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MCKENNA v. FARGO

May 25, 1978

JAMES McKENNA, ROBERT J. McKENNA, BRIAN FLAHERTY, John Cinciarelli, and JOSEPH PORTER, Plaintiffs,
v.
Nicholas FARGO, Director of Public Safety, City of Jersey City, RAYMOND GIBNEY, Chief of the Jersey City Fire Department, and STEVENS INSTITUTE OF TECHNOLOGY, Defendants



The opinion of the court was delivered by: COOLAHAN

 Rarely does a case involve conflicting interests as important and as difficult to reconcile as those in this litigation. The psychological testing which Jersey City uses to screen applicants for its fire department has been challenged by plaintiffs as an invasion of the applicants' constitutional rights. In plaintiffs' view, conditioning employment on psychological testing of questionable validity puts the applicants to a prohibited choice of sacrificing constitutional freedoms to secure prized employment or of looking for work elsewhere. Defendants contend that the condition is a reasonable and necessary one because the task of fighting fires is no ordinary job in difficulty or importance and because success depends critically on the psychological capabilities of firemen.

 There is good reason to scrutinize a government requirement which joins the words psychology and testing. Psychology is not yet the science that medicine is and tests are too frequently used like talismanic formulas. The Court has, therefore, carefully reviewed the extensive evidence generated by a long trial and has not arrived lightly at the conclusion that the defendants' psychological testing is constitutional.

 PART I

 A. Procedural History and Preliminary Rulings

 This protracted litigation began on April 17, 1974, when plaintiff James McKenna applied to the Court for a temporary restraining order. The Court's dismissal of the complaint for lack of jurisdiction was reversed on appeal. McKenna v. Fargo, 510 F.2d 1179 (3d Cir. 1975). An amended complaint was filed on March 7, 1975, naming five plaintiffs and three defendants. Three of the plaintiffs, James McKenna, Robert McKenna, and Brian Flaherty, have gone through the contested psychological evaluation and hiring procedure. Plaintiffs Joseph Porter and John Cinciarelli applied for employment with the Jersey City Fire Department and were certified as eligible by the Civil Service, but have not taken the physical and psychological examinations. The defendants are Nicholas Fargo, the Jersey City official responsible for appointment and supervision of Jersey City fire fighters, Raymond Gibney, Chief of the Jersey City Fire Department, and Stevens Institute of Technology, a New Jersey corporation under contract to Jersey City since 1966 to conduct psychological evaluations of fire-fighter candidates. (T. 1.09-.11) Defendant Stevens operates the Laboratory of Psychological Studies (LPS), which conducted the testing. Plaintiffs represent themselves only; the Court denied plaintiffs' motion for class action certification for reasons stated in an unpublished opinion filed February 23, 1976. A motion for partial summary judgment in favor of plaintiffs was also denied by letter opinion filed on June 20, 1977. *fn1"

 Trial commenced on June 28, 1977, and ended July 28, 1977, generating 16 volumes of transcript. Proposed findings of fact and conclusions of law were received from all parties by mid-February 1978.

 During trial, the Court reserved decision on defendants' motion to dismiss the claims of plaintiffs Porter and Cinciarelli on two grounds. Defendants argued, first, that the case was moot as to these plaintiffs since defendants no longer required psychological testing by defendant Stevens, and, second, that these plaintiffs lacked standing to sue since the Civil Service list pursuant to which they had qualified expired several months before commencement of trial. The Court has concluded that the suit is not moot and that plaintiffs Porter and Cinciarelli have standing to sue even though they have not undergone testing by defendant Stevens.

 The evidence indicates that Jersey City intends to continue psychological evaluations and that Stevens withdrew its participation only because of this suit. By letter dated November 10, 1976, Stevens asked Jersey City for a hold-harmless agreement to protect it from any liability that might result from its actions as an agent of Jersey City. (DJ-17) The reply from Jersey City to Stevens stated that its legal department recommended that the agreement not be signed "while a Law Suit is pending" and asked, "Can we proceed as we did in the past without the signed agreement." (DJ-18) Stevens refused to continue doing psychological evaluations without the hold-harmless letter. Since Jersey City still required evaluations as a precondition of employment, defendant Fargo directed that another psychological consultant be located. (DJ-12) By letter of January 31, 1977, Jersey City retained the services of a psychiatric institute for psychological evaluation of fire-fighter candidates. (DJ-13) The Court understands from counsel that this arrangement is ongoing and may involve some of the same procedures used by Stevens. (T. 11.5-.16)

 It is apparent that defendants' allegedly unconstitutional conduct has been suspended only in the sense that defendant Stevens has temporarily withdrawn because it cannot now obtain a hold-harmless letter. Clearly Jersey City intends to continue psychological testing. If assured of no liability by a judgment from the Court or a hold-harmless agreement, Stevens would in all probability be willing to resume its role in the testing. Such voluntary cessation of allegedly illegal conduct does not make this case moot. See Defunis v. Odegaard, 416 U.S. 312, 318, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974). In Defunis the Supreme Court described a line of decisions as standing for the proposition that unilateral termination by the defendant of the challenged conduct cannot be allowed to make a case moot, for to do so would mean that a defendant could evade review by voluntarily ending the conduct whenever sued, thus defeating the public interest in having the legality of the practices determined. For a case to be moot, a court must be able to conclude that there is a reasonable expectation that the wrong will not be repeated. Id. at 318. In this case, repetition of the challenged governmental action is certain, based as it is on a definite and continuing policy. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122-125, 40 L. Ed. 2d 1, 94 S. Ct. 1694 (1974).

 Plaintiffs Porter and Cinciarelli also have standing to sue. Standing to sue exists when the plaintiff himself has suffered some threatened or actual injury resulting from putatively illegal action. See Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). Porter and Cinciarelli were certified as eligible for appointment to the fire-fighter force when suit was brought and are likely to qualify again in the near future. A psychological evaluation was and still is a precondition for employment. The threat of injury to these plaintiffs is not a bare allegation derived from an indirect and improbable chain of events; nor are these plaintiffs' claims for prospective relief based on a threat lacking immediacy or ripeness. Cf. id. at 516; Roe v. Wade, 410 U.S. 113, 128, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). Thus these plaintiffs have a personal stake in the outcome of this controversy sufficient to confer standing.

 One other preliminary matter requires consideration. Defendant Stevens has argued that plaintiff Flaherty's claim must be dismissed for failure to exhaust State administrative remedies. While, as plaintiffs contend, Flaherty's aborted appeal may well have satisfied any exhaustion requirement, Stevens' argument is, in any event, misconceived. Exhaustion of State administrative remedies is not required prior to commencement of an action under 42 U.S.C. § 1983 in federal court. Hochman v. Board of Ed., 534 F.2d 1094 (3d Cir. 1976). There is, therefore, no bar to consideration of the claims raised by plaintiff Flaherty or any of the other plaintiffs.

 B. Elements of the LPS Evaluation

 Several personality assessment instruments are involved in this suit. To understand the background and operation of defendants' evaluation and hiring procedure, a brief description of the types of instruments used is necessary. In Part II, how the tests were utilized in the evaluations done by defendant Stevens will be considered.

 Self-Report Inventories

 1. The Minnesota Multiphasic Personality Inventory (MMPI) consists of approximately 550 numbered statements in booklet form with printed instructions on the cover. (P-3, T. 7.41) An individual taking the inventory reads the instructions and proceeds through the test without being observed or questioned by a psychologist. The MMPI is thus described as a self-administered, self-report inventory. (T. 12.87) The individual is instructed to read each statement and to try to decide whether it is true or mostly true or false, or not usually true, as applied to him; items which the individual finds not applicable or on which he has no judgment are left blank. Answers are recorded on a separate answer sheet by marking in true or false columns. The statements in the inventory range over several areas and refer to opinions, attitudes, observable behavior, and feelings which the subject may find applicable to himself. *fn2" Answers to certain groups of questions are collected according to ten basic scales, each scale representing a personality characteristic, such as paranoia or depression. Scale numbers are listed on a graph or profile for comparison to other subject groups. (DS-1(a))

 2. The Edwards Personal Preference Schedule ("Edwards test" or EPPS) is similar in form to the MMPI. Like the MMPI, it is a self-administered, self-report inventory. The Edwards test consists of about 225 pairs of statements in booklet form. The individual is instructed to indicate which of the two statements is more characteristic of what the individual feels or likes. *fn3" (T. 12.99, P-4) The preferences are combined according to 15 scales which reflect "need" categories. The scales are entered on a graph as a profile of personality. (T. 12.100-.101, P-4(a))

 Projective Instruments

 Four of the instruments are projective tests. Projective tests use a vague stimulus which the individual is instructed to explain; the subject thus projects on to it fantasies and emotional associations. (T. 7.120, 12.103-.104, 12.115) In contrast, objective instruments, like the self-report inventories, use a single, structured stimulus and limit the subject's response to specific experiences or feelings.

 1. The Rorschach test consists of a set series of pictures of inkblots, usually ten in number. The cards range in color from all black and gray to others having several pastel colors. (P-7) The irregular form of the inkblots permits innumerable interpretations, and the vague shapes are roughly suggestive of things ranging from animals to sexual organs. The responses are analyzed in several ways, including, for example, by content, parts of the blot used, or perception of movement. (T. 12.117) Interpretation of the responses provides information about emotional and personality traits. *fn4"

 2. The Thematic Apperception Test (TAT) requires a subject to interpret a picture by telling or writing a dramatic story about what has led up to the event in the picture, what is happening, and what the possible outcome might be. (T. 12.104) The responses are interpreted primarily by analysis of any recurring themes behind the plots, and the way in which the subject uses aspects of the picture to form the story. From a total set of 20 pictures, fewer cards may be used, although different pictures are normally used for men and women. *fn5"

 3. In the Draw-a-Person or Human-Figure Drawing Test, the subject is instructed to draw a person on a blank sheet of paper, and then to draw a figure of the opposite sex on a second sheet. (T. 6.68, 12.128) The drawings can be analyzed according to size, location on page, and quality or amount of detail. (T. 14.74, 6.94, 6.68) The test is usually used for personality assessment, including sexual identity, but also for intelligence measurement. (T. 6.94, 7.25)

 Interview and Personal Data Form

 1. On the Personal Data Form used by Stevens, the applicant stated his education, employment and military background. The form also contained several questions about the applicant's family history. *fn6" (P-8)

 2. Applicants were given a Patterned Interview by a staff psychologist, who relied in part on the Personal Data Form. (T. 12.130) The purposes of the interview were to inquire as to the applicants' motivations in seeking the position, or whether they or their spouses had reservations about the dangers of the job, and to begin to form a hypothesis of the applicants' personality that could be corroborated by the other testing data. (T. 14.75-.76; 12.129)

 PART II

 A. Evaluations and Hiring before 1972

 The testing or assessment procedure conducted by Stevens for Jersey City began in the spring of 1966. Before then, applicants for both the police and fire departments were given psychiatric interviews by a doctor on the staff of the Department of Police and Fire, who was paid on a fee-for-case basis. (T. 11.50)

 More thorough psychological assessment of applicants for the police and fire departments came about because of the civil unrest and riots in Jersey City in 1965 and as a result of the experience Stevens had gained in psychological evaluations done for smaller communities. At that time, and currently, the director of Jersey City's Division of Medical Services was Dr. Patrick McGovern. According to his testimony, Jersey City officials were concerned over the responses of police and firemen to the riots and in particular to attacks directed at them; they "were constantly looking for ways to pick people who would not overreact in situations." (T. 11.50) Dr. McGovern read about a police screening project conducted by Stevens and inquired whether a similar program for firemen could be devised for regular use by a municipality of Jersey City's size. (DJ-2, T. 11.50)

 The deputy director of Stevens' Laboratory for Psychological Services (LPS), Dr. Myron Johnson, explained in a letter to Dr. McGovern that Stevens had conducted psychological screening programs for police applicants in three small communities and for the Stevens campus itself. *fn7" (DJ-3) Stevens had also begun a psychological assessment program for firemen in the town of West New York only several months earlier. The purpose of the West New York project was to detect emotional flaws in applicants that could lead to failures in performance or poor decisions at critical moments and to check for psychosis or imminent emotional breakdown. *fn8" (T. 9.21-9.29) Dr. Johnson's review of the available studies and research data in connection with the West New York project indicated there was no relevant, conclusive study on how such testing or assessment should be designed. *fn9" (T. 9.25-.26)

 Dr. McGovern arranged a meeting on March 15, 1966, of Jersey City police, fire, and budget officials to discuss with Dr. Johnson the feasibility of adopting a testing program similar to that used for firemen in West New York and for policemen in several small communities. It was agreed that Stevens would conduct a two-step process of psychological screening for both police and firemen. All applicants would be given the MMPI in conjunction with the physical examination and the other Civil Service tests for intelligence and aptitude. (DJ-1) Only applicants whose MMPI profiles raised doubts as to their suitability would be given a full battery of tests and a psychiatric interview. (T. 12.79) The general qualities or characteristics Stevens would use as a basis for judgment were discussed and agreed upon. *fn10" (T. 11.54)

 In January 1971 Stevens recommended that Jersey City adopt full evaluations for all applicants. (DJ-5) The decision made in March 1966 to give full examinations only to applicants with poor MMPI profiles seems to have been a compromise caused primarily by the limits of Jersey City's budget and the unwillingness of the Civil Service to finance psychological evaluations for all municipalities. (DJ-4(a), DJ-5) Stevens preferred the use of several techniques from the outset, but the municipalities that were interested lacked funding for more than very limited testing. (T. 9.40) With more experience -- there having been few authoritative studies to rely upon initially -- Stevens prevailed on Jersey City to adopt full assessment for all applicants. (T. 9.40-.41, DJ-5) By 1972, when plaintiffs were evaluated, Jersey City had replaced the two-step MMPI screening with full evaluations for all applicants.

 B. Evaluation and Hiring Procedure

 The procedure for employment with the Jersey City Fire Department consisted of several stages. The psychological evaluation came at the end of the process and thus only applied to candidates who passed the initial stages. All applicants were required to take the Civil Service examination, which included a physical agility test. If they were certified by the Civil Service Commission, they were given a medical examination at Jersey City Medical Center. After April 1972 the MMPI was given at LPS with all the other tests. (T. 12.89) An investigation of the applicant's background was also made. Applicants who had been certified as eligible and whose medical and background checks were satisfactory were notified by Jersey City to report to Stevens for psychological examination. The eligible applicants were taken from the top of the Civil Service list until the requisite numbers were hired to fill the vacancies.

 Applicants were also given an interview with a Stevens psychologist at some point during the day. After the interview, the Rorschach inkblot test was administered by the interviewing psychologist. (T. 1.11) Applicants taking the so-called pencil-and-paper tests in the group testing room would be interrupted, if necessary, for the interview and Rorschach test, when a psychologist became available. (T. 1.11)

 From all the data, an evaluation was prepared by the interviewing psychologist. (T. 1.8, 12.141) The following psychological characteristics *fn11" were used as a basis for evaluating fire-fighter candidates (T. 1.12):

 1. Be able to adjust well to close community living;

 2. Be able to follow orders explicitly;

 3. Be able to withstand substantial stress and tension as generated by life-endangering circumstances encountered in fire-fighting situations, where circumstances beyond the control of the individual are operative;

 4. Be able to make decisions under stress;

 5. Be able to take calculated but not any ...


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