Officer Removed On Results Of Psychological Assessment Entitled On Appeal To Challenge Assessment’s Basis
Where an agency relies, directly or indirectly, on the results of a psychological assessment in justifying an employee’s removal, the agency must provide the employee with a meaningful opportunity to review and challenge the evidence underlying the assessment, the Federal Circuit recently held.
Up until his removal in 2016, Roberto Ramirez served as a Customs and Border Protection Officer for the Department of Homeland Security. His position required him to carry a service firearm and to remain medically qualified to do so.
In early 2014, Ramirez’s wife reported to police that Ramirez had threatened her with his service weapon. Although the police ultimately concluded the allegations were unfounded, DHS temporarily revoked Ramirez’s authority to carry a firearm and required him to complete a fitness-for-duty evaluation, which included a psychological evaluation.
DHS ordered two evaluations by different examining psychiatrists, who were each unable to conclusively assess Ramirez’s dangerousness or ability to safely carry a service weapon. However, both evaluations were based on the Minnesota Multiphasic Personality Inventory (MMPI) and both were tabulated and interpreted by a third psychiatrist, Dr. Richard Frederick. The two examining psychiatrists based their determinations on Dr. Frederick’s reports.
Based on the inconclusiveness of Ramirez’s second psychological evaluation, DHS determined Ramirez was no longer fit for duty and proposed his removal. In support of the proposal, DHS provided Ramirez with copies of the two examining psychiatrists’ reports, but did not provide him access to the MMPI assessments or their interpretation by Dr. Frederick. After Ramirez contested the proposed removal through his union representative, DHS issued a decision removing Ramirez from his position and from the federal service. Ramirez elected to challenge the removal through arbitration, rather than through appeal to the Merit Systems Protection Board.
In discovery before the arbitrator, Ramirez asked DHS for copies of his MMPI assessments and Dr. Frederick’s tabulation and interpretation of the scores. DHS denied the request because it had never obtained those records from Dr. Frederick. Ramirez’s counsel then objected to DHS’s introduction of evidence that relied on the MMPI assessments on the ground that Ramirez had been denied access to those test records. The arbitrator reserved judgment on the objection and allowed the parties to present their evidence.
After to live hearings, the arbitrator issued an Interim Award, ordering Ramirez to undergo another psychiatric evaluation because the conclusions of DHS’s medical experts fell “technically short” of proving Ramirez was unfit for service. The Interim Award deferred “all aspects associated with a final decision” pending that evaluation and did not address Ramirez’s objection to DHS’s medical evidence based on its failure to produce the MMPI records.
Ramirez subsequently reported for a third fitness-for-duty evaluation, conducted by a third psychiatrist. As part of the evaluation, Ramirez completed another MMPI assessment reviewed by Dr. Frederick, who again interpreted the results as invalid. Based on Dr. Frederick’s interpretation, the examining psychiatrist determined she could not declare Ramirez safe to return to the workplace. Following the evaluation, Ramirez requested all records of the evaluation. DHS again denied the request on the ground that it did not receive the test records from the examining psychiatrist.
After receiving the third inconclusive evaluation result, the arbitrator issued a Final Award affirming Ramirez’s removal. The Final Award denied Ramirez’s request to order DHS to produce the records of his MMPI assessments and declined to reopen the record for a new hearing. Ramirez then petitioned the U.S. Court of Appeals for the Federal Circuit to review his case.
On appeal, Ramirez argued two issues: that the arbitrator lacked the authority to order a new psychiatric exam after issuing the Interim Award; and that DHS’s denial of access to the records of the MMPI assessments deprived Ramirez of due process.
In its opinion, the Court panel first disagreed with Ramirez’s argument that after issuing the Interim Award, the arbitrator was obligated to order his reinstatement and lacked authority to take any other action in the case. The Court held an arbitrator does not lose authority to further consider an issue by announcing an interim finding, when the interim finding expressly defers a final decision on that issue pending the availability of additional evidence. Because the Interim Award expressly deferred its factual determinations pending a third DHS-administered psychiatric evaluation, the arbitrator retained authority to order the evaluation.
The Court then acknowledged that Ramirez’s due process challenge presented a question of first impression. The Court had not previously decided whether and when due process requires a government agency to provide its employee with the records of psychological testing underlying an adverse fitness-for-duty evaluation that leads to the employee’s removal.
In Ramirez’s case, the Court concluded DHS’s removal determination was entirely premised on Dr. Frederick’s interpretation of the MMPI results. The Court further determined Ramirez could only verify or refute DHS’s removal determination by independently reviewing Dr. Frederick’s records. On those grounds, the Court held due process required DHS provide Ramirez the opportunity to review and attempt to refute the MMPI results and Dr. Frederick’s interpretations.
While the Court agreed with Ramirez that the arbitrator legally erred in denying his due process right to review and to challenge the MMPI records, the Court disagreed that Ramirez was entitled to review and to challenge to records prior to his removal. The Court noted that Ramirez did not argue he had such a pre-removal right until he appealed the arbitrator’s decision. On that record, the Court held it was “not persuaded” that DHS’s failure to provide Ramirez with the MMPI records prior to removing him “constituted a constitutional violation that cannot be remedied through adequate post-termination procedures.”
The Court did not order that Ramirez be returned to duty. Rather, it vacated the arbitrator’s Final Award and remanded the case to the arbitrator to allow Ramirez the opportunity to challenge the basis of his “inconclusive” psychological assessments.
Read the Federal Circuit’s full opinion in Ramirez v. Dep’t of Homeland Security.
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.