2010 Legal Update for Psychologists

International Association of Chiefs of Police, Inc.

117th Annual Conference, Orlando, Florida

October 23, 2010

Supplemental Cases for Police Psychologists

Compiled by the AELE Law Enforcement Legal Center

Contact: AELE@aol.com

· Background Investigations

· Family & Medical Leave

· Medical Separations

· Mental Illness and Instability

· Psychological Exams - Conduct Justifying a Required Exam

· Psychological Exams - Fitness for Continued Duty

· Psychological Exams - Screening of Applicants

· Psychological Exams - Punishment for Refusal to Submit to Exam

· Stress Related - Claim Based on Dangerous Incident or Event

· Stress Related - Disciplinary Action - Punishment

· Suicide Related

· Further Reference

Note: This outline was written after Marty Mayer’s Legal Update. It only contains cases not discussed in his outline.

Background Investigations

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.).

Family & Medical Leave

Enlarging the scope of the Family and Medical Leave Act, the Third Circuit holds that the anti-retaliation provision protects employees who claim they were fired for merely asking permission to take a leave, and is not limited to those who actually exercise the right. “It would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” Erdman v. Nationwide Insur., #07-3796, 2009 U.S. App. Lexis 20979 (3rd Cir.).

Medical Separations

Judge upholds the termination of a corrections officer who was medically absent for 219 days in a two-year period. “it is well-settled law that an employee may be disciplined for medical incompetence based on excessive absenteeism due to legitimate illnesses, or even to illnesses or disabilities attributable to an on-the-job injury.” Dept. of Correction v. Duclet, #972/09 (NYC OATH).

Mental Illness and Instability

Federal Circuit vacates a Merit Board decision terminating an employee with a mental impairment. When mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, it must be taken into account when taking an adverse action against an employee. The court noted that “mental impairment” is included among the Douglas Factors that must be considered in assessing the reasonableness of the penalty Malloy v. U.S. Postal Service, #2008-3117, 2009 U.S. App. Lexis 19000 (Fed. Cir.).

Psychological Exams and Standards - 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.).

· Note: To view another outcome, see Denhof v. City of Grand Rapids, 494 F.3d 534, (Unpub. 6th Cir. 2007); prior rulings at 2003 U.S. Dist. Lexis 23125 and 23135.

Psychological Exams and Standards

- Fitness for Continued Duty or a Return to Active Duty

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.).

Psychological Exams and Standards
- Psychological Screening of Applicants

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.

Psychological Exams and Standards
- Punishment for Refusal to Submit to Exam or Cooperate

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.).

Stress Related Claims and Defenses

- Claim Based on Dangerous Incident or Event

Connecticut appellate court affirms the denial of benefits for psychic injuries suffered by a police officer who was in a gun battle at the end of a high-speed chase. Although the plaintiff’s disorder was an occupational disease, it was not compensable under the Act because it did not arise from a physical injury. Biasetti v. City of Stamford, #AC 30867, 1 A.3d 1231, 123 Conn. App. 372, 2010 Conn. App. Lexis 366.