Legal Update for Police Psychologists – 2005

 

  

International Association

of Chiefs of Police, Inc.

Police Psychological Services Section

http://www.theiacp.org/div_sec_com/sections/psych.htm

Annual Conference – Miami Beach, FL

October, 2005

———

Compiled by

Wayne W. Schmidt

AELE Law Enforcement Legal Center

http://www.aele.org/

* aele@aol.com

 

 

Psychological Exams - ADA Compliance

     Karraker v. Rent-A-Center (7th Cir. 2005)

Psyhological Exams - Fitness for Continued Duty

     Denhof v. City of Grand Rapids (W.D. Mich. 2005)

Psychological Exams - Conduct Justifying an Exam

     • Caver v. City of Trenton (3rd Cir. 2005)

Psychological Exams - Return to Duty Hearing Requirements

     Deen v. Darosa (7th Cir. 2005)

Psychological Exams - Privacy

     Greenawalt v. Indiana Dept. of Corr. (7th Cir. 2005)

Stress Related Claims

     • Lewis v. N.C. Dept. of Corr. (N.C. App. 2004)

 

Click on the link to view the decision

 

 

EDITOR’S FOREWORD

 

Five cases are featured in this document (and a sixth case is noted in brief).

 

  • The Karraker case (discussed in last year’s outline) was reversed. The Seventh Circuit concluded that the MMPI may not be used as a personality test because it is a medical exam within the meaning of the ADA.

 

  • The Grand Rapids case holds that “Assuming plaintiffs’ allegations are true and [the psychologist] intentionally found [the plaintiffs] unfit for duty knowing his findings were erroneous and had no objective basis, and knowing his findings would cause each plaintiff to lose her job, his conduct would amount to more than an indignity, annoyance or petty oppression.”

 

  • The Trenton case holds that ordering an officer “to see a psychiatrist, without more, did not adversely affect his status as an employee. An adverse employment action involves some harm to an employee’s employment opportunities.”

 

  • The Illinois State Police case (Deen v. Darosa) notes that “the distinction between disciplinary and medical proceedings in the public employment context are susceptible to manipulation by a public employer” but a plaintiff must present any evidence that a decision to terminate employment “was a pretext for removing him because of misconduct” or other improper reason.

 

  • The Indiana Corrections case notes that the “Fourth Amendment does not provide a remedy for the unpleasantness of being subjected to a psychological test.”

 

 

FEATURED ARTICLES

 

Psychological Exams and Standards – ADA Compliance

 

Federal appeals court reverses a trial court decision that found that an employer's use of the MMPI for promotional screening did not violate the ADA. The Seventh Circuit found it irrelevant that the test was not interpreted by a psychologist or used for diagnostic purposes.

 

Last year a federal court in Springfield, IL, found that the MMPI is a psychological test designed to measure personality traits. Although the MMPI can be used in a clinical setting, the District Judge found that the employer “used it solely for the purposes of discerning personality traits of its employees and applicants.”

 

Because the test was not interpreted by a psychologist with the intent of diagnosing impairments, it was not a “medical examination” for purposes of the ADA. The plaintiffs appealed.

 

A three-judge panel has reversed. They agreed with the lower court that psychological tests that are designed to identify a mental disorder or impairment are medical examinations, but psychological tests that measure personality traits such as honesty, preferences, and habits are not.

 

However, the fact that a psychologist does not interpret the MMPI is not dispositive. They wrote:

 

“The problem with the district court's analysis is that the practical effect of the use of the MMPI is similar no matter how the test is used or scored--that is, whether or not [the employer] used the test to weed out applicants with certain disorders, its use of the MMPI likely had the effect of excluding employees with disorders from promotions.   *  *  *

 

“Because it is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination. And even though the MMPI was only a part (albeit a significant part) of a battery of tests administered to employees looking to advance, its use, we conclude, violated the ADA.”

 

Karraker v. Rent-A-Center, #04-2881,411 F.3d 831, 2005 U.S. App. Lexis 11142 (7th Cir. 2005); 316 F.Supp.2d 675 (C.D. Ill., 2004) reversed.

 

• Click here to view the opinion on the Internet. [PDF]

 

 

Psychological Exams and Standards - Fitness for Continued Duty

 

Federal court overturns a $5 million verdict awarded to two women police officers, who were separated after unfavorable fitness exams ordered after they filed an unsuccessful suit in state court alleging sex discrimination and sexual harassment. “Twelve different psychologists can give twelve different opinions about whether a police officer is fit for duty.”

 

Two women Grand Rapids police officers filed a state-based civil rights action for gender discrimination. Management retained a physician and a psychologist to conduct fitness for duty evaluations. Both officers were found unfit for continued service and were terminated.

 

A Circuit Court jury ruled for the defense. They then filed a federal civil rights action against the city and named various police officials, claiming retaliatory treatment and the intentional infliction of emotional distress.

 

They also asserted a claim of intentional infliction of emotional distress against the examining psychologist. He had found that one of the plaintiffs “mismanages” her emotions and was unfit for duty. In response, she alleged that management “refers female officers who complain of sexual harassment/discrimination to [the psychologist] for evaluation and [the psychologist] inevitably finds them unfit for duty.

 

The psychologist concluded that other plaintiff had a personality disorder, although he allegedly had not done any testing. She responded that he did not find a personality disorder during his evaluation of her seven years earlier.

 

Both plaintiffs submitted reports from three doctors who evaluated them and found them fit for duty. One of those doctors claimed the police psychologist’s fitness-for-duty report raised questions as to unethical treatment of one of the plaintiffs, a “failure to utilize accepted standards of testing in evaluation,” and an “unscientific and improper use of psychology”.

 

In declining to dismiss the claims against the psychologist, the then federal judge noted that the plaintiffs had alleged that he had found each of them unfit for duty although there was no medical basis for either diagnosis, and had intended to find them unfit before he ever interviewed them and regardless of what the interviews revealed. The judge wrote:

 

“Assuming plaintiffs’ allegations are true and [the psychologist] intentionally found them unfit for duty knowing his findings were erroneous and had no objective basis, and knowing his findings would cause each plaintiff to lose her job, his conduct would amount to more than an indignity, annoyance or petty oppression. Reasonable triers of fact could differ as to whether it amounted to extreme and outrageous conduct.”

 

As the suit progressed, a different federal judge took charge of the case. In November of 2004, the plaintiffs agreed to release the police physician and police psychologist from the federal lawsuit. The judge also dismissed the claims against the police chief and others, but not the city.

 

In December of 2004, the jury awarded each of the plaintiffs $2.5 million -- $1 million in compensatory damages, $223,080 in back pay and $1,276,920 in front pay. In January of 2005, the judge issued a judgment, confirming the verdicts.

 

The city moved for a defense judgment, and asked the court to set aside the jury verdicts. On May 26, 2005 the court agreed to do so. The judge noted that one of the plaintiffs was ordered to take a fitness-for-duty exam after she had claimed that someone tried to break into her home and someone followed her to work. She asked her sergeant to “spread the word” that she will shoot anyone who attempts to break into her home.

 

He noted that the other plaintiff was ordered to take a FFDE because she exhibited “symptoms of depression, anxiety, sleep disturbance, panic attacks and other forms of stress.” She also indicated that “Someone is spying on me. Someone is persecuting me. Someone or a group is plotting to harm me.” She complained of a phone tap and hidden cameras.

 

The judge found it of no merit that other doctors retained by the plaintiffs concluded that they were fit for duty. The judge wrote:

 

“... this case is not about psychologist malpractice or whether [his] conclusions and reports were sound or correct. ... twelve different psychologists can give twelve different opinions about whether a police officer is fit for duty. This is not a hard science that may be validated through objective testing such as chemical, physical, or mathematical analysis.”

 

The police physician was entitled to rely on the police psychologist’s report. Initiating action to remove them from service, after a negative FFDE, was not improper because the plaintiffs were unable to show that they were treated differently than other similarly situated officers.

 

The court found that the city was entitled to judgment as a matter of law. Plaintiff Patricia Denhof filed a Notice of Appeal on June 10, 2005. Denhof v. City of Grand Rapids, #1:02-cv-275 (W.D. Mich. 2005); prior rulings at 2003 U.S. Dist. Lexis 23125 and 23135.

 

    • Click here to view a menu to view an interim ruling, the verdicts, the judgments, and the May Opinion and Order overturning the verdicts.

 

    • Reference article:Psychological Fitness-For-Duty Examinations: Practical Considerations for Public Safety Departments,” by Gary L. Fischler, Ph.D. (2001). [PDF]

 

 

Psychological Exams and Standards –

Conduct Justifying a Required Exam

 

Third Circuit affirms a trial court order dismissing a retaliation and racial discrimination lawsuit filed by an officer that management sought to terminate for psychological reasons. Placed on light duty, disarmed, and later terminated, the officer eventually was reinstated with back pay, lost benefits, and his legal fees and costs. Although management may have overreacted to the plaintiff's complaints, the city relied on the psychological recommendations of professionals.

 

Several officers filed a racial discrimination lawsuit against the Trenton, N.J., Police Division. Officer Davis had valid complaints about the radio room, and claimed these were racially motivated actions.

 

His superiors felt he was acting “paranoid” about the radio room problems, and ordered two successive psychological examinations. Although the first FFDE was negative, the second evaluation reported that Davis was developing a psychiatric disorder that required treatment. The examiner recommended that Davis not be permitted to patrol with a gun.

 

Management confiscated Davis’ gun and assigned him to light administrative duty. Davis was ordered to undergo further psychological testing. It was determined that he was not fit to return to full duty.

 

Davis privately sought treatment and after nine months of treatment he sought reinstatement. He also privately sought the opinion of yet another doctor and got a full psychiatric exam. It also indicated that Davis was fit for duty, but that report apparently had no impact on the city’s view of his fitness.

 

The city held a departmental hearing to determine whether Davis was psychologically unfit and should be discharged. Davis attended the hearing with counsel but did not present any testimony or evidence. He was officially terminated and appealed.

 

On appeal, an Administrative Law Judge conducted an extensive hearing and found that Davis was fit for duty and that the opinions of the city’s two experts were inaccurate. She also found that the city “improperly placed Officer Davis on light duty, improperly removed his weapon, improperly issued him an official warning, [and] improperly placed him on ‘out sick’ status. ...”

 

The Administrative Law Judge went on further to state that management was irresponsible in its handling of Davis’ radio room complaints and that supervising officers used his complaints as a basis “to intimidate him further by sending him for fitness for duty evaluations.”

 

The Administrative Law Judge found that “this was deliberately done to either: seek his removal from the police department; to cause him to cease expressing his legitimate concern over issues regarding safety of officers and the residents of Trenton; or have him quit his job.”

 

Moreover, she found that the Internal Affairs investigation into the radio room incidents was a “sham,” as was a superior’s memo expressing concern about Davis’ mental state. She ordered Davis reinstated to his full duties and awarded him back pay and attorneys’ fees. The city did not appeal.

 

In the federal lawsuit, Davis claimed that the city unlawfully retaliated against him because of his radio room complaints. The New Jersey whistleblower law makes it unlawful for an employer to take retaliatory action against an employee

 

The federal District Court held that a requirement to undergo psychiatric evaluations does not constitute an adverse employment action, and that any subsequent adverse employment action was not taken because of his whistleblowing.

 

On appeal, a three-judge panel said:

 

“We agree with the District Court that ordering Davis to see a psychiatrist, without more, did not adversely affect his status as an employee. ‘An adverse employment action involves some harm to an employee’s employment opportunities.’  ...

 

“Where an officer is not guaranteed a negative evaluation upon entering the psychiatrist’s office, merely being required to undergo an evaluation does not harm the officer’s employment opportunities.”

 

The panel added that the referral of a police officer for psychological testing to determine fitness for duty, in and of itself, is not an adverse employment action. 

 

On the other hand, his transfer to administrative duty was an adverse employment action because the administrative position carried much less prestige than did his position as a K-9 officer, and he was forced to turn over his weapon, thereby preventing him from performing many of the normal duties of a police officer. “Thus, the transfer to light duty was essentially a demotion.”

 

However, Davis did not allege that management relied on anything other than the psychiatric reports when they decided to assign him to light duty. The proximate cause of his demotion was the mental health professionals’ diagnosis that he was unfit for duty, not his supervisors’ recommendations.

 

The panel affirmed the District Court’s grant of summary judgment in favor of the city. Caver et al.  v. City of Trenton, #04-2600, 2005 U.S. App. Lexis 18432 (3rd Cir. 2005).

 

• Click here to view the opinion on the Internet. [PDF]

 

 

Psychological Exams and Standards -

Return to Active Duty Hearing Requirements

 

Federal appeals court upholds management’s decision not to reinstate a psychologically unstable state police sergeant after he sought to return from a long medical leave. Only a minimal hearing is required to satisfy due process.

 

In 1997, following allegations of misconduct, a police psychologist examined an Illinois State Police sergeant and determined that he suffered from paranoid personality disorder and was emotionally incapable of performing the duties of a state police officer. He went on extended sick leave, and sought reinstatement in late 2000 when his leave benefits ran out.

 

Management ordered a second FFDE with a different psychologist. He did not diagnose a paranoid personality disorder, but found severe stress and depression caused by a bitter divorce and family trouble. He concluded that the sergeant still had the potential to develop recurring depression with pseudodelusional features that might not respond well to treatment.

 

The second psychologist advised the management that if the sergeant were to resume active duty, “the department would have to monitor his response to stress and provide quick, extensive support services should there be a recurrence of his psychological problems.”

 

Management chose not to reinstate the sergeant, and a hearing was held before the Medical Review Board in 2001. The board heard evidence from the sergeant’s physician, but determined that he was unfit for reinstatement.

 

The sergeant sued, claiming due process violations. The District Court rejected the sergeant’s claims, and a three-judge appeals panel affirmed the result. The panel said the sergeant lacked any entitlement to reinstatement and that the defendants’ refusal to reinstate him was not the equivalent of termination.

 

“It did not lead to termination or even in the short term to a diminution in pay or benefits. Instead, it led to his remaining on medical leave, a status that accorded him full pay and benefits.  *  *  *

 

“We recognize that the distinction between disciplinary and medical proceedings in the public employment context are susceptible to manipulation by a public employer who, for whatever reason, prefers not to proceed against an employee in a disciplinary setting. But [the appellant] has not presented any evidence that the ISP’s approach to his reinstatement from medical leave was a pretext for removing him because of misconduct.”

 

Because the sergeant did not have a constitutionally protected property interest in reinstatement itself, but “had a more limited interest in an opportunity to establish his fitness for return to active duty, he was not owed the full complement of due process protections set forth in Loudermill.”

 

Deen v. Darosa, #04-2072, 414 F.3d 731, 2005 U.S. App. Lexis 13568, 23 IER Cases (BNA) 195 (7th Cir. 2005).

 

• Click here to view the award on the Internet. [PDF]

 

 

Psychological Exams and Standards - Privacy

 

Federal appeals court rejects the claim that an employer-mandated psychological exam is a Fourth Amendment intrusion; privacy invasion claims should be filed in state, not federal court.

 

     Two years after the plaintiff was hired by the Indiana Department of Corrections as a research analyst, she was told that to keep her job she would have to submit to a psychological examination.

 

     The record is silent about the reason for ordering the test, but she complied and sued under §1983 seeking damages and to expunge the results from her personnel file.

 

     The two-hour test allegedly inquired into details of her personal life. She claimed the test was an unreasonable search in violation of her Fourth Amendment, invaded her privacy and deliberately inflicted emotional distress.

 

     The District Court rejected her claims; the Seventh Circuit affirmed, writing:

 

“... we do not think that the Fourth Amendment should be interpreted to reach the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information.

 

“The implications of extending the doctrine [expressed in past privacy] cases to one involving mere questioning would be strange.  * * *  Police might have to obtain search warrants or waivers before conducting routine inquiries, even of the complaining witness in a rape case, since they would be inquiring about the witness’s sexual behavior.  * * *

 

“Psychological tests, widely used in a variety of sensitive employments, would be deemed forbidden by the Constitution if a judge thought them unreasonable.”

 

     The panel said that states are free to protect privacy more comprehensively than the Fourth Amendment requires and the plaintiff “is free to continue to press her state-law claims in state court, where they belong.”

 

     The panel noted that Indiana has thus far refused to recognize claims of this type. However, the Fourth Amendment does not expand like an accordion to fill what may be a gap in the privacy law of a particular state.

 

     In affirming the dismissal by the trial court, the panel said that the “Fourth Amendment does not provide a remedy for the unpleasantness of being subjected to a psychological test.” Greenawalt v. Indiana Dept. of Corrections, #04-1997, 397 F.3d 587, 2005 U.S. App. Lexis 2384 (7th Cir. 2005), affirming 2004 U.S. Dist. Lexis 6739 (S.D. Ind.). [PDF]

 

   • Click here to view the opinion on the Internet. [PDF]

 

 

NOTED IN BRIEF

 

Stress Related Claims

 

Because stress can aggravate diabetes, the Dept. of Correction was liable for the treatment costs due to the officer’s job-related post-traumatic stress disorder. Lewis v. N.C. Dept. of Corr., #COA03-1447, 606 S.E.2d 199, 2004 N.C. App. Lexis 2385 (2004).

 

This document was last revised on 30 Aug. 2005