Selected Cases of Interest to Police Psychologists
Martin J. Mayer
Law Offices of Jones & Mayer
Contents
Cases
1. Leonel v. American Airlines, Inc., 400 F. 3d 702
2. Ward v. Merck & Company, Inc., 2006
3. Thesis v. City of Sturgeon Bay, Sturgeon Bay Police & Fire Cmsn.
4. Lentz v. City of Cleveland 2006
5. City of Pittsburgh v. Louis Wilson
6. Gross v. Town of Cicero
7. Karraker et al. v. Rent-A-Center, Inc.
8. Bicknell v. City of St. Petersburg
LEONEL v. AMERICAN AIRLINES, INC.
400 F. 3d 702 (2005)
Facts
Appellants Leonel, Branton and Fusco, who all have the human immunodeficiency virus (HIV), applied for flight attendant positions with American Airlines (American). American interviewed them and then issued them conditional offers of employment, contingent upon passing both background checks and medical examinations. Rather than wait for the background checks, American immediately sent the appellants to its on-site medical department for medical examinations, where they were required to fill out medical history questionnaires and give blood samples. None of them disclosed his HIV- positive status or related medications. Thereafter, alerted by the appellants blood test results, American discovered their HIV- positive status and rescinded their job offers, citing their failure to disclose information during their medical examinations.
Discussion
Appellants challenged Americans medical inquiries and examinations as prohibited by the Americans with Disabilities Act (ADA), 42 U.S.C 12101 et seq. (1999) and Californias Fair Employment and Housing Act (FEHA), Cal. Govt Code 12900 et seq. (1999).
The questions before the court were (1) whether the Americans medical examinations were lawful under the ADA and FEHA and (2) whether the CBC test violated the appellants rights to privacy as protected by the California Constitution.
Both ADA and FEHA prohibit employers from refusing to hire job applicants whose disabilities would not prevent them from performing the essential functions of the job with reasonable accommodation.
Both statutes prohibit medical examinations and inquiries until after the employer has made a real job offer to an applicant. A job offer is real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.
In addition, by consenting to preemployment blood tests, appellants did not consent to any and all medical tests that American wished to run on their blood samples. Under the California right to privacy, an applicant has a reasonable expectation that an employer performing blood tests outside of the ordinary or accepted medical practice regarding general or preemployment medical exams. Norman- Bloodsaw v. Lawrence Berkeley Lab., 135 F. 3d 1260, 1271
Holding
Except as to one applicants emotional distress claim, the court reversed the summary judgments. Because the company did not establish that it could not reasonably have completed the background checks before subjecting the applicants to medical examinations, the job offers were not real, the medical examination process was premature, and the company violated FEHA and ADA by penalizing the applicants for failing to disclose their status. Cal.Const.art. I, 1 privacy rights were violated because complete blood tests were performed without notice or consent.
WARD v. MERCK & COMPANY, INC.,
2006
Plaintiff Ward was hired by Defendant Merck & Co., Inc. (Merck) as a Grade 8 Staff Chemist. At the time that Plaintiff was hired, he was required to undergo a pre-placement physical examination. Based on this examination, Merck determined that Plaintiff was able to perform any job without restriction. After a few years of employment Plaintiff was diagnosed as possibly suffering from schizophrenia and instructed to seek further treatment.
Based on these submissions, Doctors recommended that Plaintiff be examined in order to assess whether he remained capable of performing the duties of his position. Plaintiff did not comply with Defendants directive because Plaintiff did not agree that he needed to have an evaluation. Plaintiff was then given a letter which advised him that he was being suspended from work with pay, effective immediately. This suspension was based on Plaintiffs refusal to agree to a Fitness for Duty evaluation.
Thereafter Plaintiff filed a Complaint claiming Defendant (1) discriminated against him on account of his disability, by creating and maintaining a hostile work environment and later terminating his employment, in violation of the ADA; (2) retaliated against him for exercising his rights under the ADA; and (3) violated the Family and Medical Leave Act (FMLA) by compelling him to take a one-month medical leave and requiring him to submit to a medical examination.
Plaintiff alleges that Merck violated the FMLA by compelling him to take leave and requiring him to submit to a fitness- for duty evaluation. Plaintiff asserts that the FMLA does not permit an employer to obtain a fitness- for- duty examination other than when the employee is seeking to return to work after leave.
The FMLA includes provisions that guide what information an employer may request when an employee seeks to return from an FMLA leave of absence. The employer may only seek fitness- for- duty certification with regard to the particular health condition that caused the employees need for FMLA leave.
Plaintiff argued that Defendants requirement that he submit to a fitness- for duty evaluation qualified as a second opinion under the FMLA However, it has been established that the FMLA does permit fitness- for- duty examinations where there exists some business need independent of the employees having taken FMLA leave. Thus, under the circumstances, the propriety of Defendants medical inquiry depended upon whether it meet the ADA standard.
Holding
The court held that Defendants requirement that Plaintiff submit to a fitness- for duty evaluation was permissible under 42 U.S.C.S. 12112(d)(4) of the ADA. The inquiry was job- related and consistent with business necessity. As such, Defendants decision to terminate Plaintiffs employment after he refused or failed to submit to the examination, is not retaliation under the ADA. In addition, the fitness- for- duty evaluation was not violative of the FMLA which permits such evaluations as long as the inquiry complies with ADA requirements.
THEIS v. CITY OF STURGEON BAY, POLICE AND FIRE COMMISSION
2006 U.S Dist. Lexis 57955 (2006)
Facts
Plaintiff Theis claims that Defendants City of Sturgeon Bay, City of Sturgeon Bay Police and Fire Commission, and Sturgeon Bay Police Chief Daniel J. Trelka violated the FMLA by terminating his employment with the Sturgeon Bay Police Department in retaliation for his exercising of FMLA rights. The defendants claim Theis was fired for insubordination after he twice refused to comply with an order that he undergo a psychological evaluation to determine whether he was fit for duty.
Discussion
Defendant alleges that the written order to receive a psychological fitness for duty evaluation was unlawful. But he provides no evidence as to why it was unlawful and offers only personal reasons as to why he should not have been ordered to undergo an evaluation. Ensuring that a police officer is mentally fit for duty is a legitimate concern in any police department. See Redmond v. City of Overland Park, 672 F. Supp. 473, 483 (D. Kan. 1987) (holding that a police department was entitled to determine an officers mental fitness for duty).
As the Eleventh Circuit noted in a related context, In any case 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 Watsons 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 Circ.1999).
Even if Defendant believed the order from the Chief was unlawful, the police departments manual of rules provides the appropriate way to handle and appeal an unlawful or unjust order. Defendant did not follow this procedure and refused to follow the order. The Chief reasonably viewed this as insubordination and initiated an internal investigation.
Holding
Defendants motion for summary judgment was granted. Because Defendant refused to comply with an order that he undergo a psychological evaluation to determine whether he was fit for duty since ensuring that a police officer is mentally fit for a duty is a legitimate concern in any police department.
2006
Plaintiff Lentz is a police officer for the City of Cleveland. Plaintiff was involved in the non- fatal shooting of Lorenzo Locklear. A news reporter published an article about the shooting in the Cleveland Plain Dealer. The article contained personal medical information about Plaintiff. Specifically, it publicized the results of two of his pre-employment psychological evaluations, which, according to Plaintiff, invaded his privacy.
Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) against the City of Cleveland for unlawful disclosure of his medical records in violation of the ADA. The EEOC issued a finding that the City of Cleveland violated the ADA by releasing Plaintiffs pre-employment psychological evaluations.
The Court granted summary judgment on the retaliation, ADA, malicious prosecution, abuse of process, and unlawful disclosure claims; and denied the summary judgment on the discrimination and 1983 claims. With regard to the invasion of privacy clam, the Court held that pre-employment psychological evaluations are not subject to public disclosure under O.R.C. 149.43
Discussion
Under Ohio law, there are three types of invasion of privacy: (1) the unwarranted appropriation or exploitation of ones personality; (2) the publicizing of ones private affairs with which the public has no legitimate concern; and (3) the wrongful intrusion into ones private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Sustin v. Fee, 69 Ohio St.2d 143, 145.
It is axiomatic that one cannot maintain an invasion of privacy claim for the publication of facts that were previously placed on the public record. Thus, the fact that information was already part of the public record is a defense to an invasion of privacy claim.
Here, it was placed on the record that one psychologist found Plaintiff to have had several instances of ether non-conforming or some type of assaultive behavior and that he may have a personality flaw that could be problematic. Another psychologist expressed concern that Plaintiff might have a temper. Because this information was already placed on the public record, Plaintiffs invasion of privacy lacked merit. Thus, Plaintiff was unable to establish that the alleged disclosure concerned his private life because he already made these facts public.
Holding
Plaintiff cannot argue that there was anything substantially invasive about local newspaper discussing his pre-employment psychological evaluations when he made them a matter of public concern by placing them on the record at two separate hearings, both of which were open to the public.
CITY OF PITTSBURGH v. WILSON, and PITTSBURGH FIRE FIGHTERS L-1, IAFF,
2005 Pta Dist.& Cnty. Dec. Lexis 365 (2005)
Facts
During pre-employment screening, the citys fire department gave firefighter candidates polygraph tests. If a candidate refused to take the test, he or she would not be hired. The citys fire chief passed over about 20 candidates as a result of background information which the candidate furnished to the polygraph examiner.
The City sought a ruling on the legality of the requirement that the candidates participate in the polygraph procedure in order to remain of the list of applicants. Otherwise, if a court, at some later date, determines that the candidates were wrongfully disqualified, the City might be required to pay back wages to persons who have not performed any services for the City.
Discussion
Pittsburgh firefighters are the first responders to medical emergencies. They also perform functions traditionally performed by firefighters that are related to fire prevention and fire fighting: They respond to fires, gas leaks, electric lines that are down, and automobile accidents.
The term field of public law enforcement is not defined. Consequently, it should be construed according to its plain meaning. McKelvey v. McKelvey, 2001 PA Super 103, 771 A.2d 63 (Pa. Super. 2001). Firefighters who respond to medical emergencies are not in the field of public law enforcement under any reasonable reading of this provision.
The court held that firefighters were not in the field of public law enforcement, one of two exceptions to the Lie Detector Tests Law set out in 18 Pa. Cons. Stat. 7321(b). However, as part of their job responsibilities, firefighters dispensed or had access to narcotics or other dangerous drugs, the other exception set out in 7321(b). Therefore, the Lie Detector Tests Law did not preclude the city from requiring candidates for firefighter positions to take polygraph tests. Moreover, the fire chief had the authority under Pittsburgh, Pa., Home Rule Charter 116.02(a) to manage and administer the fire bureau; this included the authority to develop procedures, such as polygraph tests, for obtaining information that might establish just cause for passing over a candidate on the competitive list.
Holding
The court held it cannot be contended that a polygraph test is an inappropriate test for determining the suitability of a candidate for a firefighter position. The legislature has made the determination that this is a tool that an employer may elect to use to obtain background information of job applicants who, if hired, will have access to dangerous drugs.
Judgment was entered declaring that the Fire Chief has the authority to require candidates for firefighter positions to take polygraph tests.
2006 U.S Dist. Lexis 47285 (2006)
Facts
In April of 1997, Gross was appointed by then- Cicero President Betty Loren- Maltese to the positions of Deputy Liquor Commissioner and Director of Internal Services. In January of 1998, Loren Maltese appointed Gross to the Chairman of the Cicero Board of Fire and Police Commission (the Commission).
The Commission had the sole authority to determine the qualifications of potential police. All applicants for a police officer were required to pass a psychological and polygraph test to be considered for a position. The purpose of the psychological assessment was to look for the strengths and weaknesses of candidates. The results of these tests were important factors in determining whether a candidate should be employed as a Cicero Police officer.
Gross hired certain individuals as police officers only because he was instructed to do so by Cicero President Loren-Maltese. In Gross opinion, some of the police officers he hired at the direction of Loren-Maltese did not meet the minimum standards to be a Cicero Police officer.
Specifically, Loren-Maltese directed Gross to hire Stenson as a police officer. Stenson was not a qualified candidate because both of Stensons psychological and polygraph test results were not acceptable. The doctor, who administered the test, concluded that both emotionally and interpersonally, Stenson was to be judged a somewhat bellow-average candidate for the position of a police officer for Cicero.
The Court held that Gross breached his fiduciary duty to Cicero by failing to appoint the police officers based on Grosss own judgment of the applicants qualifications; instead; Gross appointed police officers at the direction of Loren- Maltese.
A wrongdoer is liable for the entire amount of loss occasioned by his breach of fiduciary duty. Cicero sought to recover the costs to investigate and remedy the presence of unqualified police officers on the Cicero police force.
Illinois permits a complete forfeiture of any salary paid to a fiduciary during the time that the fiduciary was breaching his duty to the employer. See Vendo Co. v. Stoner, 58 Ill. 2d 289, 314; Levy v. Markal Sales Corp., 268 Ill. App. 3d 355, 373. The forfeiture of the salary is not dependent on whether the employer, as the misconduct of the agent affects the contract from considerations of public policy rather than of injury to the principal.
In Levy, the Illinois Appellate Court affirmed the trial courts order requiring the defendants, whom breached their fiduciary duty, to forfeit all salary and other benefits for the entire time that they were breaching their fiduciary duty, rejecting the defendants argument that such an award was patently excessive because it was uncontested that the defendants had continued to work diligently for the plaintiff.
The court held that Gross had breached his fiduciary duty to Cicero thus judgment was entered on the Town of Ciceros breach of fiduciary claim in favor of the Town of Cicero and against Gross.
KARRAKER v. RENT-A-CENTER, INC.,
431. F. Supp. 2d 883 (2006)
Facts
Plaintiffs sought to initiate a class action lawsuit against Defendants alleging that Rent- A- Center (RAC) required all employees or outside applicants seeking management positions to submit to a battery of nine separate written tests. One of the individual exams included in the Management test was a psychological test used by psychologists to diagnose and treat individuals with abnormal psychological symptoms and personality traits.
In addition to other claims, plaintiffs asserted that the psychological test constituted a medical exam for Americans with Disabilities Act (ADA) purposes. Plaintiff one asserted individual claims, alleging that he was retaliated and discriminated against and wrongfully terminated based upon the test results and because he had protested the use of the test. The court granted summary judgment to defendants as to all but plaintiff ones discriminatory termination claim. Following an appeal, the court entered summary judgment for plaintiffs on their ADA medical exam claim and granted summary judgment to the employer as to plaintiff ones termination claim. As a result of the ruling in plaintiffs favor, the employer voluntarily agreed to destroy all test results in its possession. The court held that plaintiffs could not recover costs and attorney fees under 42 U.S.C.S. 12205 because their success on their ADA claim was de minimis and was insufficient to support prevailing party status. Defendants did not respond to plaintiffs request that plaintiff one be compensated as class representative. Pursuant to C.D. Ill. Civ. R. 7.1(B)(1), the court presumed the request was unopposed.
Discussion
In determining whether Plaintiffs are prevailing parties in this litigation, the court found instructive the case of Barnes v. Broward County Sheriffs office, 190 F. 3d. 1274 (11th Cir. 1999). In that case, plaintiff Barnes sued the Defendant County alleging he was denied a job due to a perceived disability and due to his age. Barnes sued the Defendant County alleging he was denied a job due to a perceived disability and due to his age. Barnes also sought injunctive relief under the ADA to prohibit the defendant from conducting pre-employment psychological examinations.
With regard to Barnes claim regarding use of the psychological test, the district court found in favor of Barnes and permanently enjoined the defendant from conducting pre-employment psychological evaluations.
In affirming the district courts denial of fees, the Eleventh Circuit Court of Appeals stated, despite the fact that the court granted injunctive relief with respect to the Countys use of pre-employment psychological testing, there is neither evidence that this change in policy affected the relationship between Barnes and the County at the time judgment was rendered, nor any indication that Barnes directly benefited from injunction.
In this case, RAC had ceased administering the Management Test before Plaintiffs filed the instant action. Therefore, the only success attained by Plaintiffs was a ruling that the MMPI is a medical examination under the ADA. There is no indication in the record that there was a threat these test results could be disclosed to thirds parties or that they were used any longer in promotion decisions by RAC.
Holding
The court held that Plaintiffs success on their ADA claim was de minimis and insufficient to support prevailing party status.
BICKNELL v. CITY OF ST. PETERSBURG
2006
Facts
Plaintiff began her employment with St. Petersburg Police Department ( Police Department) as a cadet. Plaintiff joined two of her male co- workers, officers Leconte and Rivera at a local bar where they socialized, kissed, drank alcohol and became intoxicated. Plaintiff and Leconte drove to Riveras apartment were they engaged in sexual activity.
Plaintiff went to the Emergency Room to get tested for pregnancy and STDs and reported that she had been sexually assaulted by Leconte and Rivera. Plaintiffs examination suggested that she had experienced a nonconsensual sexual encounter.
Plaintiff took a few days from work and thereafter went on a voluntary medical leave for psychiatric/psychological reasons.
At the recommendation of Chief Harmon, the Police Department referred Plaintiff for a fitness for duty evaluation with Dr. Forman, a psychiatrist. Chief Harmon made the decision to refer Plaintiff for a fitness evaluation based on information he gathered form her treating psychiatrist and psychotherapist and statements made by Plaintiff that were disturbing to him. Dr. Forman concluded because of her questionable judgment, I have reservations about her returning to active duty on the streets at this time.
Plaintiff was terminated on the basis that she was unable to perform the duties of a police officer.
Discussion
The Citys decision to send Plaintiff for a fitness for duty evaluation was reasonable and not based on any discriminatory intent. Chief Harmons uncontroverted testimony provides a legitimate basis for questioning Plaintiffs fitness for duty, especially in light of her voluntary medical leave for psychiatric/ psychological reasons and her probationary status.
In support of her conspiracy claim, Plaintiff offers the testimony of Lt. Patterson, another officer at the Police Department who was sent for a fitness for duty evaluation with Dr. Forman. Lt. Pattersons testimony is limited, however, to her disagreement with Dr. Formans conclusions regarding her own evaluation with him.
Plaintiffs opinions regarding Dr. Formans evaluation of her and the conclusions he reached, standing alone, do not serve as evidence of a conspiracy. To survive a summary judgment, Plaintiff cannot rely on mere allegations of a conspiracy, but rather must provide specific facts showing that there is a genuine issue for trial.
Dr. Forman denies any conspiracy existed between himself and the City related to Plaintiffs employment or her fitness for duty evaluations and Chief Harmon testified that Dr. Formans evaluation of Plaintiff was only part of his decision to terminate Plaintiff and, assuming he had all of the same information, he would have terminated Plaintiff regardless of Dr. Formans evaluation.
Holding
The court held the Citys and Dr. Formans motions for summary judgment as to Plaintiffs conspiracy claim should be granted.
Vita
Martin J. Mayer is a name partner in the firm of Jones & Mayer (J&M) and serves as legal counsel to the Sheriffs and Chiefs of Police in approximately 70 law enforcement agencies throughout California. He serves as General Counsel to the California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA) and the California Peace Officers Association (CPOA), and has done so for approximately 25 years. Mr. Mayer is also responsible to oversee the attorneys in the firm of J&M who serve as City Prosecutor in the 16 cities where the firm provides that legal service.
Prior to merging with the Law Office of Richard D. Jones, Mr. Mayer was a name partner in the firm of Mayer & Coble, which provided legal advice and representation to police and sheriffs departments and served as the City Prosecutor for several municipalities. He is a graduate of the City University of New York and St. Johns University School of Law. He began his professional career in New York City as a deputy Public Defender and served in that capacity for five years. After relocating to California in 1975 he became the Director of the Criminal Justice Planning Unit for the League of California Cities. In 1980 he entered the private practice of law focusing on issues arising out of law enforcement.
Mr. Mayer is a graduate of the 6th FBI National Law Institute at Quantico, Virginia (designed for police legal advisors) and was the first attorney in private practice to be invited to participate in the program. He also served for nine years as a POST reserve with the Downey Police Department.
Mr. Mayer writes and lectures extensively, in California and nationally, on legal issues which impact on law enforcement including, but not limited to, the use of force, pursuits, discipline and due process, public records, personnel files, and the Public Safety Officers Procedural Bill of Rights Act. He presents on behalf of numerous statewide law enforcement associations and the California Commission on Peace Officers Standards and Training (POST). He has served on many POST committees as a subject matter expert and has participated in several POST Telecourses, which are used for training peace officers throughout the state. Mr. Mayer is also the 2005 recipient of the Governors Lifetime Achievement Award for Excellence in Peace Officer Training.