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Employment & Labor Law for Public Safety Agencies
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Psychological Exams and Standards
A -Psychological
Screening of Applicants
B -Reasons
Justifying Rejection of an Applicant
C -Fitness
for Continued Duty or a Return to Active Duty
D -Conduct
Justifying a Required Exam
E -Reasons
Justifying an Involuntary Separation or a Denied Assignment
F -Punishment
for Refusal to Submit to an Exam or to Cooperate During the Exam
G -Right
of Employee to Seek Judicial Relief to Avoid Taking an Exam
H -Content
and/or Specific Exams or Tests
I -Termination
vs. Accommodation
J -Relation
to Family and Medical Leave Laws
K -Use
of, or Disclosure of the Results and Privacy
L -Impairment
or Disability Under the ADA or Rehabilitation Act
M -EEOC
N -Right
to Have Attorney or Weingarten Representative Present
O -Civil
Liability for Not Screening Employees
P -Retaliatory
or Discriminatory Reasons Alleged
Q -Articles in Legal
or Academic Journals
R - IACP Guidelines
A - PSYCHOLOGICAL SCREENING OF APPLICANTS
A female candidate
for a job as a police officer received conditional offers of employment
from the Boston Police Department on three occasions, but each time was
found psychologically unfit during a screening by department psychiatrists
and bypassed. A civil service commission, following a hearing, found that
the department had failed to meet the burden of showing that she was psychologically
unfit to be a police officer and ordered that her name be restored to the
list of candidates certified for available appointments. A trial court,
upon review, vacated that order. The Supreme Judicial Court of Massachusetts
reinstated that order. It did find that the commission acted erroneously
in considering expert testimony offered in another proceeding in making
its decision, but there was sufficient independent evidence apart from
that in the record to support the commission's order, including that an
opinion relied on had been based on "unsubstantiated and subjective"
criteria that lacked adequate factual support," and an arbitrary predisposition
against the candidate. Accordingly, the police department was not prejudiced
by the error. Boston Police Dep't v. Kavaleski, #SJC-10972, 463 Mass. 680,
2012 Mass. Lexis 1005.
New Jersey appellate court rebuffs
a suit filed by a rejected police applicant. The decision not to hire him
was based on a second, independent psychological evaluation. Even if the
first psychologist negligently or improperly conducted the pre-employment
evaluation, the independent analysis severed the chain of proximate causation,
precluding any recovery in negligence. Terry v. Guller, #A-2867-07T1, 2009
N.J. Super. Unpub. Lexis 2008.
New York court rejects a judicial challenge
brought by a police applicant. Although his personal doctor found no disabling
conditions, two psychologists and a psychiatrist found that he lacked the
skills necessary to carry out the functions of a police officer. The opinion
of the applicant’s privately retained expert was not controlling. Matter
of Murray v. Co. of Nassau Civ. Serv. Cmsn., #000132/07, 2007 N.Y. Misc.
Lexis 2579 (Nassau Co. Sup.).
A person seeking reinstatement as a New York
corrections officer after recovering from an off-duty injury must pass
the same psychological screening examination administered to applicants.
Coleman v. N.Y., #501363, 2007 NY Slip Op 01936, 2007 N.Y. App. Div. Lexis
2653 (3rd Dept.).
Federal court in Illinois affirms the right
of an employer to administer the MMPI to applicants and promotional candidates,
if the “vocational” scoring protocol is used, rather than the “clinical”
protocol. The former identifies personality traits; the latter reveals
psychological impairments. Karraker v. Rent-A-Center, #02-2026, 316 F.Supp.2d
675, 2004 U.S. Dist. Lexis 8068, 15 AD Cases (BNA) 1000 (C.D. Ill. 2004).
[2004 FP Nov]
Court dismisses, for procedural reasons,
a discrimination suit filed by a rejected woman deputy sheriff applicant
for an allegedly gender-biased interpretation of her psychological tests
and interview. Earlier, the Maryland Cmsn. on Human Relations issued a
written finding of no probable cause of discrimination. Willey v. Ward,
#2001-1238, 197 F.Supp.2d 384, 2002 U.S. Dist. Lexis 6699 (D.Md. 2002).
{N/R}
Federal court refuses to dismiss a challenge
to the use of the MMPI-2 and the Cal Psy. Inv. for psychological screening
of Long Island police officers. The plaintiff claimed that some questions
are of a religious nature and are unnecessary to evaluate police applicants.
Bennett v. Co. of Suffolk, 30 F.Supp.2d 353, 1998 U.S. Dist. Lexis 20221,
78 FEP Cases (BNA) 1536 (E.D.N.Y.). {N/R}
Federal court refuses to dismiss a Rehabilitation
Act claim brought by four rejected firefighter applicants. Preemployment
psychological tests and interviews revealed narcissistic, anti-social,
aggressive or dependent personality disorders. Does I-IV v. Dist. of Col.,
962 F. Supp. 202, 1997 U.S. Dist. Lexis 6514 (D.D.C.). {N/R}
Hispanic police applicant, rejected on psychological
grounds, awarded $150,000 for his mental anguish. Appellate court reverses;
no proof of discrimination, and test results were subject to differing
interpretations. New York (City of) v. N.Y. Div. Hum. Rts., 643 N.Y.S.2d
573 (A.D. 1996). [1997 FP 60]
Absent clear statutory language to the contrary,
a final “physical examination” of an applicant, includes psychological
screening. Cremer v. Macomb, 281 Ill.App.3d 497, 666 N.E.2d 1209, 1996
Ill. App. Lexis 402. [1997 FP 60-1]
Appellate court in New York rejects a defamation
suit brought by a police applicant against a psychological testing firm.
Statements were protected by a qualified privilege. Bopp v. Instit. for
Forensic Psychology, 227 A.D.2d 363, 642 N.Y.S.2d 89 (A.D. 1996). [1997
FP 42]
Federal court dismisses suit by rejected
corrections applicant who was unable to exercise good judgment and perform
under stress. Greenberg v. N.Y. Dept. Corr. Serv., 919 F.Supp. 637 (E.D.N.Y.
1996). [1997 FP 43]
Florida sheriff is “permanently enjoined
from conducting any further pre-employment psychological or physical medical
examinations, as described and defined in the Americans with Disabilities
Act, the EEOC’s Regulations, and the guidance materials published by the
EEOC.” Federal court rejects the defense that psychological screening is
a pre-offer nonmedical exam. Barnes v. Cochran, 944 F. Supp. 897, 1996
U.S. Dist. Lexis 12597, 5 AD Cases (BNA) 1685. {N/R}
Appellate court permits police dept. to administer
the psychological tests after a conditional offer of employment has been
made. City properly was sensitive to the ADA. Bahr v. Council Bluffs C.S.C.,
542 N.W.2d 255, 1996 Iowa Sup. Lexis 15. [1996 FP 61]
Federal appeals court affirms the rejection
of a woman firefighter applicant who suffers from PTSD as a result of a
rape 12 years earlier. The city’s psychologist found that she would not
adjust to group living situations. Jachyra v. City of Southfield, #95-1009,
1996 U.S. App. Lexis 2528 (6th Cir.). {N/R}
NJ Supreme Court upholds the rejection of
a police applicant who scored below average on a preemployment psychological
test. Anastasia Vey, In re, 1994 N.J. Lexis 178, 639 A.2d 718 (NJ 1994).
{FP Ref. 5510} [1994 FP 122]
Financial disclosure, polygraph testing and
psychological evaluations upheld in Florida Sheriff’s office. Fraternal
Order of Police v Freeman, 16th Jud. Cir. Ct. #78-932-CA-17 (1978). [1979
FP #56 P7]]
Federal court upholds psychological testing
of applicants in Jersey City; ACLU privacy suit fails. Stearns v. Gilchrist,
378 N.Y.S.2d 312 (Misc. 1976).
B
- REASONS JUSTIFYING REJECTION OF AN APPLICANT
Federal court declines to dismiss a gender
bias action brought by a law enforcement applicant after she allegedly
failed a pre-employment psychological fitness exam. The plaintiff had experience
as a municipal police officer and as a store detective.
"Given [the psychologist's] alleged
emphasis on [the] Plaintiff's appearance, his repeated focus on her ability
to handle the sexual advances of the opposite sex, his comments that her
appearance would cause further problems at her duty station, and his purportedly
contemptuous attitude towards [the] Plaintiff having her first child at
such a young age and 'out of wedlock,' the Court finds [that the] Plaintiff
has produced substantial evidence that [the employer's] reasons for not
hiring her are [a] pretext for unlawful discriminatory behavior based on
[the] Plaintiff's gender." Jimenez v. Dyncorp Intern., #3:08-CV-174,
635 F.Supp.2d 592, 106 FEP Cases (BNA) 1780 (W.D. Tex. 2009).
Federal court refuses to dismiss a gender bias
claim against a military contractor that rejected a police advisor applicant
because she failed a psychological screening. The applicant was an El Paso
police officer, and had passed a second psychological screening when she
was reinstated by the El Paso Police. The psychologist who rejected her
was an agent of the employer; his “non-contestable” evaluation was the
sole basis upon which employer withdrew its offer.
The psychologist determined that the applicant
(a) was not “particularly skilled at establishing appropriate friendships,”
(b) tended to overestimate her assets and successes and (c) “has very high
expectations of herself which are difficult to meet.” However, he repeatedly
focused on her “ability to handle the sexual advances of the opposite sex”
and displayed a “purportedly contemptuous attitude” to her having out of
wedlock child at age 18. Jimenez v. Dyncorp Intl., #3:08-CV-174,
106 FEP Cases (BNA) 1780, 2009 U.S. Dist. Lexis 64187.
Ninth Circuit affirms dismissal of a suit
filed by a rejected police applicant that failed a psychological evaluation
that cited her stubborn nature and impulsivity. The appellate panel enforced
a pre-employment waiver of legal rights “for any acts, or omissions in
the course of the investigation into background, employment history, health,
family, personal habits and suitability for employment ...” The waiver
was not effective against another claim that she was rejected because she
had filed an EEOC complaint against a neighboring city. Nilsson v. City
of Mesa, #05-15627, 503 F.3d 947, 2007 U.S. App. Lexis 21912, 101 FEP Cases
(BNA) 901, 19 AD Cases 1418 (9th Cir.).
National retailer settles a class action
for using the MMPI on applicants and employees, for an estimated $2 million.
Staples v. Rent-A-Center, #99-2987, 2000 U.S. Dist. Lexis 11394 (N.D.Cal.).
[2000 FP 139-40]
Federal court dismisses a lawsuit by a police
applicant who was “too smart” for the job. Although it may be unwise to
reject persons who score high on an IQ exam, is not a denial of any federally-protected
rights. Jordan v. City of New London, 1999 U.S.Dist. Lexis 14289, 15 IER
Cases (BNA) 919 (D. Conn.). [1999 FP 163]
Federal court refuses to dismiss a Rehabilitation
Act claim brought by four rejected firefighter applicants. Preemployment
psychological tests and interviews revealed narcissistic, anti-social,
aggressive or dependent personality disorders. Does I-IV v. Dist. of Col.,
962 F. Supp. 202, 1997 U.S. Dist. Lexis 6514 (D.D.C.). {N/R}
Rejected firefighter applicant loses sex-discrimination
litigation; she alleged the city declined to hire her because she had been
raped more than 10 years earlier. The city’s psychologist found her unsuited
for a firefighter position because of continuing post-traumatic stress
disorder. Jachyra v. City of Southfield, #95-1009, 1996 U.S. App. Lexis
25288. {N/R}
City lawfully rejected a firefighter applicant
for his inability to deal with stress. Howard v. City of Southfield, #95-1014,
1996 U.S. App. Lexis 25290. {N/R}
Federal appeals court rejects a handicap
discrimination complaint by a police applicant who was rejected by a psychologist
for “poor judgment, irresponsible behavior and poor impulse control,” Daley
v. Koch, 892 F.2d 212 (2nd Cir 1989).
Pennsylvania appellate court reverses the
rejection of a police applicant who only showed a 15% chance of unacceptable
performance. Swearer v. Karoleski, 563 A.2d 586 (Pa. Cmwlth. 1989).
Pennsylvania appellate court reverses the
rejection of a police applicant who only showed a 15% chance of unacceptable
performance. Swearer v. Karoleski, 563 A.2d 586 (Pa. Cmwlth. 1989).
Federal court sustains rejection of police
applicant because psychological tests and interviews disclosed personality
traits incompatible with the demands and stress of law enforcement. Klotsche
v. City of N.Y., 621 F.Supp. 1113 (S.D.N.Y. 1985). {N/R}
C
- FITNESS FOR CONTINUED DUTY OR A RETURN TO ACTIVE DUTY
Ninth Circuit upholds
a mandatory FFDE of a police officer. The panel wrote that prophylactic
"psychological examinations can sometimes satisfy the business necessity
standard, particularly when the employer is engaged in dangerous work.
... Undisputed facts show that [the officer] exhibited highly emotional
responses on numerous occasions in 2005, four occurring in a single month
immediately prior to his referral. ... Police officers are likely to encounter
extremely stressful and dangerous situations during the course of their
work." Brownfield v. City of Yakima, #09-35628, 612 F.3d 1140, 2010
U.S. App. Lexis 15324 (9th Cir.).
Treatment for alcoholism, while off-duty,
was non-compensable. "The Court cannot find that while in treatment,
[he] learned any skills that enabled him to become a more effective or
valuable police officer." Attendance at AA meetings and psychiatric
evaluations, although mandated by his employer, "does not constitute
compensable 'work' under the FLSA." Todd v. Lexington Fayette Urban
County Government, 2009 U.S. Dist. Lexis 115183 (E.D. Ky.).
Eleventh Circuit rejects an Asian’s bias
claim. He was found psychologically unfit for duty and he failed to show
that other races were treated more favorably. Sridej v. Brown, #No. 09-12314,
2010 U.S. App. Lexis 623 (Unpub. 11th Cir.).
City emergency dispatcher that was terminated
after her diagnosed of depression and anxiety was not regarded as disabled,
even though she had been required to undergo a fitness-for-duty examination.
Impaired alertness and concentration were job-related and consistent with
business necessity. Wisbey v. City of Lincoln, #4:08-CV-3093, 2009 U.S.
Dist. Lexis 30819, 21 AD Cases (BNA) 1377 (D. Neb.)
After reporting widespread misconduct, a V. A.
police officer acted erratically and was insubordinate. Management terminated
him after a psychiatric evaluation, but the M.S.P.B. ordered his reinstatement
because of a lack of psychiatric grounds justifying his removal. The reinstatement
order related only to his mental fitness, not to the underlying charge
of insubordination, for which he could still be disciplined. Holst v. Veterans
Affairs, #2008-3012, 2008 U.S. App. Lexis 22998 (Unpub. Fed. Cir. 2008),
affirming 106 M.S.P.R. 499 (2007).
Ohio appellate court sustains the
suspension and demotion of a fire lieutenant for failing to submit to a
psychological exam following a 5-month absence from work after undergoing
back surgery. A separate action against the union for failing to seek arbitration
also was dismissed. A psychological evaluation request was reasonable and
is not an unlawful search of his mind. Jenkins v. City of Sandusky, #E-07-067,
2008 Ohio App. Lexis 3966 (6th App. Dist.).
Federal court grants a summary judgment to
the city in an action where a woman officer claimed that the city retaliated
against her for filing a prior lawsuit by asking her to submit to a fitness
for duty examination when she had no record of deficient performance. Her
appointment with a psychologist was voluntary and management took no action
as a result of her visit, even though the psychologist found her unfit
for duty. Semsroth v. City of Wichita, #06-2376, 2008 U.S. Dist. Lexis
35379 (D. Kan.).
Former state police officer who was removed
from duty due to allegedly irrational behavior may proceed with a claim
that she was regarded as disabled, where the psychologist that conducted
fitness-for-duty evaluation diagnosed her as depressed, paranoid personality
and unfit for duty. Broberg v. Illinois State Police, #06cv3901, 2008 U.S.
Dist. Lexis 7916, 20 AD Cases (BNA) 321 (N.D.Ill.).
Appellate court affirms holding that a correction
officer sufficiently recovered from post-traumatic stress disorder symptoms.
Although the state’s psychiatrist opposed a contrary view expressed by
a psychologist, his opinion was articulate, rational, and based on the
officer’s medical records and a physical examination. Harko v. N.Y. State
Comptroller, #502721, 2007 N.Y. App. Div. Lexis 13198 (3rd Dept.).
Placement of an officer on paid administrative
leave pending the result of a psychological fitness-for-duty evaluation,
following a use of force incident, does not constitute a materially adverse
action that would support a retaliation claim. Nichols v. So. Ill. Univ.,
#06-2688, 102 FEP Cases (BNA) 519, 2007 U.S. App. Lexis 29865 (7th Cir.),
affirming 432 F.Supp.2d 798.
Supreme Court’s decision in Garcetti bars
a police officer’s First Amendment claim of retaliation for his speaking
out about a canine training reduction. Officer was reassigned and ordered
to take a fitness-for-duty psychological test. Haynes v. City of Circleville,
#06-3070, 2007 U.S. App. Lexis 1617 (6th Cir. 2007). [N/R]
Appellate court sustains a verdict for negligent
retention/assignment. Officer with a propensity for violence was retained
after he passed a psychological fitness exam, because management failed
to submit prior exam results or his disciplinary record to the evaluating
psychologist. Colon v. City of Newark, #A-3260-03T23260-03T2, 2006 WL 1194230
(N.J.A.D. 2006). [2006 FP Nov]
Federal appeals court upholds management’s
decision not to reinstate a psychologically unstable state police sergeant
after he sought to return from a long medical leave. Only a minimal hearing
is required to satisfy due process. Deen v. Darosa, #04-2072, 414 F.3d
731, 2005 U.S. App. Lexis 13568, 23 IER Cases (BNA) 195 (7th Cir. 2005).
[2005 FP Nov]
Federal court overturns a $5 million verdict
awarded to two women police officers, who were separated after unfavorable
fitness exams ordered after they filed an unsuccessful suit in state court
alleging sex discrimination and sexual harassment. “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);
prior rulings at 2003 U.S. Dist. Lexis 23125 and 23135. [2005 FP Aug]
Case settles for $900,000. A police officer
had sued a police psychologist, the village and others, because he was
ordered to submit to an intrusive fitness-for-duty exam after he narrowly
lost an election to the incumbent mayor. McGreal v. Ostrov, #98-CV-3958,
Docket entry No. 177 (N.D. Ill. Oct. 1, 2004); interim ruling on a Motion
at 2004 U.S. Dist. Lexis 18420, on remand from 368 F.3d 657 (7th Cir. 2004).
[2005 FP Jan]
EEOC appellate decision finds that a postal
worker was retaliated against by management after she reported sexual harassment.
Backpay awarded for a suspension for refusing to take an “unnecessary”
fitness-for-duty examination plus $50,000 in damages for mental anguish.
{N/R}
A postal worker filed several equal employment
opportunity complaints, alleging that various incidents constituted unlawful
employment discrimination, and were in reprisal for complaining about sexual
harassment. Amen v. Potter, U.S. Postal Service, Appeal #07A10069, 2003
EEOPUB Lexis 53 (EEOC 2003). [2003 FP Nov]
An employee who alleges that after filing
discrimination complaints with the union and with his superiors, he was
forced to undergo retaliatory psychiatric evaluations as a condition of
employment, “has sufficiently alleged material adverse employment actions
to survive a motion to dismiss.” Syken v. New York, #02-Civ-4673, 2003
U.S. Dist. Lexis 5358, 91 FEP Cases (BNA) 1065 (S.D.N.Y. 2003). {N/R}
Federal court dismisses a civil rights suit
filed by an ex-police officer who alleged that she was subjected to I-A
investigations, criminal charges, and a psychological fitness test because
of her gender. She failed to adduce any evidence of bias or bad motives.
Zandhri v. Dortenzio, #3:99CV1776, 228 F.Supp.2d 167, 2002 U.S. Dist. Lexis
21048 (D.Conn. 2002). [2003 FP Mar]
Supreme Court declines to review a holding
that a required Fitness For Duty Exam and minor disciplinary action did
not meet the threshold level of substantiality required by Title VII’s
anti-retaliation clause. Perez v. Miami-Dade Co., #02-269, 2002 U.S. Lexis
9080, 71 U.S.L.W. 3398 (2002); decided below as Perez v. Penelas, #01-10348,
275 F.3d 53, 2001 U.S. App. Lexis 29818; reh. den. 2001 U.S. App. Lexis
29391 (Unpub. 11th Cir. 2002). {N/R}
Federal judge rejects a suit that claims
that the plaintiffs’ fitness-for-duty exams violated the Fourth Amendment;
sole remedy is administrative appeals. Orsay v. Enemoto, unreported (E.D.
Cal. 2000); the Sacramento Bee (9/20/2000). [2000 FP 2000 FP 172]
The Sixth Circuit rejects an ADA attack on
an employer- required Fitness For Duty Exam. Peculiar behavior is not per
se indicative that a person is regarded as mentally ill. Sullivan v. River
Val. Sch. Dist., # 98-2143, 197 F.3d 804, 1999 U.S. App. Lexis 30676, 9
AD Cases (BNA) 1711 (6th Cir.). [2000 FP 26-7]
”... 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.” Watson v. City
of Miami Beach, 177 F.3d 932 (11th Cir. 1999). {N/R}
New Jersey court upholds periodic psychological
testing of all police officers. PBA L-319 v. Twp. of Plainsboro, #C-173-98
Middlesex Co. NJ Super.Ct. (Unrptd., 1998). Our File #5666. [1999 FP 93-
4]
Police chief could require a reinstated detective
to pass a psychological screen before recertifying him to carry a firearm.
Kraft v. Police Cmsnr. of Boston, 417 Mass. 235, 629 N.E.2d 995 (1994).
[1995 FP 43]
Delaware court upholds separation of a 16-year
veteran police officer after a psychologist diagnosed him as inflexible
and over anxious. Burge v. City of Dover, Kent Co. Chan.Ct. #11082-K, 31
(1502) G.E.R.R. (BNA) 223. [1993 FP 58]
Former member of the AZ state patrol was
rejected for re-employment, based on her psychological evaluations. In
court, she failed to show that the tests had a disparate impact on women.
The state revealed that 34% of all male applicants were disqualified for
psychological reasons, while only 13% of female candidates were rejected
for this reason. Reynolds v. Arizona, #91-16189, 1993 U.S. App. Lexis 9915
(9th Cir.). {N/R}
Courts continue to uphold mandatory psychological
examinations; potential mental instability justifies such action by chief.
Tingler v. City of Tampa, 400 So.2d 146 (Fla. App. 1981).
D
- CONDUCT JUSTIFYING A REQUIRED EXAM
Requiring a woman firefighter, who had
complained of sexual harassment, to submit to a psychological evaluation
did not violate the ADA because the examination was shown to be job-related
and consistent with business necessity. Coffman v. Indianapolis Fire Dept.,
#08-1642, 106 FEP Cases (BNA) 1793, 22 AD Cases (BNA) 360, 2009 U.S. App.
Lexis 18717 (7th Cir.).
Although a temporary transfer and compulsory
fitness-for-duty examinations arguably constituted adverse employment actions,
a Bureau of Prisons employee failed to prove a connection to an earlier
filing of an EEOC complaint. Management established legitimate, non-retaliatory
reasons for her transfer and the FFD exam, based on her outbursts and statements
regarding a brain tumor. The warden legitimately was concerned that she
could no longer perform her job duties. Murry v. Attorney General, #06-15764,
2007 U.S. App. Lexis 11473 (Unpub. 11th Cir. 2007).
Third Circuit affirms a trial court order
dismissing a retaliation and racial discrimination lawsuit filed by an
officer that management sought to terminate for psychological reasons.
Placed on light duty, disarmed, and later terminated, the officer eventually
was reinstated with back pay, lost benefits, and his legal fees and costs.
Although management may have overreacted to the plaintiff’s complaints,
the city relied on the psychological recommendations of professionals.
Caver et al. v. City of Trenton, #04-2600, 420 F.3d 243, 2005 U.S. App.
Lexis 18432 (3rd Cir. 2005). [2005 FP Nov]
Seventh Circuit reverses the dismissal of
a suit against a police psychologist, the village and others, where the
plaintiff officer was ordered to submit to an intrusive fitness-for-duty
exam after he narrowly lost an election to the incumbent mayor. McGreal
v. Ostrov, #02-3405, 2004 U.S. App. Lexis 9059 (7th Cir. 2004). [2004 FP
Aug]
Sixth Circuit resurrects the discrimination
and retaliation claims of a pre-op transsexual fire lieutenant, who suffered
insults and disciplinary action, and who was to take at least three psychological
fitness exams with the hope that he would resign. Smith v. City of Salem,
#03-3399, 2004 U.S. App. Lexis 10611, 2004 FED App. 0160P (6th Cir. 2004).
[2004 FP Aug]
Federal jury awards $325,000 to a county
employee ordered to undergo a Fitness for Duty Exam. Jackson v. Lake County,
#01-CV-6528, verdict rptd. at 41 (2037) G.E.R.R. (BNA) 1219 (N.D. Ill.
2003). Prior opinions at 2003 U.S. Dist. Lexis 16244, 14 AD Cases (BNA)
1609 (9/15/03) and at 2002 U.S. Dist. Lexis 7726, 13 AD Cases (BNA) 32
(4/29/02). [2004 FP Feb]
A former employee who claims only that he
suffered emotional stress because of the work environment did not place
his mental condition in controversy so as to justify a court-ordered psychiatric
examination. He did not claim an ongoing mental injury or a psychiatric
disorder and he did not sue for the intentional or negligent infliction
of emotional distress. Bowen v. Parking Auth. of Camden, #00-5765, 214
F.R.D. 188, 2003 U.S. Dist. Lexis 6913, 91 FEP Cases (BNA) 1200 (D.N.J.
2003). {N/R}
Federal court finds that an order to take
a FFDE is not an “adverse action” that violates an officer’s civil rights.
The fact that the officer filed seven allegedly unfounded harassment complaints
justified the requirement. McKnight v. Monroe Co. Sheriff’s Dept., # IP
00-1880-C-B, 2002 U.S. Dist. Lexis 18148, 90 FEP Cases (BNA) 35 (S.D.Ind.
2002). [2003 FP Feb]
FLRA holds that management did not commit
an unfair labor practice when it ordered a military safety officer to undergo
drug testing and psychiatric evaluation after he made threatening remarks
concerning a sergeant. Air Force, 437 Wing and AFGE L-1869, #AT-CA-90669,
56 FLRA No. 160, 2000 FLRA Lexis 181, 39 (1893) G.E.R.R. (BNA) 47 (11/30/00).
[2001 FP 26-7]
Use of obscene language to another police
employee did not justify an order that the expressive officer submit to
a psychological exam. Maplewood and Law. Enf. Labor Serv., 108 LA (BNA)
572 (Daly, 1996). [1997 FP 119]
Appeals panel reverses $36,300 verdict against
chief for ordering psychological and physical testing of a paramedic who
had had excessive absenteeism, tardiness, high use of sick leave and rapid
variations in mood. Wertz v. Wilson, 922 S.W.2d 268 (Tex.App. 1996). [1997
FP 73]
Federal appeals court upholds warden’s order
to a corrections officer, that he submit to a psychiatric examination,
after he was accused by several coworkers of making threats of physical
harm. Flynn v. Sandahl, 58 F.3d 283, 10 IER Cases (BNA) 1187, 1995 U.S.App.
Lexis 14902 (7th Cir.). [1995 FP 154-5]
Federal Judge in Chicago orders a plaintiff,
who alleges an ongoing mental injury, to submit to a psychological interview.
Jansen v. Packaging Corp., 158 F.R.D. 409, 66 FEP Cases (BNA) 556 (N.D.Ill.
1994). [1995 FP 43-4]
In another case involving a claim of ongoing
mental injury, the same judge (in the Jansen case) refused the employer’s
demand that the plaintiff take a battery of written psychological inventories.
Usher v. Lakewood E. & M., 158 F.R.D. 411, 66 FEP Cases (BNA) 558 (N.D.Ill.
1994). [1995 FP 43-4]
Federal court enjoins the disciplinary transfer
of a fire captain, and an order to submit to psychiatric evaluation. Captain
had filed a grievance protesting chief’s order banning a cartoon in the
fire station. Watts v. Alfred, 794 F.Supp. 431 (D.D.C. 1992). [1993 FP
23]
Federal law prevents federal employers from
requiring psychological exams of employees who claim to be “whistleblowers.”
H.R. 4311, P.L. 101-12 (4/10/89), codified at 5 U.S. Code 1221.
Employee of school suing for severe emotional
distress and sexual harassment can be compelled to undergo medical and
psychological examinations. Vinson v. Superior Court, 239 Cal.Rptr. 292
(Cal. 1987).
City abused its discretion in terminating
officer who suffered treatable psychic impairment following gunshot wound
and accident injuries. Court concludes the city had a duty to assist with
employee’s rehabilitation. Childress v. Dept. of Police, 487 So.2d 590
(La. App. 1986).
Civil service authority could not condition
a return from suspension on psychological test results, without formally
charging accused with psychological disorder. Nuss v. Township of Falls,
491 A.2d 971 (Pa. Cmwlth. 1985).
Illinois appellate court upholds order from
chief for lieutenant to submit to a psychological exam; officer was accused
of abusing a citizen with his firearm. Conte v. Horscher, 365 N.E.2d 567
(Ill.App. 1977).
E
- REASONS JUSTIFYING AN INVOLUNTARY SEPARATION OR A DENIED ASSIGNMENT
Supreme Court declines to review the termination
of a police officer that had been fired for excessively self-centered personality
traits. Joseph v. Salt Lake City, #20010399-CA, 2002 UT App 254, 53 P.3d
11, 2002 Utah App. Lexis 72; cert. den. #02-1211, 2003 U.S. Lexis 2973
(4/21/2003). [2003 FP Jun]
Disputed psychiatric testimony can be supported
by proven behavior. Officer’s suicide threat, when taken with negative
psychological evaluation, warranted his severance. Galas v. Ward, 564 N.Y.S.2d
117 (A.D. 1990).
Appellate court upholds chief’s decision
to involuntarily separate an officer on a disability pension for psychological
reasons; officer exhibited hostilities, personality disorder and instability.
D’Angelo v. Ward, 553 N.Y.S.2d 325 (A.D. 1990).
Management could pass over a more senior
candidate for assignment to the SWAT unit where there were recent reports
of his assaulting his wife. The reports were credible and shed doubt as
to the grievant’s self-discipline, demeanor, maturity, and ability to cope
under stress, which are valid qualifications for the SWAT unit. Kansas
City Kan. Police and FOP L-4, FMCS #88/06871, 91 LA (BNA) 57 (Thornell,
1988). {N/R}
Hostility, unwarranted suspicions of persecution
and failure to fully cooperate with psychologist warranted termination
of plaintiff police officer. Redmond v. City of Overland Park, 672 F.Supp.
473 (D. Kan. 1987).
Officer’s unreasonable fear of injury from
confrontation with prisoners justified his termination for medical reasons.
Sienkiewicz v. Co. of Santa Cruz, 240 Cal.Rptr. 451 (App. 1987).
Demotion of police officer to unarmed civilian
position was proper after suicide attempt; his alleged recovery irrelevant.
Herman v. Cmwlth. Dept. of General Services, 475 A.2d 164 (Pa. Cmwlth.
1984).
Employer gives $1.9 million to employee’s
family after he attacked them; employer failed to treat employee’s job-related
depression. Okerblom v. Polaroid Corp., Cambridge, Mass. (1983).
Massachusetts appellate court upholds right
of police chief to disarm officer formerly in a shooting incident; mandatory
psychiatric evaluation properly ordered. City of Boston v. Boston Police
Patrolmen’s Assn., 392 N.E.2d 1202 (Mass. App. 1979).
F
- PUNISHMENT FOR REFUSAL TO SUBMIT TO AN EXAM OR TO COOPERATE DURING THE
EXAM
Ohio appellate court affirms the termination
of a police officer who refused to submit to a FFDE, following a series
of complaints made by a resident. Although state statutes relating to internal
investigation do not specifically mention a FFDE, a police chief has the
authority to require discipline and good order. "Absent a showing
that a particular order is manifestly outside those purposes, or is otherwise
unlawful, the order is presumed lawful." DeVilbiss v. Schade, #23484,
2010 Ohio 493, 2010 Ohio App. Lexis 412 (2nd Dist.).
Appeals panel affirms a Merit Systems Protection
Board decision to uphold the termination of an employee for insubordination.
Management ordered the employee to undergo a fitness-for-duty evaluation
after he made improper requests for records. Moreover, the record supported
a finding that management did not fire him in violation of the Whistleblower
Protection Act. Sweeney v. Dep’t of Homeland Sec., #2007-3091, 2007 U.S.
App. Lexis 21813 (Unpub. Fed. Cir.).
Eighth Circuit affirms the termination of
a police employee that failed to cooperate in a Fitness For Duty Exam (FFDE).
“By refusing to provide [the psychologist] the opportunity to review her
medical records and to discover the root of [her] stress and anxiety, [she]
created a stalemate in which KCPD had little choice but to terminate [her]
rather than return her to the position from which [her] stress and anxiety
originated.” Thomas v. Corwin, #06-1496, 2007 U.S. App. Lexis 7601, 100
FEP Cases (BNA) 297 (8th Cir.).
Appellate court sustains firing of Chicago
officer who refused to take a psychological exam after being accused of
sexual misconduct, even if the officer did so under a mistaken belief the
order was not lawful. A police officer who “thwarts authority” because
he thinks an order is unreasonable does so at his peril. Haynes v. Police
Bd. of Chicago, 1997 Ill.App. Lexis 832, 293 Ill.App.3d 508, 688 N.E.2d
794. [1998 FP 41]
N.Y. Appellate Court sustains a two-year
disciplinary suspension of a teacher who refused to undergo psychological
and physical testing. Schwartz v. Hicksville Sch. Dist., 1996 N.Y. App.Div.
Lexis 12680. [1997 FP 22-3]
Michigan appeals court reinstates dispatcher
who was fired for refusing to cooperate at a mandatory psychological exam.
Dept. did not have a valid basis for ordering her to take the test, as
required by state law. Merillat v. Mich. St. Univ., 207 Mich.App. 241,
523 N.W.2d 802, 4 AD Cases (BNA) 764 (1994). [1995 FP 171]
G
- RIGHT OF EMPLOYEE TO SEEK JUDICIAL RELIEF TO AVOID TAKING AN EXAM
Illinois rejects a suit in mandamus challenging
psychological screening procedures. Only remedy is an administrative appeal.
Burgess v. Bd. Fire & Police Cmsnrs., 655 N.E.2d 1157, 275 Ill.App.
718 (1995). [1996 FP 75-6]
Rejected Chicago police applicants were not
entitled to a “name-clearing” hearing because psychological test results
were not published. Koch v. Stanard, 962 F.2d 605 (7th Cir. 1992). {N/R}
Jury awards $960,000 to officer in above
case. 31 (1522) G.E.R.R. (BNA) 927 (6/17/93). [1993 FP 123-4]
A divided appellate court holds that a chief’s
order to a subordinate to take a psychological exam 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).
Illinois appellate court upholds order from
chief for lieutenant to submit to a psychological exam; the exam was not
punishment, was not injurious to his reputation and the order was non-disciplinary
and was not subject to a trial board hearing. Conte v. Horscher, 365 N.E.2d
567 (Ill.App. 1977).
Federal appeals court upholds a lower court
injunction against a public employer’s order that an employee submit to
a psychiatric evaluation. “The order by the college to report for a psychiatric
examination implied that there existed both reasonable grounds for the
order and mental unfitness for the job. Moreover, the order created a stigma,
an official branding of [the plaintiff]. Stewart v. Pearce, 484 F.2d 1031,
(9th Cir. 1973).
H
- CONTENT AND/OR SPECIFIC EXAMS OR TESTS
Federal court refuses to dismiss a challenge
to the use of the MMPI-2 and the Cal Psy. Inv. for psychological screening
Long Island police officers. The plaintiff claimed that some questions
are of a religious nature and are unnecessary to evaluate police applicants.
Bennett v. Co. of Suffolk, 30 F.Supp.2d 353, 1998 U.S. Dist. Lexis 20221,
78 FEP Cases (BNA) 1536 (E.D.N.Y.).{ N/R}
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. Miller v. City
of Springfield, 146 F.3d 612, 1998 U.S. App. Lexis 13385, 8 AD Cases (BNA)
321. (8th Cir.). [1999 FP 106-7]
California employer agrees to pay $1.54 million
to settle a suit filed by security guard applicants who objected to a psychological
exam which contained intrusive questions of a personal nature. In an earlier
ruling an appellate court found the MMPI-I and CPI too intrusive, and in
violation of the state’s constitutional protection of privacy. Soroka v.
Dayton Hudson Corp., 8 (16) IER Summary (BNA) 1 (settlement 7/9/93); opin.
at 7 Cal.App.4th 203; 13 Cal.App.4th 192; 18 Cal.App.4th 1200; 235 Cal.App.3d
654, 1991 Cal. App. Lexis 1241, 1 Cal.Rptr.2d 77, 6 IER Cases (BNA) 1491.
The California Supreme Court declined review and ordered the appellate
opinion to be depublished at 822 P.2d 1327, 1992 Cal. Lexis 2895. [1993
FP 139 and 1992 FP 8-9] Editor’s Note: also see McKenna v. Fargo, 451 F.Supp.
1355, 1978 U.S. Dist. Lexis 17539 (D.N.J. 1978), aff’d w/o opin., 601 F.2d
575 (3rd Cir. 1979) for a contrary ruling.
Federal appeals court allows suit by officer,
suspected of pedophilia, who was directed to view sexually explicit slides
while wearing a device that measures genital arousal. Harrington v. Almy,
977 F.2d 37 (1st Cir. 1992). [1993 FP 11]
Iowa Supreme Court upholds promotional exam
that inquired about tattoos, teen sex, sleep habits and other controversial
matters; job relevance shown. Patch v. Civil Serv. Cmsn. of Des Moines,
295 N.W.2d 460 (Iowa 1980); Bryan v. City of Des Moines, 261 N.W.2d 685
(Iowa 1978).
I
- TERMINATION VS. ACCOMMODATION
Appeals court affirms the firing of a
special agent who suffered from psychological disorders. The fact that,
in an unrelated decision, her disability pension application was denied
because her condition did not affect her ability to perform her duties,
was of no consequence. The termination was based on substantial evidence
that she was unable to perform adequately as an investigator and could
not be reasonably accommodated by the Justice Dept. Bullock v. INS, #03-3205,
99 Fed. Appx. 890, 2004 U.S. App. Lexis 9030, 15 AD Cases (BNA) 979 (Fed.
Cir. 2004). [2004 FP Nov] Police Board
was not required to defer termination proceedings to see if long-term counseling
would assist an officer who, while intoxicated, threatened and assaulted
two citizens. Jones v. Police Bd. of Chicago, #1-97-0863, 297 Ill.App.3d
922, 697 N.E.2d 876, 1998 Ill.App. Lexis 434. [1999 FP 43]
PA supreme court refuses to reinstate a trooper
that would have needed a lengthy and closely supervised unarmed assignment.
Penn. St. Troopers’ Assn. (Kornguth) v. Pa. St. Police, 537 Pa. 434, 644
A.2d 1161, 1994 Pa. Lexis 247. [1995 FP 124]
J
- RELATION TO FAMILY AND MEDICAL LEAVE LAWS
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. Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass.). [1998 FP 122]
K
- USE OF OR DISCLOSURE OF THE RESULTS AND PRIVACY
Statements by a public employee to a union
steward are not private (privileged), if the steward voluntarily discloses
the content to management. The employee had told him, "If I get fired,
I'll kill myself." Berkner v. Dept. of Commerce, #DC-0752-09-0667-I-1,
2011 MSPB 27.
Federal court holds that the fact that a
police officer "was the subject of an involuntary psychological evaluation
is a permanent record in his personnel file and may be a detriment to obtaining
law enforcement positions in the future. The involuntary psychological
evaluation thus rises to the level of a materially adverse action."
There was sufficient evidence in the record for the officer to proceed
with a retaliation claim under Title VII. Dodd v. SEPTA, #06-4213, 2007
U.S. Dist. Lexis 46878; 2008 WL 2902618, 2008 U.S. Dist. Lexis 56301, 104
FEP Cases (BNA) 43 (E.D. Pa. 2008).
Confidential records and testimony relating to
communications between a plaintiff and his psychotherapist are privileged
and not discoverable. Koch v. Cox, #06-5134, 489 F.3d 384 (D.C. Cir. 2007).
Federal appeals court rejects the claim that
an employer-mandated psychological exam is a Fourth Amendment intrusion;
privacy invasion claims should be filed in state, not federal court. Greenawalt
v. Indiana Dept. of Corrections, #04-1997, 397 F.3d 587, 2005 U.S. App.
Lexis 2384 (7th Cir. 2005), affirming 2004 U.S. Dist. Lexis 6739 (S.D.
Ind.). [2005 FP Apr.]
Appellate court in New York upholds a decision
to reinstate disability benefits to a police officer that was psychologically
unfit for service. Although she had concealed an earlier psychiatric hospitalization,
the concealment was learned during a treatment interview, which is privileged
and confidential information. City of New York v. O’Connor, #2538, 9 A.D.3d
328, 780 N.Y.S.2d 590 (App. Div. 2004); appeal denied, 2004 N.Y. Lexis
3545 (2004). [2005 FP Feb]
In a negligent hiring and retention lawsuit,
the court denied the plaintiff access to a psychological evaluation by
an independent psychologist, created as a part of the hiring process. A
second evaluation, completed after the officer had been accused of assault,
was discoverable. The officer’s statements were not made for purposes of
therapy, and he knew that the reports would be disclosed to members of
the Police Dept. Valentin v. Bootes, 325 N.J. Super. 590, 740 A.2d 172
(1998). {N/R}
Federal court, in a wrongful death lawsuit,
denies production of a police officer’s psychiatric records. Officer was
required to consult a psychiatrist as a condition to returning to active
duty after a fatal shooting. Court rejects the argument that confidentiality
does not apply to “non-treatment” evaluation exams. Discovery was inappropriate
because the psychiatrist did not disclose any confidential communications
and simply gave a ‘Yes or No’ recommendation regarding the officer’s return
to active duty. Williams v. Dist. of Col., #96-0200-LFO, 1997 WL 22491
(D.D.C. 4/25/1997). {N/R}
U.S. Supreme Court recognizes a psychotherapist-patient
privilege, and denies discovery requests in a police shooting case. The
holding is not limited to situations in which employees and others voluntarily
consult a mental health professional. Confidential communications between
a licensed psychotherapist and his/her patients in the course of diagnosis
or treatment are protected from compelled disclosure. Whether an employee
sees a psychologist voluntarily, or is ordered to go, is not dispositive
of the issue. Jaffee v. Redmond, 518 U.S. 1, 1996 U.S. Lexis 3879, 116
S.Ct. 1923. [1996 FP 139]
California appeals court allows employee’s
suit for invasion of privacy; psychiatrists provided his superiors with
the details of an employer-required stress exam. Pettus v. Cole, 49 Cal.
App. 4th 402, 1996 Cal. App. Lexis 858, 57 Cal.Rptr.2d 46, 12 IER Cases
(BNA) 74. [1996 FP 171-2]
Suit against mayor for stating that a police
applicant “flunked” the entry exam fails. Also no liability for failing
to keep his application confidential. Suppan v. Kratzer, 660 A.2d 226 (Pa.Cmwlth.
1995). [1996 FP 60]
Psychological evaluations of police officers,
contained in their personnel files, are privileged from discovery in a
civil rights suit filed by a citizen who claims an officer used excessive
force. Mason v. Stock, 869 F.Supp. 828 (D.Kan. 1994). {N/R}
Rejected firefighter applicant was entitled
to learn the results of a preemployment psychological exam. Cremer v. Macomb
Bd. of Fire & Police Cmsnrs., 260 Ill.App.3rd 765, 632 N.E.2d 1080
(1994). [1995 FP 60]
State appellate court allows discovery a
psychological evaluation; the person tested had signed a consent form indicating
that the purpose of the interview was not for treatment or counseling,
but to provide recommendations regarding a need for special education services.
The form did not mention confidentiality. J.N. v. Bellingham Sch. Dist.
501, 74 Wash. App. 49, 871 P.2d 1106 (Wash. App. 1994). {N/R}
A police officer terminated for using excessive
force was denied due process when his dismissal was based on reasons not
included in the notice of charges provided him. The department used a psychological
evaluation against him, without notice of that fact. Bass v. City of Albany,
968 F.2d 1067 (11th Cir. 1992). {N/R}
Appellate court upholds a trial judge who
reversed a jury award of $50,000. The plaintiff had sued a psychologist
who revealed his diagnosis to her employer. Childs v. Williams, Ph.D.,
825 S.W.2d 4, 7 IER Cases (BNA) 255 (Mo.App. 1992). [1992 FP 91]
Federal Court orders that a police officer’s
pre-employment psychological testing be produced during discovery. The
exam was part of the application process, and applicants understand that
psychologist reports will be available to the police dept. Seigfried v.
City of Easton, 146 F.R.D. 98 (E.D. Pa. 1992). {N/R}
Federal court orders disclosure of an employee’s
psychological records, finding that the defendants failed to prove the
documents have been kept confidential. Miller v. Pancucci, 141 F.R.D. 292
at 302-303 (C.D. Cal. 1992). {N/R}
Appellate court rules that results of a psychological
test required by the Civil Serv. Cmsn. are not confidential. The purpose
of the exam was not for diagnosis or treatment. The patient/health care
provider privilege does not apply to the testing process. Ring v. Fox,
56 Ohio App.2d 235, 382 N.E.2d 1159 (1977).
L
- IMPAIRMENT OR DISABILITY UNDER THE ADA OR REHAB ACT
Federal appeals court holds that plaintiffs
were entitled to an award of attorneys fees in a lawsuit that challenged
the employer’s use of a psychological test as a condition of promotion
purposes; an injunction ordering the destruction of the test results conferred
enough of a benefit on the plaintiffs to classify them within the ADA’s
definition of a prevailing party. Karraker v. Rent-A-Center, #06-2617,
2007 U.S. App. Lexis 16184 (7th Cir.).
Federal appeals court affirms a liability
award against a city over the wrongful termination of two women police
officers that were found psychologically unfit for service. The jury had
awarded each of the plaintiffs $2.5 million -- $1 million in compensatory
damages, $223,080 in back pay and $1,276,920 in front pay. The trial court
then reduced the non-pay verdicts from $1 million to $350,000. The appeals
court panel affirmed the reduction of damages decision. Denhof v. City
of Grand Rapids, #05-1819, 2007 U.S. App. Lexis 5605, 2007 FED App. 0163N
(Unpub. 6th Cir.).
EEOC District Office finds that a police
officer was “disabled” and that ordering him to submit to additional fitness
for duty evaluations was unlawful. EEOC ex rel. Tucker and City of Tempe
Police Dept., #350-A1-2326 (2002). [2003 FP Jan]
A psychologically disabled police officer
is a “qualified individual with a disability” under the ADA. Officer could
sue without exhausting his administrative remedies. Dertz v. Chicago, 912
F.Supp. 319, 1995 U.S. Dist. Lexis 14409; 7 AD Cases (BNA) 1507 (N.D.Ill.
1995). {N/R}
M - EEOC
Federal appeals court reverses a trial
court decision that found that an employer’s use of the MMPI for promotional
screening did not violate the ADA. The Seventh Circuit found it irrelevant
that the test was not interpreted by a psychologist or not used for diagnostic
purposes. Karraker v. Rent-A-Center, #04-2881, 411 F.3d 831, 2005 U.S.
App. Lexis 11142 (7th Cir. 2005); 316 F.Supp.2d 675 (C.D. Ill., 2004) reversed.
[2005 FP Nov]
EEOC issues replacement guidance for the
processing of disability discrimination complaints. A psychological exam
asks “medical information” if it tests for anxiety, depression and certain
compulsive disorders; such tests are restricted to the post-offer stage.
Exams that reveal specific “personality traits” and measure “honesty, tastes
and habits” are nonmedical and may be given in the pre-offer stage. EEOC:
Enforcement Guidance on Pre-Employment Inquiries Under the A.D.A., FEP
Manual (BNA) 405:7191-7202 (Oct. 10, 1995); BNA FEPM Document #783. [1996
FP 6]
EEOC issues a policy letter that if a psychological
test is designed to diagnose a specific psychiatric condition, it is a
post-offer medical exam. In re Mastroianni, 5 NDLR 291; 5 (14) Disab. Compl.
Bull. (LRP) 16 (EEOC 1994). {N/R}
EEOC General Counsel interprets factors for
determining whether a psychological test is a “medical exam” under the
ADA. “EEOC Enforcement Guidance on Pre-Employment Inquiries Under the ADA,”
FEP Manual (BNA) 405:7209-10 (1994). [1994 FP 139]
Federal court upholds psychological testing
of applicants in Jersey City; ACLU privacy suit fails. McKenna v. Fargo,
1978 U.S. Dist. Lexis 17539, 451 F.Supp. 1355 (D.N.J. 1978), aff’d. w/o
opin. 601 F.2d 575 (3rd Cir. 1979).
N
- RIGHT TO HAVE ATTORNEY OR WEINGARTEN REPRESENTATIVE PRESENT
Arbitrator holds 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 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).
Federal court allows a party to a lawsuit to have
his lawyer present during an non-psychological independent medical exam.
Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis
4543 (E.D. Pa.). [2000 FP 12]
Massachusetts Supreme Court upholds order
to take a psychiatric examination; no right to have an attorney present
at that time. Nolan v. Police Cmsnr. of Boston, 420 N.E.2d 335 (Mass. 1981).
0
- CIVIL LIABILITY FOR NOT SCREENING EMPLOYEES
In an unlawful detention lawsuit, "a
reasonable jury could find that [the town] did not adequately investigate
[the officer's] military service, conduct a psychological fitness for duty
evaluation, or adequately follow up on [his] references. Given the information
about [his] propensity toward anger, his spotty employment history, and
the facts surrounding his other-than-honorable discharge from the Navy,
the plaintiffs have sufficiently alleged genuine issues of material fact
on their claims of negligent hiring and retention." Woods v. Town
of Danville, WV, #2:09-cv-0036, 2010 U.S. Dist. Lexis 47666 (S.D. W. Va.).
Failure to adopt meaningful psychological
testing results in $300,000 compensatory and $125,000 in punitive damages.
Off-duty officer wounded wife, then killed self; officers required to carry
weapons while off-duty. Bonsignore v. City of New York, 521 F.Supp. 394,
aff’d 683 F.2d 635 (2nd Cir. 1982).
P - RETALIATORY OR DISCRIMINATORY REASONS ALLEGED
Fifth Circuit rejects
a disability discrimination that management ordered a psychological evaluation
of a public employee related to theft accusations, but did not order the
same evaluation for a coworker. The panel noted that the appellant failed
to demonstrate "why a mere examination would qualify as less favorable
treatment." Citing Benningfield v. City of Houston, 157 F.3d 369 at
376 (5th Cir. 1998), a referral for psychological testing is not an adverse
employment action." Rather, the referral was designed to gather facts
to form the basis for an employment decision." Wilson v. City of Baton
Rouge, #08-31018, 2009 U.S. App. Lexis 10555 at fn. 2 (Unpub. 5th Cir.).
Federal court dismisses a civil rights
suit filed by an ex-police officer who alleged that she was subjected to
I-A investigations, criminal charges, and a psychological fitness test
because of her gender. She failed to adduce any evidence of bias or bad
motives. Zandhri v. Dortenzio, #3:99CV1776, 228 F.Supp.2d 167, 2002 U.S.
Dist. Lexis 21048 (D.Conn. 2002). [2003 FP Mar]
Supreme Court declines to review a holding
that a required Fitness For Duty Exam and minor disciplinary action did
not meet the threshold level of substantiality required by Title VII’s
anti-retaliation clause. Perez v. Miami-Dade Co., #02-269, 2002 U.S. Lexis
9080, 71 U.S.L.W. 3398 (2002); decided below as Perez v. Penelas, #01-10348,
275 F.3d 53, 2001 U.S. App. Lexis 29818; reh. den. 2001 U.S. App. Lexis
29391 (Unpub. 11th Cir. 2002). {N/R}
Q - ARTICLES IN LEGAL
OR ACADEMIC JOURNALS
Books:
* Fit, Unfit or Misfit: How to Perform
Fitness For Duty Evaluations in Law Enforcement Professionals, Kathleen
P. Decker, M.D. (Editor); Charles C. Thomas Publisher (2006).
* Practical Police Psychology: Stress Management
and Crisis Intervention, Laurence Miller, Ph.D.; Charles C. Thomas Publisher
(2006).
* Test Validity in Justice and Safety Training
Contexts, Kevin Minor et al; Charles C. Thomas Publisher (2004).
Articles:
* “The Psychological Fitness-for-Duty
Evaluation,” Laurence Miller, Ph.D., 76 (8) FBI Law Enforcement Bulletin
10-15 (Aug. 2007).
* “Good Cop-Bad Cop: Problem Officers, Law Enforcement Culture, and Strategies for Success,” Laurence Miller Ph.D., 19 Journal of Police and Criminal Psychology 30-48 (2004).
* “Police Personalities: Understanding and Managing the Problem Officer,” Laurence Miller Ph.D., The Police Chief (IACP) 53-60, (May 2003)
* “Determining the need for fitness-for-duty evaluations,” Alan W. Benner, 64 (4) The Police Chief (IACP) 141-143 (Apr. 2000).
* “Fitness-for-duty Evaluations,” Philip Trompetter, 97 (10) The Police Chief (IACP) 97-105 (Oct. 1998).
* “Select legal and ethical aspects of fitness for duty evaluations,” John Super, 25 (3) J. of Criminal Justice 223-229 (1997).
* “Psychological Health Tests for Violence-Prone Police Officers: Objectives, Shortcomings, and Alternatives,” by Michelle A. Travis, 46 Stanford L. Rev. 1717 (July, 1994, 36,405 words).
* Radford, “Sex stereotyping and the Promotion of Women to Positions of Power,” 41 Hastings L.J. 471 (1990).
* “Psychological Fitness-for-Duty Evaluation,” Anthony Stone, 57 The Police Chief (IACP) 40-53 (1990).
* Struth, “Permissible sexual stereotypings versus impermissible sexual stereotyping: a theory of causation,” 34 N.Y.L.Sch. L.Rev. 679 (1989).
* Study: “N.Y.P.D. Psychological Screening of Police Candidates: A Cross-Validation Study of Police Recruit Performance as Predicted by the IPI and MMPI,” 15 (2) Journal of Police Science & Adm. (IACP) 162 (June 1987) with many additional references listed on p. 169.
* Study: “N.Y.P.D. Psychological Screening of Police Candidates: The Screening Process, Issues and Criteria in Rejection,” by E. Fitzsimmons, Psychological Services for Law Enforcement, Lib. of Cong. #85-60053 8 (Govt. Printing Office, 1986).
“The fitness for duty evaluation: Establishing policy,” S.Saxe-Clifford, 53 (2) The Police Chief (IACP) 38-39 (Feb. 1986).
IACP Police Psychological
Services Section website.
* Fitness for Duty Evaluation Guidelines
* Officer-Involved Shooting Guidelines
* Peer Support Guidelines
* Pre-Employment Psychological Evaluation
Guidelines
* Guidelines for Consulting Police Psychologists
See also: Handicap/ Abilities Discrimination - Psychiatric; Mental Illness and Instability; and Suicide Related.