City Improperly Relied on Former Officer’s History of Mental Illness Rather than Her Current Mental Health Status to Reject Her Application

By Mitchell Riese and Mitchel Wilson

possible threatIn Nelson v. City of New York, the U.S. District Court for the Southern District of New York denied the City’s motion for summary judgment and permitted the plaintiff’s disability discrimination claim to go to trial. The Court reasoned that there was no clear evidence that the former officer could not perform the essential functions of the job and that the issue was proper for trial.

Doreen Nelson was employed by the NYPD from 1990 until 2004, when she retired on an ordinary disability pension.  In August of 2000, Nelson was placed on restricted duty because of swelling in her hand and thumb. One month later she suffered injuries from an off-duty car crash that resulted in several surgeries.  In 2002, Nelson was referred to the NYPD Psychological Evaluation Unit, and its psychologist concluded that Nelson had suicidal thoughts and placed a hold on her firearms and put her on restricted duty.  Nelson’s personal psychologist concluded she suffered from PTSD and a personality disorder, but believed it would not interfere with her ability to function as an officer.

Nelson applied for an ordinary disability pension, the medical board granted her request and she retired in 2004.  In late 2005, Nelson applied for reinstatement to the force. In 2008, the pension fund no longer considered Nelson disabled and stated she was eligible to apply for reinstatement.  The psychologist evaluating her concluded that she was not fit for duty because of her psychological history.

In order to establish her claims for disability discrimination, Nelson had to show that she was disabled or regarded as disabled, she was discriminated against because of her disability, and she was otherwise able to perform the essential functions of the position. The Court concluded that ample evidence existed showing that the employer regarded Nelson as disabled because of the recommendations of the NYPD’s psychologists.  Because the City regarded her as disabled and did not hire her because of the psychologist’s recommendation, Nelson could plausibly establish the first two elements of her claim. The remaining issue was whether Nelson could perform the essential functions of the job; this revolved around whether she was a threat to others. The Court concluded:

Whether a reasonable jury could determine that Plaintiff could perform the essential elements of police work is an extremely close question. After carefully scrutinizing the record, however, the Court concludes that the City has failed to demonstrate beyond genuine dispute that Plaintiff was a direct threat to herself or others, and by extension, that she was unable to perform the essential functions of her job.

This case illustrates the problems that employers can create for themselves by relying too heavily on an employee’s or applicant’s past history, as opposed to what the current reality is concerning the person’s ability to do the job. The employer here made the mistake of relying on Nelson’s history of mental illness and not necessarily her current mental state.  If the employer believes an applicant is currently a direct threat, that can be a valid defense by an employer to hiring an individual. However, it must have some recent evidence to show  why it believes the person would be a direct threat to the employer or others.