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New Jersey Town Did Not Discriminate When It Refused To Hire Applicant For Police Officer Position

By on January 29, 2012 in ADA with 0 Comments

Psychological examinations are of great importance in the public safety arena.  In Terry v. Town of Morristown, 2011 U.S. App. LEXIS 20053 (3d. Cir. 2011), Jeffrey Terry applied to be a police officer in the Town of Morristown.  He underwent a psychological fitness evaluation with Dr. Matthew Guller.  Working under the supervision of his supervisor, Leslie J. Williams, Ph.D., Dr. Guller conducted an interview of Terry in which Terry revealed that he had worked as a bouncer and had been involved in several incidents.

Dr. Guller pursued further questioning of these incidents, and Terry stated that officers who reported these incidents felt that he had been overly aggressive in using force. Dr. Guller also discovered that Terry had been fired from two jobs but reported no blame for either termination. Dr. Guller did not recommend that the Town hire Terry for the position of police officer.  He discussed a “pattern of impulsivity and/or poor judgment” and some concerns about not working well in a team environment.

Based on Dr. Guller’s report, the Chief did not hire Terry.  This prompted Terry to obtain his own psychological evaluation with Dr. Bart Rossi, who said that Terry was fit to be a police officer and had no psychological problems.  The Chief still would not hire Terry in spite of Dr. Rossi’s report.  The Chief felt that the report did not address issues of aggressiveness.

Terry appealed to the State of New Jersey, Department of Personnel, Merit System Board.  The Board recommended a third evaluation by Dr. Robert Kanen, Ph.D.  The evaluation led to a report in which Dr. Kanen concluded Terry had a “history of work performance problems, . . . difficulty accepting responsibility for his mistakes and tends to attribute difficulties he encounters to the actions of others.”

Terry appealed again but the New Jersey Appellate Division affirmed the decision of the Board that Terry was unfit to perform the duties of a police officer. Terry next sued in federal court under the ADA and the NJLAD.  The District Court granted the Town’s motion for summary judgment, which Terry appealed to the Third Circuit Court of Appeals. 

In his appeal Terry argued that he was discriminated against on the basis of disability either because he had ADD or was regarded as having a physical or mental impairment. The court said, “Terry failed to identify any specific type of impairment that he had or was regarded as having.”  The court further said, “Even assuming that Terry does qualify as disabled under the ADA, there is no evidence that his diagnosis of ADD was factored in any way into the Town’s decision to deny Terry the position.  Quite to the contrary, the evidence supports a conclusion that the Town believed Terry was not qualified for the position as a result of the findings regarding his aggressive behavior, inability to follow orders, and difficulty interacting with the community.”

This case underscores why post-offer examinations are important for employers. While post-offer examinations may be challenging to perform in the psychological arena, decisions based on valid post-offer medical examinations will be respected by courts.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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