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Psychological Exams and Standards

     A - PSYCHOLOGICAL SCREENING OF APPLICANTS

     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, 6432 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

     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

     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

     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

     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

    Confidential records and testimony relating to communications between a plaintiff and his psychotherapist are privileged and not discoverable. Koch v. Cox, #06-5134, 2007 U.S. App. Lexis 14019 (D.C. Cir.).
     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

     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

     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)
     “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). {N/R}
     Radford, “Sex stereotyping and the Promotion of Women to Positions of Power,” 41 Hastings L.J. 471 (1990). {N/R}
     Struth, “Permissible sexual stereotypings versus impermissible sexual stereotyping: a theory of causation,” 34 N.Y.L.Sch. L.Rev. 679 (1989). {N/R}
     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). {N/R}
     ”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. {N/R}
     “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). {N/R}
     Radford, “Sex stereotyping and the Promotion of Women to Positions of Power,” 41 Hastings L.J. 471 (1990). {N/R}
     Struth, “Permissible sexual stereotypings versus impermissible sexual stereotyping: a theory of causation,” 34 N.Y.L.Sch. L.Rev. 679 (1989). {N/R}
     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). {N/R}
     “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. {N/R}

     R – IACP GUIDELINES

     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.


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