IACP Annual Conference

International Association of Chiefs of Police, Inc.

116th Annual Conference, Denver, Colorado

October 4, 2009

Supplemental Cases for Police Psychologists

Compiled by the AELE Law Enforcement Legal Center

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

Disabilities Discrimination

- Psychiatric

Rejecting First Amendment and disabilities discrimination claims, the Seventh Circuit upholds the termination of a county physician. Management presented undisputed evidence that it fired the plaintiff because he had threatened to kill his superior and coworkers. Bodenstab v. County of Cook, #08-1450, 569 F.3d 651, 2009 U.S. App. Lexis 13313 (7th Cir.).

Malpractice

- Fitness for Duty Evaluation

Arizona appellate court upholds a $5 million medical malpractice verdict, of which 28.5% was assessed to a physician who offered the deceased no treatment, and only gave an assessment of his job-related back injury. The three-judge panel rejected the argument that it was not foreseeable that the person examined would die of a drug overdose four years later. “... even absent a formal doctor-patient relationship, a doctor conducting an Independent Medical Examination (IME) owes a duty of reasonable care to his or her patient. ... Foreseeability is not a factor when deciding whether a duty exists.” Ritchie v. Krasner, #1 CA-CV 08-0099, 2009 Ariz. App. Lexis 78.

Psychological Exams

- Reasons Justifying Rejection of an Applicant

Federal court refuses to dismiss a gender bias claim against a military contractor that rejected an application as a police advisor because she failed a psychological screening. The applicant was an El Paso police officer, and had passed a second psychological screening when she was reinstated by the El Pas Police. The psychologist who rejected her was an agent of the employer; his “non-contestable” evaluation was the sole basis upon which employer withdrew its offer.

Although the psychologist determined that the applicant (a) was not “particularly skilled at establishing appropriate friendships,” (b) tended to overestimate her assets and successes and (c) “has very high expectations of herself which are difficult to meet,” he repeatedly focused on her “ability to handle the sexual advances of the opposite sex” and displayed a “purportedly contemptuous attitude” to her having out of wedlock child at age 18. Jimenez v. Dyncorp Intl., #3:08-CV-174, 2009 U.S. Dist. Lexis 64187.

Psychological Exams
- Retaliatory or Discriminatory Reasons Alleged

Fifth Circuit rejects a disability discrimination that management ordered a psychological evaluation of a public employee related to theft accusations, but did not order the same evaluation for a coworker. The panel noted that the appellant failed to demonstrate “why a mere examination would qualify as less favorable treatment.” Citing Benningfield v. City of Houston, 157 F.3d 369 at 376 (5th Cir. 1998), a referral for psychological testing is not an adverse employment action.” Rather, the referral was designed to gather facts to form the basis for an employment decision.” Wilson v. City of Baton Rouge, #08-31018, 2009 U.S. App. Lexis 10555 at fn. 2 (Unpub. 5th Cir.).

Stress Related Claims and Defenses

- Disciplinary Action

Two years prior to his retirement, a deputy sheriff with 25 years of service was accused by the media of colluding with a murder suspect. He was fired, and later rehired, but was assigned to lesser duties. He sought work-related disability retirement benefits. Because the State’s psychiatrist testified that his symptoms were exacerbated after he was initially fired due to a false accusation, it was a line-of-duty incidents. Debilitating anxiety or stress over loss of duties can be considered a work-related injury, even if there were significant outside stressors. Jernigan v. Florida Mgmt. Serv., #1D07-5011, 995 So.2d 996, 2008 Fla. App. Lexis 16213 (1st Dist.).

Recent AELE Monthly Law Journal articles of interest to psychologists and other counselors

• Domestic Violence and the Reluctant Victim, 2009 (4) AELE Mo. L. J. 501

• Legal Challenges to Police and Fire Chaplain Programs, 2009 (4) AELE Mo. L. J. 201.

• Police Interactions With Autistic Persons, 2009 (7) AELE Mo. L. J. 101.

• Transsexual Prisoners: Protection From Assault, 2009 (7) AELE Mo. L. J. 301.
• Transsexual Prisoners: Medical Care Issues, 2009 (8) AELE Mo. L. J. 301.

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