NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0341-15T2
APPROVED FOR PUBLICATION
January 25, 2016 IN THE MATTER OF PAUL WILLIAMS, TOWNSHIP OF LAKEWOOD APPELLATE DIVISION ________________________________
Submitted January 13, 2016 – Decided January 25, 2016
Before Judges Ostrer, Haas and Manahan.
On appeal from the New Jersey Civil Service Commission, Docket No. 2014-1750.
Mets Schiro & McGovern, LLP, attorneys for appellant Paul Williams (Kevin P. McGovern, of counsel and on the briefs; David M. Bander, on the briefs).
Secare & Hensel, attorneys for respondent Township of Lakewood (Steven Secare, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Civil Service Commission (Pamela N. Ullman, Deputy Attorney General, on the statement in lieu of brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this case of first impression in New Jersey, appellant
Paul Williams appeals, by leave granted, from the March 5, 2015
administrative decision of the Civil Service Commission (the Commission) finding him guilty of insubordination for refusing to
comply with his employer's demand that he undergo a psychological
fitness-for-duty examination. Because we conclude that the
employer's order was not reasonably justified under the Americans
with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213, we
reverse and remand for further proceedings.
I.
We derive the following facts from the testimony and
documents presented at the hearing conducted in the Office of
Administrative Law (OAL). On November 3, 2004, appellant began
working as a truck driver for the Department of Public Works (the
DPW) of the Township of Lakewood (the Township).
On or about March 28, 2013, the Township manager received an
anonymous letter purportedly from a "[v]ery concerned employee at
Lakewood Public Works." The unsigned letter stated:
I am writing this letter because I am very concerned about the mental well[-]being of [appellant]. We as co-workers dread being assigned with him and everyone knows he has some sort of mental issues and I truly feel it puts us all at risk with his tirades and outbursts on a daily basis like the one he had today with his union stewards [M.C., B.T., and P.R.] as well. The men and women here at Lakewood public works deserve to come to work and not be afraid of this man, we deserve a hostile free working environment and you as our employer are legally obligated to provide us such. For years we have complained about this man to former Director [J.F.], to our current administration in
2 A-0341-15T2 place now and it seems like a joke, it[']s not. In 1992 there were over 750 workplace killings and this is no laughing matter[;] it's very real and very serious. [Appellant] is a time bomb waiting to explode and he needs help, and it's your responsibility to ensure he gets it or provide some way for us to feel safe at work. I truly hope there is something you can do to ensure our safety, please don't put the township[']s fear of liability ahead of the employee's safety.
Thank you for your time[.]
For over eight months, the Township took no action
concerning the letter. On December 2, 2013, however, "the
Township advised appellant that he would be sent for a
psychological fitness-for-duty examination, and that if he did
not attend such an examination he would face disciplinary
action." Eight days later, the DPW director sent a letter to
appellant notifying him that an examination had been scheduled
for December 16, 2013, with "a follow-up meeting" set for
December 20, 2013. The letter warned appellant that the Township
would discipline him if he did not attend both appointments.
Appellant alleged that the examinations were not "job-
related and consistent with business necessity" under 42 U.S.C.A.
§ 12112(d)(4)(A) and, therefore, the Township could not demand
that he undergo them. Therefore, appellant did not attend either
evaluation.
3 A-0341-15T2 On December 18, 2013, the Township served appellant with a
Preliminary Notice of Disciplinary Action seeking to remove him
from employment on charges of incompetency; inefficiency or
failure to perform duties; inability to perform duties; conduct
unbecoming a public employee; and "other sufficient cause" for
discipline. The specification for the charges stated that
appellant "failed to report for [the psychological fitness-for-
duty] examination contrary to a direct instruction from [his]
supervisors."
That same day, appellant requested a departmental hearing,
which was held on January 6, 2014. The Township rejected
appellant's contention that its demands were not permissible
under the ADA and issued a Final Notice of Disciplinary Action
terminating appellant's employment. Appellant appealed to the
Commission, which transmitted the matter to the OAL for a
contested case hearing.
At the OAL hearing, the Township presented the testimony of
one witness, the DPW director, who testified that he had worked
for the Township for thirty-two years and was familiar with
appellant's work. The director stated that we "had problems with
[appellant] over the past years" because he was "at times . . .
confrontational, and at other times [he walked] away from someone
who wished to speak with him." The director testified that he
4 A-0341-15T2 was not afraid of appellant. Other than "writing up" appellant
"for not helping a fellow worker" on an unspecified date, the
director did not identify any prior, formal disciplinary action
taken against appellant. When asked to describe appellant "as a
worker[,]" the director stated that he was "no different than any
other employee[.]"
The director testified that the Township manager showed him
the anonymous letter "[r]ight after he received it." The
director did not investigate the allegations contained in the
letter, and he was not sure what action, if any, the manager took
concerning it. The director stated that appellant's "job
performance was not a basis for [the Township] sending him to a
psychological evaluation." The Township also stipulated that it
had "never sent anyone for a psychological [examination]
predicated upon the fact that they failed to help" other
employees.
Appellant's union representative briefly testified on his
behalf. The representative stated that the Township manager
showed him the anonymous letter "shortly after it was received
. . . ." The manager said that he thought "he need[ed] to act
on" the letter. The representative questioned whether the
manager had "'a legal basis to act on it,'" and that was "the
5 A-0341-15T2 last" the representative "heard of" the letter until the Township
filed charges against appellant over eight months later.
In a thorough Initial Decision, the Administrative Law Judge
(ALJ) reversed the Township's decision to remove appellant. The
ALJ found that there was "no documentary or testimonial evidence
of an investigation by the Township of the anonymous letter to
determine the veracity of the allegations contained therein."
Based upon the director's uncontradicted testimony, the ALJ also
found that the Township's demand that appellant "attend a
psychological fitness-for-duty examination was not related to his
work performance or to any specific allegation of
psychologically[-]disruptive behavior."1 The ALJ also noted that
appellant's "work performance was satisfactory."
Under these circumstances, and relying upon 42 U.S.C.A.
§ 12112(d)(4)(A), the ALJ concluded that the Township's demand
that appellant undergo a psychological examination was not
"reasonably related" to his job duties and was not "consistent
with business necessity." The ALJ stated:
Here, there was no evidence of a risk of injury to a fellow employee or the public, and no evidence or allegation of physical
1 As we will discuss below, even if the anonymous letter did present a "specific allegation of psychologically[-]disruptive behavior[,]" the allegation was not based upon reliable information provided by a credible third party as required by 42 U.S.C.A. § 12112(d)(4)(A).
6 A-0341-15T2 contact with another employee. The evidence offered by the [Township] is an anonymous letter that the Township took eight months to act on. There is no showing of an investigation into the anonymous letter. [The DPW director] credibly testified that appellant may be confrontational at times; however, this observation regarding appellant was not the asserted basis for the Township's request for a psychological fitness-for-duty examination of [appellant].
[Appellant] did fail to attend the psychological fitness-for-duty examination, but without a reasonable basis for the request that he undergo the examination, the Township cannot punish him for failure to attend. Such an examination was not job- related and consistent with business necessity.
Because the Township "failed to meet its burden to prove by
a preponderance of the evidence that [appellant] committed the
charged violations[,]" the ALJ ordered that he be immediately
reinstated to his truck driver position with back pay from the
date of his termination to the date of his reinstatement. The
ALJ also granted appellant "reasonable counsel fees."
The Township filed exceptions and, on March 5, 2015, the
Commission reversed the ALJ's determination. In its decision,
the Commission failed to address appellant's contention that the
Township's demand that he undergo a psychological examination was
impermissible under the ADA. Indeed, the Commission did not even
cite the ADA in its decision.
7 A-0341-15T2 The Commission found that appellant was insubordinate
because he "fail[ed] to perform his duty by disregarding his
superiors' orders to appear for the fitness-for-duty
examinations." Although the Township had not charged appellant
with insubordination, the Commission reasoned that the
specifications for the charges set forth in the Preliminary and
Final Notices of Disciplinary Action "clearly subsumed
allegations of insubordination."
The Commission determined that appellant should not be
removed from employment, and instead imposed a six-month
suspension. The Commission explained that "appellant's blatant
disregard of oral and written orders from his superiors is
significantly egregious to warrant a substantial penalty."
The Commission also ordered appellant to undergo a
psychological examination before he was reinstated to ensure that
he was "fully capable of performing the duties of his position."
If the psychologist determined that "appellant [was] fit for
duty, without qualification," the Commission directed the
Township to immediately reinstate appellant. However, if the
psychologist determined that appellant was "unfit for duty," the
Commission ordered the Township to charge appellant "with
inability to perform duties" and remove him from employment,
subject to appellant's right to appeal such a determination to
8 A-0341-15T2 the Commission. The Commission also denied appellant's request
for counsel fees. This appeal followed.2
II.
Established precedents guide our task on appeal. Our scope
of review of an administrative agency's final determination is
limited. In re Herrmann, 192 N.J. 19, 27 (2007). "'[A] strong
presumption of reasonableness attaches'" to the Commission's
decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.)
(quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993),
aff'd, 135 N.J. 306 (1999)), certif. denied, 170 N.J. 85 (2001).
The burden is upon the appellant to demonstrate grounds for
reversal. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544,
563 (App. Div. 2002); see also Bowden v. Bayside State Prison,
268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he
burden of showing the agency's action was arbitrary,
unreasonable[,] or capricious rests upon the appellant"), certif.
denied, 135 N.J. 469 (1994).
To that end, we will "not disturb an administrative agency's
determinations or findings unless there is a clear showing that
(1) the agency did not follow the law; (2) the decision was
2 Appellant initially filed a notice of appeal, which we dismissed on our own motion because it was interlocutory. We thereafter granted appellant's motion for leave to appeal the Commission's March 5, 2015 decision.
9 A-0341-15T2 arbitrary, capricious, or unreasonable; or (3) the decision was
not supported by substantial evidence." In re Application of
Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194
N.J. 413, 422 (2008) (citing Herrmann, supra, 192 N.J. at 28);
see also Circus Liquors, Inc. v. Governing Body of Middletown
Twp., 199 N.J. 1, 9-10 (2009). We are not, however, in any way
"bound by the agency's interpretation of a statute or its
determination of a strictly legal issue." Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973).
Moreover, if our review of the record satisfies us that the
agency's finding is clearly mistaken or erroneous, the decision
is not entitled to judicial deference and must be set aside.
L.M. v. State of N.J., Div. of Med. Assistance & Health Servs.,
140 N.J. 480, 490 (1995). We may not simply "rubber stamp" an
agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
On appeal, appellant contends that, under the ADA, "the
Township lacked the lawful authority" to order him to undergo a
psychological fitness-for-duty examination. We agree.
The ADA "provide[s] a clear and comprehensive national
mandate for the elimination of discrimination against individuals
with disabilities[.]" 42 U.S.C.A. § 12101(b)(1). In enacting
the ADA, Congress found that "discrimination against individuals
with disabilities persists in such critical areas as employment,"
10 A-0341-15T2 42 U.S.C.A. § 12101(a)(3), and therefore sought to "assure
equality of opportunity, full participation, independent living,
and economic self-sufficiency for such individuals[.]" 42
U.S.C.A. § 12101(a)(7).
Regarding employment discrimination, 42 U.S.C.A. § 12112(a)
sets forth the "general rule" that "[n]o covered entity shall
discriminate against a qualified individual on the basis of
disability in regard to [the] . . . discharge of employees[.]"
42 U.S.C.A. § 12112(d)(1) states that this "prohibition against
discrimination as referred to in [42 U.S.C.A. § 12112(a)] shall
include medical examinations and inquiries." 42 U.S.C.A. §
12112(d)(4)(A) prohibits employers, like the Township, from
"requir[ing] a medical examination" or "mak[ing] inquiries of an
employee as to whether such employee is an individual with a
disability . . . unless such examination or inquiry is shown to
be job-related and consistent with business necessity."
"There is very little discussion of [42 U.S.C.A.] §
12112(d)(4)(A) in the ADA's legislative history." Kroll v White
Lake Ambulance Auth., 691 F.3d 809, 815 n.8 (6th Cir. 2012).
However, the Equal Employment Opportunity Commission's
regulations make clear that an employer cannot require an
employee to undergo medical tests that do not serve a legitimate
business purpose. See 29 C.F.R. § 1630.13(b) (stating the
11 A-0341-15T2 general rule that, except as permitted by 29 C.F.R. § 1630.14,
"it is unlawful for a covered entity to require a medical
examination of an employee"); 29 C.F.R. § 1630.14(c) (stating
that a medical examination may only be conducted if it is "job-
related and consistent with business necessity"). Courts give
"'substantial deference'" to the EEOC's regulations interpreting
the ADA, including 42 U.S.C.A. § 12112(d). Tice v. Ctr. Area
Transp. Auth., 247 F.3d 506, 515 n.8 (3d Cir. 2001) (quoting
Chevron. Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n.4 (3d
Cir. 1998) (en banc)).
In addition, the EEOC has issued interpretive guidelines to
provide employers with detailed guidance on when they may
lawfully require an employee to undergo a medical examination.
Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act
(ADA), THE U.S. EQUAL EMP'T OPPORTUNITY COMM'N [hereinafter Enforcement
Guidance or Guidance], http://www.eeoc.gov/policy/docs/guidance-
inquiries.html (last visited Jan. 19, 2016). We have long
recognized that deference "should be afforded to the
interpretation of the agency charged with applying and enforcing
a statutory scheme." Hargrove v. Sleepy's, LLC, 220 N.J. 289,
301 (2015). Thus, while not binding, "[t]he EEOC's
interpretative guidelines . . . 'constitute a body of experience
12 A-0341-15T2 and informed judgment to which courts and litigants may properly
resort for guidance.'" Duda v. Bd. of Educ., 133 F.3d 1054,
1060, n.12 (7th Cir. 1998) (quoting Meritor Sav. Bank v. Vinson,
477 U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49, 58
(1986)).
In its Guidance, the EEOC explained that, prior to the
enactment of the ADA, "many employers asked . . . employees to
provide information concerning their physical and/or mental
condition. This information often was used to exclude and
otherwise discriminate against individuals with disabilities --
particularly nonvisible disabilities, such as mental illness --
despite their ability to perform the job." Enforcement Guidance,
supra. Thus, "[t]he ADA's provisions concerning . . . mental
examinations reflect Congress's intent to protect the rights of
. . . employees to be assessed on merit alone, while protecting
the rights of employers to ensure that individuals in the
workplace can efficiently perform the essential functions of
their jobs." Ibid.
Psychological fitness-for-duty examinations are "medical
examinations" under the ADA. Enforcement Guidance, supra.
Thus, the examinations that the Township ordered appellant to
undergo would only have been lawful if they were "job-related and
consistent with business necessity." 42 U.S.C.A. § 12112(d)(4)(A).
13 A-0341-15T2 The Guidance defines these terms and "addresses situations in
which an employer would meet the general standard for . . .
requiring a medical examination." We therefore quote from the
Guidance at length.
The EEOC has defined the "job-related and consistent with
business necessity" set forth in 42 U.S.C.A. § 12112(d)(4)(A) as
follows:
Generally, a disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."
[Enforcement Guidance, supra (footnotes omitted).]
Pursuant to 29 C.F.R. § 1630.2(r), the term "[d]irect threat
means a significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or
reduced by reasonable accommodation."3 The EEOC has further
explained:
Sometimes this standard may be met when an employer knows about a particular employee's medical condition, has observed performance
3 Although not specified in the regulation, we discern no reason why the term "direct threat" would not also include a significant risk that the individual would harm property.
14 A-0341-15T2 problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job- related and consistent with business necessity for an employer to make disability- related inquiries or require a medical examination.
[Enforcement Guidance, supra (footnotes omitted) (emphasis added).]
In other words, the employer must reasonably believe, either
through direct observation or through reliable information
received from credible sources, that the employee's perceived
medical condition is affecting his or her work performance or
that the employee poses a direct threat. Then, and only then,
may the employer lawfully require the employee to undergo a
psychological fitness-for-duty examination. See Yin v.
California, 95 F.3d 864, 868 (9th Cir. 1996) (observing that an
employer cannot require an employee to undergo a medical
examination unless the employee's "problems have had a
substantial and injurious impact on [the] employee's job
performance"), certif. denied, 519 U.S. 1114, 117 S. Ct. 955, 136
L. Ed. 2d 842 (1997).
15 A-0341-15T2 The Enforcement Guidance cautions employers that they may
not
require a medical examination of an employee based, in whole or in part, on information learned from another person[, unless] the information learned is reliable and would give rise to a reasonable belief that the employee's ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition[.]
[(emphasis omitted).]
In determining whether the information provided by a credible
third-party is sufficiently reliable to support an order
requiring the employee to submit to a psychological examination,
the Guidance states that the employer should consider the
following factors:
(1) the relationship of the person providing the information to the employee about whom it is being provided; (2) the seriousness of the medical condition at issue; (3) the possible motivation of the person providing the information; (4) how the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and (5) other evidence that the employer has that bears on the reliability of the information provided.
[Enforcement Guidance, supra.]
To illustrate these requirements, the EEOC provided the
following example, which is particularly pertinent to the case at
hand:
16 A-0341-15T2 Example[]: Kim works for a small computer consulting firm. When her mother died suddenly, she asked her employer for three weeks off, in addition to the five days that the company customarily provides in the event of the death of a parent or spouse, to deal with family matters. During her extended absence, a rumor circulated among some employees that Kim had been given additional time off to be treated for depression. Shortly after Kim's return to work, Dave, who works on the same team with Kim, approached his manager to say that he had heard that some workers were concerned about their safety. According to Dave, people in the office claimed that Kim was talking to herself and threatening to harm them. Dave said that he had not observed the strange behavior himself but was not surprised to hear about it given Kim's alleged recent treatment for depression. Dave's manager sees Kim every day and never has observed this kind of behavior. In addition, none of the co-workers to whom the manager spoke confirmed Dave's statements.
Based upon the facts of this hypothetical example, the EEOC
advised that
the employer does not have a reasonable belief, based on objective evidence, that Kim's ability to perform essential functions will be impaired or that s/he will pose a direct threat because of a medical condition. The employer, therefore, would not be justified in asking Kim disability-related questions or requiring her to submit to a medical examination because the information provided by Dave is not reliable.
17 A-0341-15T2 After carefully reviewing 42 U.S.C.A. § 12112(d)(4)(A) and
the EEOC's regulations and its Guidance, and distilling them to
their essence, we conclude that an employer may only require an
employee to undergo a psychological fitness-for-duty examination
when the employer has a reasonable belief, either through direct
observation or through reliable information from credible
sources, that the employee's perceived mental state will either
affect his or her ability to perform essential job functions or
that the employee poses a direct threat. As the EEOC has
observed, the employer's "reasonable belief . . . must be based
on objective evidence obtained, or reasonably available to
the employer, prior to . . . requiring a medical examination.
Such a belief requires an assessment of the employee and his/her
position and cannot be based on general assumptions."
Enforcement Guidance, supra.
III.
Applying these principles to the facts of this case, we hold
that the Township violated 42 U.S.C.A. § 12112(d)(4)(A) when it
ordered appellant to participate in a psychological fitness-for-
duty examination based upon the information contained in the
anonymous letter. Simply stated, the Township did not meet its
burden of demonstrating that its directive was "job-related and
consistent with business necessity."
18 A-0341-15T2 Here, the DPW director testified that appellant's work
performance was satisfactory and "was not a basis" for the
Township's demand that he undergo the evaluation. While
appellant was "confrontational" at times, the director stated
that appellant was "no different than" other employees. Under
these circumstances, we are satisfied that the Township failed to
demonstrate that appellant's ability to perform his job functions
was impaired by any suspected medical or mental condition.
The Township also failed to prove that appellant posed a
direct threat to either himself, others or property. Again, the
Township did not present any evidence that appellant had
threatened other employees. The DPW director only mentioned one
specific incident in appellant's nine years of employment where
appellant was disciplined for not helping a co-worker. However,
the Township stipulated that other employees were similarly
disciplined over the years, but none of them were ordered to
undergo psychological evaluations. The Township did not present
any documentary evidence concerning any other disciplinary
actions involving appellant.
In addition, the Township obviously did not consider
appellant to be a direct threat to other employees or property
because, after it received the anonymous letter, it failed to
take any action concerning it for over eight months. During that
19 A-0341-15T2 entire time, appellant performed the duties of his position
without incident.
Turning to the anonymous letter, it is clear that, even
though the letter made allegations of disruptive behavior, it did
not represent the type of reliable information from a credible
source upon which the Township could reasonably rely in ordering
a psychological examination. The identity of the "[v]ery
concerned employee at Lakewood Public Works" who sent the letter
was unknown. Therefore, the information in the letter was
exactly the type of innuendo and rumor that the EEOC has advised
employers is insufficient to support a mandatory evaluation.
Contrary to the Township's contention, it was not powerless
to take appropriate action after it received the anonymous
letter. 42 U.S.C.A. § 12112(d)(4)(B) plainly provides that an
employer "may make inquiries into the ability of an employee to
perform job-related functions." Thus, the Township could have
solicited information from the DPW director and any other
supervisors concerning appellant's job performance. The Township
also could have contacted the three "union stewards" specifically
named in the anonymous letter for information about the alleged
"outburst" appellant had on March 28, 2013. Instead, the
Township failed to investigate the allegations in the anonymous
letter for over eight months and then sought to rely upon that
20 A-0341-15T2 letter as the sole basis for its order requiring appellant to
submit to the psychological evaluation. Thus, this order clearly
violated 42 U.S.C.A. § 12112(d)(4)(A). Accordingly, the
Commission's finding of insubordination,4 given the undisputed
circumstances presented, was erroneous as a matter of law.
Therefore, we conclude that the Commission's decision is
arbitrary, capricious, and unreasonable and, accordingly, we
reverse and vacate the penalty imposed. We remand to the
Commission for a calculation of back pay due to appellant upon
his reinstatement to his former position and for consideration of
his request for counsel fees. In remanding, we express no view
on the merits of appellant's application for counsel fees or the
amount that may be due him in back pay.
Reversed and remanded. We do not retain jurisdiction.
4 Neither the Civil Service Act, N.J.S.A. 11A:1-1 to -12-6, nor the applicable regulation, N.J.A.C. 4A:2-2.3(a)(2), define "insubordination." However, we have observed that it is ordinarily defined as a failure to obey a lawful order. See Rivell v. Civil Serv. Comm'n, 115 N.J. Super. 64, 71 (App. Div. 1971), certif. denied, 59 N.J. 269 (1971).
21 A-0341-15T2