Court: Man claiming bias in screening can sue city

An appellate court has reversed a federal judge in Pittsburgh who threw out a lawsuit filed by a man who says psychologists hired by the city of Pittsburgh discriminated against him when they recommended he not be hired as a police officer.

The 3rd U.S. Circuit Court of Appeals ruled Wednesday that U.S. District Judge Joy Flowers Conti erred in dismissing a case brought in 2018 by Christopher Gibbs under the Americans with Disabilities Act.

A three-judge panel said Mr. Gibbs has the right to present evidence that the psychologists discriminated against him

because of his attentiondeficit disorder.

Judge Conti last year had sided with the city in granting the city’s motion to dismiss.

“Pittsburgh objects that its psychologists did not discriminate against Gibbs. That may be so. But Gibbs has plausibly alleged that they did, and he deserves a chance to prove it,” Judge Stephanos Bibas wrote for a threejudge 3rd Circuit panel.

Mr. Gibbs’ lawyer, Timothy O’Brien, said he will show that his client, a former Marine and currently an officer for the Port Authority, was treated unfairly because of his disability.

“Gibbs is exactly the kind of person we want to be a police officer,” he said.

When Mr. Gibbs applied to become an officer for the city, he passed the written test and received a conditional job offer pending a psychological screening. Three psychologists interviewed him and two said he was unfit to serve.

He said they were biased because once they learned about his ADHD diagnosis, they rejected him without exploring whether his condition would interfere with his ability to be an officer.

If they had, he said, they would have learned that his ADHD is under control and that five other police departments have found him fit to serve and had hired him. He said he has never misbehaved as an officer or a Marine. He did say he misbehaved in his youth because of ADHD, before he was treated, but said that the city of Pittsburgh has hired other applicants with similar childhood issues not caused by ADHD.

He said in his suit that he wasn’t hired because of anti-ADHD bias.

In its motion to dismiss, the city had said he wasn’t qualified because passing the psychological test is a prerequisite for becoming an officer.

Judge Conti granted the motion, but the 3rd Circuit said she was wrong.

Judge Bibas said Mr. Gibbs had plausibly argued that the psychologists fixated on his ADHD in rejecting him.

He also said Mr. Gibbs plausibly alleged that he was qualified because other departments had hired him. In finding Mr. Gibbs unqualified, the city relied on a case involving Philadelphia in which the 3rd Circuit ruled that a psychological test for police was a valid qualification but only if the candidate did not raise allegations of bias.

Mr. Gibbs is alleging bias in the test, Judge Bibas said, so must now be given the chance to prove it.

“If his allegations are true, there is a reasonable chance that discovery will unearth more evidence of it,” the judge said.

Judge Conti had also ruled that Mr. Gibbs had to allege that the city of Pittsburgh itself was biased against him, not just the psychologists it hired. But the 3rd Circuit rejected that idea. Under the ADA, an employer cannot avoid its obligations by contracting out personnel services.

“So if the psychologists discriminated against Gibbs, Pittsburgh would be liable for relying on them,” Judge Bibas said.

Judge Conti had also ruled that state law required the city of Pittsburgh to screen out Mr. Gibbs, but the 3rd Circuit said that an employer “may not shield itself from federal anti-discrimination liability just by saying that it was trying to follow state law.”