                  NOT FOR PUBLICATION WITHOUT THE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).



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