Recent cases of interest to police psychologists
Provided by Wayne Schmidt, Esq.*
IACP Legal Officers Section liaison to the
IACP Psychological Services Section
Federal appeals court rejects a privacy claim against an EAP provider who had informed an employer of a death threat against a supervisor, made by a drug rehab participant.
A psychiatrist with a drug rehabilitation program informed an employer that its employee was being ousted from the program because of man's threats to kill his supervisor. The employer fired the worker, who then sued the psychiatrist and the agency that operated the rehabilitation program, alleging the disclosure led to his dismissal and violated 42 U.S. Code §290dd-2.
The District Court concluded that the statute was not intended to protect drug rehabilitation patients from all kinds of damaging information -- only from information that reveals their status as drug rehabilitation patients. Chapa v. Adams, 1997 U.S. Dist. Lexis 10599 (N.D.Ill.).
A three-judge appellate panel has affirmed, adding that civil penalties should not arise from §290dd-2 violations. They said:
Addicts will be more likely to accept treatment--and the rest of society therefore will be better off -- if treatment is confidential... This hardly implies that substance abusers have a legal right to collect damages from persons who reveal details about their participation in a program to persons who already know about the subject ...
The panel said it was "content to leave enforcement of §290dd-2 to the criminal process." Chapa v. Adams, 1999 U.S. App. Lexis 2754 (7th Cir.). Full text: <http://www.kentlaw.edu/7circuit/>.
Federal agency Advisory Opinion holds that outside firms that assist employers in disciplinary or employment matters are "Consumer Reporting Agencies" and an unedited copy of all reports must be furnished the employee.
The 1996 Fair Credit Retail Act (FCRA) is enforced by the Federal Trade Commission's Div. of Financial Practices, and it applies to governmental entities. FCRA §603(f) [15 U.S. Code §1681a] defines a Consumer Reporting Agency (CRA) as any person which, for monetary fees, "assembles or evaluates" credit information or other information on consumers for the purpose of regularly furnishing "consumer reports" to third parties using any means or facility of interstate commerce.
Recently the FTC released an Advisory Opinion that affects the duties of employers who use outside lawyers, consultant firms or other organizations. The Opinion notes that a "consumer report" as defined in §603(d)(1) is a document containing information bearing on an individual's "character, general reputation, personal characteristics, or mode of living" that is used or expected to be used for the purpose establishing the individual's eligibility for employment.
If an employer turns to an outside firm or organization for assistance in investigation of alleged employee misconduct or sexual harassment claims, "the assisting entity is a CRA because it furnishes 'consumer reports' to a 'third party' (the employer)." The FCRA does not distinguish whether the information on consumers is obtained from internal records or from outside the employer's workplace.
Employers who utilize consumer reports or investigative consumer reports have certain obligations under the FCRA to notify employees and/or supply a copy of the report to the employee. Information cannot be redacted in those instances in which the FCRA requires that the consumer be provided a copy of a consumer report §604(b)(3)(A).
Under the FCRA, damages are capped at $1,000, but punitive damages and attorneys fees are available. Presumably the "for monetary fees" provision would exempt lawyers, psychologists and others who are directly salaried by a governmental entity. FTC Adv. Opin. to Judi A. Vail (5 Apr. 1999). Full text: <http://www.ftc.gov/os/statutes/fcra/vail.htm>.
EEOC issues 70 pages of guidance on the obligations of employers to "reasonably accommodate" disabled individuals in the workplace.
» It minimizes unexcused absences of disabled workers.
» It also requires employers and unions to negotiate with each other if a requested accommodation violates a bargaining agreement.
The Guidance (which was adopted by a 3-1 vote) covers full-time, part-time and probationary employees. Among its provisions are:
» An employer must offer reassignment as a reasonable accommodation to a disabled employee even if it does not generally allow any of its employees to transfer from one position to another, unless undue hardship is shown.
» The ADA requires employers and unions "to negotiate in good faith a variance to the CBA so that the employer may provide a reasonable accommodation" with few exceptions.
» Permitting a disabled employee to work at home can be a necessary accommodation.
See: Reasonable Accommodation and Undue Hardship under the ADA, EEOC Enforcement Guidance (1999). Full text: <http://www.eeoc.gov/docs/accommodation.html>.
In that Guidance (at note 61), the EEOC maintains that attendance is not a BFOQ for persons with a disability. "Attendance, however, is not an essential function as defined by the ADA because it is not one of 'the fundamental job duties' of the employment position," citing 29 C.F.R. 1630.2(n)(1) (1997). The EEOC views good attendance only as one of many measures of an employee's performance level, and therefore a disabled worker should be accommodated by schedule changes, transfers or leaves of absence.
Two recent cases were cited by the EEOC in support of this claim.
» A 7th Circuit case said that the relevant factor was the frequency of a worker's absences; Haschmann v. Time Warner, 151 F.3d 591/at 602 (1998).
» A 6th Circuit panel said that an attendance rule must be applied to disabled workers on an individualized and fact-specific basis; Cehrs v. Northeast Ohio, 155 F.3d 775/at 782 (1998).
EEOC's Technical Assistance Manual §3.10(3) recommends modified work schedules, a redefined workweek and part-time work as reasonable accommodations. The issue of whether an employer can reasonably accommodate an often absent worker and whether the requested accommodation creates an "undue hardship" are questions for the jury, not the court. Stradley v. LaFourche, 869 F.Supp. 442 (E.D.La. 1994).
One court held that disabled workers cannot be required to comply with a work rule which requires employees to give advance notice when they use paid vacation days for sick leave. The "disabled" employee suffered from migraine headaches. Dutton v. Johnson County, 868 F.Supp. 1260 (D.Kan. 1994).
On the issue of seniority rights and the effect of a collective bargaining agreement (CBA), the EEOC claims it is unlawful for an employer and union to defer to the CBA without attempting "to negotiate in good faith a variance ... so that the employer may provide a reasonable accommodation." The request must be accommodated unless it "unduly burdens the expectations of other workers" and causes undue hardship."
The EEOC's Enforcement Guidance (n.114, n.115) states that "a per se rule nullifies Congress' intent that undue hardship always be determined on a case-by-case basis," citing House Judiciary Report No. 101-485, note 6, at 42 (1990).
Private employers covered under the NLRA have the defense that demanding midterm bargaining defeats the purpose of finite contract periods mandated by the Act. Public employers have similar provisions under state public employment bargaining laws, but the EEOC will invoke the Supremacy Clause for their interpretation of federal legislation.
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» Note: The ABA's Labor & Employment Law Section has two 1998 annual conference papers on the section's website that may be downloaded at no charge. They are: (1) ADA Update: Recent Developments on Reasonable Accommodation (1adau898.wpd) and (2) ADA Issues and Collective Bargaining Agreements: The Union Perspective (2adau898.wpd). The section's site is at <http://www.abanet.org/labor/98annpapers.html>.
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Tenth Circuit, in an en banc decision, mandates specific actions to be taken by employers to accommodate a disabled employee.
The ADA and the EEOC generally require employers to accommodate disabled employees. There has been considerable disagreement as to what specific actions are required. The 12- to-3 majority listed 8 considerations:
1. Employers have a duty to initiate an informal, interactive process with
the disabled worker, to identify the precise disabling limitations and
potential reasonable accom-modations to overcome those limitations.
2. Reassignment is limited to existing jobs within the organization.
3. The existing job must be vacant.
4. An employer need not violate important fundamental policies, such as
a collective bargaining agreement or an "entrenched seniority system."
5. Reassignment does not require promotion.
6. Employers may choose the proffered reassignment.
7. An employer need offer only a reassignment as to which the employee
is qualified with or without reasonable accommodation.
8. Assignments are subject to an "undue hardship" limitation, to be
determined on a case-by-case basis, examining the cost, the size of
the organization, the financial resources of the employer and the
impact of the accommodation upon the operations.
Smith v. Midland Brake, #96-3018, 180 F.3d 1154, 1999 U.S. App. Lexis 13185 (10th Cir., en banc). Full text: <http://www.kscourts.org/ca10/cases/1999/06/96-3018.htm>.
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Officer with serious psychological problems could be disarmed and demoted or fired, without running afoul of the ADA. He was not "disabled" and the dept. had a duty to remove mentally unstable officers.
An Atlanta-area police officer was tired and angry, hated work, had suicidal thoughts and a "vivid fantasy -- of killing his supervisor." Three different doctors found him unsuited for police work, one of whom said he was "burned out" and should not be on the street carrying a gun. He was demoted to animal control officer, and when he later demanded reinstatement, he was fired.
He sued the chief and dept. claiming he was terminated in violation of the ADA because superiors perceived him as suffering from a mental illness, and in retaliation for taking FMLA leave and filing an EEOC charge. He also claimed that the horror of seeing animals euthanized was distressing and sought damages for his emotional injuries. The court said:
Plaintiff denies that he actually suffered from an impairment at the time of the adverse employment decision. However, he contends that defendants regarded him as having an impairment--namely, emotional or stress-induced problems preventing him from safely handling a gun and engaging in confrontations with citizens.
The Court finds, as a matter of law, that plaintiff's perceived impairment did not substantially limit any major life activity and, thus, that the impairment does not constitute a "disability" within the meaning of the ADA. * * *
Defendants had competent medical evidence that plaintiff posed a threat to himself and to others. The ADA did not require defendants to ignore this information, rely on the conflicting medical opinions of plaintiff's therapists, and take the risk that plaintiff would injure his co-workers or a member of the public once reinstated. In fact, arguably it would have been reckless to reinstate an employee defendants perceived to pose a threat to the community.
As for the `distasteful' assignment as an animal control officer, the court said that "no reasonable jury could find that offering plaintiff a legitimate job performed by many other people was an extreme or outrageous act." Garner v. Gwinnet Co., 1999 U.S. Dist. Lexis 6370 (N.D. Ga.).
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Explosive personality not protected under the ADA. Resistance to therapy made accommodation not possible.
After repeatedly losing self-control, a youth counselor was given a fitness for duty psychological exam. A psychiatrist determined the employee was subject to episodic temper outburst that posed "serious limitation" on his ability to serve in that sensitive occupation.
The employee found the complaints about his behavior were "profoundly offensive" and he resisted rehabilitation by skipping therapy sessions. After his termination, he sued for relief under the ADA.
A three-judge appellate panel noted that a personality disorder does not affect a major life activity, especially if the "disability" is relevant only to a specific job. Duncan v. Wis. Dept. of Health #97-2198, 166 F.3d 930, 1999 U.S. App. Lexis 1444, 8 AD Cases (BNA) 1800 (7th Cir.). Full text: <http://www.kentlaw.edu/7circuit/>.
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Federal appeals court concludes that a public employer had no duty to cut a key employee's work week from 50-70 to 40 hours per week, to accommodate her medical problems.
A public sector health care employee, who worked 50 to 70 hours per week, began to experience "chest pain, shortness of breath, numbness in her arms, and dizziness." Her physician determined that she had a left atrial enlargement and directed her not to work in excess of 40 hours per week.
Her supervisors determined that she could not perform the job while working only forty hours per week, and she was terminated. She sued under the Rehab. Act of 1973 [29 U.S. Code §791], the ADA [42 U.S. Code §12101) the FMLA [29 U.S. Code §2601] and similar state laws. The U.S. District Court dismissed all claims, and a three-judge appeals panel has affirmed.
In her deposition she conceded that working past 5 p.m. was "part of the job" and that she was needed for at least a portion of all three work shifts. The panel said "it is well- established that a person's inability to perform a specific job for a specific employer does not substantially limit that person's ability to work," and that "an individual's ability to perform only one job is not a handicap." Tardie v. Rehab. Hosp. of R.I, #98-1748, 168 F.3d 538, 1999 U.S. App. Lexis 2877, 9 AD Cases (BNA) 155 (1st Cir.). Full text: <http://www.law.emory.edu/1circuit/>.
Federal appeals court rejects an ADA challenge to corrections officer rotation policies. Facility did not have to retain corrections officers in a permanent limited duty status.
The union sued in behalf of four Seattle corrections officers to block officer rotation policies. One officer had a neck and back injury and could suffer paralysis if reinjured. Another officer had residual injuries from an inmate assault. A third had a toe amputated; the fourth has a displaced vertebra.
The U.S. District Court found that the plaintiffs were not "qualified" for their employment because of their "no inmate contact" medical restrictions. A three-judge appellate panel agreed. The "ability to restrain inmates during an emergency is critical to jail security." they said that jail safety is jeopardized by the plaintiffs' inability to respond to emergencies.
Additionally, the panel noted that the bargaining agreement provided that corrections officers were expected to rotate among several positions, most of which require inmate contact. Kees v. Wallenstein, No. 97-35559, 161 F.3d 1196, 1998 U.S. App. Lexis 20316 (9th Cir.). Full text: <http://www.ce9.uscourts.gov/opinions>.
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 counselling 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. NJ Super.Ct. (Unrptd., 1998).
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Federal appeals court upholds police use of the MMPI-2. Rejected applicant was not disabled, nor was she perceived as disabled, simply because she scored 66 on that test.
A woman who served as a police officer in Texas for 10 years moved to Springfield, Missouri, where she was hired as a dispatcher. After twice failing the police officer agility test, she passed that portion, but scored a 66 on the MMPI-2 -- indicating above-normal depression.
She sued under the ADA, claiming that management perceived her as disabled, and challenging the MMPI as not job-related. The appellate court said that (a) she presented no evidence she was disabled, and (b) the fact she was hired as a dispatcher meant the city did not perceive her as disabled.
As for her challenge to the test, they said "we easily conclude that appropriate psychological screening is job-related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned." Miller v. City of Springfield, 146 F.3d 612, 1998 U.S. App. Lexis 13385, 8 AD Cases (BNA) 321. (8th Cir.). Full text: <http://www.findlaw.com/casecode/courts/8th.html>.
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Eleventh Circuit upholds a police fitness-for-duty exam based on antagonistic behavior and continuing personnel problems. Personality conflicts are not covered under the ADA and hostility furnishes a valid "business" necessity to test a police officer.
A Florida police commander observed that a patrol officer had an "unusually defensive and antagonistic behavior" towards his coworkers and supervisors. During the prior 11 years, there were 10 internal investigations of complaints by or against the officer. In the prior 3 year period there were a 11 incidents of grievances by or against this officer.
He was relieved from duty pending a fitness for duty exam (FFDE); he brought suit under the ADA. The trial judge dismissed his action, and a three-judge appellate panel has affirmed. They rejected his claim that management perceived him as psychologically disabled. Coworkers had described him as paranoid, disgruntled, oppositional, difficult to interact with, unusual, suspicious, threatening, or distrustful.
The panel said that these characterizations "merely show he had serious personality conflicts" with coworkers and "such conflicts do not rise to the level of a mental impairment under the ADA." They also rejected his claim that the FFDE was a prohibited medical inquiry, in violation under 42 U.S. Code §12112(d)(4)(A). That provision states:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability 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.
The 11th Circuit has not decided whether that section applies to a non-disabled employee. The panel avoided the dispute by concluding that the FFD (and a tuberculosis) exams were "job- related and consistent with business necessity." They said:
In any case where a police department reasonably perceives an officer to be even mildly paranoid, hostile, or oppositional, a fitness for duty examination is job-related and consistent with business necessity. Police departments place armed officers in positions where they can do tremendous harm if they act irrationally. Contrary to [the plaintiff's] contention, the ADA does not, indeed cannot, require a police department to forgo a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.
The evidence shows the City had good cause for concern as to whether [the plaintiff] was fit to be a police officer. [He] had overreacted in many situations and his colleagues worried he might be paranoid.
There was no evidence that management acted improperly by ordering him to undergo the FFDE. Watson v. Miami Beach, 98- 4163, 177 F.3d 932, 9 AD Cases (BNA) 760, 1999 U.S. App. Lexis 10976 (11th Cir.). Full text: <http://www.law.emory.edu/11circuit/index.html>.
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» Note: This case probably would apply to unarmed correctional officers. It is less likely apply to firefighters, EMTs and civilian support personnel unless the behavior is continuing and sufficiently disruptive to the employer's operations. Brown Co. v. BCSD Emp. Assn., 533 N.W.2d 766 (Wis. 1995); D'Angelo v. Ward, 553 N.Y.S.2d 325 (A.D. 1990); Redmond v. Overland Park, 672 F.Supp. 473 (D.Kan. 1987).
Management should order a FFDE before a worker seeks medical leave. At least one court has held that under the FMLA, an employer cannot require a FFDE 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. Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass.). In 1999, two more cases 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, citing Albert v. Runyon: Routes v. Henderson, 1999 U.S. Dist. Lexis 9835, 5 WHCases2d (BNA)768 (S.D. Ind.) and Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Or.).
In those agencies with bargaining agreements, an order to take a FFDE is grievable (and subject to arbitration) as to whether the employee's supervisors had a reasonable basis to require the exam. Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990). Arbitrators may be more tolerant of inappropriate behavior. See Maplewood and Law. Enf. Labor Serv., 108 LA (BNA) 572 (Daly, 1996), holding that the use of obscene language to another police employee did not justify a mandatory FFDE.
If an armed employee is found to be psychologically disabled, the dept. is not required to reinstate him/her if he/she needs close supervision or must be relieved of his/her firearm. See Penn. St. Troopers' Assn. (Kornguth) v. Pa. St. Police, 537 Pa. 434, 644 A.2d 1161 (Pa. 1994). Finally, an employee has no right to have an attorney or bargaining representative present during the FFDE; Nolan v. Police Cmsnr. of Boston, 420 N.E.2d 335 (Mass. 1981).
Federal appeals court rejects an ex-officer's ADA and FMLA suit to set aside his termination after he attempted suicide.
The plaintiff was employed as a police officer when he attempted suicide by inflicting a gunshot wound to his head. Because of his "violent use of a firearm," and the City's exposure to legal liability, he was terminated.
After receiving counseling, medication and treatment for his physical injuries, he sought reinstatement. When rejected, he sued, claiming a violation of the ADA and the FMLA. He alleged he was illegally fired because of his disabling depression and/or that management failed to grant him federally-required medical leave.
Citing the recent Supreme Court case on medication, a three- judge panel said his depression was corrected and did not limit a major life activity. See Murphy v. United Parcel Serv., # 97- 1992, 119 S.Ct. 2133, 1999 U.S. Lexis 4370. If medication corrects an illness, the individual is no longer a person with a federally-recognized disability.
Additionally, the city had a valid reason for terminating him; the court said:
Increased potential liability associated with an employee's past activities is a legitimate concern of the City, particularly when there is known violent behavior. Claims of negligent hiring, supervision, and retention loom large in the minds of employers and their lawyers.
His FMLA claim was likewise rejected, because the city articulated a nondiscriminatory reason for his termination -- civil liability. Spades v. City of Walnut Ridge, # 98-4119, 1999 U.S. App. Lexis 17894 (8th Cir.). Full text: <http://www.findlaw.com/casecode/courts/8th.html>.
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» Research Note: In 1997, the EEOC published guidance which stated that "attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work."
Before terminating an employee who has attempted suicide, an employer should "seek reasonable medical judgments" and rely on current medical knowledge and factual evidence. See EEOC Notice 915.002 (3/25/97), 8 FEP Manual (BNA) 405:7461-7481; Internet site: <http://www.eeoc.gov/>.
Before the passage of the ADA and FMLA, the courts have treated suicidal police officers differently than other civil service employees who might seek reinstatement and their return to full duties:
* In Indiana, an appellate court said that a "policeman frequently works alone, wields great authority, carries lethal weapons" and "it is not an occupation for ... a person with questionable emotional stability." Greenwood (City of) v. Dowler, 492 N.E.2d 1081 (Ind.App. 1986).
* In New York, a five-judge panel upheld the termination of an officer who only threatened suicide, and did not attempt it. Galas v. Ward, 166 A.D.2d 275, 564 N.Y.S.2d 117, 1990 N.Y. App. Div. Lexis 11912.
* In Pennsylvania, an appellate panel upheld the demotion of an officer to an unarmed civilian position. They found his claim of psychological recovery to be irrelevant. Herman v. Cmwlth. Dept. of Gen. Services, 475 A.2d 164 (Pa. Cmwlth. 1984).
In a post ADA case, the judge upheld the city's demand that a suicidal officer release her psychiatric records before restoring her to full duties. Thompson v. City of Arlington, 838 F.Supp. 1137 (N.D.Tex. 1993).
The concern for civil liability is not frivolous. In 1982 the NYPD paid $300,000 in compensatory and $125,000 in punitive damages after an off-duty NYPD officer shot his wife five times, then himself, using an approved off-duty weapon. There was evidence his superiors ignored the officer's psychological problems. Bonsignore v. City of N.Y., 521 F.Supp. 394 (S.D.N.Y. 1981), aff'd 683 F.2d 635 (2d Cir. 1982).
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