In a case involving a senior supervisory agent with the Department of Homeland Security, FH+H Partner Kevin Byrnes and Associate Grace Williams successfully mediated a result that removed both a proposed termination and a reprimand from the agent.
FH+H attorneys successfully argued that the Agency supervisors conducted an improper Fitness for Duty Examination by demanding to see all of the agent’s medical records in order to determine whether he could perform the essential functions of his position, after the employee had been diagnosed with cancer. When our client objected to the scope of the request, the agency reprimanded him for failure to follow instructions.
The agent filed an Equal Employment Opportunity (EEO) complaint, which asserted a generic violation of the Rehabilitation Act, claiming improper collection of medical information. The Agency agreed to mediate, and on the eve of the mediation, it proposed a letter of termination. Mr. Byrnes then amended the EEO complaint to add claims of additional violations of the Rehabilitation Act based on actual and perceived disability for misuse of medical information and for retaliation and reprisal.
At mediation, Mr. Byrnes argued that supervisors had failed to follow the proper procedures for the collection, review, and use of medical information. Federal law requires the exam to be conducted and reviewed by a medical expert, not by supervisors. Mr. Byrnes further argued that the Agency could not conduct an adverse action based on disability-related behavior nor on failure to produce records in an illegal way.
Following these discussions, the Agency agreed to allow the employee 120 days to produce a simple certificate that his disability had no impact on his ability to perform his job. The Agency further withdrew its request for medical records and all disciplinary charges.
Mr. Byrnes has considerable experience representing law enforcement agents on a wide variety of matters, including employment discrimination, retirement issues and benefits, personnel charged with misconduct, and more. Read about Mr. Byrnes' experience.
Note: Case results depend on a variety of unique factors and do not guarantee or predict similar results for future cases.
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