Legal
Update for Police Psychologists – 2005
|
International Association
of
Chiefs of Police, Inc.
http://www.theiacp.org/div_sec_com/sections/psych.htm
———
Wayne
W. Schmidt
Psychological Exams -
• Karraker v.
Rent-A-Center (7th Cir. 2005)
Psyhological Exams - Fitness for Continued Duty
• Denhof v. City
of
Psychological Exams -
Conduct Justifying an Exam
• Caver v. City of
Psychological Exams -
Return to Duty Hearing Requirements
• Deen v. Darosa (7th Cir. 2005)
Psychological Exams -
Privacy
• Greenawalt v.
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).
Psychological Exams and Standards –
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
Last year a federal court in
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
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
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
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
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
• 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
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
Management
confiscated
The
city held a departmental hearing to determine whether
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
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
In
the federal lawsuit,
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,
The
panel affirmed the District Court’s grant of summary judgment in favor of the
city. Caver et al. v. City of
• 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
• 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
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