Village’s Requirement that Officer Pass Psych Exam Before Returning to Work Not Retaliatory

May 8, 2018

While police officers and the departments who employ them are ideally on the same page when it comes to law enforcement issues, occasionally a police officer has a serious mental health issue that can drive a wedge between employer and employee and those types of disputes often lead to litigation. For example, sometimes a citizen alleges that his constitutional rights were violated by a police officer who should have been terminated or never hired in the first place. In other instances, the conflict is more direct, with the employee and his department at odds over the department’s response to the officer’s mental health issues.

Freelain v. Village of Oak Park involves just such a dispute. In that case, the officer, Rasul Freelain, had been employed by Oak Park for five years before claiming that a female sergeant was sexually harassing him. Freelain then began to experience migraine headaches and other stress-related medical conditions which he attributed to the harassment. He began taking significant time off work and those days became even more frequent after Freelain’s wife was diagnosed with cancer. Ultimately, tensions between employer and employee spiraled out of control, and the officer filed suit, claiming that he had unfairly retaliated against in violation of the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).  In an opinion issued this week, the Seventh Circuit affirmed the lower court’s decision to grant summary judgment in favor of the Village, holding that the Village’s actions would not discourage a reasonable employee from exercising his or her rights under the FMLA or ADA. The Seventh Circuit first looked at the fact that the Village had retained an outside agency to investigate Officer Freelain’s allegations of harassment (finding Freelain’s claim to be unsubstantiated) and that the Village then required Freelain to pass a psychological examination before allowing him to return to duty. Moreover, while Freelain’s extended absences had drained is accumulated days of paid sick leave, the Court observed that Freelain had nevertheless received close to his full paychecks during his weeks off of work.

While noting that the FMLA and ADA prohibits employers from retaliating against employees who assert their statutory rights, the Court noted that the FMLA does not require that an employer offer paid leave whenever an employee is off for an extended period of time. Further, while the FMLA and ADA both consider whether an employer took an “adverse action” against an employee because of a “protected activity,” the Court held that neither the Village’s decision to classify Freelain’s days off as “self-sick” nor its requirement that Freelain be cleared by a psychologist before returning to work was an adverse action under the FMLA or ADA. The Court also held that there was no evidence that the Village had acted recklessly or maliciously. Further, while Freelain faced a difficult choice after his wife was diagnosed with cancer (to take unpaid days off because he had already used all of his available sick days because of his stress-related issues), the Court noted that neither the FMLA nor the ADA shelters employees from such dilemmas. Finally, the Court found that it was appropriate for the Village to require that Freelain be psychologically cleared before returning to work, noting that mental health evaluations serve a legitimate purpose and are often used to determine a worker’s fitness before return to duty. While such examinations could be considered a “materially adverse action” when the employee could show that he was being unfairly “singled out,” the Court ultimately concluded that there was nothing in Freelain’s case showing that the Village had treated him differently from other officers with similar issues.

Freelain v. Village of Oak Park

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