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An outline written to accompany remarks of Wayne W. Schmidt of the AELE Law Enforcement Legal Center, at the Annual Meeting of the American Psychological Association, Division 18 - Police & Public Safety Psychological Services Section, August 5, 2009 Mini Conference at the headquarters of the Toronto Police Service, Ontario, Canada
Contact: wayne_schmidt@comcast.net
Website: www.aele.org
1. Lawyer or labor representative present during an exam?
2. Applicant lawfully rejected for high scores
3. No duty to sign a release on a FFDE
4. FFDE cannot be ordered after return from FMLA leave
5. Periodic psychological testing upheld
II - Civil Liability
Counselor breached confidentiality to warn of danger
ADA claims: regarded as disabled
Psychologist who assisted a SWAT team wins malpractice suit
Quoted in brief
AELE Law Library
Case Digests
· Psychological Exams and
Standards
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I - Psychological Exams |
Lawyer or Labor Representative Present During an Exam?
Federal court allows a party to a lawsuit to have his lawyer present during a non-psychological independent medical exam.
A federal court in Philadelphia has upheld the right of a litigant to be accompanied by legal counsel of one’s choosing at an independent medical exam (IME) -- but not during a psychological exam, “which may depend more on unimpeded one-on-one communication between doctor and patient.” Federal Rule of Civil Procedure 35(a), which governs physical and mental examinations of a party, is silent on the issue of the presence of counsel.
The judge noted that in theory, an IME is to be scientific, rather than adversarial, “experience suggests that it is often the latter. The party being examined may have to respond to limitless questions by a trained representative of the opposing side without check.” Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis 4543 (E.D. Pa.).
The Massachusetts Supreme
Court upheld an order by the commissioner, requiring a police officer to take a
psychiatric examination, and said there was no right to have an attorney
present during the exam. Nolan v. Police Cmsnr. of Boston, 420 N.E.2d
335 (Mass. 1981). Courts in other states have come to a similar conclusion. Shirsat
v. Mut. Pharm., 169 F.R.D. 68 (E.D. Pa. 1996); Neumerski v. Califano,
513 F.Supp. 1011 (E.D. Pa. 1981); and Brandenberg v. El Al Airlines, 79
F.R.D. 543 (S.D.N.Y. 1978).
In those states with public-sector
collective bargaining, the Weingarten right will probably apply. In 1975
the U.S. Supreme Court held that union members were entitled to the presence of
a union representative at an investigatory interview which the employee
reasonably believes might result in disciplinary action, NLRB v. J.
Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959.
In Florida, an arbitrator held
that bargaining unit members are entitled to be accompanied by a Weingarten
representative, if requested, at a fitness for duty evaluation required by a
superior. Although the union did not claim any medical expertise, “union
representation during a fitness for work examination is necessary to ensure
that the employee’s rights are not being violated during the course of the
examination ...” AFGE
L-596 and DoJ Fed. Bur of Prisons (FCC Coleman, FL), Grievance
06-540891 (Sherman, 2007).
Weingarten rights are not like Miranda. The employee does not
have to be warned of his rights. The employee must ask for the presence
of a coworker. Should that happen, the psychologist could assure the
person tested that his or her answers to specific questions will not be furnished
to the employer. The answers may be used by the psychologist to form his
or her professional opinion of the person’s fitness for initial or continued
employment, but the opinion or recommendation should exclude specific responses
by the employee.
A psychologist should
follow the advice of the agency’s attorney, because there is no personal civil
liability to an employee for a Weingarten violation.
Applicant Lawfully Rejected for High Scores
First Circuit affirms the rejection of a police applicant who scored too high on the Wonderlic entry exam.
A Connecticut corrections officer, who is a college graduate, was rejected for police employment because he scored 33 points on the Wonderlic Personnel Test and Scholastic Level Exam, revealing an equivalent IQ of 120-125. Twenty-seven others were disqualified for the same reason.
The applicant sued in federal court, and gained national media attention after a CBS 60 Minutes vignette. Last year, the judge dismissed the action because the plaintiff failed to prove he was a member of a protected class or “suspect group.” The plaintiff “may have been disqualified unwisely, but he was not denied equal protection.”
Moreover, the judge noted that “a body of professional literature concludes that hiring overqualified applicants leads to subsequent job dissatisfaction and turnover.” The city used a professionally constructed test and followed the test provider’s instructions.
In affirming, a three-judge appellate panel said, “Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city’s decision was correct so long as it was rational.”
The “Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” The plaintiff “may have been disqualified unwisely but he was not denied equal protection.” Jordan v. City of New London, 2000 U.S. App. Lexis 22195 (1st Cir.) affirming 1999 U.S.Dist. Lexis 14289, 15 IER Cases (BNA) 919 (D. Conn. 1999).
A prior law enforcement challenge to the Wonderlic and similar tests was rejected in Reynolds v. Arizona, # 91-16189, 1993 U.S. App. Lexis 9915 (9th Cir.).
No Duty to Sign a Release on a FFDE
Michigan Employment Relations Commission annuls a management requirement that police officers must sign a liability release form when they submit to an involuntary psychological examination.
A Detroit area police dept. ordered an officer to undergo a psychological evaluation, and to sign a form releasing the psychologist from any liability relating to “his recommendation” to the city.
The state’s Employment Relations Commission held, in a 3-to-0 decision, there was no evidence of an “established policy” that employees must sign a waiver of their right to sue the psychologist for professional malpractice. Before a public employer can require the signing of such a form, it must negotiate the issue with each bargaining unit affected by the policy.
The city suggested it might not be able to obtain an evaluation without having a written waiver from the person being evaluated. The commission responded by saying that “The fact [a city] might have difficulty finding a psychologist willing to provide services to [the city] without this waiver has no bearing on [the city’s] obligation to bargain this issue with the union.” City of Oak Park and Police Officers Assn. of Mich., 1997 MPER Lexis 12 (Mich.Emp.Rel.Cmsn.).
FFDE Cannot be Ordered After a Return from FMLA Leave
Federal court holds, under the FMLA, an employer cannot require a “fitness for duty” exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee’s post-leave behavior justifies it.
In this case the worker returned after a two-month leave for clinical depression -- which she attributed to sex discrimination and harassment by her male supervisor. 29 U.S. Code §2611(11) and §2612(a)(1)(D) allows an employee to take FMLA leave “because of a serious health condition that makes [her] unable to perform the functions of [her] position,” which is defined as “an illness, injury, impairment, or physical or mental condition that involves... inpatient care... or continuing treatment by a health care provider.”
Although her psychologist found her fit for work, her supervisors declined to accept her psychologist’s word and scheduled a fitness-for-duty exam, including a psychiatric evaluation. When they refused to back down, she sued under the Family Medical Leave Act, seeking reinstatement without another psychiatric evaluation.
The court noted that 29 U.S. Code §2614(a)(4) requires an employer to rely on the certification furnished by the employee’s own health care provider, and 29 C.F.R. 825.310(c) provides that the certification may be a “simple statement of any employee’s ability to return to work.”
The judge said that “requiring [the plaintiff] to undergo a psychological examination was not the proper way... to resolve any legitimate concerns... about the scope or adequacy of a medical certification.
An employer can ask the employee’s clinician for “clarification” but may not force an employee to submit to a further examination before allowing him or her to return to work. The court held that “the FMLA does not contemplate an adversarial investigation into a patient’s symptoms and complaints.”
The court said that after an employee has returned to work, an employer may require a fitness-for-duty examination if the worker’s “post-reinstatement behavior provides a reason for doing so.” Albert v. Runyon, #98-10246, 1998 U.S. Dist. Lexis 7505 (D. Mass.).
Note: Two more federal courts have held, that under the FMLA, an employer cannot require a “fitness for duty’’ exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee’s post-leave behavior justifies it.
• Routes v. Henderson, 58 F.Supp.2d 959 (S.D. Ind.).
• Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D. Ore.).
Periodic Psychological Testing Upheld
New Jersey court upholds periodic psychological testing of all police officers.
Two officers and the union challenged a 12-year old policy requiring officers of all ranks to be tested every three years. One of the officers was later directed to participate in counseling for anger management. The lawsuit, filed in state court, claimed:
1. Officers were “forced to reveal personal and private information which was unrelated to the work performance and... their fitness for duty as police officers.
2. The process violates officers’ rights of due process.
3. The screening causes “humiliation, embarrassment, emotional distress, anguish and harm to [officers’] personal reputations...”
The judge dismissed the suit. He
concluded that periodic psychological screening is constitutional, provided
that management provides for the privacy of officers’ files and records, and
respects their right of Due Process. No appeal was taken. PBA L-319 v. Twp.
of Plainsboro, #C-173-98, Middlesex Co. N.J. Super. Ct. (Unpub. 1998).
More recently, a New Jersey appellate court held that a compulsory annual medical examination of police officers, which requires disclosure of medical history as well as blood and urine testing, does not violate the state or federal constitutions, and is less intrusive on privacy than random drug and alcohol testing. New Jersey Transit PBA L-304 v. New Jersey Transit, #A-5628-03T2, 384 N.J. Super. 512; 895 A.2d 472, 2006 N.J. Super. Lexis 108 (Unpub. App. Div. 2006).
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Civil Liability |
Counselor Breached Confidentiality to Warn of Danger
Jury awards an ex-officer over $280,000; police psychologist informed potential victims of possible harm to them by the officer.
A county police officer in Georgia told a psychologist, during a fitness-for-duty interview, that he had “vivid images of shooting” his captain, the chief, and up to 8 more persons. The psychologist reported the fantasies and the officer was disarmed, demoted, and eventually fired.
He and his wife sued, alleging negligence and defamation. The defense unsuccessfully argued that the disclosures were appropriate, because a psychologist has a duty to prevent harm to third parties from a dangerous patient. Georgia statutes, however, allow disclosure only to protect children from abuse.
A state court jury awarded the plaintiff and his wife $176,471 in damages and $103,779 in attorney’s fees. Garner v. Stone, #97A-30250-1, DeKalb Co. Ga. (Unpub. 1999).
It was reported that after the verdict, the plaintiffs settled with defendant’s insurance carrier for about $230,000 (N.Y. Times Magazine, 3 Dec. 2000).
• Whether the person can lawfully
waive his or her right of confidentiality depends on state law. Suggested
language for a waiver follows:
Your statements, responses and test
results are held in confidence, with two exceptions:
The first is when state law allows
or mandates disclosure or a court compels disclosure.
Secondly, your statements and
responses may be disclosed to protect you or others from the possibility of
serious physical harm.
If this is not acceptable to you,
you should decline to participate in (describe procedure, session or
evaluation).
ADA Claims – Regarded as Disabled
Appeals court reinstates an ADA lawsuit of an ex-sergeant who shot up her father’s grave, inflicted wounds on herself, and overdosed on drugs. Sheriff failed to consider her reemployment for any jobs in the department.
A sergeant with a Wyoming Sheriff’s Dept. suffered from post-traumatic stress disorder related to childhood sexual abuse by her father. She fired six rounds her father’s grave, made serious self-inflicted wounds and overdosed on drugs, requiring several hospital visits. When her sick leave expired, she resigned to seek psychological care.
After a course of medication and therapy, her attending physician, sent the Sheriff a letter stating she could return to work. Despite her ten years of experience, she was refused employment for any position in the department because of liability concerns.
The U.S. District Court dismissed her complaint, but an appellate panel has reversed. Under the EEOC’s interpretive guidelines, if an individual can show that a potential employer refused to hire her based on myth, fear, or stereotype, including concerns regarding safety, insurance, liability, and acceptance by coworkers and the public, the individual will be “regarded as” disabled. 29 C.F.R. 1630 app. §1630.2(l).
The Sheriff’s refusal to consider her for less sensitive posts, such as process server or jailer, affected her ability to work in an entire class of jobs, not merely in the particular job of patrol officer. The conclusion that an individual is unqualified because she poses a direct threat must be based on an individualized assessment and a medical judgment. 29 C.F.R. §1630.2(r).
The plaintiff “submitted sufficient evidence for a reasonable jury to find that she was qualified for a position within the Sheriff’s Office, that she had a record of impairment or that the defendant regarded her” as impaired. That “is precisely the kind of dispute traditionally resolved by a jury, not by a court at the summary judgment stage.” McKenzie v. Dovala, #99-8084, 237 F.3d 538, 2001 U.S. App. Lexis 3844, 11 AD Cases (BNA) 936 (10th Cir.).
Critical Incident Negotiations – No Liability for Suicide
Psychologist who assisted a
SWAT team wins malpractice suit. He helped negotiate with a mentally disturbed
young man who eventually fatally shot himself.
A family sued the City of Tulsa,
the Chief of Police, a police psychologist (Douglas Gentz, Ph.D.), and his
psychological services firm – following the death of a 23 year-old male.
The deceased was taking medication and was under treatment for Attention
Deficit Hyperactivity and Oppositional Defiant Disorder.
A woman reported that her husband
was armed with a loaded .38 caliber pistol and AK 47 and had threatened to kill
her and then kill himself.
The young man told arriving officers
that he had “armor piercing ammunition” for the AK 47 and that “he was going to
start shooting and that the police have just “entered into a war.” The Special
Operations Team was activated and Douglas Gentz, Ph.D., assisted in the
negotiations.
Dr. Gentz generated a
psychological profile of the young man, who announced that that he wanted to
kill himself and that he was “not coming out of there alive.” The man had
threatened to shoot anyone who tried to enter the apartment and to kill himself
if anyone attempted to enter the apartment.
Throughout the standoff, the young
man was drinking and viewing websites relating to negotiating with suicidal
individuals. After eight hours, officers instructed the phone company to
re-assign a new number to prevent third parties from calling and interrupting
negotiations and to keep the youth from using the Internet to obtain
information on suicide negotiations.
The officers concluded that the
youth was no longer negotiating in good faith and at 5:15 p.m. they launched a
rubber baton to breach a rear window. A few seconds later officers heard a
single gunshot. On entering the home, officers found a suicide note; the youth
expired on the following day.
The deceased’s psychiatrist gave a
pretrial affidavit, which stated:
By Gentz dissuading me from making contact with
[Christiansen], it became more likely that [Christiansen] would not obtain
medical advice and treatment during the standoff.
Gentz’s interferences of [sic] my contact with
[Christiansen] increased the likelihood that [Christiansen] would attempt to
harm or kill himself.
In my professional opinion, cutting off [Christiansen] from
his doctor and his mother was reckless.
It is my professional opinion that Sean Christiansen could probably
have been helped by me or by Sean’s mother because his suicidal ideation was an
issue which I had handled and addressed with [him] and which his mother had
handled and addressed with him.
The District Court refused to
allow the affidavit. That holding was upheld by the Tenth Circuit:
“Dr. Crass’ statements regarding
what might have happened had he been allowed to intervene are pure speculation.
Further, as we noted earlier, during the standoff, the TPD asked Christiansen
whether he wanted to see Dr. Crass, and Christiansen never responded to these
inquiries. Finally, insofar as Dr. Crass did not convey this information to
defendants at the time of the events in question, it has little, if any,
probative value. Accordingly, the district court did not abuse its discretion
in excluding Dr. Crass’ affidavit.”
The panel concluded that the
plaintiffs failed to allege facts sufficient to give rise to a constitutional
violation under the Fifth and Fourteenth Amendments. Christiansen v. City of Tulsa,
# 02-5135, 332 F.3d 1270 (10th Cir. 2003).
Note: Also in 2003, a divided Fifth Circuit found no liability
for shooting a youth, armed with a sword, when he advanced on police officers.
The “fact that no psychologist was on the scene is irrelevant ...”
“The dissent makes much of the
fact that no psychologist was called to the scene, although we do note that an
ambulance had been called. We think that the fact that no psychologist was on
the scene is irrelevant to this case.” Mace v. City of Palestine,
#02-40335, 333 F.3d 621, 2003 U.S. App. Lexis 12811 (5th Cir. 2003).
Quoted in Brief
“We recognize that the distinction between disciplinary and
medical proceedings in the public employment context are susceptible to
manipulation by a public employer who, for whatever reason, prefers not to
proceed against an employee in a disciplinary setting. But [the appellant] has
not presented any evidence that [management’s] approach to his reinstatement
from medical leave was a pretext for removing him because of misconduct.” Deen v. Darosa,
#04-2072, 414 F.3d 731 (7th Cir. 2005).
The “Fourth Amendment does not provide a remedy for the
unpleasantness of being subjected to a psychological test.” Greenawalt v. Indiana
Dept. of Corrections, #04-1997, 397 F.3d 587 (7th Cir. 2005).
“Twelve different psychologists can give twelve different
opinions about whether a police officer is fit for duty.” Denhof v. City of Grand
Rapids, #1:02-cv-275 (W.D. Mich. 2005). Subsequent
ruling (on the merits) at 494 F.3d 534, (Unpub. 6th Cir. 2007); prior
rulings at 2003 U.S. Dist. Lexis 23125 and 23135.
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