The police officer in question began working for a city in July 2006. In August 2007, the officer responded to a domestic dispute service call involving a 17-year-old boy and his 15-year-old sister at their home. Subsequent to the call, one or more of the persons in the home filed a citizen's complaint alleging the officer engaged in excessive force against the brother during the call. As a result of that complaint, the officer was placed on paid administrative leave and an internal affairs investigation was initiated.
Based on the investigation, the Chief of Police issued a notice of intent to dismiss the officer in February 2008. After the pre-discipline Skelly meeting, however, the parties executed a settlement agreement wherein they agreed that in lieu of discharge, the officer would receive a 15-working-day suspension without pay and a one-step reduction in pay for 12 months. An additional condition of the settlement agreement was the officer's "successful completion of a psychological fitness for duty examination (to be completed by a City chosen practitioner at the City's expense)."
The City selected a clinical psychologist to conduct the fitness for duty examination, and in April 2008 the psychologist in question issued a report finding the officer unfit for duty as a police officer. The City accepted the psychologists' findings, and on that basis concluded that the settlement agreement had been breached and thus invalid. The notice of intent to dismiss was, therefore, amended and reissued in May 2008, and in June 2008 a final notice of termination (based on the excessive force and related charges) was issued.
The officer appealed his termination on the excessive force and related charges, and during the hearing he submitted reports from two different psychologists who opined that he was psychologically fit for duty even though his fitness for duty was not technically at issue in that arbitration. The two reports were procured by the officer's attorney, and they were rendered without the knowledge of (or contact with) the City or its police department. This meant that the two psychologists in question did not receive any information about the officer from the City, e.g., any information about his employment history, his history of excessive force complaints or his number of "resisting arrest" arrests, discipline history, prior medical reports, observations about his performance, etc.
The arbitrator hearing that appeal concluded that two of the four charges against the officer were not supported by the evidence, and on that basis overturned the termination of his employment, substituting instead a 15-day suspension for discourteous and unprofessional behavior during the August 2007 incident. The City complied with the arbitrator's reinstatement order, but before it would agree to put the officer back into active duty it insisted that he be re-examined again by a psychologist because the City knew the officer had failed at least one fitness for duty exam, and it questioned the validity of the two reports procured by the officer's attorney without city input.
The officer filed a lawsuit against the City and the Chief of Police alleging disability discrimination, and in that lawsuit he sought to enjoin the City and the Chief from sending him to another fitness for duty exam. The City and Chief of Police prevailed in the litigation, and the examination went forward. The forensic psychologist, who was chosen in part because he is a member of the International Association of Chiefs of Police's (IACP) Psychological Service Section, found the officer to be unfit for duty. The City then went through the interactive process with the officer in accordance with the disability accommodation laws, and offered him non-sworn positions. The officer rejected the alternate vacant positions offered, and requested that he remain on indefinite paid leave instead. The City rejected the officer's request and issued a notice of intent to place the officer on an unpaid leave of absence.
During the Skelly meeting for the proposed unpaid leave of absence, the officer claimed he had attended anger management therapy and was fit for duty. The City then sent the officer to a third and final fitness-for-duty evaluation, but with a different psychologist because the officer alleged that the two previous psychologists who found him unfit were "biased" against him. Not surprisingly, however, the third psychologist (also an IACP forensic/police psychologist) found the officer unfit for duty. The officer was then terminated for being psychologically unfit for duty under Government Code section 1031(f).
The officer appealed again, and during the second arbitration the issue was limited to whether the officer was psychologically fit for duty or not. During 12 days of arbitration, competing psychologists testified about the various examinations they conducted on the officer and what their differing conclusions were based on, e.g., what "collateral information" about the officer's past or performance the psychologist had or did not have in his/her possession, what psychological tests were run or not run on the officer, and whether the psychologist properly interpreted the tests he or she chose to run on the officer. The arbitrator weighed the conflicting opinions of psychologists (as well as several non-expert witnesses who testified) and concluded that the City had just cause to terminate the officer for being psychologically unfit for duty.