Legal Update for Police Psychologists – 2004



International Association

of Chiefs of Police, Inc.

Police Psychological Services Section

Annual Conference – Los Angeles, CA

November, 2004


Compiled by

Wayne W. Schmidt

AELE Law Enforcement Legal Center



• Click on the link to view the decision



I - Psychological Exams and Standards

A. Conduct Justifying a Required Exam

B. Equal Employment Opportunity Commission

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


A. Conduct Justifying a Required Exam


1. Federal jury awards $325,000 to a county employee ordered to undergo a Fitness for Duty Exam.


     A suburban Chicago county worker complained to management that he was the victim of hazing and harassment by coworkers, who were verbally humiliating him. The county ordered him to submit to a psychiatric exam after two workplace accidents, prior incidents of his confusion, getting lost while driving on his assignment routes, and forgetting his superior’s instructions.


     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 ADA. Although he denied he was disabled, he claimed his superiors “perceived” him as disabled, and were retaliating against him for making the harassment complaint. He offered to settle the lawsuit for $150,000 and the county declined.


     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 ADA.


     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. Jackson v. Lake County, No. 01-CV-6528 (N.D. Ill. 2003).



(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 Chicago police officer found himself the target of a campaign to fire him. He allegedly was forced to use sick pay benefits during a suspension, in retaliation for initiating investigations against village’s mayor and other officials, as well as for criticizing police chief.


     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 Illinois law, management was not entitled “to force the disclosure of the intimate and irrelevant details of [the plaintiff’s] home life.”


     ”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. Oct. 1, 2004).



B. Equal Employment Opportunity Commission


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


A. Accommodation


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 ADA. The trial court found that because the sergeant could perform a broad range of jobs, he was not “disabled,” and was not entitled to accommodation; the sergeant appealed.


     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 U.S. App. Lexis 9030 (Fed. Cir. 2004).


IV - Miscellaneous Cases


A. Transgendered Employees


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 U.S. Code §3796(k), Pub. L. No. 108-182.


2. Postal worker who had witnessed the 1986 massacre in Edmond, Okla. was “disabled” with PTSS – but was not a qualified individual because she was unable to work in an office.


     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).