscal Year 2019. On March 13, 2019, Turman officially announced the initiation of the ATIP.
On March 27, 2019, the plaintiff filed a complaint with the Office of Integrity and Compliance (“OIC”) about the implementation of the ATIP.
In April 2019, the plaintiff asked OIC if she could delay participating in the ATIP while her complaint was being investigated. OIC advised the plaintiff that because the matter was still being reviewed, she should contact the Victim Services Division for guidance. Since Victim Services Division leadership had repeatedly stated that the ATIP was mandatory, the plaintiff completed phase one of the ATIP, i.e. the questionnaire, on June 8, 2019.
On June 19, 2019, during a telemedicine conference with the ATIP psychologist, the plaintiff was required to sign a waiver which stated that she was voluntarily completing the ATIP assessment and acknowledging the fact that the ATIP psychologist was not bound by doctor-patient confidentiality. The plaintiff informed the ATIP psychologist that she was not comfortable signing the waiver because the assessment was not voluntary; rather she had to complete it if she wanted [*4] to keep her job. The session was discontinued without the plaintiff signing the waiver in order to provide time to seek clarification.
In a series of email communications with the ATIP administrators and Victim Services Division leadership, the plaintiff was told that the ATIP was mandatory. Victim Services Division leadership indicated that the plaintiff’s failure to participate in the ATIP would lead to her being removed from her role as a Victim Specialist.
Under threat of losing her employment, the plaintiff completed the ATIP psychological assessment on June 27, 2019. The psychologist performing the ATIP assessment told the plaintiff that “being a member of the LGBTQ community is a ‘red flag’ as she would have a higher rate of suicide.” (Compl., ECF No. 1, ¶ 38.) The psychologist also “indicated to the plaintiff that depending on the plaintiff’s response, how often one was intimate with self or partner and how often one received massages could likewise be a ‘red flag.'” (Compl., ¶ 39.) The psychologist “implied that the plaintiff’s answer to whether she was religious was inadequate, questioning the plaintiff if she was ‘at least spiritual’ and to explain her answer.” (Compl., ¶ [*5] 41.)
The plaintiff was informed that she would be required to complete the ATIP annually as a condition of her employment and that after the first two years, the Victim Services Division and the ATIP administrators would assess whether the plaintiff would be required to complete the ATIP annually or every other year.
On August 8, 2019, the plaintiff commenced the Equal Employment Opportunity (“EEO”) process for her claim that her rights under the Rehabilitation Act had been violated. On September 6, 2019, an EEO Counselor issued a “NORTF,” a notice of right to file a formal EEO complaint, to the plaintiff. On September 19, 2019, the plaintiff filed a discrimination complaint with the Office of Equal Employment Opportunity Affairs (“OEEOA”) alleging that she was the subject of unlawful disability discrimination because she had been required to take the ATIP, a psychological fitness for duty examination that was neither job-related nor a business necessity, as a condition of her continued employment. On December 19, 2019, the OEEOA advised the plaintiff that it had accepted for investigation the following issue: “Whether complainant was discriminated against based on disability (mental) [*6] when: 1) On June 8, 2019, she was required to complete the Assessment and Therapeutic Intervention Program (ATIP) questionnaire[, and] 2) On June 27, 2019, she was required to complete the ATIP psychological assessment.” (Compl., ¶ 4(d).) On March 4, 2020, the OEEOA completed its investigation into the plaintiff’s complaint. On March 11, 2020, the plaintiff elected to have a final decision on her complaint made by the Department of Justice. On May 14, 2020, the Department of Justice informed the plaintiff that it had received her case and that a final decision would be rendered as soon as possible. More than 180 days have expired since the plaintiff filed her complaint with the OEEOA and the Department of Justice has not rendered a final decision on the plaintiff’s complaint. So, plaintiff filed suit.
The Department of Justice files a motion to dismiss and the District Court winds up denying the motion for the reasons below.
Court’s Reasoning Mootness/Standing (Declaratory and Injunctive Relief)
- While it is true that the FBI voluntarily ceased the administration of this particular test, that doesn’t end the inquiry. The Department of Justice has the formidable burden of showing that it is absolutely clear that the test will not be reinstated on a mandatory basis and that the FBI is committed to that course permanently. It is a burden they simply cannot meet under the facts of this case despite an affidavit from one of their employees to the contrary for several reasons: 1) the FBI rescinded its policy of requiring the test only since the filing of the case. The complaint was filed in May 2020, and the FBI stopped administering the test in July 2020. The timing tracked the development of the litigation and raises questions about whether the rescission of the policy was timed to head off an adverse determination on the merits; 2) there have been inconsistent messages from the division implementing this test making it difficult to conclude that there is no reasonable expectation that the allegedly wrongful behavior will recur in the future. While plaintiff was required to sign a waiver stating that her completion of the test was voluntary, her division leadership has previously notified all personnel that they must complete the test as an annual performance assessment review objective and repeatedly stated that the test was mandatory. In an employee newsletter, a message from the assistant director of the division stated that they had completed the first year of the testing program and were now pausing it to evaluate and determine the future of the program. During that time, the test would be suspended; 3) the division’s cessation of the mandatory psychological testing is not irreversible. Therefore, if the court were to dismiss the plaintiff’s claim as moot nothing would prevent the victims services division from reverting to its former policy. This is especially true since the affidavit and the employee newsletter emphasized the benefits of the psychological testing. The fact that the psychological testing was a significant part of the wellness and resilience strategy for the division and a key component of a strategy suggests that not only that leadership has a strong desire to continue the program but that it also sees value in the testing being mandatory. So, the case is not moot because the Department of Justice has not shown that it is absolutely clear that the psychological testing will not be reinstated on a mandatory basis in the future. For that matter, the Department of Justice has not shown that events have completely and irreversibly eradicated the effects of the alleged violation.
- While past injuries supplies a predicate for compensatory damages, it does not supply one for prospective equitable relief since the fact that such practices have been used in the past does not translate into a real and immediate threat of future injury. Therefore, the motion to dismiss gets granted with respect to plaintiff’s declaratory and injunctive relief claims.
Court’s Reasoning Monetary Damages
- Per 42 U.S.C. §12112(a), the ADA prohibits discrimination against a qualified individual on the basis of disability in regards to job application procedures, hiring, advancement, discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
- Per 42 U.S.C. §12112(d)(1), the general prohibition against discrimination includes medical examinations and inquiries. Under that particular provision, a covered entity cannot require a medical examination and cannot make inquiries on employee as to whether such employee is an individual with a disability or ask as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4)(A).
- The implementing regulations make it unlawful for a covered entity to require medical examination of an employee or to make inquiries at the whether an employee is an individual with a disability or as to the nature or severity of such disability. 29 C.F.R. §1630.13(b). This particular section of the ADA is made applicable to the plaintiff as an employee of the FBI through Rehabilitation Act at 29 U.S.C. §§791(f), which says that the rules of title I of the ADA are what applies to a federal employee alleging disability discrimination.
- A plaintiff does not have to prove that he or she has a disability known to his or her employer in order to challenge a medical inquiry examination because the statutory language here does not refer to qualified individuals with disabilities. Instead, it refers merely to employees. Also, it makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability, an interpretation supported by EEOC enforcement guidance.
- The ADA and the Rehabilitation Act generously confer the right to be free from disability-based discrimination by public entities and federally funded programs and thereby confer standing for person claiming such discrimination to enforce that right.
- Plaintiff alleges that she has suffered emotional distress, which constitutes an injury in fact, as a result of an inquiry prohibited by the ADA and the Rehabilitation Act. That allegation is a sufficient predicate for compensatory damages and sufficient to confer standing to enforce plaintiff’s rights under 29 U.S.C. §§791, 794 to be free from disability-based discrimination.
- Medical examinations and inquiries are prohibited unless they are job-related and consistent with business necessity.
- Plaintiff did not need to allege a disability. For that matter, plaintiff does not need to allege an adverse employment action to state a claim for violation of the medical exams and disability related inquiries provision.
- A plaintiff asserting a claim under 42 U.S.C. §12112(d)(4)(A) must show: 1) that he is an employee of the defendant-employer; and 2) the defendant-employer required him to undergo a medical exam or made a disability related inquiry of him.
- A plaintiff need not prove that he or she has a disability unknown to his or her employer in order to challenge a medical inquiry or examination because the statutory language refers to employees and not to qualified individuals with disabilities.
- For a 42 U.S.C. §12112(d)(4)(A) claim, plaintiff is not required to allege that he or she suffered any adverse employment action.
- The complaint alleges that the plaintiff was required to complete the psychological testing and then undergo a psychological assessment. The complaint also alleged that those questions were discriminatory and intimidating and that she suffered emotional distress because of the discriminatory conduct. Therefore, plaintiff’s allegations are sufficient to state a claim.
- 501, 29 U.S.C. §791, and §504, 29 U.S.C. §794, are very different from each other. §504, which applies to any entity receiving federal assistance, says that causation is, “solely by reason of.” On the other hand, §501, which applies to federal employees, gets hooked into title I of the ADA. Under title I of the ADA, causation is “on the basis of.” As we discussed in this blog entry, that distinction makes all the difference in the world.
- If you are going to do psychological testing, it needs to be job-related and consistent with business necessity. You would also do well to look at the questions themselves to see whether the questions themselves may be problematic (the court refers to allegations that the questions were both discriminatory and intimidating). Psychological exams have come up before in this blog, such as here. A well-known case from 2005 for discussing psychological exams and the problematic nature of the test questions can be found here.
- The court here sets a high burden for the Department of Justice to show that the matter is moot. In particular, the court said that it has to be absolutely clear that the offending action will not be reinstated, the FBI is committed to that course permanently, and that events have completely and irreversibly eradicated the effects of the alleged violation. Further, the court looked behind the hood so to speak to question whether the affidavit satisfied this standard.
- When it comes to medical exams and disability related inquiries, it doesn’t matter whether the plaintiff has a disability.
- No question here that emotional distress damages are allowed when it comes to prosecuting a claim under §501 of the Rehabilitation Act, 29 U.S.C. §791.
- For a medical exam or disability related inquiry to be required of an employee, the exam or inquiry has to be job-related and consistent with business necessity. We have talked about both of those concepts previously many times, such as here.
- I haven’t seen a lot of cases laying out what are the elements of a medical exam or disability related inquiry violation but this court does lay it out: 1) person is an employee of the defendant-employer; and 2) the defendant-employer required that individual to undergo a medical examination were made a disability -related inquiry of him or her.
- Forcing a person to sign a document that they are voluntarily submitting the testing when the test is mandated by the employer did not hold up here.
- For medical exam/disability related inquiries claims, an adverse action is not required.