Legal
Update for Police Psychologists – 2004
|
International Association
of Chiefs of
Police, Inc.
http://www.theiacp.org/div_sec_com/sections/psych.htm
———
Wayne
W. Schmidt
• Click on the link to view the
decision
———
Contents
I -
Psychological Exams and Standards
A.
Conduct Justifying a Required Exam
B.
Equal Employment
II -
Psychological Counseling
A.
Negligent Release of a Patient
B.
Testimony Against a Patient
C. Duty to Warn
III
– Handicap Discrimination
A.
Accommodation
IV -
Miscellaneous Cases
A.
Transgendered Employees
B. Stress Related Claims and Defenses
I - Psychological
Exams and Standards
1.
Federal jury awards $325,000 to a county employee ordered to undergo a Fitness
for Duty Exam.
A
suburban
He
objected to the scheduling and lack of defined scope of the exam; he did not
submit to the testing. During a confrontation with his superiors, he was
suspended without pay until he completed the testing.
Eventually
he was fired for insubordination, and he filed suit in federal court under the
The
county argued that the court should apply a “honest
belief” rule so as to prevent the employer from assuming the role of a doctor
in deciding whether there is a legitimate business need for an examination. The
judge declined, stating that “an objective or reasonable person standard” is
more appropriate, and that “a reasonable person in this context is a reasonable
employer, not a reasonable physician.”
The
ultimate question was whether a reasonable jury could find
that the mental evaluations were or were not consistent with business
necessity. The jury found the county unlawfully ordered him to undergo a
psychiatric examination, and also had retaliated against him for complaining
about coworker harassment. The jury rejected his “perceived-as-disabled” claim
under the
The
jury awarded him $325,000 for emotional distress. The verdict did not include front
pay, back pay or attorney’s fees, which will be determined by the court.
See:
(a)
the docket entry of the verdict (2003)
(b) a post verdict order at
2004 U.S. Dist. Lexis 12725 (2004)
(c)
a pre verdict ruling at 2003 U.S. Dist. Lexis 16244
(2003)
(d) an earlier interim ruling at
2002 U.S. Dist. Lexis 7726 (2002)
2. Seventh
Circuit reverses the dismissal of a suit against a police psychologist, the
village and others, where the plaintiff officer was ordered to submit to an
intrusive fitness-for-duty exam after he narrowly lost an election to the
incumbent mayor. Case settles.
After
running against the mayor and losing by a narrow margin, a suburban
He
sued the village, the chief, a lieutenant, and the lawyer-psychologist that was
hired to assess his fitness for duty. The U.S. District Court granted summary
judgment in favor of the defendants; the Seventh Circuit has reversed.
The psychologist had found that the officer displayed narcissistic, paranoid and histrionic traits, but not rising to the level of a diagnosable personality disorder. He also observed a “marked tendency to make inferences based on highly tenuous evidence.”
He
concluded that the officer should “undertake a [three-month] course of
psychotherapy directed toward helping him gain insight into the vagaries of his
reasoning processes, their potential for disruption in the police department
and the community, and the relationship to his own psychological needs and
functioning.”
Should
the officer refuse, the psychologist said that he should be “found unfit for
full active duty due to his potential for undermining the essential
quasi-military hierarchical structure of the police department, undermining the
essential element of morale in the police department, and undermining the
essential element of the police department’s having good relationships with
external agencies in the community.”
Thereafter
the officer was served with a litany of charges, including falsely accusing the
chief of mishandling records, improperly criticizing the handling of a DUI arrest,
initiating unwarranted investigations, failing to agree to enter into
psychotherapy and various minor deportments.
The
three-judge appeals panel said “We need look only as far as the psychological
evaluation and the administrative charge[s] filed against [the plaintiff] to
confirm that [his] speech played a significant role in the department’s
determination to fire him.”
They
said that “effective police work would be hopelessly compromised if supervisors
could retaliate against police officers for communicating factual details that
bear on the department’s ability to conduct an objective investigation.”
The
plaintiff maintained that management had no valid reason to order him to submit
to the fitness exam in the first place and was “simply trying to manufacture a
reason to fire him in retaliation for his exercise of his First Amendment
rights.” The appeals panel said that under any
”Under
these circumstances,” they said, the plaintiff “ is entitled to have a jury
hear his claim and determine whether the defendants reasonably ordered the exam
and whether the disclosure and republication exceeded the scope necessary to
determine fitness for duty.”...
The
panel reversed the district court’s judgment in favor of the defendants and
remanded the case for a trial on the merits. The defendants were not entitled
to qualified immunity since the state of law, during the relevant time period,
gave them fair warning that their treatment of the plaintiff was
unconstitutional. McGreal v. Ostrov, 368 F.3d 657 (7th
Cir. 2004).
è Note: On remand, a
jury was selected. After four days of trial, the defendants settled for
$900,000 and the case was dismissed. Case No. 98-CV-3958, Docket entry No. 177 (N.D. Ill.
B. Equal Employment
1. Update: In 2005, the
Seventh Circuit Court of Appeals reversed Karraker v. Rent-A-Center,
316 F.Supp.2d 675 (C.D. Ill. 2004). See the 2005
Outline.
II -
Psychological Counseling
A. Negligent Release of a Patient
1. In California, a treating psychiatrist or psychologist who
releases a patient simply because he has no insurance, when the patient has
been involuntarily committed under state law as a danger to himself and others,
may be liable to the patient and any person that patient injures. Immunities
for treating psychiatrists were not applicable.
Bragg
v. Valdez, 111 Cal.App.4th 421, 3 Cal.Rptr.3d 804; rehearing denied, 2003 Cal.
App. Lexis 1427 (2d Dist. 2003).
B. Testimony Against a Patient
1. The
Ninth Circuit has ruled that therapists may not testify in a criminal case
against a patient who makes dangerous or threatening confessions during
therapy.
Although psychiatrists and psychologist
may report situations that could lead to violence, an en banc panel ruled 8-3
that prosecutors cannot use testimony from therapists to help convict their
patients. U.S.
v. Chase, 340 F.3d 978 (En Banc 9th Cir. 2003), cert. denied, 2004 U.S.
Lexis 1682 (2004).
C. Duty to Warn
1.
When a communication of the serious threat of physical violence is received by
a therapist from a member of the patient’s immediate family and is shared for
the purpose of facilitating and furthering the patient’s treatment, the fact
that the family member is not technically a “patient” does not defeat the
psychotherapist-patient privilege.
However, a therapist has a duty to warn a
third person if he believes his patient poses a serious risk of grave bodily
injury to another. The case involved a former LAPD officer who murdered a man
and then killed himself. Ewing v. Goldstein, 120 Cal.App.4th
807, 15 Cal.Rptr.3d 864 (2d App. Dist. 2004).
III – Handicap
Discrimination
1. Third Circuit holds that a police sergeant, who for psychological reasons cannot be entrusted with a firearm, is entitled to a reasonable accommodation with a position that does not require him to be armed. The District Court failed to consider whether the plaintiff’s inability to carry a firearm would prevent him from performing work in a “class of jobs.”
After being confronted by a superior officer about his fractious
interactions with other employees, a Housing Authority police sergeant yelled
and made a number of profane and threatening remarks. He was immediately
suspended without pay.
Later that evening, the sergeant called a
counselor with a psychological service and talked of “smoking people, going
postal, and having the means to do it.”
A police psychologist conducted a fitness
for duty examination, and concluded that the sergeant should not resume active
duty, unless he is under the proper care of medical and psychological
personnel. He noted that the sergeant needed psychological treatment for
depression and stress management.
The psychologist found that the sergeant
was fully capable of working in either an administrative or clerical capacity,
but should not carry a weapon for a minimum period of three months. He
anticipated that the sergeant would be able to fully return to active duty
after the three-month period, pending a reevaluation.
Although the sergeant had requested an
unarmed assignment in the training division, after exhausting his sick leave he
was terminated. He sued under the
A three-judge panel reversed. In a case of
first-impression, the panel said a person who is “regarded as” disabled also is
entitled to an accommodation. They rejected the employer’s assertion that only
persons who are actually disabled must receive accommodation.
They noted that the term ‘substantially
limits’ means significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills and abilities, citing 29
C.F.R. §1630.2(j)(3)(ii)(C).
They agreed with the District Court that
the plaintiff was not precluded from a “broad range of jobs.” However, the
regulation also protects a person who is prevented from working at a “class of
jobs.” They added:
“It is clear from the
regulations that, even if one has the ability to perform a broad range of jobs,
one is nevertheless disabled if one is significantly restricted in one’s
ability to perform most of the jobs in one’s geographical area that utilize
training, knowledge, skills and abilities similar to the job one has been
disqualified from performing.”
Because the plaintiff was unable to work
as a law enforcement officer without wearing a
firearm, his discrimination claim should not have been dismissed. The panel
remanded the action for further fact-finding. Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751 (3rd Cir. 2004).
2. Appeals court affirms the firing of a special agent who suffered from psychological disorders. The fact that, in an unrelated decision, her disability pension application was denied because her condition did not affect her ability to perform her duties, was of no consequence. The termination was based on substantial evidence that she was unable to perform adequately as an investigator and could not be reasonably accommodated by the Justice Dept.
In 1991 the appellant was hired by the INS as a special agent. She was terminated in 1998 for lying under oath, but was reinstated following an appeal.
She filed a civil lawsuit against three
Special Agents in the Office of Inspector General. During the trial her
attorney called her treating psychologist who testified that she was diagnosed
with several psychological conditions. The U.S. Attorney’s Office notified the
INS of this testimony, which triggered an investigation that led to her
dismissal.
She filed a grievance. The arbitrator
concluded that she was not fit to perform the duties of a criminal investigator
or any other job at the INS. He relied on the psychologist’s courtroom
testimony and that of an expert called by the INS, who testified that her
conditions were chronic. The expert said that she suffered from an adjustment
disorder with anxious mood, somatization disorder
with prominent hypochrondriacal and a personality
disorder.
She then applied for disability benefits.
To her horror, the claim was denied. She was told that her condition “is not
serious enough to be considered disabling ... and how your condition affects
your ability to work.” The medical reports considered by the Social Security
Administration were after the arbitration decision.
Although it was noted that she has
“occasional episodes of anxiety and depression,” the SSA concluded that she had
“no permanent mental disorder which would prevent [her] from doing normal daily
activities” and that her “condition should not affect [her] ability to work.”
She appealed the arbitrator’s decision,
and cited the SSA benefits decision that her disability did “not affect [her]
ability to work.”
A three-judge appeals court panel
distinguished the two rulings. The fact that, after the arbitrator’s ruling,
the Social Security Administration and the Office of Personnel Management
denied her disability benefits claim had no bearing on the propriety of the
arbitrator’s decision.
The disability pension decision was based
on different evidence and concerned a different period than was under
consideration by the arbitrator. More importantly, the appellate court was
reviewing the arbitrator’s decision and not the pension determination.
Two wrongs would not make a right. Because
the arbitrator’s decision was supported by substantial evidence, it must be
sustained. Bullock v. INS, 99 Fed. Appx. 890,
2004
IV -
Miscellaneous Cases
1.
Sixth Circuit resurrects the discrimination and retaliation claims of a pre-op
transsexual fire lieutenant, who suffered insults and disciplinary action, and
who was to take at least three psychological fitness exams with the hope that
he would resign.
Smith v. City of Salem, 378 F.3d 566
(6th Cir. 2004).
B. Stress Related Claims and Defenses
1. The
President has signed legislation creating a presumption that public safety
officers who suffer a fatal heart attack or stroke died in the line of duty for
purposes of federal survivor benefits.
The Public Safety
Officers’ Benefit Act death payment for 2003 was $267,494, and is indexed
annually. Hometown Heroes Survivors
Benefits Act of 2003, 42
2. Postal worker who had witnessed the 1986 massacre in
Edmond,
Mason v. Avaya, 357 F.3d 1114 (10th Cir. 2004).
3. NYC judge overturns decision to deny disability benefits
to a former NYPD internal affairs officer that uncovered corruption and then
(a) suffered harassment by a few anonymous coworkers, (b) was given undesirable
assignments and (c) was subjected to the silent treatment by other officers.
Matter of Jeffrey W. Baird v. Kelly, 3 Misc.3d 1104A, 2004 N.Y. Misc. Lexis 554, 2004 NY Slip Op 50394U (2004).
4. A flight attendant scheduled to work on United Airlines
flight 93 that was hijacked on Sep. 11, 2001 was ineligible for workers
compensation benefits.
Her post-traumatic stress disorder was not
triggered while at work. “If we were to accept petitioner’s argument, off-duty
police officers, firefighters, and others whose jobs are inherently risky could
seek compensation benefits when a fellow employee was injured or killed while
taking the employee’s place ...[and] ... no authority
exists to support that position.” Stroka v. United
Airlines, 364 N.J. Super. 333, 835 A.2d
1247 (N.J. App. Div. 2003); appeal denied at 179 N.J. 313, 845 A.2d 138 (2004).