Employers are risking more than the employee being placed at the top of the next list when they rely on a faulty psychological evaluation to bypass an applicant for police officer.  A Superior Court decision issued in August in Boston Police Department v. Kavaleski et al. ruled that the City of Boston was liable for disability discrimination under M.G.L. c. 151B for regarding Kavaleski as having a disability that she didn’t have.  The decision was the latest loss by the City in a nine year battle that involved more than one bypass of Kavaleski based on psychological screenings which “…did not definitively diagnose Kavaleski with a specific condition, but rather alluded to a variety of ailments or flaws.” The evaluator made note of Kavaleski’s “messy hair” and her being thin and pale, even suggesting that she might have an eating disorder. The evaluator also found fault with Kavaleski’s interpersonal manner, described her as listless and guarded and capable of only concrete thinking.

The foundation of the Superior Court’s decision, issued by Justice Peter Lauriat, was a prior decision won by Kavaleski in Police Department of Boston v. Kavaleski, 463 Mass. 680, 694-695 (2012). The SJC upheld a Civil Service Commission decision allowing Kavaleski’s bypass appeal, stating in pertinent part:

[T]he commission was entitled to reject the department’s assertion that [the psychologist’s] evaluation was sufficient to disqualify Kavaleski. The commission appropriately recognized that [the psychologist’s] function in the psychological screening process was narrowly circumscribed. Her sole task was to determine whether Kavaleski had a psychiatric condition that would prevent her from performing, even with reasonable accommodation, the essential functions of the job. See G.L. c. 151B, c. 151B, $ 4(16). The record supports the commission’s conclusions that [the psychologist’s] opinions were “substantially subjective determinations” that were “insufficiently factually supported,” and that [she] did not provide a single “convincing situational example” to support her conclusion in Kavaleski’s “defensiveness” and “characterologic rigidity” would interfere with police work in an “objective real world context.”
In deciding the discrimination claim in her favor, the Superior Court noted that none of the psychological screeners diagnosed Kavaleski with a psychiatric condition or disorder – never mind a Category A or B condition under HRD’s Regulations for Initial Medical and Physical Fitness Standards Tests for Municipal Safety Personnel. Further, Kavaleski had never in her life been diagnosed as having a psychiatric condition or disorder. The Court found that the City violated c. 151B because , even though she had no impairment, the City regarded her as having an impairment, thereby engaging in so-called “regarded as” discrimination when it revoked its offers of employment based on the psychological evaluations. According to the Court, not only was this discriminatory, but it was a violation of c. 151B’s limitations on medical evaluations. Judge Lauriat wrote, “the purpose of c. 151B is to prevent employment decisions based on amorphous, unsubstantiated fears about psychological or medical impairments, no matter how peculiar or off-base these fears might be.”

Less than a week after the Superior Court decision, the Civil Service Commission, citing the Kavaleski cases, overruled the City’s bypass of another police officer candidate based on a psychological evaluation. Dunn v. Boston Police Department, G1-14-80 (August 21, 2014). Dunn, 25, had served in the Marine Corps and was serving in the Marine Corps reserves, had scored a 95 on the civil service exam and was working as a security guard at Children’s Hospital. When he was 22, he was with a group of friends at a TD Bank Garden event, got intoxicated and was asked to leave. He refused, citing his status as a Marine. He lunged at a Boston Police Department officer and called him a fat f—ing f—got. He was arrested and charged with disorderly conduct and resisting arrest and jailed overnight.
BPD interviews questioned him about the incident. He admitted that he had “blown it” and done a dishonor to himself and the Marine Corps. He disclosed that the Boston Fire Department had already bypassed him for the incident. He told the interview panel that the incident had been a wake-up call and taught him the biggest lesson of his life. Despite the incident, he received a conditional offer of employment and was moved on to the psychological screening. Dunn passed the first level of the screening but was referred for a second opinion because of the “potential significance” of the TD Bank Garden incident. Ultimately, the evaluator who provided the second opinion recommended a bypass out of concern that Dunn might have some service related PTSD condition that caused the incident. He wrote, “…[T]he nature of the breakdown in [the TD Garden] incident is so severe that it becomes a risk too great for the BPD to take in hiring him for the police job. The BPD cannot be sure that he no longer drinks, or that, if he has stopped, that will continue his abstinence through the life trials of middle age, or the stresses of a police career. If he does drink, there is no assurance that he will not again lose control…”

The Commission ruled that, to bypass Dunn, the BPD was required to show that he a category A or B medical disqualification: “After Kavaleski, the law is clear that the sole task of the psychiatric medical evaluator is to determine whether a candidate comes to the job with some identifiable medical impairment, as defined in the HRD Medical Standards, that is not capable of reasonable accommodation. It is not the medical evaluator’s purview to conduct a de novo background investigation on a candidate and attempt to offer his own speculation as to whether or not some episode(s) in the candidate’s background portend that he was not suited for a career in law enforcement. Yet, that is essentially what [the evaluator] did, and in relying on his opinion, the BPD has actually overruled the sound judgment of its own experienced law enforcement officers to the contrary, who found Mr. Dunn’s history acceptable to them. ”
The Commission then granted extraordinary relief to Dunn, ruling that it wasn’t enough to place him at the top of the next certification and begin the hiring process all over again “when the sole basis for rescinding the offer of employment was reliance, not on an assessment of the candidate’s background but solely an invalid medical screening.” It ordered the BPD to reinstate Dunn’s offer of employment and send him to the next Police Academy, subject only to the updating of his employment application and consideration of any circumstances that had occurred since the initial conditional offer of employment.

The lesson for employers is to ensure that psychologists engaged to perform psychological screenings are aware of the limits of their mission. Employers who wish to bypass a candidate based on the candidate’s bad behavior may still do so, but they must not rely on a psychological evaluation (or speculation) about how that behavior will affect the candidate in the future. Rather they must make a judgment about whether the candidate’s behavior makes him or her unsuitable for appointment today. Timely advice from experienced labor counsel can be helpful in sorting these issues out before they become court cases.