The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant has filed a motion for summary judgment. Plaintiff has filed a cross-motion for partial summary judgment. For the reasons discussed below, Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART and Plaintiff's cross-motion for partial summary judgment is GRANTED IN PART and DENIED IN PART.
A. General Employment History
In 1991, Plaintiff James Scott ("Plaintiff") was hired by the Federal Protective Service ("FPS") as a uniformed federal protective officer in Los Angeles, California. (Scott Decl. of 9/15/09, ¶ 3.)*fn1 In 1992, Plaintiff was promoted to the position of Special Agent/Criminal Investigator. (Id. at ¶ 4.) In 1993, Plaintiff transferred to San Diego to open a criminal investigative office for FPS. (Id. at ¶ 5.) In or about 2003, Plaintiff was again promoted and was detailed to the FBI's Joint Terrorism Task Force. (Id. at ¶ 7.)
B. Plaintiff's Health Issues
In November 1998, Plaintiff was diagnosed with having an adjustment disorder with mixed depression and anxiety and was placed on work stress disability for several months. (Def. Ex. 82, 485:2-9.) Plaintiff was placed on long-term disability from approximately July 31, 2000 to February 2, 2002. (Id. at 490:16-491:9.) On or about August 23, 2000, Plaintiff filed a Workers' Compensation claim for his adjustment disorder. (Id. at 490:7-12.) Plaintiff underwent an independent psychological evaluation in or about January 2001, and was diagnosed as suffering from an adjustment disorder with mixed depression and anxiety with a corroborating diagnosis of "chronic work-related adjustment disorder to include a stress-related physiological response affecting medical condition." (Id. at 491:17-492:10.)
In the Spring of 2004, Plaintiff filed a Workers' Compensation claim for sinusitus/rhinitis. Plaintiff's sinus problems were exacerbated by wildfires and construction work at Plaintiff's office. (Def. Ex. 88, 202-05; Def. Ex. 10.) John P. Morgan, Plaintiff's supervisor, authorized Plaintiff to work at home for a period of time so that he could avoid the excessive dust and airborne particles at his office. (Def. Ex. 10.)
On September 17, 2004, Plaintiff reported that he had been diagnosed with work-related tendonitis of the upper right arm and shoulder area. (Def. Ex. 11.) A medical impairment form ("DMI") from Kaiser Permanente indicated that Plaintiff was restricted for a period of seven calendar days from grasping, hand motion, pushing, pulling, reaching above his shoulder, or lifting with his right hand. (Def. Ex. 12.)
On September 21, 2004, Mr. Morgan told Plaintiff that based on the medical impairment documentation from Kaiser, "I believe it prudent that you NOT carry a FPS duty firearm at this time until your condition improves and you are no longer under doctor's care. Please assure me that you will secure your weapon until such time as you are able to proceed with your full range of duties and responsibilities." (Def. Ex. 13.) Two days later, Plaintiff informed Mr. Morgan that Kaiser had confirmed the existence of a work-related "repetitive motion injury" involving his upper right arm and shoulder and had recommended an "ergonomic evaluation." (Def. Ex. 14.) Plaintiff also explained, "Carrying a firearm is authorized, and no work restrictions have been imposed. However, 5 minute rests of the injured area every 30 minutes have been directed, along with continued training/usage of the left arm/hand as much as possible until further notice." (Id.) Plaintiff submitted a new DMI to this effect. (Def. Ex. 15.)
On October 8, 2004, Plaintiff submitted a Workers' Compensation claim for repetitive motion injury causing pain in his upper arm, shoulder, and neck. (Def. Ex. 16.) In an e-mail dated October 18, 2004, Mr. Morgan expressed surprise that Plaintiff was still conducting the same work activities that caused Plaintiff's injuries. (Def. Ex. 17.) Mr. Morgan requested more information from Plaintiff regarding his work activities and what he was doing to care for his condition. (Id.)
A DMI dated October 21, 2004, did not indicate any work restrictions but recommended 5 minutes of rest for every 30 minutes worked. (Def. Ex. 19.) DMIs dated December 13, 2004 and January 10, 2005 also did not indicate any work restrictions.
C. Revocation of Plaintiff's Law Enforcement Authority
In early 2005, Plaintiff was scheduled to attend two separate training courses, an "ALERT 504" law enforcement training course scheduled for February 7, and a VIP Protection Course scheduled for January 31.
The notification for the "ALERT 504" training course stated: "This is a rigorous program containing advanced training in the areas of arrest techniques, defensive tactics and firearms designed to emulate the physical stresses of the field. Therefore, it is the FPS National Academy's expectation that all attendees have a baseline fitness level required for FPS law enforcement positions." (Def. Ex. 28.)
Based on written materials Plaintiff received regarding the "ALERT 504" training regimen, Plaintiff mistakenly believed that the course would require him to (1) demonstrate the maximum weight he could bench press in a single lift and (2) complete a U.S. Border Patrol obstacle course that required rigorous upper body strength. (Pl. Ex. 25 in Opp. to MSJ, ¶ 10; Pl. Ex. 31 in Opp. to MSJ.) According to Plaintiff, although he had largely concluded his rehabilitation with Kaiser, he was precluded from participating in any general weight training and was concerned about the maximum bench press and obstacle course requirements. (Pl. Ex. 25 in Opp. to MSJ, ¶ 11.) On January 27, 2005, Plaintiff saw his Kaiser physician who placed him on a 20 pound weight restriction. (Def. Ex. 29.)
In an e-mail dated January 27, 2005, Plaintiff advised Mr. Morgan that he developed another upper respiratory infection due to construction work at his office that released dust that had been trapped in the ceiling. Plaintiff noted, "I'll file another DOL/OWCP Claim later this month." (Def. Ex. 30.) Mr. Morgan expressed concern regarding Plaintiff's ability to perform his full range of duties and discussed his concern with Branch Chief Don Meyerhoff. (Def. Ex. 30.) Mr. Morgan recommended that Plaintiff's law enforcement authority be removed (Def. Ex. 87 at 66:21-22.) Mr. Meyerhoff agreed and made the final decision to remove Plaintiff's law enforcement authority. (Id. at 75:21-78:4.)
On January 31, 2005, before the VIP training started, Mr. Morgan excused Plaintiff from participating in the training and revoked his law enforcement authority, securing Plaintiff's vehicle and weapon. (Def. Ex. 87 at 86:1-16.)
On February 22, 2005, Plaintiff submitted a DMI which did not indicate any weight-lifting restriction or any other restriction. (Def. Ex. 34.)
D. Physical and Psychiatric Exams Ordered by FPS
On March 1, 2005, Mr. Meyerhoff directed Plaintiff to submit to a fit-for-duty physical examination and informed him that he would remain in non-law enforcement status until he successfully passed the physical. (Def. Ex. 37.)
On March 4, 2005, Martha Montano, the FPS staff employee who coordinated medical examinations for Region 9, contacted Plaintiff to schedule a fitness-for-duty ("FFD") examination. (Def. Ex. 38.)
On March 31, 2005, Ms. Montano sent Plaintiff two "Return to Work Clearance" forms, which asked Plaintiff to list his medical condition and release medical records to Comprehensive Health Services ("CHS"), the medical contracting service retained by FPS to evaluate agency employees. (Def. Exs. 24-25, 82 at 361:14-25.) Plaintiff refused to sign and return the forms. (Def. Ex. 42.)
On April 13, 2005, Ms. Montano requested that CHS schedule an Independent Medical Examination ("IME") for Plaintiff to evaluate him for fitness-for-duty. (Def. Ex. 45.) Ms. Montano requested that a psychiatrist be available to examine Plaintiff. She described Plaintiff's physical ailments as consisting of pain in his arm, including his shoulder due to excessive use of a computer mouse, and recurrent sinusitis and upper respiratory infection. (Id.) Ms. Montano also described Plaintiff as suffering from "mental health issues":
Mr. Scott appears to be apprehensive with heightened states of anxiety and we are concerned with a potential of hostile encounters with the public. There is a concern with his emotional stability as he has had a vexation about an "FPS management conspiracy against him." Mr. Scott expresses his agitation, both, verbally and in writing, through various emails. (Id.)
In response to Ms. Montano's request, Dr. Lawrence Saladino, FPS's Medical Review Officer at CHS, recommended an "Incumbent Medical Exam and Psych IME." (Def. Ex. 47.)
In a letter dated April 22, 2005, Mr. Morgan stated that there was insufficient information to determine whether Plaintiff could perform full unrestricted work as an FPS Criminal Investigator in light of his medical conditions, including recurring sinusitis, upper respiratory infection, and injury to the upper arm. (Def. Ex. 49.) Mr. Morgan also expressed concern regarding statements allegedly made by Plaintiff referring to a management conspiracy: "These continued references bring to question your mental health status and your ability to perform the full range of duties required for the position of an FPS Criminal Investigator . . . due to what appears to be unresolved mental health problems." (Id.) Mr. Morgan stated that he was exercising FPS's authority under 5 CFR 339.301 to require that Plaintiff undergo a medical/psychological fitness-for-duty examination to be performed at FPS's expense by a doctor(s) selected by FPS in consultation with CHS.*fn2 (Id.)
Plaintiff was initially scheduled for the physical examination on May 6, 2005. Beforehand, Plaintiff received copies of CHS examination request forms for an "Incumbent Exam Age 45 and Older." The examination did not take place due to a disagreement as to the scope of the examination. Plaintiff communicated that he would not submit to a comprehensive physical examination, but, rather, would only permit an examination regarding his recurring sinusitis or rhinitis and repetitive motion injury to the upper right arm and shoulder. (Def. Ex. 52; 81, 166:8-167:7.) It appears that Plaintiff took the position that under FPS's Periodic Medical Examination Program, his periodic comprehensive examination was not due until his birthday. (Def. Ex. 86, 140:9-24; Ex. 50.)*fn3
Plaintiff's examination was rescheduled to May 24, 2005, however, once again, Plaintiff refused to submit to a comprehensive physical examination. (Id.) No examination was conducted. Shortly thereafter, Plaintiff's psychiatric examination was canceled.
E. Birth-Month Examination and Release
On November 9, 2005, Plaintiff appeared for his birth-month examination at Healthworks' San Diego facility. Plaintiff underwent a full physical examination. (Scott Decl. ¶ 13.) Plaintiff was also provided with a medical questionnaire form ("GSA/FPS Pre-Placement and Incumbent Medical Exam Form"). (Pl. Ex. 5.) Although Plaintiff completed most of the questionnaire, he refused to answer the following questions and indicated that they violated the ADA/Rehabilitation Act.
* Have you ever been treated for a mental condition? (If yes, specify when, where, and give details)
* Have you ever had any illness, injury, or other condition (including learning disability, attention deficit disorder, etc.) other than those already noted? (If yes, specify when, where and give details)
* Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past years for other than minor illness? (If yes, give complete address of doctor, hospital, clinic, and details.)
* Have you ever received, is there pending, or have you applied for pension or compensation for existing disability? (If yes, specify what kind, granted by whom, and what amount, when, why)
* Have you or do you currently experience any of the following: psychiatric/psychological consult, episodes of depression, periods of nervousness? Please specify.
* List all medication (prescription and non-prescription) you are currently taking with dosage and [f]requency, and reason below.
(Pl. Ex. 5 at 2, 4.) In response to the last question about his medication, Plaintiff noted: "I am not taking any medications that would impair my ability to perform my position." (Pl. Ex. 5 at 4.)
The form also included the following release language:
I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge. I authorize any of the doctors, hospitals, or clinics mentioned on these forms to furnish the Government a complete transcript of my medical record for purposes of processing my application for this employment or service. I authorize the release of all medical information to the designated Agency Physician and on a need to know basis, the designated Regional POC, Director Management Analysis Division, Central Office POC, designated physician at FLET and HR POC.
(P. Ex. 5 at 5.) Plaintiff crossed out this language and wrote: "I only authorize the release of the results of this exam to authorized agency medical personnel. I do not authorize the release of any other personal medical records." (Id.)
In an e-mail dated November 28, 2005, Dr. Saladino stated that due to Plaintiff's failure to complete the questionnaire and the release, "the information available to me at the present time will not be sufficient . . . to provide a medical determination letter." (Def. Ex. 58.)
On December 8, 2005, Rudy Negrete, Plaintiff's new Branch Chief, directed Plaintiff to complete a request for additional medical records and documentation by CHS. (Def. Ex. 59; 62.) Mr. Negrete directed Plaintiff to comply within 14 calendar days and warned him that failure to comply may result in disciplinary action. (Id.) Plaintiff did not comply.
On April 17, 2006, Mr. Negrete advised Plaintiff that he was proposing a fourteen-day suspension for failure to carry out his instructions regarding the unanswered questions and release. (Def. Ex. 63.) On April 28, 2006, Plaintiff responded in writing to the proposed suspension, explaining that the "FPS Incumbent Exam pursues confidential medical information that is beyond the reasonable scope permitted by Equal Employment & Opportunity Commission enforcement guidelines." (Pl. Ex. 7.) On May 8, 2006, Joyce Nesbitt-Simon, Region 9's new ...