In the Matter of Paul Williams, Township of Lakewood ( 2016 )


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  •                   NOT FOR PUBLICATION WITHOUT THE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.
    
               [(emphasis omitted).]
    
    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.
    
               [Enforcement Guidance, supra.]
    
    
    
    
                                             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