IACP Police Psychological Services Section

Annual Legal Update

1998 Conference - Salt Lake City

 

Material compiled by

Wayne W. Schmidt

AELE Law Enforcement Legal Center

 

• Albert v. Runyon, 1998 U.S. Dist. Lexis 7505 (D.Mass.).

• Brown v. Nutter, 45 Mass. App. 212, 696 N.E.2d 953.

Conway v. City of Hartford, 1997 Conn. Super. Lexis 282.

• Executive Order 11478, Amendment of May 28, 1998.

• Haynes v. Police Bd. of Chicago, 1997 Ill. App. Lexis 832 (7th Cir.).

• Holt v. NW. PA. T.P.C., 694 A.2d 1134, 1997 Pa. Commw. Lexis 207.

Krocka v. Bransfield, 958 F. Supp. 1333 (N.D.Ill).

Oak Park (City of) and POA, 1997 MPER Lexis 12 (Mich. Emp. Rel. Cmsn.).

• Palmer v. Cir. Ct., 117 F.3d 351 (7th Cir. 1997).

• Ralph v. Lucent Technologies 135 F.3d 166 (1st Cir.).

• Reeves v. Johnson, 7 AD Cases 1675 (2d Cir. 1998).

• Thompson v. Borg-Warner Prot. Serv., 1996 U.S. Dist. Lexis 4781 (N.D. Cal.).

 


 

Handicap Laws & Abilities Discrimination

 

Federal court holds that placing an officer in a special, monitored unit because he uses Prozac violates the ADA.  Ordering a blood test for measuring his use of the drug infringed his 4th Amendment and privacy rights.

 

     The plaintiff previously had been fired as an Evanston police officer.  He experienced depression and contemplated suicide.  Later he was fired as a hospital security officer and again terminated as a University police officer.  He was then successful in getting employment with the Chicago Police Dept.

 

     However, in 1992, he fell down a flight of stairs while on duty and was rendered unconscious. The CPD learned that he was taking Prozac, and he was ordered to have his blood tested for presence of the drug.  He was placed in a special unit, consisting of officers that need monitoring. 

 

     When the CPD learns that an officer is taking psychotropic medication, it mandates a physical exam and a psychological evaluation, including a fitness for duty evaluation.  This officer has experienced long-term depression, antisocial behavior, fear, anxiety, loss of self-esteem, insomnia, and an aversion to social contacts.  He has been medically diagnosed as having dysthymia, impulse control disorder and mixed obsessive-compulsive and paranoid personality features.

 

     However, the officer filed suit, alleging that his placement into the “Personnel Concerns Program” constituted a per se violation of the ADA's prohibition against “limiting, segregating, or classifying an ... employee in a way that adversely affects the opportunities or status of such ... employee because of the disability of such ... employee” because there was no connection between the test and safety concerns.  42 U.S.C. §12112(a), (b)(1).

 

     In two separate decisions, the court agreed, and said he had “a substantial privacy interest in his bodily integrity” and that on the facts alleged, his “privacy interests outweigh the City's safety concerns.”

 

     In a third decision, the officer asked the court to enjoin the City from conducting an interview on December 24, 1997, which he believes could lead to his immediate termination or suspension. The interview was purportedly for the purpose of investigating whether he had been drinking on duty in 1981 and 1982, had patronized prostitutes while on duty sometime before 1990, had falsified health related documents between 1987-1993, and two other possible deportments.

 

     The court said he had adequate administrative and appellate remedies to protect his rights.  Injunctive relief was denied.  Krocka v. Bransfield, 958 F. Supp. 1333, 1997 U.S. Dist. Lexis 3510 {1st decis.}; 969 F. Supp. 1073; 1997 U.S. Dist. Lexis 9289 {2nd decis.}; 1997 U.S. Dist. Lexis 20739 {injunction}(N.D.Ill).

 

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Federal appeals court requires an employer to offer part-time work for an employee who suffered a mental breakdown.  ADA and other laws supersede the bargaining agreement.

 

     The plaintiff experienced major depression and post- traumatic stress disorder because of the same-gender harassment by fellow workers.  A partial return to employment was deemed “essential” by his therapist.

 

     The District Court ordered the employer to provide the plaintiff with part-time work, for a short-term recovery period.  The employer appealed, claiming that it was un-reasonable to require part-time employment and that the bargaining agreement provided an exclusive remedy.  A three-judge appellate panel disagreed, noting that the ADA defines “reasonable accommodation” as including “job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position...” 42 U.S Code §12111(9). 

 

     They also rejected the employer's defense that the collective bargaining agreement provided an exclusive remedy.  The panel said the plaintiff is protected by state and federal statutes which provide independent and nonnegotiable rights and remedies.  Ralph v. Lucent Technologies 135 F.3d 166, 1998 U.S. App. Lexis 1475, 7 AD Cases (BNA) 1345 (1st Cir.).

 

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Second Circuit concludes that “panic disorder” is not a disability under the ADA.  Panic disorder is not an impairment recognized by the EEOC.

 

     Although the trial court found the termination was based on a “legitimate, nondiscriminatory reason,” the appellate panel said it was unnecessary to rule on that defense, because she was not “disabled” under the ADA.  Ryan v. Grae & Rybicki, 135 F.3d 867 (2nd Cir.).

 

     In the second case, an airport supervisor feared being alone or traveling in an automobile, bus or airplane. He was under psychiatric treatment for panic disorder and agoraphobia.

 

     However, the appellate panel noted that his impairment did not substantially limit him in the exercise of any of the major life activities listed in the EEOC regulations.  Although ADA cases are to be decided on a case-by-case basis, a plaintiff must “identify a major life activity that is affected by the [particular] impairment.”  Reeves v. Johnson, 7 AD Cases 1675 (2d Cir. 1998).

 

 

Honesty & Integrity Testing

 

Federal Court in California finds that pre-employment test questions that survey a person's political views could violate a state law prohibiting employers from coercing political affiliations.

 

     An applicant for a security position refused to answer questions on a psychological “integrity” screening form, because he considered some of them to be unlawful.  Included were the following:

 

22. The government has no right to interfere with a person who chooses to use drugs        if it doesn't hurt anyone.

 

46. The police and courts are lenient on drug users.

 

97. The drinking age should be lowered.

 

100. Marijuana should be legalized.

 

     The applicant sued the security firm, seeking damages for unlawful discrimination under the ADA, the state's Fair Employment Act and various state labor and business codes.  The suit was removed to federal court on diversity grounds (28 U.S. Code § 1332).

 

     The judge found the test did not violate the ADA, but refused to grant the defendant a summary judgment because the controversial test allegedly was not used as a basis to deny the plaintiff a job.  The firm contends the plaintiff was rejected because he was belligerent, loud, confrontational and has a hot temper.

 

     The statute which the court found applicable is Cal. Labor Code §1101, which prohibits employment policies that forbid or prevent employees from engaging in political activity, or policies that tend to “control or direct the political activities or affiliations of employees.”  Section 1102 prohibits an employer from attempting to coerce or influence employees from engaging in political activity.

 

     Expressing doubt on the validity of the four above questions, the court said that using those for job-screening purposes could be viewed by the jury as “an attempt to influence employees to adopt or follow or refrain from adopting or following particular courses or lines of political activity in violation of Labor Code § 1102.”

 

     The court rejected the firm's motion for summary judgment because “a reasonable jury could further conclude ... [that the use of] the survey as a tool to evaluate the suitability of applicants for hire tends to influence, control or direct the political activities or affiliations of the applicant pool.” Thompson v. Borg-Warner Protective Services, 1996 U.S. Dist. Lexis 4781 (N.D. Cal.).

 

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Research Note: 43 states have laws regulating political activity in the employment process.  Some states apply to public employees, some to the private sector, and some laws apply to both.  See BNA's IER Manual - Master Index.

 

     The four challenged questions in the above case related to the regulation or use of intoxicants and drugs.  However, they did not ask whether an applicant has abused substances or whether he/she would tolerate those who do.  These questions asked about an applicant's attitudes toward enforcement and legalization.

 

 

Mental Illness & Instability

 

Federal appeals court declines to reinstate a mentally ill worker who repeatedly threatened to kill her superior.

 

     A county caseworker made a series of phone calls from home to the office, accusing her supervisor of harassment.  She stated to others an intent to kill her boss, and repeated the threat directly to her superior.  Following her dismissal, she launched an ADA suit, claiming the county failed to accommodate her mental illness.

 

     A three-judge appeals panel determined the plaintiff has a “disabling mental illness.”  However, the ADA “does not require an employer to retain a potentially violent employee.”  Reinstatement would “cause justifiable anxiety to coworkers and supervisors.”

 

     It would be “unreasonable to demand” the county “station guards to prevent the mentally disabled employee from getting out of hand.”  Palmer v. Cir. Ct., 117 F.3d 351 (7th Cir. 1997).

 

 

Psychological Exams & Standards

 

Michigan Employment Relations Cmsn. annuls a management requirement that police officers must sign a liability release form when they submit to an involuntary psychological examination.

 

     A Detroit area police dept. ordered an officer to undergo a psychological evaluation, and to sign a form releasing the psychologist from any liability relating to “his recommendation” to the city.

 

     The state's Employment Relations Cmsn. held, in a 3-to-0 decision, there was no evidence of an “established policy” that employees must sign a waiver of their right to sue the psychologist for professional malpractice.  Before a public employer can require the signing of such a form, it must negotiate the issue with each bargaining unit affected by the policy. 

 

     The city suggested it might not be able to obtain an evaluation without having a written waiver from the person being evaluated.  The commission responded by saying that “The fact [a city] might have difficulty finding a psychologist willing to provide services to [the city] without this waiver has no bearing on [the city's] obligation to bargain this issue with the union.”  Oak Park (City of) and Police Officers Assn. of Mich., 1997 MPER Lexis 12 (Mich.Emp.Rel.Cmsn.).

 

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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.

 

     A Chicago police officer, hired in 1986, was accused of sexual assault.  He was ordered to undergo a psychological examination.  He refused, based upon his belief that the request for the examination was not lawful. The officer was fired for insubordination and appealed.  A three-judge appellate panel said:

 

                [The appellant's] refusal to obey a direct order was not justified by his mistaken belief that he should not have to take a psychological examination.  A police officer does not have the prerogative of actively disobeying an order from a superior while the officer subjectively determines whether the order is lawful, valid or reasonable because such a practice would thwart the authority and respect which is the foundation of the effective and efficient operation of a police force and destroy the discipline necessarily inherent in a paramilitary organization such as the police department.

 

     A career public employee must obey and then file a grievance or lawsuit.  Haynes v. Police Bd. of Chicago, 1997 Ill. App. Lexis 832 (7th Cir.).

 

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Federal court holds, under the FMLA, an employer cannot require a “fitness for duty” exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it.

 

     In this case the worker returned after a two-month leave for clinical depression -- which she attributed to sex discrimination and harassment by her male supervisor.  29 U.S. Code §2611(11) and §2612(a)(1)(D) allows an employee to take FMLA leave “because of a serious health condition that makes [her] unable to perform the functions of [her] position,” which is defined as “an illness, injury, impairment, or physical or mental condition that involves... inpatient care... or continuing treatment by a health care provider.”

 

     Although her psychologist found her fit for work, her supervisors declined to accept her psychologist's word and scheduled a fitness-for-duty exam, including a psychiatric evaluation.  When they refused to back down, she sued under the Family Medical Leave Act, seeking reinstatement without another psychiatric evaluation.

 

     The court noted that 29 U.S. Code §2614(a)(4) REQUIRES an employer to rely on the certification furnished by the employee's own health care provider, and 29 C.F.R. 825.310(c) provides that the certification may be a “simple statement of any employee's ability to return to work.”

 

     The judge said that “requiring [the plaintiff] to undergo a psychological examination was not the proper way... to resolve any legitimate concerns... about the scope or adequacy of a medical certification. 

 

     An employer can ask the employee's clinician for “clarification” but may not force an employee to submit to a further examination before allowing him or her to return to work.  The court held that “the FMLA does not contemplate an adversarial investigation into a patient's symptoms and complaints.”

 

     The court said that after an employee has returned to work, an employer may require a fitness-for-duty examination if the worker's “post-reinstatement behavior provides a reason for doing so.”  Albert v. Runyon, 1998 U.S. Dist. Lexis 7505 (D.Mass.).

 

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Note:  A similar result was reached in a prior decision of the Federal Merit Systems Protection Board.  It held that the Air Force was unjustified in ordering a civilian employee to a psychiatric examination before returning to duty from FMLA leave.  Harris v. Dept. of Air Force, 62 M.S.P.R. 524/at 528, 1994 MSPB Lexis 660.

 

 

Psychic Injuries - Damages

 

Secretary could recover damages from her superior for mental anguish after he required her to fake a document.  Worker's Comp. laws prevent a recovery against her employer, however.

 

     Sometimes police officers and supervisors have demanded that coworkers or subordinates attest to untrue facts in a report, or assist in the fabrication of evidence.  This case involved a subordinate who reported to her supervisor the fact that a superior required her to assist him in preparing a faked document.

 

     Following the incident she began to suffer from uncontrollable crying and hysteria and left work early that day.  She was unable to return to work for the next week, was confined to her bed, suffered nightmares, anxiety attacks, and uncontrollable crying. 

 

     A three-judge appellate panel affirmed the dismissal of her claims against the employing entity.  The injury arose out of and in the course of her employment.  Worker's Compensation provides an exclusive remedy for her emotional injuries.

 

     However, the trial court erred in dismissing the suit against her superior.  The underlying misconduct did not further the business of the employer.  Coemployees... are not immunized from suit by the workers' compensation act for tortious acts which they commit outside the scope of their employment, which are unrelated to the interest of the employer.”

 

     They said a jury could find that her superior's conduct was “extreme and outrageous,” and had a “severe and traumatic effect upon [the plaintiff's] emotional tranquility and her health.  Brown v. Nutter, 45 Mass. App. 212, 1998 Mass. App. Lexis 517, 696 N.E.2d 953.

 

 

Transgender Job Rights

 

Pennsylvania appellate court rejects claims of a transsexual counselor who was fired and barred from working at the county prison.

 

     A job-training counselor named Richard changed his name to Kristine, adopted a female identity and began to dress as a woman.  At first Kristine's superiors directed the staff to treat him/her with “respect” and created a unisex lavatory.  A few weeks later, the jail warden cited “safety concerns” and barred the counselor from entering the jail, regardless of which gender Richard/Kristine chose to identify with.  The contractual employer discharged him/her for violating the office dress code.

 

     Richard brought a suit (as Kristine) against the state, the county, the consulting group that directly employed him, the warden, county commissioners and many others.  Kristine alleged various employment-related and human rights violations.  She also sought damages for her emotional distress.

 

     The trial court rejected all claims; the appellate court affirmed, 5-to-2.  The majority concluded that transsexualism is not a protected right, that gender dysfunction is not a disability, and that the public officials were immune from damages.  Holt v. NW. PA. T.P.C., 694 A.2d 1134, 1997 Pa. Commw. Lexis 207.

 

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Connecticut court holds that transsexualism is a mental disability for purposes of employment discrimination.

 

     In this case Tracey became Trevor and was fired for an allegedly pretextual reason after undergoing sexual reassignment surgery.  He sued the city for violating the state's disabilities law. The court ruled that transsexualism is not a physical disability.

 

     However, the judge went on to hold that gender dysphoria is a recognized mental disorder for job discrimination purposes, citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d edit., pp. 74-75).  Conway v. City of Hartford, 1997 Conn. Super. Lexis 282.

 

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Research Note: The Supreme Court has stated that a transsexual is a person who has a “rare psychiatric disorder,” citing APA and AMA authorities.  Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994).  However, the ADA and Rehabilitation Acts specifically provide that gender identity disorders are not a federally-recognized disability, unless they are the result of a physical impairment [42 U.S. Code §12211(B)(1) and 29 U.S. Code §706(8)(F)(I)(i)]. 

 

     State courts are not so confined unless their statutes contain similar language. The Congress inserted the restriction for political, not psychiatric reasons (to assuage Religious fundamentalists).

 

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President signs Order creating a uniform policy prohibiting sexual orientation discrimination in federal employment.

 

     The Order, for the first time, establishes a national, federal employment policy prohibiting sexual orientation discrimination.  It amends an existing Executive Order that now prohibits discrimination based on race, color, religion, sex, national origin, disabilities, or age.      

 

     The Executive Order establishes “Administration Policy” but does not (and cannot) create any new enforcement rights or enlarge the jurisdiction of the EEOC.  The President called on the Congress to pass the “Employment Non-Discrimination Act,” which would create and codify enforcement rights for gays and lesbians.  Executive Order 11478, Amendment of May 28, 1998.