2000 Conference materials
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International Assn. of Chiefs of Police


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Legal Update for
Police Psychologists

International Association
of Chiefs of Police
Psychological Services Section
Annual Conference - San Diego, Cal.
Nov. 12, 2000
Compiled by the
AELE Law Enforcement Legal Center



CONTENTS
Applicant Rejections
Drug Abuse and Rehabilitation
Employment Reference Misstatements - Defamation
Family Medical Leave
Handicap / Abilities Discrimination - Accommodation
Handicap Discrimination - Applicant / Employee Medical Exams
Handicap / Abilities Discrimination - Psychiatric
Pregnancy Policies and Discrimination
Privacy Rights
Psychological Counseling
Psychological Exams - Discovery
Psychological Exams and Standards
Sexual Harassment Investigations
Stress Related Claims and Defenses


Applicant Rejections

Federal judge refuses to dismiss a hiring discrimination lawsuit naming the city and a psychologist. The plaintiff claimed the evaluation was a pretext for national origin and pregnancy discrimination.

     Following her rejection as a police officer applicant, a Puerto Rican woman sued the city of Albany, N.Y., a police commander and a police psychologist. In a Title VII action filed in federal court, she alleged both pregnancy and national origin discrimination.

     The psychologist, who administered written tests to the applicant, had sent a negative evaluation. He noted that she admitted to an "ongoing occasional use of marijuana,'' and an alcohol problem. He found a "pattern of substance abuse," which was "conceptually incongruent'' with police duties.

     The plaintiff claimed her rejection was based on a discriminatory motive, not the psychological evaluation. The psychologist sought dismissal because (a) he is a nongovernmental defendant and not subject to suit under the Civil Rights Act (Sec. 1983) and (b) there is no causal connection between his alleged conduct and plaintiff's occupational loss.

     The trial court has denied the psychologist's motion. In a prior appellate case, it was held that a private psychiatrist, hired to evaluate officers, is subject to suit under Sec. 1983 "if he participates in a joint action with the state or its agents." Camilo-Robles v. Hoyos, 151 F.3d 1, 1998 U.S. App. Lexis 16263 (1st Cir. 1998); also see Cheung v. Surles, 1991 WL 128761, 1992 U.S. Dist. Lexis 12877 (W.D.N.Y.).

     The judge ruled that a psychologist can be liable to a rejected applicant if (a) the assessment is improperly performed or if (b) the psychologist acts jointly with police management to furnish a falsified basis for the rejection of an applicant. Boyd v. Albany, #99-CV-1487, 2000 U.S. Dist. Lexis 8489 (N.D.N.Y.).

* * * * *

Federal appeals court affirms the rejection of a police applicant who scored too high on the Wonderlic entry exam.

     A Connecticut corrections officer, who is a college graduate, was rejected for police employment because he scored 33 points on the Wonderlic Personnel Test and Scholastic Level Exam, revealing an equivalent IQ of 120-125. 27 others were disqualified for the same reason.

     The applicant sued in federal court, and gained national media attention after a CBS 60 Minutes vignette. Last year, the judge dismissed the action because the plaintiff failed to prove he was a member of a protected class or "suspect group." The plaintiff "may have been disqualified unwisely, but he was not denied equal protection."

     Moreover, the judge noted that "a body of professional literature concludes that hiring overqualified applicants leads to subsequent job dissatisfaction and turnover." The city used a professionally constructed test and followed the test provider's instructions.

     In affirming, a three-judge appellate panel said, "Plaintiff presented some evidence that high scorers do not actually experience more job dissatisfaction, but that evidence does not create a factual issue, because it matters not whether the city's decision was correct so long as it was rational."

     The "Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Jordan v. City of New London, 2000 U.S. App. Lexis 22195 (1st Cir. 8/23/2000), affirming 1999 U.S.Dist. Lexis 14289, 15 IER Cases (BNA) 919 (D. Conn. 1999). Text: <http://www.tourolaw.edu/2ndCircuit/>.

     » Research Note: A prior law enforcement challenge to the Wonderlic and similar tests was rejected in Reynolds v. Arizona, # 91-16189, 1993 U.S. App. Lexis 9915 (9th Cir.).

Drug Abuse and Rehabilitation

Ohio appellate court sustains the termination of a firefighter who was in a drug abuse assistance program.

     An Ohio firefighter tested positive for cocaine use in July and September of 1996. He was terminated and appealed. The trial court concluded that an 18-year firefighter "deserves the opportunity for meaningful drug treatment... before he is dismissed."

     A three-judge appeals panel has reversed. Absent a contract provision, a city is not required to provide the opportunity for rehabilitation, even on a first offense. Voluntary participation in an Employee Assistance Program does not foreclose the disciplinary action, unless this option was negotiated into the contract. Allgood v. City of Akron, #19554, 2000 Ohio App. Lexis 183, 15 IER Cases (BNA) 1818 (9th Dist.). Full text: <http://www.sconet.state.oh.us/District_Courts/>.

Employment Reference Misstatements - Defamation

Federal appeals court declines to enforce a "release" on an employment application form, because the defamatory statements allegedly were false and intentionally made.

     A former sheriff's dept. property room employee was offered a similar job by a city police dept. When contacted as a reference, the sheriff allegedly accused the job candidate of losing inventoried property, making a false insurance claim, perjury, lying in a police report and theft of personal property. The job offer was withdrawn, and the disappointed candidate sued the sheriff and county.

     The plaintiff had signed a release that authorized the release of "medical, physical and mental records or reports including all information of a confidential or privileged nature and photo copies of same if requested." It excused the recipient from any liability resulting from the providing of this information.

     The Ninth Circuit noted, in California, that "contractual releases of future liability for fraud and other intentional wrongs are invariably invalidated," citing Farnham v. Superior Court, 60 Cal.App.4th 69, 70 Cal.Rptr.2d 85 (1997). The release was invalid, and none of the statutory immunities of the sheriff or county applied. McQuirk v. Donnelley, #97-17174, 189 F.3d 793, 1999 U.S. App. Lexis 19708, 15 IER Cases (BNA) 769 (9th Cir.). Full text: <http://www.ce9.uscourts.gov/web/newopinions.nsf/>.

Family Medical Leave

Two more federal courts hold, that under the FMLA, an employer cannot require a "fitness for duty'' exam of an employee who has been certified by a physician or psychologist that he/she is able to return to work, unless the employee's post-leave behavior justifies it.

     These cases follow the reasoning of Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass.), which construed on 29 U.S. Code §2614(a)(4). That decision has been cited and followed by two more federal courts: Routes v. Henderson, 58 F.Supp.2d 959, 1999 U.S. Dist. Lexis 9835, 5 WH Cases2d (BNA) 768, 5 WHCases2d (BNA)768 (S.D. Ind.) and Underhill v. Willamina, 1999 U.S. Dist. Lexis 9722 (D.Or.).

Handicap/ Abilities Discrimination - Accommodation

Officer recovers just under $1 million. She was forced to continue working near another officer who allegedly raped her.

     A police officer that suffered from post traumatic stress disorder, resulting from the treatment she received from a coworker, sued the city for the failure to accommodate her disability. She testified she was followed, choked, raped, and burglarized by the male officer, then required to continue working only a few yards away from him. The male officer is still on the force.

     A federal jury has awarded her $964,327; another $261,930 in attorneys' fees and costs were sought from the defendants. The recovery was under the ADA; the judge dismissed a Title VII gender discrimination claim.

     The total verdict included $250,000 each, against the police chief and a former deputy chief. The jury found the two chiefs had engaged in outrageous, extreme, atrocious and intolerable conduct. Wimmer v. Stiers, #96-N-1547, 38 (1849) G.E.R.R. (BNA) 216 (D. Colo.).

* * * * *

The 9th U.S. Circuit Court of Appeals rules that employers can't refuse permission to work even if the job duties pose a "direct threat" to an employee's health and safety.

     The plaintiff was denied a job after failing a pre-employment exam. The employer's doctors found that the applicant had a liver condition the company feared would worsen in the plant's harsh environment.

     A unanimous three-judge panel held that the employer could not withhold the job. The direct threat defense permits employers to impose a requirement that "an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.'' The ADA, as written, does not include direct threats to the health and safety of the disabled individual himself.

     Courts have interpreted federal employment discrimination statutes to prohibit paternalistic employment policies. The philosophy behind the decision has supported in two Supreme Court decisions. The justices have twice rejected a paternalistic notion that a particular job may be too dangerous for a woman. A woman should be able to make that choice for herself. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977); Int. Union, UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196 (1991).

     Although this case arose in an ADA setting, the underlying reasoning would apply to other situations, such as pregnancy discrimination. Echazabel v. Chevron, #98-55551, 213 F.3d 1098, 10 AD Cases (BNA) 961, 2000 U.S. App. Lexis 11399. Full text: <http://www.ce9.uscourts.gov/web/newopinions.nsf/>.

Handicap/ Abilities Discrimination - Applicant/Employee Medical Exams

EEOC issues new Enforcement Guidance on periodic medical examinations for public safety personnel.

     The U.S. Equal Employment Opportunity Commission guidance specifically permits periodic exams "that are narrowly tailored to address specific job-related concerns." The examples permit:

     1. Visual tests and electrocardiograms, for firefighters;

     2. Blood pressure screenings and stress tests, for armed officers expected to apprehend criminal suspects.

     It specifically prohibits HIV tests for law enforcement officers because "that condition alone is not likely to result in an inability or impaired ability to perform essential functions that would result in a direct threat."

     If a public safety employer terminates or suspends a disabled employee because of the results of a medical examination, "it must demonstrate that the employee is unable to perform his/her essential job functions or, in fact, poses a direct threat that cannot be eliminated or reduced by reasonable accommodation." Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), EEOC Notice 915.002 (7/27/00). Full text: <www.eeoc.gov/docs/guidance-inquiries.html>.

* * * * * *

Federal appeals court dismisses the claim of a rejected applicant, who had been administered a pre-employment psychological test prior to a conditional offer of employment.

     A Kentucky police dept. sent an applicant for psychological testing. The results did not indicate any reasons to disqualify him. He was later rejected for prior instances of "poor judgment." In his federal suit, he noted that the ADA and regulations prohibit pre-employment medical and psychological exams until a conditional offer of employment has been made. 42 U.S. Code §12112(2)(A).

     He argued that the provisions apply to all job applicants, whether or not they have a disability, and the city was obligated to hire him. A three-judge federal appeals panel disagreed. "Poor judgment" is not a disability protected by the ADA. Bone v. City of Louisville, #99-5813, 2000 U.S. App. Lexis 14081 (6th Cir.). Text: <pacer.ca6. uscourts.gov/opinions/main.php>.

     » Editor's Note: A divided 10th Circuit panel has held that a rejected applicant can sue a prospective employer if he was asked pre-offer medical questions, even if he was rejected because he lacked the skills needed for the position. Griffin v. Steeltek, 160 F.3d 591, 1998 U.S. App. Lexis 27682, 8 AD Cases (BNA) 1249 (10th Cir.). Full text: <www.kscourts.org/ca10/>.

Handicap/ Abilities Discrimination - Psychiatric

Federal appeals court sustains the assignment of a police officer with severe depression to special monitoring unit.

     A Chicago Police officer was diagnosed with severe depression and began taking Prozac to alleviate his condition. Management placed him on medical leave, administered physical and psychological evaluations, and then assigned him to the "Personnel Concerns Program," a unit that is typically reserved for officers with disciplinary problems.

     The officer sued under the ADA and §1983. We previously reported [1998 FP 55-6] that the trial court ruled that placing an officer in a special monitoring unit because he uses Prozac violates the ADA, and that ordering a blood test for measuring his use of the drug infringed on his 4th Amendment and privacy rights. See 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).

     An appellate panel agreed that clinically diagnosed severe depression is an "impairment" under the ADA. However, management "may return [the plaintiff] to the PCP at any time without fear of incurring liability under the ADA."

     They said that it was reasonable and responsible for the officer's superiors to evaluate his fitness for duty once they learned of his treatment for depression. The plaintiff, while on Prozac, received good evaluations and otherwise performed his job in acceptable manner. Krocka v. City of Chicago, #98-2250, 203 F.3d 507, 2000 U.S. App. Lexis 1649, 10 AD Cases (BNA) 289 (7th Cir.). Full text: <http://www.kentlaw.edu/7circuit/>.

Pregnancy Policies and Discrimination

Pregnant officer who was forced to take maternity leave could sue for discriminatory treatment.

     A federal court has refused to dismiss a suit by an officer who was not allowed to work during gestation, even though her condition might have posed a danger to the fetus and the public. The officer had requested restricted duty because she feared that her regular duties would expose her to physical danger and loss of the fetus.

     When she was denied light duty, she filed an EEO complaint. Management claimed it lawfully reacted to a fear of liability to her and third parties, in light of the Supreme Court's decision in UAW v. Johnson Controls, 499 U.S. 187 (1991). In Johnson Controls, the employer had a policy forbidding women from working in positions that exposed them to lead concentrations, which could be harmful to a fetus.

     The Supreme Court held that a policy which discriminates against fertile women, but not fertile men, violates Title VII and the Pregnancy Discrimination Act. The justices said that if pregnant employees differ from others in their ability to work, they could be treated differently. Otherwise they must be treated the same as other employees for all employment-related purposes; 499 U.S. 187 at 204; 111 S.Ct. 1196 at 1206.

     In this case the court dismissed the NYC Transit Authority as a defendant, but said the superintendent of police was not entitled to qualified immunity from the officer's equal protection claim.

     Management "should have requested that [she] sign a waiver, as suggested by Johnson Controls, and that she be fully evaluated -- physically and psychologically -- by their own personnel to determine whether, in light of her and her doctor's notes, she was able to do her job."

     Instead of addressing the problem head on, management created a confusing chain of events, which implicated possible unlawful discrimination, by not allowing her to work due to an impermissible motivation (protecting her and the fetus). Dimino v. NYCTA, 64 F.Supp.2d 136, 1999 U.S. Dist. Lexis 14137 (E.D.N.Y.).

Privacy Rights

Illinois Appellate Court recognizes a cause of action for the tort of invasion of privacy where investigators, who posed as coworkers, exceeded their duties in seeking information on theft and drug use.

     Although the case arose in the private sector, the decision could apply to law enforcement agencies that cooperate with private employers who report pilferage or drug sales by their workers. A retail store distribution center that employs 500 employees engaged private investigations to gather information on theft and drug use.

     One investigator posed as a janitor; another was assigned to work in the repacking section. They were asked to detect "theft, sabotage, safety, and drug use." They sent written reports that contained information of:

     (1) Employee family matters (criminal conduct of employees' children, incidents of domestic violence and impending divorces);

     (2) Romantic interests/sex lives (number and gender of sexual partners);

     (3) Future employment plans (who was looking for another job and/or was planning to quit without advance notice);

     (4) Worker gripes about the employer; and

     (5) Personal matters and private concerns (employee health problems, paternity, and alcoholism).

     The employer's human resources director was terminated for unrelated reasons and snitched to plant employees, 55 of whom joined in a lawsuit in state court. They alleged that the employer invaded their privacy, their seclusion, and publicized private facts. They also claimed the employer intentionally inflicted emotional distress.

     A three-judge appellate panel agreed, noting there are four elements to prove that claim:

     (1) an unauthorized intrusion or prying into the plaintiff's seclusion;

     (2) an intrusion that is offensive or objectionable to a reasonable person;

     (3) the matter upon which the intrusion occurs is private; and

     (4) the intrusion causes anguish and suffering.

     They said:

     The panel said that the public disclosure requirement may be satisfied by a disclosure to an employer. To recover on the emotional distress claims, however, plaintiffs must show that the employer's conduct was extreme and outrageous and that severe emotional distress likely result. Johnson v. K Mart Corp., #1- 98-2172, 311 Ill. App.3d 573, 723 N.E.2d 1192, 2000 Ill. App. Lexis 16, 15 IER Cases (BNA) 1605 (1st District). The case is on appeal to the Illinois Supreme Court. Full text: <http://www.state.il.us/court/Opinions/AppellateCourt/2000/1stDistrict/January/HTML/1982172.htm>.

Psychological Counseling

Jury awards an ex-officer over $280,000; police psychologist informed potential victims of possible harm to them by the officer.

     A county police officer in Georgia told a psychologist, during a fitness-for-duty interview, that he had "vivid images of shooting" his captain, the chief, and up to 8 more persons. The psychologist reported the fantasies and the officer was disarmed, demoted, and eventually fired.

     He and his wife sued, alleging negligence and defamation. The defense unsuccessfully argued that the disclosures were appropriate, because a psychologist has a duty to prevent harm to third parties from a dangerous patient. Georgia statutes, however, allow disclosure only to protect children from abuse.

     A state court jury awarded the plaintiff and his wife $176,471 in damages and $103,779 in attorney's fees. Garner v. Stone, #97A-30250-1 (DeKalb Co. Ga.).

Psychological Exams - Discovery

Federal court, in a disparate treatment lawsuit, denies production of psychological reports and affirms a psychotherapist privilege in cases where employees are compelled to participate in a fitness-for-duty exam.

     A group of police officers in Trenton, NJ sued, alleging that the city has policies and practices which treat black police officers differently from white police officers in promotions, training, educational opportunities, transfers and discipline. In a documents-discovery request, they sought various psychological fitness-for-duty reports.

     The city argued that the reports were protected by the psychotherapist-patient privilege and were irrelevant because the reports were never released to the Police Dept. The plaintiffs disagreed because the officers were not seeking treatment, but were sent for fitness evaluations.

     The court noted the discovery request is governed by the Supreme Court's decision in Jaffee v. Redmond, 518 U.S. 1, 1996 U.S. Lexis 3879, 116 S.Ct. 1923, discussed at 1996 FP 139. In Jaffee, the justices recognized a psychotherapist-patient privilege, whether an exam is for diagnosis or treatment. Under the Jaffee holding, whether an employee sees a psychologist voluntarily, or is ordered to go, is not dispositive of the issue.

     The testing records of the five officers were privileged. The psychologist did not disclose any confidential information and only provided a "Pass" or "Fail" recommendation. Moreover, evidence of disparate treatment would be found in the disciplinary action taken by the Police Dept., based on a pass/fail diagnosis. Caver v. City of Trenton, #99-1636, 192 F.R.D. 154, 2000 U.S. Dist. Lexis 2907 (D.N.J.).

     » Research Note: Another federal court has come to the same conclusion. Scott v. Edinburg, 101 F. Supp. 2d 1017, 2000 U.S. Dist. Lexis 6261 (N.D. Ill. 2000).

Psychological Exams and Standards

National retailer settles a class action for using the MMPI on applicants and employees.

     Hundreds of California job candidates and current employees sued the defendant firm in federal court, claiming that the Minnesota Multiphasic Personality Inventory unlawfully invaded their privacy.

     The employer agreed to stop using the test at its 2,500 stores throughout the U.S. It also will pay $2,000 to each California employee who took the test and failed and $1,250 to those who passed the test. The total payments will reach $2 million.

     The MMPI supposedly is the most commonly used psychological test in the U.S. and is given to an estimated 10 million persons a year. Testees answered true or false to 502 statements about their religious and sexual practices and orientation. Staples v. Rent-A-Center, #99-2987, 2000 U.S. Dist. Lexis 11394 (N.D.Cal.). The news report did NOT indicate which version of the MMPI was the subject of this litigation.

      » Research Note: A California employer agreed to pay $1.54 million to settle a suit filed by security guard applicants. They objected to the used of the MMPI-I and CPI, which contained questions of a personal nature. An appellate court found the questions were too intrusive, and in violation of the state's constitutional protection of privacy.

     See: Soroka v. Dayton Hudson Corp., 8 (16) IER Summary (BNA) 1 (settlement 7/9/93); opinions at 18 Cal.App.4th 1200; 13 Cal.App.4th 192; 7 Cal.App.4th 203; and 235 Cal.App.3d 654. The California Supreme Court declined review and ordered the appellate opinions to be depublished at 822 P.2d 1327 (1992).

     For a contrary ruling, 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). It involved a preemployment exam given to firefighter applicants, which was unsuccessfully challenged by the ACLU. It also should be noted that California is one of ten states that protects individual privacy in its state constitution; the other nine are: AK, AZ, FL, HI, IL, LA, MT, SC & WA.

* * * * *

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.

      School District superiors ordered a Fitness for Duty Exam (FFDE) because a teacher "engaged in disruptive and abusive verbal outbursts" and other behavior uncharacteristic with his 18 years of unblemished service. The teacher did not submit to the exam and was fired. A state tenure commission reduced the penalty to a three-year suspension without pay.

     The ex-teacher sued, challenging the FFDE order under the ADA. He alleged that he was covered under the law because his superiors perceived him as disabled. The ADA protects persons with major life disabilities and those who are "regarded as" having those disabilities.

     In upholding the School District, a three-judge federal appeals panel said that a request for a FFDE is not equivalent to treatment of the employee. "Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims."

     They said that a request for an exam "may signal that an employee's job performance is suffering, but that cannot itself prove perception of a disability." Deteriorating performance may be linked to motivation or other reasons unrelated to disability, and even poor performance may not constitute a disability under the ADA.

     However, for an employer's request for an exam to be upheld, there must be "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job." The panel cautioned that an employee's behavior "cannot be merely annoying or inefficient to justify an examination." There must be genuine reason to question whether the worker can perform job-related functions.

     The panel noted that the ADA does not protect an employee from an employer's false accusation of having a disability. "Rather, it protects employees from employers who mistakenly treat them as if they have a disability." The law "only protects an employee who actually has or is actually believed to have a disability." Sullivan v. River Val. Sch. Dist., # 98- 2143, 197 F.3d 804, 1999 U.S. App. Lexis 30676 (6th Cir.). Full text: <http://pacer.ca6. uscourts.gov/opinions/main.php>.

* * * * *

Federal court allows a party to a lawsuit to have his lawyer present during a non-psychological independent medical exam.

     A federal court in Philadelphia has upheld the right of a litigant to be accompanied by legal counsel of one's choosing at an independent medical exam (IME) -- but not during a psychological exam, "which may depend more on unimpeded one-on-one communication between doctor and patient." Federal Rule of Civil Procedure 35(a), which governs physical and mental examinations of a party, is silent on the issue of the presence of counsel.

     The judge noted that in theory, an IME is to be scientific, rather than adversarial, "experience suggests that it is often the latter. The party being examined may have to respond to limitless questions by a trained representative of the opposing side without check." Gensbauer v. The May Dept Stores, 184 F.R.D. 552, 1999 U.S. Dist. Lexis 4543 (E.D. Pa.). Full text: <http://www.paed.uscourts.gov/documents/opinions/99D0269P.HTM>.

     Other cases have come to a similar conclusion. Shirsat v. Mut. Pharm., 169 F.R.D. 68 (E.D. Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D. Pa. 1981); and Brandenberg v. El Al Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978).

Sexual Harassment Investigations

Police dept's overly intrusive investigation of a complainant's personal life may lead to liability.

     A city's "relentless probe" of an employee who claimed she was sexually harassed by a police officer may have doomed the city's attempt to avoid liability. The police dept's investigation of the complainant's past forced her to "relive painful memories, reveal details of her private life and [to] dispute humiliating accusations which were wholly unrelated to her claim."

     Internal affairs investigators interviewed five witnesses relating to the reported assault, but interviewed 21 persons regarding the complainant's background. Detectives also checked her fingerprints, investigated her purchases and probed the contents of her employment application.

     The investigators also asked her humiliating questions (whether she was wearing any underwear, whether she had ever danced while unclothed). Detectives concluded her report was false; she was suspended without pay for 20 hours and reprimanded.

     To avoid liability for coworker harassment, a city must take corrective action reasonably calculated to end the current harassment and to deter future harassment from the same offender or others." The judge said that "a reasonable fact-finder could conclude that the City's actions were not reasonably calculated to deter future harassment."

     The IA investigation was an attempt to discredit, humiliate and embarrass the complainant while no witnesses were interviewed about the officer's credibility and background. An intrusive investigation impairs the reporting of harassment and does not deter future harassment.

     The city was granted a summary judgment on the complainant's retaliation claim, but not the harassment claim. Sarro v. City of Sacramento, 78 F.Supp.2d 1057, 1999 U.S. Dist. Lexis 19589, 81 FEP Cases 1142 (E.D. Cal. 1999). Full text: <http://www.courtinfo.ca.gov/opinions/>.

Stress Related Claims and Defenses

A California county settles an employee's PTSD disability discrimination complaint for $425,780.

     The claimant suffered from post-traumatic stress disorder. After taking a medical leave, the county disputed her physician's report that she was ready to resume employment. One of the county's doctors disagreed. As an employer, the county made no efforts to either accommodate her condition or to return her to work.

     The county has agreed to pay her $80,000 in wage losses and a retirement annuity worth $345,780 (purchased at a cost of $126,000). Cal. FEHC ex rel. Gundy v. Tulare Co., #E98-99-H-0120-00, 38 (1866) G.E.R.R. (BNA) 722 (Cal. FEHC).

* * * * *

Pennsylvania courts reject PTSD claims of two police officers. In the one case, a sergeant was indicted for manslaughter following a shooting; in the other, a violent person pointed a gun at an officer's head.

     A police sergeant shot and killed a man who had barricaded himself inside a building. After the incident, the sergeant was indicted for manslaughter; the charges were dismissed and then were refiled. He was tried and acquitted. The case attracted media scrutiny and provoked public demonstrations.

     The sergeant sought a disability pension based on PTSD. A Compensation Judge found the shooting was not abnormal for police officers, but the indictments were "abnormal working conditions." An appellate panel, concluding that the indictments were only tangentially related to working conditions, reversed that finding.

     Although an indictment is abnormal, it was not closely related to the sergeant's employment. Being threatened by an armed individual is not an abnormal occurrence for a police officer.

     The state Supreme Court divided, 3-to-3. All six agreed that the indictments, and not the shooting, caused the stress disorder. Three justices found the indictments were job-related, and three did not; the claim failed. Philadelphia v. WCAB (Brasten), 728 A.2d 938, 1999 Pa. Lexis 1298.

     In the second case, a 22-year veteran police officer attempted to serve a domestic violence warrant at a residence. The man pointed a .44 magnum 3-5 ft. from the officer's face, while holding a .22 revolver to his own head. He shouted obscenities and repeatedly threatened to kill the officer and himself. After several minutes, the officer dove at the man; both wrestled for control of the weapons, and the officer subdued the man.

     The following year, the officer filed a claim alleging work- related PTSD. Although a Compensation judge granted the petition, the Compensation Board reversed, and the officer appealed. A three-judge panel confirmed the rejection; the gun incident, although stressful and life-threatening, was an expected and anticipated event for a police officer.

     "The fact that [the officer] had never before been involved in the type of stand-off situation... merely makes the experience subjectively abnormal for [the] claimant.'' Young v. WCAB (New Sewickley Police), 737 A.2d 317, 1999 Pa. Commw. Lexis 635.

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