Employment Law Decision Shows Law Enforcement Applicants Get a Fair Hearing From the New Jersey Civil Service Commission in Psychological List Removal Appeals

A recent appellate New Jersey employment law decision in the case of In the Matter of F.S., Police Officer (S9999U), City of Jersey City outlines the procedures for appeals by applicants who were removed from a list of eligible candidates for civil service law enforcement or firefighter positions for psychological reasons.  While the candidate lost his appeal, the Appellate Division’s opinion should give candidates faith that they will receive a fair shake before the Medical Review Panel and New Jersey Civil Service Commission.

 

F.S.’s Application with the Jersey City Police Department

F.S. passed the civil service test and received a conditional offer of employment to become a police officer with the Jersey City Police Department, a civil service employer.  The offer was conditioned upon F.S.’s successful completion of a psychological examination.

 

The Psychological Evaluation Process

F.S. took the examination, which was administered by Dr. Guillermo Gallegos, a licensed psychologist, at the Institute of Forensic Psychology.  Dr. Gallegos had F.S. take seven psychological tests measuring verbal, mathematical and conceptual skills.  One of the tests was the Wonderlic Personnel Test (a test not without criticism).  That test found F.S. in the bottom fourth percentile of applicants.  Dr. Gallegos then administered the Beta-4 test, which indicated F.S. had “extremely low intellectual functioning.”  As a result, Dr. Gallegos found that F.S. “does not possess the psychological characteristics deemed necessary to perform the duties of the position … and [F.S.] is not considered to be psychologically suited to that position.” Dr. Gallegos also found F.S. “evidenced problems including limited cognitive ability….”  He therefore concluded that it was “”highly unlikely that [F.S.] would get through the [police] academy or be able to perform satisfactorily in a law enforcement capacity”, and therefore did not recommend he be appointed as a police officer.

F.S. retained his own psychologist, Dr. Paul Fulford, who evaluated him and found that he had an IQ of 96, which placed him “within normal limits academically… [and thus] an appropriate candidate for the Jersey City Police Department.”  Despite Dr. Fulford’s report and recommendation, the Jersey City Police Department removed F.S. from the list of candidates eligible for hire.

 

Appeal to the Civil Service Commission

F.S. filed an appeal with the New Jersey Civil Service Commission within 20 days, which was thus timely.  The Civil Service Commission then submitted the appeal to the Medical Review Panel.  The Medical Review Panel is made up of professionals in the psychology field which reviews the appeals of applicants who have been disqualified from law enforcement or firefighter positions for psychological reasons.

 

The Medical Review Panel Process

The Medical Review Panel heard testimony from F.S., and reviewed the reports of Dr. Gallegos and Dr. Fulford and the test results.  The Medical Review Panel had concerns because of the conflicting reports.  It therefore recommended to the New Jersey Civil Service Commission that F.S. be referred for an independent evaluation.  The Commission adopted this recommendation, appointed an independent psychologist, Dr. Robert Kanen, and ordered F.S. to undergo the recommended evaluation.

Dr. Kanen administered his own tests independently, and concluded that F.S.’s IQ was in the bottom four percent of his age group.  This and his other observations led Dr. Kanen to conclude that:

F.S.’s cognitive ability, as determined by his test scores, “is significantly below that of the average law enforcement officer.” Dr. Kanen further opined F.S. is likely “to become confused and overwhelmed by moderately complex events” and “to have significant difficulties understanding the situation and responding appropriately” when confronted “with fast moving and complex situations that require sound reasoning and judgment.” Dr. Kanen determined F.S. is “psychologically unsuitable for employment as a [p]olice [o]fficer.”

F.S. filed exceptions to Dr. Kanen’s conclusions and recommendations.  Jersey City took no position and did not respond.

 

The Civil Service Commission’s Decision

Based on Dr. Kanen’s findings, the New Jersey Civil Service Commission upheld the Jersey City Police Department’s removal of F.S. from the eligible list.  The opinion explained that:

In its final decision, the Commission detailed the general job duties and requirements of a police officer, noting police officers are entrusted with lethal weapons, are in daily contact with the public, and must be capable of responding to difficult, fast-paced, emergencies, such as “responding to a suicidal or homicidal situation or an abusive crowd.” The Commission reviewed the job specifications for the title of police officer “and the duties and abilities encompassed therein,” and concluded F.S.’s psychological traits identified by Dr. Kanen adversely affect F.S.’s “ability to effectively perform the duties of the [police officer] title.”

The Commission cited F.S.’s cognitive ability, as determined by Dr. Kanen, as the basis for its determination that F.S. is not qualified to perform the requisite job duties. The Commission explained that Dr. Kanen considered the reports and raw data from Dr. Gallegos and Dr. Fulford, conducted his own testing and evaluation, and determined, based on his “expertise in the field of psychology and … experience in evaluating the psychological suitability of hundreds of applicants for employment in law enforcement and public safety positions,” that F.S. is psychologically unfit to perform the duties and responsibilities of a police officer.

F.S. timely appealed the Civil Service Commission’s decision within 45 days to the Appellate Division of the Superior Court of New Jersey.

 

The Appellate Division

The Appellate Division upheld the New Jersey Civil Service Commission’s decision.  The Court noted that the Commission has been given the authority under the Civil Service Act to remove law enforcement and firefighter candidates from eligible lists if they are “psychologically unfit to perform effectively the duties of their titles.”  Thus, the Court explained that its review of an agency’s decision if limited to whether the agency, here the Commission, was arbitrary, capricious or unreasonable in making its decision.

Here the Court found that the processes used by all three evaluators, including “[t]he use of psychological tests to predict or evaluate [potential future] job performance,” were accepted by the medical and psychological community.  While Dr. Fulford’s evidence contradicted that of Dr. Gallegos and Dr. Fulford, their reports precluded the Court from finding that the New Jersey Civil Service Commission’s decision was not supported by “sufficient credible evidence.”

While F.S. argued, through his attorneys, that the employer improperly tried to shift the burden of proof on him, the Court found that it did not.  Rather, it recognized the Jersey City Police Department’s burden of proof, but found that the reports of Dr. Gallegos and Dr. Fulford satisfied that burden.

 

The Takeaways

• First, although the outcome wasn’t in F.S.’s favor, the results should be heartening to applicants in his position. The Commission did not merely accept Dr. Gallegos’s report at face value.  Faced with conflicting opinions, the Medical Review Panel wanted to come to the right decision, and thus appointed an independent evaluator who was not working for either the employer or the applicant, and the Commission agreed.  This means that applicants will get a fair shake before the Medical Review Panel and the Civil Service Commission.
• Because applicants will get a fair shake, they should always get an independent evaluation if the initial results are negative, and should always appeal. Like F.S., not all appeals are successful, but they will get a fair hearing.
• Timing is crucial! If an applicant doesn’t appeal to the New Jersey Civil Service Commission within 20 days or thereafter to the Appellate Division within 45 days, they be barred.

 

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