Psychological Fitness For Duty

Institute for Forensic Psychology Lewis Z. Schlosser, PhD, ABPP Matthew E. Guller, JD, PhD, ABPP Krista L. Dettle, PhD 5 Fir Court – Suite 2 Oakland, NJ 07436 Tel: (201) 337-4996 Fax: (201) 337-8378 19 West 34th Street New York, NY 10001 www.ifp-testing.com CASELAW SUMMARIES: PSYCHOLOGICAL FITNESS FOR DUTY OF POLICE AND PUBLIC SAFETY PERSONNEL By: Matthew Guller, J.D., Ph.D. Copyright 2014, Institute for Forensic Psychology a. DUTY TO MONITOR PSYCHOLOGICAL FITNESS Departments have a duty to take reasonable precautions in hiring and retaining officers who are not psychologically disturbed. The wife of a police officer was shot by her husband, who then killed himself. The wife sued the City of New York for negligence in allowing her husband to carry a gun. The Court held that, to avoid liability, a Department has to show that it has taken reasonable precautions in hiring and/or retaining officers who are not psychologically disturbed. The wife was awarded 500,000.00 in compensatory and punitive damages. Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982). See also Hild v. Bruner, 496 F.Supp. 93 (D.N.J. 1980) (civil rights action brought against a town for injuries suffered by the victim of an assault by the town's police officers; Court held that jury could reasonably have inferred that the town's failure to conduct some kind of psychological testing of its officers constituted gross negligence); Lewis v Goodie,798 F.Supp. 382 (W.D.La. 1992) (individuals arrested and assaulted by two officers; Police Chief held personally liable for general and punitive damages; Chief found to have failed in his duty to properly supervise and train officers, one aspect of this was the fact that he had not required the two officers to undergo psychological screening). The doctrine of official immunity may not be invoked to protect an agency from claims such as negligent retention. A psychiatric social worker for Hennepin County alleged that a County corrections officer engaged in a pattern of harassment of her. Approximately two years after receiving the first formal complaint from the social worker, and after the third formal complaint by the social worker was filed, the County ordered the corrections officer to undergo a psychological fitness for duty evaluation. The officer subsequently resigned. The social worker sued the County for negligent retention (among other claims), and the County sought legal protection under the doctrine of official immunity. The

-2– Court held that official immunity may not be invoked to protect an agency from claims such as negligent retention of personnel. Davis v. Hennepin County, 559 N.W.2d 117 (MN App. 1997). See also Hafer v. Melo, 502 U.S. 21, 25 (1991). (A state official may be sued for monetary damages in his or her individual capacity. A section 1983 suit against a state official in his or her individual capacity "imposes individual liability upon a government officer for actions taken under color of state law."); Kirkland v. Morgievich, No. 04-1651, 2005 WL 3465669 (D.N.J. Dec. 19, 2005); Kentucky v. Graham, 473 U.S. 159, 166 (1985). (To establish personal or individual liability in a section 1983 action, a plaintiff must show "that the official acting under color of state law caused the deprivation of a federal right.") b. RIGHT TO ORDER EVALUATIONS Public safety administrators have a right to order an officer in for fitness for duty evaluations. Courts across the country have consistently upheld mandatory psychological examinations, finding that the potential mental instability of an officer justifies such order so long as it is reasonable. Tingler v. City of Tampa, 400 So.2d 146 (Fla. App. 1981); Brown Co. Sheriff's Dept. v. BCSD Employees Assn., 533 N.W.2d 766 (Wis. 1995); Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995) Kraft v. Police Comsnr. of Boston, 417 Mass. 235, 629 N.E.2d 995 (1994); Redmond v. Overland, 672 F.Supp. 473 (D.Kan. 1987). An Illinois Appellate Court held that a Chief has a right to order fitness-for-duty testing on public policy grounds. A Police Lieutenant had allegedly used excessive force against someone taken into police custody. After the incident, the Chief ordered the Lieutenant to undergo a psychological evaluation, and the Lieutenant refused. The Court held that, in order to protect the public interest and the efficiency of the Department and to keep informed about the officer's ability to perform his or her duties, a Chief has the authority to order fitness testing. Conte v. Harcher, 365 N.E.2d 567 (Ill.App. 1977). In Air Force, 437 Wing and AFGE l-1869, 56 FLRA No. 160 (11/30/00), no unfair labor practice was found in ordering a military safety officer to undergo a psychiatric evaluation after he made threatening remarks regarding a Sergeant. Periodic, regularly scheduled evaluations of all serving officers is upheld. Plainsboro Township had in place a system of psychologically evaluating all officers every three years. The PBA local and individual officers challenged the constitutionality of these evaluations. The Court found "legitimate government interests present and that the aforesaid psychological test program is constitutional so long as procedural due process is provided for and the police officer is protected from unconstitutional violations of privacy." P.B.A. Local 319 v. Township of Plainsboro, Docket No. MID-C-173-98, Order Dated 10/30/98, Judge Jack L. Litner, unpublished. See also New Jersey Transit PBA v. New Jersey Transit, 384 N.J.Super 512 (App.Div. 2006)(Police agency may require annual medical examination and require disclosure

-3– of medical history, blood and urine testing, etc.; termination may be result of negative fitness determination and privacy interest would not prevent this). c. GENERALLY NO RIGHT TO CHALLENGE AN ORDER FOR EVALUATION In most jurisdictions, failure to submit to a psychological evaluation, when reasonably ordered to do so, amounts to insubordination, justifying discipline or removal. "The fitness-for-duty examination is a useful procedure to determine an employee's competency to perform his duties.[and] failure to submit to such an examination, when there are good reasons for directing an employee to submit to it, is insubordination and can justify discharge." Risner v. U.S. Dept of Transp., Etc., 677 F.2d 36 (8th Cir. 1982); Smith v. United States Air Force, 566 F.2d 957 (5th Cir. 1978) (Substantial grounds existed for termination of an Air Force civil service employee who failed to report for an ordered psychiatric evaluation.); Schwartz v. Hicksville Sch. District, 1196 App.Div. Lexis 12680. [1997 FP 22-3] ( N.Y. Appellate Court sustains a two-year disciplinary suspension of a teacher who refused to undergo psychological testing.) An officer can be fired for refusing to take an ordered psychological examination, even if his refusal is based upon a mistaken belief that the order is unlawful. A Chicago police officer was accused of sexual misconduct, and was ordered to be evaluated. He refused, believing the order to be unlawful. The Appellate Court stated that an "officer does not have the prerogative of actively disobeying an order from a superior while the officer subjectively determines whether the order is lawful.such a practice would thwart the authority and respect which is the foundation of the effective and efficient operation of a police force and destroy the discipline necessary in a paramilitary organization." Haynes v. Police Bd. of Chicago, 1997 Ill.App.Lexis 832 (7th Cir.); Peter Villani v. Passic County Sheriff’s Dep’t, CSV 2787-95, Initial Decision (January 15, 1997), adopted, MSB (February 25, 1997); New Jersey Transit P.B.A. Local 304 v. New Jersey Transit Corp., 384 N.J. Super. 512 (App.Div. 2006) (“ no officer has the right to hide his or her lack of fitness by asserting a privacy interest [and] no officer who is unfit for the position has the right to remain in the position.”); Theis v. City of Sturgeon Bay, 2006 U.S. Dist. Lexis 57955 (2006). In New Jersey, a police officer does not have a right to arbitration regarding an order to submit to a psychological examination and such an order is not considered a disciplinary action. An Elizabeth police officer was ordered to undergo a psychological fitness for duty evaluation. The union sought arbitration on whether the Department had good grounds to order the evaluation. The Court held that the union could not challenge the application of the department's fitness for duty policy, as that would block the employer from determining whether an officer is fit. The Court further held that the ordering of a psychological examination does not constitute a disciplinary action for purposes of

-4– arbitrability. City of Elizabeth v. Superior Officers Association, 27 NJPER P 32017 (2000); Newark v. Bellezza, 159 N.J. Super. 123, 128 (App.Div. 1978) Minnesota is the rare exception, where a Chief's order to submit to a psychological examination is grievable (and subject to arbitration) as to whether there was a reasonable basis to require the exam. A Winona police officer was suspected of inappropriate contact with three young boys, although State investigators found no evidence to support these suspicions. The Chief ordered the officer to undergo a psychological fitness for duty evaluation. The officer refused the evaluation and asserted a right to grieve the order. A divided Court held that under a specific provision of Minnesota's Public Employee Labor Relations Act, the order of a psychological fitness for duty evaluation is grievable and subject to arbitration. Hill v. City of Winona, 454 N.W.2d 659 (Minn. App. 1990). d. CHALLENGES ON CONSTITUTIONAL AND ADA GROUNDS ARE DENIED First, Fourth and Fourteenth Amendment Constitutional challenges to psychological evaluations are rejected. Psychological evaluations of public safety officers have been challenged on several constitutional grounds, including invasion of privacy, and violations of the First and Fourteenth Amendments (including religious, political, social, familial and sexual rights). A Federal Court held that psychological evaluations conducted for the Jersey City Fire Department did not violate any of the plaintiffs' constitutional rights. It held that there was an intrusion upon constitutional rights; however, this intrusion was justified by the State's compelling need for the psychological evaluations. McKenna v. Fargo, 451 F.Supp. 1355 (D.N.J. 1978), aff'd 601 F.2d 575 (3rd Cir. 1979); Orsay v. Enemoto, unreported (E.D. Cal. 2000); the Sacramento Bee (9/20/2000) (Federal judge rejects a suit by U.S. Marshalls claiming that their ordered fitness for duty exams violated the Fourth Amendment). The ADA does not prohibit agencies from ordering an officer to undergo a psychological fitness for duty evaluation. A police commander observed that a patrol officer had an "unusually defensive and antagonistic behavior" towards his coworkers and supervisors. The officer was ordered to undergo a fitness-for-duty examination, and the officer challenged the order on the grounds that it constituted a prohibited inquiry under the ADA. The 11th Circuit held: In any case where a police department reasonably perceives an officer to be even mildly paranoid, hostile, or oppositional, a fitness for duty examination is job-related and consistent with business necessity. Police departments place armed officers in positions where they can do tremendous harm is they act irrationally. The ADA does not, indeed cannot, require a police department to forgo a fitness for duty examination to wait until a perceived threat becomes real, or questionable behavior results in injuries. There was no evidence that management acted improperly in ordering the FFDE. Watson v. Miami Beach, 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.).

-5– e. CONDUCT JUSTIFYING A FITNESS FOR DUTY EVALUATION Reasonable person standard. In determining whether an employer's order for a fitness for duty evaluation is justified, courts will apply a reasonable person standard. Thus, there must be sufficient evidence for a reasonable person to doubt whether an employee is capable of performing the job. Law v. Garden State Tanning, 159 F.Supp. 2d 787 (E.D. Pa. 2001). A reasonable person in this context is a reasonable employer, not a reasonable physician. Jackson v. Lake County, 2003 U.S. Dist. Lexis 16244. Domestic violence. When an officer is involved in a domestic violence charge, even if the charges are dropped, the officer must have their weapons removed and may not return to duty until they are cleared psychologically by a department appointed psychologist. Essex County Prosecutor Directive, Essex County, New Jersey. Excessive absenteeism, tardiness, high use of sick leave and rapid variations in mood. A Chief is justified in ordering an evaluation of a paramedic who had excessive absenteeism, tardiness, high use of sick leave and rapid variations in mood. Wertz v. Wilson, 922 S.W.2d 268 (Tex.App. 1996). Making threatening remarks. No unfair labor practice where military safety officer ordered for a FFD following threatening remarks concerning a Sergeant. Air Force, 437 Wing and AFGE l-1869, 2000 FLRA Lexis 181 (11/30/00); Federal appeals court upheld a warden's order to a corrections officer, that he submit to a psychiatric examination, after he was accused by several coworkers of making threats of physical harm. Flynn v. Sandahl, 58 F.3d 283 (7th Cir 1995). Lawsuit alleging mental injury. An employee of a school who was suing the school for severe emotional distress and sexual harassment can be compelled to undergo medical and psychological examinations. Vinson v. Superior Court, 239 Cal.Rptr. 292 (Cal. 1987). A Federal Judge in Chicago orders a plaintiff, who alleges an ongoing mental injury, to submit to a psychological evaluation. Jansen v. Packaging Corporation, 158 F.R.D. 409 (N.D.Ill. 1994). Accusations of sexual misconduct. Haynes v. Chicago, 1997 Ill.App.Lexis 832 (7th Cir.). Learning that an officer is taking medication, such as Prozac. Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000). Alleged use of excessive force. Conte v. Harcher, 365 N.E.2d 567 (Ill.App. 1977).

-6– Concerns about stability following shooting incident. Massachusetts Appellate Court upholds right of Police Chief to disarm an officer who was formerly involved in a shooting incident and whose emotional stability the Department had concerns about. City of Boston v. Boston Police Patrolmen's Assn., 392 N.E.2d 1202 (Mass. App. 1979). Signs of depression or panic attacks. An officer who broke into tears at a firearms training session could be sent for an evaluation. Davis-Durnil v. Vil. of Carpentersville, 128 F.Supp.2d (N.D. Ill. 2001). Mildly paranoid, hostile, or oppositional. See above Watson v. Miami Beach, 98-4163, 1999 U.S. App. Lexis 10976 (11th Cir.). Filing numerous unfounded harassment complaints. McKnight v. Monroe County Sheriff’s Dept, 2002 US Dist Lexis 18148, 90 FEP Cases (BNA)35 (S.D. Ind. 2002). Failing to submit medical documentation to substantiate a continuing absence from work. A postal employee failed to return to work after six months of absence and failed to provide the agency with documentation to substantiate his continued absence. Bente v. Potter, Postmaster General, Appeal No. 07A40023, Office of Federal Operations (April 28, 2006). f. CONDUCT EVALUATION NOT JUSTIFYING A FITNESS FOR DUTY Use of obscene language. The use of obscene language by one police officer to another police officer in headquarters (in an area not accessible by the public) did not justify an order that the expressive officer submit to a psychological exam. Maplewood and Law Enforcement Labor Service, 108 LA (BNA) 572 (Daly, 1996). In response to a written grievance that was “somewhat intemperate in tone” regarding a chief’s ordered ban on displaying a politically controversial cartoon. A fire chief issued a “special order” prohibiting the display of a controversial political cartoon in the fire station, which was deemed racially insensitive and likely to exacerbate racial tension within the Department. A captain filed a grievance that this amounted to unjustified official censorship. The City determined the grievance amounted to an act of “insubordination,” the subject was reassigned, and was ordered to undergo a psychological evaluation. The Court noted that the Captain did comply with the order and required his subordinates to comply. Moreover, he made his protest according to the prescribed Departmental procedure, and neither published nor publicized it elsewhere, and did not involve any other firefighters. The Court found no evidence of insubordination and the reassignment and

-7– ordered fitness for duty evaluation were regarded as punitive and not justified. Watts v. Alfred, 794 F. Supp. 431 (D.D.C. 1992). Whistleblowers. Federal law prevents federal employers from requiring psychological exams of employees who claim to be whistleblowers. H.D. 4311, P.L. 101-12, Title 5, Sec. 1221. However, the person must have blown the whistle to the proper authorities, not to the newspaper. Dennison v. Penna Dept of Corrections, 2003 U.S. Dist. Lexis 9579 (M.D. Penna 2003); and the Third Circuit has held, in Caver v. City of Trenton, 2005 U.S. App. Lexis 18432 (3rd Cir. 2005) that a requirement that an officer undergo a psychiatric evaluation does not constitute an adverse employment action. An employee returning from authorized leave under the FMLA, may not be referred for a return to duty examination if they provide a letter from their health care provider recommending a return to work. Under the Family Medical Leave Act, once an employer returns from an authorized leave with a note from their treating clinician stating that they are fit to return to duty, the agency cannot order a confirming evaluation. 29 U.S. Code Sec. 2614 (a) (4) (FMLA) & Labor Dept.'s regulation 29 CFR Sec 825.310(c). An employee must return the employee to work without delay upon receipt of medical certification. This certification may be "a simple statement of an employee's ability to return to work, and need not contain the specific information about the employee's condition." Albert v. Runyon, 6 F.Supp.2d 57 (D.Mass.1998). An employee may be ordered for an evaluation after returning from authorized leave under the FMLA, if: a) There is a history of requiring return to duty exams and any bargaining agreement perpetuates past practices. Conroy v. Twp. of Lower Merion, 2001 U.S. Dist. Lexis 11460 (Unpub. E.D. Pa.). b) There is behavior after the return to duty which raises concerns. Albert v. Runyon, 6 F.Supp.2d 57 (D.Mass.1998); Underhill v. Willamima, 1999 U.S. Dist. Lexis 9722 (Unpub. D. Ore). If an employee has been certified for return to duty under the FMLA, and they cannot be examined, an administrator can

A psychological FFDE is a formal, specialized examination of an incumbent employee that results from (1) objective evidence that the employee may be unable to safely or effectively perform a defined job and (2) a reasonable basis for believing that the cause may be attributable to a psychological condition or impairment.