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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11341
Non-Argument Calendar
____________________
RAYMOND B. BALDWIN,
Plaintiff-Appellant,
versus
SECRETARY OF VETERANS AFFAIRS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:15-cv-00594-MMH-PRL
____________________
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2 Opinion of the Court 19-11341
Before ROSENBAUM, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Raymond Baldwin appeals the district court’s decision grant-
ing summary judgment to the Secretary of the U.S. Department of
Veterans Affairs (“VA”) on his claims of disability discrimination
under the Rehabilitation Act of 1973. See
29 U.S.C. § 794. On ap-
peal, he contends that the VA unlawfully ordered him to undergo
a psychological-fitness-for-duty evaluation for his job as a VA police
officer after he injured his finger in an off-duty accidental-discharge
incident, and that the evaluation was tainted by false and illegally
obtained information. After careful review, we conclude that the
VA properly required the fitness-for-duty evaluation, which Bald-
win failed, and that there is no evidence to support a finding that
the alleged problems with the evaluation or his subsequent re-
moval as a police officer were due to his claimed disability. So we
affirm the grant of summary judgment.
I.
Baldwin began working as a police officer at a VA hospital
in September 2002. In August 2008, Baldwin shot himself in his left
pinky finger while driving off duty. According to Baldwin, he was
driving while handling a gun, which he had recently loaded at a
stop sign, when his truck ran off the road due to inattention and he
hit a “rough spot” that caused the gun to fly from his grasp. The
gun discharged when he reached to grab it, and the bullet passed
through his finger and the steering wheel before lodging in the
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19-11341 Opinion of the Court 3
truck by the windshield. As a result of this incident, Baldwin was
on leave until October 2008, when he returned to work on light-
duty status. By early February 2009, his finger had healed, and his
physician released him to return to work without restriction.
Meanwhile, in late January 2009, the VA informed Baldwin
that, because of concerns stemming from the August 2008 incident,
he would need to undergo a psychological fitness-for-duty evalua-
tion before returning to his full duties as a police officer. In addi-
tion, Acting Police Chief Milton Gordon said he believed such an
examination was warranted in light of “very bizarre” statements
Baldwin had made to coworkers about Baldwin’s personal life, in-
cluding having been accused of pedophilia and incest.
A VA staff psychologist conducted a psychological evalua-
tion and determined that Baldwin had “a long history of interper-
sonal conflict and difficulty managing anger,” a lengthy legal record
indicating disregard for the law or poor judgment, and a lack of
emotional stability. The psychologist expressed “serious reserva-
tions about [Baldwin] being authorized to carry a firearm in the line
of duty.” Based on that evaluation, a VA occupational health phy-
sician found that Baldwin was “unfit for duty as a police officer”
and “should not be authorized to carry a firearm in the line of
duty.”
As a result of the failed fitness-for-duty examination, the VA
removed Baldwin from his position as a police officer. Later, the
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4 Opinion of the Court 19-11341
VA reassigned him to another position with the agency, at the same
grade and pay. 1
Believing that the reasons for the fitness-for-duty examina-
tion were specious and his job transfer unwarranted, Baldwin filed
several equal employment opportunity (“EEO”) complaints along
with a Merit Systems Protection Board (“MSPB”) action challeng-
ing the VA’s actions against him. After proceeding through the full
administrative process for his EEO and MSPB actions, but failing
to prevail in either forum, Baldwin filed the current action in fed-
eral district court.
Baldwin alleged various disability discrimination, retalia-
tion, and hostile work environment claims, among others. In a
comprehensive order, the district court granted summary judg-
ment to the VA, finding that the evidence was insufficient for Bald-
win to prevail on any of his claims. Baldwin now appeals.
II.
We review de novo the district court’s grant of summary
judgment, viewing the record in the light most favorable to the
nonmoving party—here, Baldwin. Roy v. Ivy,
53 F.4th 1338, 1346
(11th Cir. 2022). Summary judgment is appropriate where the evi-
dence “shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). No genuine issue of material fact exists unless
1Nonetheless, the VA advises that Baldwin was rehired for a police officer
position in November 2020.
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19-11341 Opinion of the Court 5
a “reasonable jury could return a verdict in favor of the nonmoving
party.” Baxter v. Roberts,
54 F.4th 1241, 1253 (11th Cir. 2022) (quota-
tion marks omitted).
We liberally construe the filings of pro se parties. Timson v.
Sampson,
518 F.3d 870, 874 (11th Cir. 2008). Nevertheless, “issues
not briefed on appeal by a pro se litigant are deemed abandoned.”
Id. Nor are passing references to an issue, without supporting ar-
guments or authority, sufficient to raise the issue for appeal.
Sapuppo v. Allstate Floridian Ins.,
739 F.3d 678, 681–82 (11th Cir.
2014). We may affirm on any ground supported by the record.
United States v. Campbell,
26 F.4th 860, 879 (11th Cir. 2022) (en banc).
III.
The crux of Baldwin’s argument on appeal is that the VA did
not have the authority to conduct the fitness-for-duty examination
in the first place. In Baldwin’s view, the August 2008 accidental-
discharge incident was insufficient to justify a psychological evalu-
ation. Knowing this, according to Baldwin, VA staff conspired to
fabricate false and defamatory accusations against him as further
support for the fitness-for-duty examination. He further asserts
that the VA improperly obtained his criminal-history information
and misrepresented that history in the examination.
A.
Liberally construing his filings, Baldwin appears to challenge
the decision to order a fitness-for-duty examination under
42
U.S.C. § 12112(d)(4)(A), as incorporated by the Rehabilitation Act.
See
29 U.S.C. § 794(d). That section states,
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6 Opinion of the Court 19-11341
A covered entity shall not require a medical examina-
tion and shall not make inquiries of an employee as to
whether such employee is an individual with a disa-
bility or as to the nature or severity of the disability,
unless such examination or inquiry is shown to be
job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A). Notably, § 12112(d)(4)(A) “protects em-
ployees who are not disabled.” Owusu-Ansah v. Coca-Cola Co.,
715
F.3d 1306, 1310 (11th Cir. 2013). Although the district court did not
construe Baldwin’s claim as brought under this section, we may
reach beyond that court’s reasoning. See Campbell, 26 F.4th at 879.
A psychological fitness-for-duty evaluation is job-related and
consistent with business necessity when, among other reasons, the
employer has “information suggesting that an employee is unstable
and may pose a danger to others.” Owusu-Ansah,
715 F.3d at 1312.
These concerns are heightened in police departments, which
“place armed officers in positions where they can do tremendous
harm if they act irrationally.” Watson v. City of Miami Beach,
177
F.3d 932, 935 (11th Cir. 1999). Nothing in the Rehabilitation Act or
the ADA “require[s] a police department to forgo a fitness for duty
examination to wait until a perceived threat becomes real or ques-
tionable behavior results in injuries.”
Id. at 935.
Regulations applicable to federal agencies further define
when and how medical or psychological examinations may be con-
ducted. See
5 C.F.R. § 339.301. When an employee occupies a po-
sition that has medical standards or physical requirements, the
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19-11341 Opinion of the Court 7
agency may require a medical examination whenever there is rea-
son to question the employee’s continued capacity to meet those
requirements. See
id. § 339.301(b)(3). Any psychological assess-
ment must be limited to the person’s mental fitness as it directly
relates to successfully performing the duties of the position without
significant risk to the employee or others. Id. § 339.301(e)(2).
Here, the evidence, viewed in the light most favorable to
Baldwin, fails to show that the VA violated the Rehabilitation Act
or applicable regulations by ordering a fitness-for-duty examina-
tion. VA police officers are subject to physical and mental require-
ments and are required to undergo yearly fitness-for-duty exami-
nations. And undisputed evidence reflects that the VA had good
reason to question Baldwin’s mental fitness for duty. By his own
account of the August 2008 accidental-discharge incident, Baldwin
engaged in reckless behavior with a loaded gun while driving on a
public street, posing a risk to others and injuring himself as a result.
Because Baldwin carried a firearm as a police officer and was au-
thorized to make arrests, the VA had objective grounds to question
whether he could perform the essential functions of his position
without unnecessarily endangering others, wholly apart from
statements Baldwin allegedly made to coworkers about his per-
sonal life. See
5 C.F.R. § 339.301. Thus, we disagree with Baldwin’s
claim that the fitness-for-duty examination cannot be justified
based solely on the August 2008 shooting incident and that the VA
sought to cover up that fact by invoking false allegations against
him.
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8 Opinion of the Court 19-11341
Given the nature of Baldwin’s position and the extremely
questionable judgment he admittedly exhibited, which resulted in
injury to himself, the fitness-for-duty examination was both job-re-
lated and consistent with business necessity.2 See Watson,
177 F.3d
at 935 (stating that police officers “can do tremendous harm if they
act irrationally”); see also Owusu-Ansah,
715 F.3d at 1311–12. Ac-
cordingly, Baldwin cannot prevail at trial on a claim under §
12112(d)(4)(A), and summary judgment was appropriate.
B.
Baldwin also maintains that the fitness-for-duty examination
was tainted by inaccurate information about his criminal history,
which, in his view, was also improperly obtained by the VA. 3 He
suggests that the VA rigged the fitness-for-duty examination to get
rid of him, apparently as pretext for discriminatory animus.
The Rehabilitation Act prohibits federal agencies from dis-
criminating in employment against an “otherwise qualified individ-
ual with a disability,” including by failing to make reasonable ac-
commodations to such an individual. See
29 U.S.C. § 794(a), (d)
2 Baldwin’s reliance on the “direct threat” regulation is misplaced. See
29
C.F.R. § 1630.2(r). The VA did not invoke that defense, and the question here
is whether the fitness-for-duty examination was job-related and consistent
with business necessity, not whether Baldwin was a direct threat.
3 We deny Baldwin’s request to strike the district court’s references to the al-
legedly false criminal history from its order, which merely summarized infor-
mation presented in the fitness-for-duty examination, which is part of the rec-
ord in this case, whether accurate or not.
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19-11341 Opinion of the Court 9
(incorporating the anti-discrimination standards of the Americans
with Disabilities Act (ADA));
42 U.S.C. § 12112. The Rehabilitation
Act also incorporates the ADA’s anti-retaliation provision. See
29
U.S.C. § 794(d);
42 U.S.C. § 12203(a).
Baldwin has not shown that the district court erred in grant-
ing summary judgment on his discrimination claims. The only dis-
ability Baldwin has clearly identified for consideration is his finger
injury. And the only question to be resolved is whether Baldwin
was subject to discrimination “solely by reason of . . . his disability,”
29 U.S.C. § 794(a), not whether the process that led to his removal
as a VA police officer more generally was fair or flawed. See Alvarez
v. Royal Atl. Developers, Inc.,
610 F.3d 1243, 1266 (11th Cir. 2018)
(“The question to be resolved is not the wisdom or accuracy of [the
employer’s reasoning] . . . or whether the decision . . . was ‘prudent
or fair.’ Instead, ‘our sole concern is whether unlawful discrimina-
tory animus motivate[d]’ the decision.”).
Whatever its flaws, no reasonable jury could conclude that
the fitness-for-duty examination was actually a pretext for discrim-
inating against Baldwin because of a disability, nor does Baldwin
clearly make an argument along those lines. Plus, as the district
court noted, the factual deficiencies Baldwin has identified do little
to undermine the ultimate findings of the psychologist who per-
formed the assessment. Notably, as his deposition, Baldwin con-
firmed much of the criminal history recited in the fitness-for-duty
examination, even if he disputed some details. Accordingly, Bald-
win has not offered sufficient evidence to support a finding that the
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10 Opinion of the Court 19-11341
VA’s proffered reasons for removing him as a police officer and
denying reinstatement were a pretext for disability discrimination.
Finally, Baldwin has abandoned any challenge to the district
court’s resolution of his retaliation or hostile work environment
claims by failing to address them on appeal. See Timson,
518 F.3d
at 874. While he makes passing references to the VA’s failure to
comply with rules relating to the Family and Medical Leave Act
(“FMLA”), he does not explain the relevance of these assertions,
and he fails to address the district court’s reasons for dismissing his
FMLA claims for lack of subject-matter jurisdiction in his initial
brief, so any argument in this regard is likewise abandoned. See
Sapuppo,
739 F.3d at 681–82. Baldwin’s arguments in the reply brief
come too late. See Timson,
518 F.3d at 874 (“[W]e do not address
arguments raised for the first time in a pro se litigant’s reply brief.”).
IV.
For these reasons, we affirm the grant of summary judg-
ment in favor of the VA on Baldwin’s claims.
AFFIRMED.
