disd's experts in rodney bennett case

DEFENDANT DALLAS ISD’S EXPERT WITNESS REPORTS PAGE - 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RODNEY BENNETT

PLAINTIFF v. DALLAS INDEPENDENT SCHOOL DISTRICT,

DEFENDANT.

§ § § § § § § § § §

CASE NO. 3:11-CV-00393-D

DEFENDANT DALLAS INDEPENDENT SCHOOL DISTRICT’S

EXPERT WITNESS REPORTS

NOW COMES Defendant Dallas Independent School District (“Dallas ISD” or the

“District”), and submits its expert witness reports pursuant to this Court’s Order dated March 21,

2012, granting an extension to the Defendant to file the expert witnesses’ reports. See attached

reports of the following experts filed in accordance with Federal Rule of Civil Procedure

26(a)(2):

1. William M. Rathburn President Rathburn & Associates, Inc. P.O. Box 930 Mineola, Texas 75773 (903) 569-9434 Report attached at Attachment 1

2. J. Randall Price, Ph.D. Clinical-Forensic Psychologist and Neuropsychologist Price, Proctor & Associates, LLP 11882 Greenville Avenue, Suite 107 Dallas, Texas 75243 (972) 644-8686 Report attached at Attachment 2

DATED: May 10, 2012.

Case 3:11-cv-00393-D Document 25 Filed 05/10/12 of 2 PageID 93

DEFENDANT DALLAS ISD’S EXPERT WITNESS REPORTS PAGE - 2

Respectfully submitted,

Dianna D. Bowen /s/ Dianna D. Bowen

Texas Bar No. 34013778 [email protected] Meredith Prykryl Walker Texas Bar No. 24056487 [email protected] Fisher & Phillips LLP 500 N. Akard Street, Suite 3550 Dallas, Texas 75201 Telephone: (214) 220-9100 Facsimile: (214) 220-9122 ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of May, 2012, I electronically filed the foregoing document with the Clerk of Court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the Court. The electronic case filing system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept such Notice as service of this document by electronic means:

Robert E. Goodman, Jr. Kilgore & Kilgore PLLC 3109 Carlisle Street Dallas, TX 75204

Dianna D. Bowen /s/ Dianna D. Bowen

Case 3:11-cv-00393-D Document 25 Filed 05/10/12 of 2 PageID 94

mailto:[email protected]�

mailto:[email protected]�

PRICE, PROCTOR & ASSOCIATES, LLPA LIMITED LIABILITY PARTNERSHIP OF BOAR CERTIFIED FORENSIC PSYCHOLOGISTS

11882 Greenville Ave., Suite 107; Dallas, Texas 75243Telephone: 97Hi44-886.Facsimile: 972-ó4-8688

J. Randall Price, Ph.D., ABPP, FACPNBoard Certified in Forensic PsychologyBoard Certified in Neuropsychology

Timothy J. Proctor, Ph.D., ABPPBoard Certified in Forensic psychologyFellowship Trained in Forensic Psychology

Preliminary Report of Review of Records

Identifying Information:

Plaintiff: Rodney Bennett

Date of Birth: 12/1/68

Date of Report: 5/10/12

Style of Case: Rodney Bennett v. Dallas Independent School District

Cause No.: 3-11CV0393-D

Referral Source: Dianna BowenAttorney at LawFisher & Phillips, LLP500 North Akard StreetSuite 3550Dallas, Texas 75201TEL: (214) 220-8305FAX: (214) 220-9122email: [email protected]

Referral Information:

This evaluator was asked to review inormation pertinent to Mr. Rodney Bennett, a former policeoffcer with the Dallas Independent School District (DISD). Mr. Bennett was a police officerwith the DISD beginning in 2/01 until he was deployed as a milita reservist to active duty inthe Middle East in 5/07. He was discharged from active duty on 4/7/09 due to temporardisability for a combat-related injur. Upon his retur to the DISD in 5/09, it was requested thathe undergo a medical fitness for duty examination (FFDE) in relation to concerns regardingpotential medical and psychological factors interfering with his ability to perform his duties as apolice offcer with DISD. He agreed to undergo the medical FFDE, and as a result, he was foundto have medical problems that would limt his ability to perform the necessar job fuctionsinherent to the position of a police officer with the DISD. He was then placed in a securityposition until 4/1 0, when continued evidence of medical problems led to a determination that hecould no longer fulfill the essential job fuctions of a police officer, and as such, he was assigned

Case 3:11-cv-00393-D Document 25-1 Filed 05/10/12 Page 1 of 20 PageID 95

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to a dispatcher position. He then submitted a medical evaluation form dated 4/28/1 0 that statedthat his medical restrictions were removed. Also, it was requested that he undergo apsychological FFDE to ensure that his combat experiences did not create adverse psychologicalfactors that could potentially impair his ability to perform the duties of a police offcer. Hereportedly refused to undergo a psychological FFDE and failed to retur to work for hisdispatcher position. He was eventually terminated for failing to retu to work after 6/23/1 0, forfailing to comply with deparment and supervisor directives, for failing to comply with therequested FFDE, and for abandoning his job. Mr. Bennett has now filed litigation against theDISD for his termination and for allegations related to discrimination and a hostile workenvironment. This evaluator was asked to address the following two issues:

1. The potential impact ofPTSD on law enforcement personnelsjob performance; and2. Whether Mr. Bennett likely suffers from PTSD.

Evaluation Procedures:

This evaluator formed his opinons with regard to the aforementioned referral issues based uponhis expertise and experience in conducting psychological FFDEs, a review of relevant literature,and a review of the available records. It is of note that a direct face-to-face evaluation ofMr.Bennett was not conducted, and as such, the subsequent opinions and conclusions are basedsolely on the aforementioned factors. It is possible that a face-to-face evaluation of Mr. Bennettmight result in this evaluator forming different opinions, and as such, this needs to be consideredin the scope of the opinions expressed below.

Records Reviewed:

1. Varous DISD Employment Records and Related Documents (Bate Stamped Pages 1-641);

2. Medical Records from the Deparment of Veterans Affais (Bate Stamped Pages 642-

1058);3. Medical Records from Concert Health Services (Bate Stamped Pages 1679-1731);

4. Ary and TCLEOSE Forms (Bate Staped Pages 1732-1769);5. Bennett Production Response Excerpts (P.1-8);

6. Complaint for Rodney Bennett v. Dallas Independent School District (Cause #3-11CV0393-D);

7. Dallas Independent School District's Original Answer and Affrmative Defenses forRodney Bennett v. Dallas Independent School District (Cause #3-11CV0393-D);

8. Defendant's Initial Disclosures for Rodney Bennett v. Dallas Independent School District(Cause #3-11 CV0393-D);

9. Plaintiffs Rule 26(A)(l) Disclosure for Rodney Bennett v. Dallas Independent School

District (Cause #3-11CV0393-D);10. Plaintiffs Response to Defendant's First set ofInterrogatories to Plaintiff for Rodney

Bennett v. Dallas Independent School Distrct (Cause #3-11 CV0393-D);11. Plaintiffs Expert Witness Designation for Rodney Bennett v. Dallas Independent School

District (Cause #3-1 1CV0393-D); and


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12. Plaintiffs Expert Witness (Bill Genet, President of Police Organization Providing PeerAssistace) Report for Rodney Bennett v. Dallas Independent School District (Cause #3-i i CV0393-D).

Opinions and Summary of Findings:

This section summarizes the findings of this evaluator with respect to each of the twoaforementioned referral issues. Each referral issue wil be addressed separately with summariesof the relevant supporting documentation from the aforementioned sources of information.

1) The potential impact of PTSD on law enforcement personnel's job penormance

According to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition,Text Revision (DSM-IV-TR):

"The essential feature of Posttraumatic Stress Disorder is the development ofcharacteristic symptoms following exposure to an extreme traumatic stressorinvolving direct personal experience of an event that involves actual or threateneddeath or serious injur, or other threat to one's physical integrity; or witnessing anevent that involves death, injury, or a threat to the physical integrity of anotherperson; or learnng about unexpected or violent death, serious har, or threat of

death or injury experienced by a family member or other close associate(Criterion AI). The person's response to the event must involve intense fear,helplessness, or horror (or in children, the response must involve disorganzed oragitated behavior) (Criterion A2). The characteristic symptoms resulting from theexposure to the extreme trauma include persistent re-experiencing of the traumaticevent (Criterion B), persistent avoidance of stimuli associated with the trauma andnumbing of general responsiveness (Criterion C), and persistent symptoms ofincreased arousal (Criterion D). The full symptom picture must be present forgreater than 1 month (Criterion E), and the disturbance must cause clinicallysignificant distress or impairment in social, occupational, or other importt areasof fuctioning (Criterion F)." (P.463)

Also of paricular note within the DSM-IV-TR diagnostic criteria for PTSD are the specificsymptorns of re-experiencing the event, avoidance, and increased arousaL. These include but arenot limited to the following:

. Acting or feeling as if the traumatic event were recurrng (includes a sense of reliving the

experience, illusions, hallucinations, and dissociative flashback episodes). Intense psychological distress at exposure to internal or external cues that symbolize or

resemble an aspect of the traumatic event. Physiological reactivity on exposure to internal or external cues that symbolize or

resemble an aspect of the traumatic event. Efforts to avoid thoughts, feelings, or conversations associated with the trauma

. Efforts to avoid activities, places, or people that arouse recollections of the trauma

. Markedly diminished interest or paricipation in signficant activities


4

. Feeling of detachment or estrangement from others

. Restricted range of affect (e.g., unable to have loving feelings)

. Sense of foreshortened future

. Difficulty falling or staying asleep

. Irritability or outbursts of anger

. Difficulty concentrating

. Hypervigilance

. Exaggerated starle response

Given the nature of these symptoms, it is not umeasonable to suspect that the presence of such adisorder, especially depending on its severity, could have a profound impact on a police offcer'sability to safely and effectively perform his or her essential job fuctions. Indeed, police officersare often exposed to traumatic situations durng the course of their work. While not all offcersthat are exposed to trauma develop such a disorder, those that do can experience significantdisruptions in their occupational and personal fuctioning. Furhermore, evidence is emergingregarding the impacts of repeated exposure to traumatic experiences, frequently referred to asposttraumatic growth. This suggests that an offcer with a history of PTSD can experience moresevere symptoms with continued exposure to traumatic events. In total, it is the opinion of thisevaluator that PTSD symptoms, depending on their severity, would likely have a profoundimpact on a police officer's ability to safely and effectively perform essential job fuctions.

Working as a police officer with PTSD in a public school setting raises heightened concern dueto the nature of the school setting as well as the safety of children. For example, crowds arecommonplace in the hallways public schools, especially between classes and at the beginngand end of the school day. Crowds are frequently diffcult for individuals suffering from PTSDin paricular because the behavior of children in crowds can be unpredictable. Loud noises arealso common, such as yellng, lockers slaming shut, and books being dropped. Such loudnoises are also frequently difficult for individuals with PTSD because of an exaggerated staleresponse and subsequent unpredictable behavior. Additionally, in a diverse school populationsuch as that of the DISD, many different foreign languages are often spoken which can be"triggers' for flashbacks and subsequent unpredictable behavior in individuals with PTSD.

2) Whether Mr. Bennett likely suffers from PTSD

According to the available records, Mr. Bennett has had combat exposure including beingstationed at a forward observation post/close to enemy lines, receiving incoming firefrom enemy, encountering explosives while on patrol or at duty station, receiving sniperor sapper fire, providing aid to injured soldiers, and being exposed to dead bodies andbody pars (Criterion AI). His self-report during an evaluation on 5/14/09 reportedlyindicated that "durng these and other incidents he constatly felt in fear for his life"(Criterion A2). He has consistently reported multiple PTSD symptoms meeting criteriafor Diagnostic Criterion B, C, and D for a period lasting greater than 24 months(Criterion E). In relation to this, multiple scores are available for the PTSD Checklist -Milita Version (PCL-M). Scores on this measure rage from 17 to 85. Mr. Bennett'sscores on this assessment measure ranged from 53 (5/14/09) to 64 (8/4/11). Relative


5

items endorsed by Mr. Bennett indicated that he displayed symptoms of at least moderateintensity on at least one assessment with respect to:

. Repeated disturbing memories, thoughts, or images of a stressful milita

experience from the past. Repeated distubing dreams of a stressful milita experience from the past

. Suddenly acting or feeling as if a stressful milita experience from the pastwere happening again

. Feeling very upset when something reminded you of a military experience from

the past

. Having physical reactions (e.g. heart pounding, trouble breathing, sweating)

when something reminded you of a stressful military experience from the past. Avoiding thinkng about or talking about a stressful milita experience from the

past or avoiding having feelings related to it. Avoiding activities or situations because they reminded you of a stressful

militar experience from the past

. Loss of interest in activities that you used to enjoy

. Feeling distant or cutoff from other people

. Feeling emotionally numb or being unable to have loving feelings for those closeto you

. Trouble falling or staying asleep

. Feeling irrtable or having angry outbursts

. Having difficulty concentrating

. Being "super-alert" or watchful or on guard

. Peeling jumpy or easily starled

The PCL-M also asks "How difficult have these problems made it for you to do yourwork, take care of things at home, or get along with other people?" Mr. Bennettresponded with "Very difficult" to this question (Criterion F). It is of note that all of theavailable assessments done regarding PTSD symptoms appear to be based on Mr.Bennett's self-report. As such, his reported symptoms may be subject to exaggeration orfeignng of mental ilness. This is primarly noted due to an evaluation on 2/12/09 that

included performance on an effortmalingering measure (i.e., the Rey 15-Item Test) onwhich his score fell below the commonly accepted cutoff for adequate effortgenuineimpairment.

Mr. Bennett was discharged from the militay on disability status in association with adiagnosis of PTSD (70%) as well as other varous physical conditions. He has alsoundergone extensive treatment for PTSD at the V A Medical Center includingconsultation with a psychiatrist, taking multiple psychotropic medications, and attendingover 75 sessions of a PTSD support group. In total, it is the opinion of this evaluator thatMr. Bennett likely suffers from PTSD now and during the time period of 5/5/09 to8/10/11.

As was noted above, this evaluator formed his opinions with regard to the referral issuesbased upon his expertise and experience in conducting psychological PFDEs, a review of


6

relevant literature, and a review of the available records. A direct face-to-face evaluationof Mr. Bennett was not conducted, and as such, the opinions and conclusions are basedsolely on the aforementioned factors. It is possible that a face-to-face evaluation ofMr.Bennett might result in this evaluator forming different opinions, and as such, this needsto be considered in the scope of the opinions expressed above. Also, this evaluatorreserves the right to modify or change his opinions and conclusions regarding the referralissues if additional information becomes available that would warrant such changes.

Sincerely,~~J. Randall Price, Ph.D.


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Bowen. Dianna

From:Sent:To:Subject:Attachments:

Randall Price ([email protected])

Thursday, May 10,201211:17 AMBowen, DiannaRodney Bennett CasePrice_Bennett_Prelim_Report.docx; Price Testimony.doc

Ms. Bowen,

Attached please find my expert report in the matter of Rodney Bennett. My fee for all services rendered, includingrecords review, consultation, evaluation, and testimony is $300 per hour. I am also attaching a list of cases in which Ihave testified.

Dr. Price

1. Randall Price, Ph.D., ABPP, FACPNBoard Certified in Forensic PsychologyBoard Certified in [email protected]

PRICE, PROCTOR & ASSOCIATES, LLPA LIMITED LIABILITY PARTNERSHIP OF BOARD CERTIFIED FORENSIC PSYCHOLOGISTS11882 Greenville Ave., Suite 107-Dallas, Texas 75243Telephone: 972-644-8686-Facsimile: 972-644-8688

i


¡Rathburn & Associates, Inc. IP.O. Box 930 Mineola, Texas 75773

(903) 569-9434 Fax: (903) 569-2648Email: [email protected]

May 9,2012

Ms. Dianna D. BowenFisher & Phillips, LLP500 North Akard StreetSuite 3550Dallas, TX 75201

RE: Rodney Bennett v. Dallas Independent School DistrictUnited States District Court for Northern District of Texas, Dallas DivisionC.A. NO.3: 11-CV-0393-D

Dear Ms. Bowen:

i am submittng this report in response to your request for me to review materials relatedto this case and to render opinions on the issues involved. My opinions are preliminaryat this time and I reserve the right to supplement the report as additional informationbecomes available and causes me to alter any of my opinions or to form additionalopinions.

BACKGROUND AND EXPERIENCEI was a police offcer for almost 30 years and, for over 25 years, was as a supervisor ormanager. I was a member of the Los Angeles Police Department for over 27 years androse through the ranks to Deputy Chief. I was recruited for and served as Chief of theDallas Police Department for two years. In addition to my formal education and theregular training for police offcers, supervisors and managers, I attended several specialtraining programs including the nine-month Police Management Training Program atNorthwestern University, the FBI National Executive Institute at Quantico Virginia, theManagerial Policy Institute at the University of Southern California and the Mid-Management Institute at the Industrial Relations Center of the California Institute ofTechnology.

While a member of the Los Angeles Police Department, I served as CommandingOffcer of the Personnel Division for three years during which time I was responsible forthe entire police offcer selection and screening processes. I later served almost twoyears as the Commanding Offcer of the Personnel and Training Bureau, a position inwhich I had department-wide responsibility for all police offcer and civilian employee


Expert Witness Report of William M. Rathburn May 9,2012

personnel services including hiring, training, transfers, leaves of absence andpsychological services. My full resume is attached.

MATERIALS REVIEWED1. Complaint;

2. Defendant Dallas Independent School District's Original Answer and AffrmativeDefenses

3. Defendant's Initial Disclosures;4. Plaintiffs Rule 26(A)(1) Disclosure;

5. Plaintiffs Response to Defendant Dallas Independent School District's First Setof Interrogatories to Plaintiff Rodney Bennett;

6. Plaintiffs Expert Witness Designation;

7. Plaintiffs Expert Witness Report;

8. CD Containing documents produced by Plaintiff, bates numbered BennettProduction Responses 247,421-423,446,458,482, and 483;

9. CD Containing documents produced by Defendant, bates numbered DISD/R,Bennett 0001-1058 and 1679-1769;

10. USERRA Frequently Asked Question from Military.com11. Explanation attached to TCLEOSE Separation of Licensee12. USERRA Law13. USERRA Frequently Asked Questions14. Texas Administrative Code Title 37, Part 7, Chapter 217, Rule 217.115. Texas Government Code Section 613.002

FACTUAL SITUATIONRodney Bennett was a police offcer at the Dallas Independent School District (DISD)when he was called to active duty as a member of the Texas National Guard. Bennettwas injured while deployed in Iraq when his vehicle was struck by an RPG. After hisretirement from the military, Bennett sought to be reemployed as a Police Offcer withthe DISD. He was reinstated on May 20, 2009, but was subsequently terminated onAugust 31, 2010.

OPINIONSOn July 19, 2008, Bennett sent DISD Police Chief Blackburn an email informing him.....1was involved in an RPG attack and my body got beat up pretty good. Due to my injuriesmy military orders had been extended until I am back in original condition. I amcurrently in the hospital on a military base in Fort Benning, GA." (Bennett ResponsiveDocuments 483). Chief Blackburn replied to Bennett saying "It was great to hear fromyou. I am sorr that you were injured but I am glad to hear that you are recovering. Welook forward to your return. Give me a call when you get your cell phone. Our thoughtsand prayers are with you." (Bennett Responsive Documents 482 and 483).

Accrding to his own statement, Bennett had sent pictures showing his injuries to othermembers of the DISD Police Department while he was stil deployed. (Bennett'sComplaint of Discrimination and Hostile work environment-DISD/R. Bennett 0280).

2



By the time Bennett sought reemployment with DISD, it is my opinion that it was wellknown to Chief Blackburn, as well as to others on the DISD Police Department, thatBennett had been seriously injured while he was on military leave from OISD.

My understanding is that Bennett met with Chief Blackburn and Director of OperationsRene Ronquillo in May of 2009 seeking reemployment. He was told that he would haveto go through the return to duty process with Benefits Outlook, a DISD contractor, andthat any work restrictions would have to be addressed. On May 19, 2009, Bennett wentto a doctor of his own choosing for a physical fitness evaluation and it was determinedthat he had significant restrictions, restrictions that, in my opinion, would haveconvinced a reasonable person that Bennett could not be deployed as a DISD PoliceOffcer. These restrictions were as follows:

"No Walking or Running for Long periods of time.Unable to jump from elevated surfaces.Unable to jump over obstacles such as ditches, streams or fences; balance onuneven or narrow surfaces.Unable to use force to gain entry through barriers.Unable to chase suspects or conduct perimeter searches.Unable to maintain a full range of motion of the neck and head.Unable to bend over, reach, crouch, climb stairs.Unable to drag one's own body weight in the course of performing relatedduties."

"These restrictions are in place for 6 months."

"No Prolonged Standing for greater than 15 minutes.No Climbing more than one flight of stairs."

The DISD Police Department utilizes a Position Description for Police Offcer (DISD/R.Bennett 0344-0345) that defines the job requirements including the following:

"Physical Demands:"

"The physical demands described here are representative of those that must bemet by an employee to successfully perform the essentials functions of this job."

"While performing the duties of this job, the employee is regularly required to sitor stand for long periods of time; communicate verbally and electronically; hearradio, alarm, and voice communication; use hands to finger, handle, or feelobjects, tools, or controls; reach with hands and arms; stand and movethroughout the building and/or to other facilities; and drive. Regularly required tobend, crouch, stoop, kneel, and/or crawl; climb; and balance. Must be able tomaintain emotional control under stress. Frequently required to lift or exert forceof up to 25 pounds."

"Work Environment"

"The environmental characteristics described here are representative of those anemployee encounters while performing the essential functions of this job:"

"The noise level in the work environment is usually moderate, May be requiredto control sudden/extreme physical acts of others and exhibit rapid mental and

3



muscular coordination simultaneously. May be exposed to varying climateconditions, as well as adverse and hazardous working conditions, including butnot limited to violent and armed confrontations."

It is my opinion that key members of DISD Police Department staff were justifiablyconcerned about Bennett's finess to perform the duties of a Police Officer because ofhis physical restrictions listed in his medical evaluation. Bennett was initially assignedto a sedentary position in plain clothes that was created to accmmodate his physicallimitations. He was told he would be in that less demanding position until he could clearthe medical examination to establish that he was physically able to perform the duties ofPolice Offcer. He was also told that, before he could return to allowed to work in aPolice Officer position, he would have to get a release from the VA; that he would haveto catch up on any Texas Commission on Law Enforcement Offcer Standards andEducation (TCLEOSE) training that he missed while on military deployment; and that hewould have to take a psychological examination and physical examination. It is myopinion that the actions of DISD were reasonable, necessary and appropriate under thecircumstances. It would have been unreasonable and reckless for DISD to have

allowed Bennett to perform in a Police Offcer position when it was clearly establishedthat he had received serious and traumatic injuries and stil had major physicallimitations that would affect his ability to perform in a Police Offcer position.

It is a long-standing practice for police departments to reassign police offcers to

sedentary positions when they are not physically able to perform in a regular policeoffcer position. Police departments also routinely require police offcers returning from

extended time off for any reason to complete any TCLEOSE training they missed sothey are fully prepared to perform the duties of the position. Laws and techniqueschange and offcers must be trained in those changes. Although Bennett stated he hada TCLEOSE waiver, it is my opinion that he still needed the training he had missedbefore being put back into a Police Offcer position. In my opinion, any TCLEOSEwaiver was for the continuing education requirements but not a blanket exemption foressential training he might have missed.

It has been widely reported by the news media that many returning soldiers whoreceived serious injuries in combat had also suffered Post-Traumatic Stress Disorder(PTSD). In my opinion, given the seriousness of Bennett's injuries, it was not onlyreasonable but also necessary for DISD to require an evaluation to determine Bennett'spsychological fitness to perform the duties of a Police Offcer.

One of the TCLOESE requirements for licensing as a police offcer is that the applicantbe examined by a psychologist or psychiatrist and determined to be in satisfactorypsychological and emotional health to perform in the position. Texas AdministrativeCode, Title 37, Part 7, Chapter 217(a)(12). Police departments have always interpretedthis requirement not as a static one that requires satisfactory psychological and

emotional health only at the licensing stage but rather a continuing requirement for

offcers to maintain satisfactory psychological and emotional health while on the job. Inmy opinion, negligent retention liability exposure also forces departments to ensure thatoffcers maintain satisfactory psychological and emotional health.

4



It is a standard procedure or practice for police departments to require a physical and/orpsychological reexamination when there is any indication that there might be limitationsto the ability of a Police Offcer to perform the duties and functions of the job. It is myexperience and strong conviction that departments must err on the side of caution in aneffort to protect the officer as well as those in the community whom he is expected toserve. In my opinion, a reasonable person would have taken the same or similarprecautions before returning Bennett to a field Police Offcer position by requiring him toundergo examinations to determine both physical and psychological fitness to performthe duties of a Police Offcer. The authority, duties and responsibilities of a PoliceOffcer, who is armed and is allowed to use deadly force under limited circumstances,are so significant that any police department must do everyhing it can to ensure thatany person with such awesome authority, duties and responsibilities is both physicallyand psychologically fit to perform.

It is my understanding that Bennett was, in fact, reemployed as a Police Officer and wasbeing paid as a Police Officer although he was temporarily deployed in the less

demanding position of unarmed Security Guard. It is my understanding that this wasintended to be a temporary assignment until his fitness for duty was reestablished. It ismy opinion that Bennett was not discriminated against in any way but rather that DISDwas merely taking reasonable and appropriate steps to ensure that he was physicallyand psychologically capable of performing in a Police Offcer position before putting himin one. Particularly in a school Police Offcer position which requires the interaction withand protection of school kids, it is my opinion that it was essential for DISD to verify thatBennett was capable of doing the job before he was put into a Police Offcer position.

Bennett's claim that no one else had ever been put into a Security Guard position uponreturning from military leave may be correct but it is my opinion that DISD would havetaken the same step with anyone who had undergone the injuries that Bennett hadsuffered. In my opinion, the DISD actions were simply the reasonable and responsiblesteps for any police department to have taken. It is my opinion and experience that theDISD action in placing Bennett in a less demanding position until his fitness for dutymedical was established was consistent with the general industry standard and practice.

It is my understanding that the Uniformed Services Employment and ReemploymentRights Act (USERRA) contained in Title 38, United States Code, at chapter 43.(Sections 4301 through 4333) generally provides for reemployment rights followingmilitary service, including protection from discrimination against because of service inthe uniformed services. It is important to note that USERRA clearly recognizes thatsome returning veterans may not be qualified for the same position for any number ofreasons, including disability, and allows for placement"... in any other position which isequivalent in seniority, status, and pay consistent with the circumstances of suchperson's case." (US Code, Title 38, Section 4313(a)(2)(3)(A&B)).

DISD reemployed Bennett as a Police Offcer with Police Offcer pay. They then

temporarily assigned him to a different, less demanding position until his fitness forPolice Offcer duty could be reestablished. In my opinion, such action by DISD wasreasonable and necessary and was not a violation of any right Bennett had underUSERRA.

5



USERRA requires "reasonable efforts" to accommodate those returning with disabilities.Before DISD could attempt to make reasonable efforts to accmmodate Bennett, it wasnecessary for DISD to know what his disabilities were and what performance limitationshe might have. DISD staff ordered him to obtain both a physical fitness evaluation anda psychological fitness evaluation because of the nature and severity of his injuries.Once he received a physical fitness return to work, Bennett then refused the DISD orderto submit to a psychological evaluation for fitness. In my opinion, nothing in USERRAor any other law allows a person to knowingly withhold information on a disability thatmight affect the ability of the person to perform the duties of his job. In my opinion, thatis what Bennett tried to do by refusing to undergo a psychological fitness evaluation.Bennett knew he had received a Disability Rating of 70%, that was approved onJanuary 5, 2009, and his Army retirement was effective on March 30, 2009. Thedisability rating was 50% for Posttraumatic Stress Disorder (DISD/Bennett 1748). It ismy opinion that Bennett refused to undergo the psychological fitness evaluation simplybecause he was trying to hide his PTSD disability. In my opinion, there is nothing tosupport Bennett's charge that DISD discriminated against him because of his miliaryservice that prevented his return to a Police Offcer position.

The USERRA website lists a number of responses to "Frequently Asked Questions." Inmy opinion, there are two particularly relevant questions and responses that are I havequoted below:

"14. What if a person is not qualified for the reemployment position?""If a person has been gone from the civilan job for months or years, civilian job skillsmay have been dulled by a long period without use. A person must be (or become)qualified to do the job to have reemployment rights, but USERRA requires theemployer to make "reasonable efforts" to qualify that person. "Reasonable efforts"means actions, including training, that don't cause undue hardship to the employer.If a person can't become qualified in the positions described in #13 after reasonableefforts by the employer, and if not disabled, the person must be employed in anyother position of lesser status and pay, which he or she is qualified to perform, withfull seniority. (Section 4313)."

"15. What if a returning service member is disabled?""USERRA also requires the employer to make "reasonable efforts" to accommodatepersons with a disability incurred or aggravated during military service. If a personreturns from military service and is suffering from a disability that cannot beaccommodated by reasonable employer efforts, the employer is to reemploy theperson in some other position he or she is qualified to perform and which is the'nearest approximation' of the position to which the person is otherwise entitled, interms of status and pay, with full seniority."

It is my opinion that these two responses make it clear that USERRA recognizes andallows for situations such as Bennett's and that they support my conclusion that DISDactions were appropriate under the USERRA law.

It was subsequently determined that Bennett had been treated by Dr. Lindsey S.Pershern, MD and, in a letter dated January 14, 2010, he stated that he had beentreating Bennett since February 2009 and that Bennett had a diagnosis of Posttraumatic

6



Stress Disorder (PTSD). He went on to say that Bennett"... is receiving treatment withmedications and is involved in psychotherapy through our trauma services team. He iscurrently taking Venlafaxine, Prazosin, Zolpidem and Clonazepam to target symptomsof anxiety, depressed mood and insomnia related to nightmares." (Bennett ProductionResponses 247). Dr. Pershern went on to say that Bennett"... was not a risk to himselfor others and does not have a history of these behaviors" and that "He does not havelimitations in regards to work at this time." There is no indication that Dr. Pershern wasfamiliar with the duties and responsibilties of a Police Offcer or that he had seen theDISD Essential Functions for Police Offcer form. More importantly, it is myunderstanding that this letter was not recived by DISD until they received it in thediscovery process. In my opinion, this letter clearly establishes that DISD staff wascorrect in their determination regarding the need for a psychological evaluation. I do notpretend to be qualified to say that this tretment and/or these medications would

prevent him from performing as a Police Offcer but it is my opinion that Dr. Pershern'sreport would have caused a reasonable person to have insisted on a medical evaluationon the overall psychological fitness issue. It is possible that Bennett may have beeneligible to return to work as a Police Ofcer had he submitted the report from Dr.Pershem to DISD so it could be considered. He did not. He also continued to refuse apsychological evaluation for fitness to perform as a Police Offcer until he wasterminated.

It is interesting to note that Bennett failed to list the medications Dr. Pershern said hewas taking when he had the following Concentra Medical Center physical examinationsfor fitness:

On May 15, 2009, Bennett only listed Etodolac and Ibuprofen (DISD/R. Bennett1725);On January 5,2010, he only listed Ibuprofen (DISD/R. Bennett 1703);On April 6,2010, he only listed Lisinopril and Ibuprofen (DISD/R. Bennett 1691); andOn April 28, 2010, he only listed Lisinopril and Ibuprofen (DISD/R. Bennett 1715).

Texas Government Code Section 613.002.(b)(2) clearly states that a returning miltaryservice member must be "... physically and mentally qualified to perform the duties ofthat position." That physical and mental fitness was exactly what DISD was trying todetermine. The Texas Government Code requirements are incorporated in the DISDpolicies and procedures identified as DECB (DISD/R. Bennett 0573).

After reviewing all of the emailsandotherdocumentsthatwereprovidedtome.itis myopinion that staff from the DISD Police Department and other several other DISDdepartments recognized from the outset that the reemployment of Bennett had to behandled carefully and in compliance with the law. There were numerous people with awide range of backgrounds and responsibilities who participated in the decision-makingprocess at various stages including the School Attorney, a retired military Colonel whowas the Executive Director of Human Resources at the time, and the Chairperson of theAmerican with Disabilities Act Advisory Committee. In my opinion, there is nothing tosupport that this entire disparate group conspired to and discrminated against Bennettand/or knowingly allowed others to discriminate against him. My opinion is thateveryone involved from DISD went above and beyond what was required of them in

7



their collaborative efforts to assist Bennett in returning to a Police Officer position.

Bennett simply refused to cooperate.

By the time Bennett was finally terminated on September 20, 2010, DISD staff hadspent 16 months trying to get him reexamined in their efforts to return him to theposition of Police Offær. Had he cooperated, his fitness to return to a Police Officerposition would have been quickly established, any work restrictions or limitationsassessed and an informed decision made regarding how best to support Bennett'srecovery and to utilize his services during and after that process.

I have carefully reviewed the report by plaintiffs expert witness William Genet and findthe report to be without much, if any, merit. Genet may be a good peer counselor butthere is no indication he has any knowledge or experience in managing a policeorganization.

Under Opinion #1, Genet states that "NYPD returnees are given services ofpsychological evaluation coupled with a standard medical evaluation." In my opinion,what Genet failed to grasp was the point that the returnee must cooperate to allow suchevaluations and must submit to them. DISD sought to have Bennett evaluated in thesame manner as NYPD; however, Bennett did not cooperate, hid the fact that he hadPTSD and refused an order to submit to a psychological evaluation.

In Opinion #2, Genet seems to claim to have counseled 5,000 police personnel in theten months following the World Trade Center attacks. Even if he worked 60 hours aweek for the entire ten months, he would have only had approximately 2600 hoursavailable for such counseling. That would have allowed for little more than 30 minutesper counseling session. He also talks about police offcers and soldiers as "Warriors."In my opinion, the role of DISD school police offcer is clearly not one of a "Warrior" andsuch a characterization would surely disturb parents and staff alike. In my opinion, the

DISD police offcer position in not at all similar to that of a NYPD offcer.

Genet also stated that NYPD and other departments "... are adopting practices andpolicies that encourage our warriors to step forward and utilize the available resourcesto get help early and avoid the stigmatization of continued accumulation of stress fromtraumatic events." Again, in this case, such assistance from DISD was not possiblebecause of Bennett's refusal to cooperate.

In Opinion #3, Genet seems to indict DISD staff in general, and Lieutenant Howard inparticular, based solely on Bennett's complaint. His opinion that DISD "...did not followappropriate procedures and practices in connection with Mr. Bennett's return fromactive duty..." is offered without any support except from Bennett's complaint.

It is my understanding and experience that the standard practice for police departmentsin reemploying personnel returning from any leave of absence is to require fitnessphysical and psychological evaluations. If nothing else, Genet's report seems tosupport that point.

In my opinion, the fact that Bennett was a Dallas Independent School District PoliceOffcer imposed a greater responsibility on the Police Department staff to ensurepsychological fitness before letting him return to a Police Offcer position. DISD policeoffcers must constantly interact with children and must be in crowded hallways and

8



classrooms where it is essential that they maintain a calm demeanor and composure inevery situation to prevent unnecessarily exciting the children involved. They also musthandle diffcult emotionally and physically demanding situations with restraint to preventescalation.

After Bennett received a physical return to work assessment, the DISD Americans withDisabilities Act Advisory Committee (ADAAC) reviewed the situation and concluded thatBennett was physical able to perform the essential functions of the police offcer positionbut that he needed to be psychologically evaluated. The Committee recommendedBennett be reassigned to an open Police Dispatcher position until he had apsychological clearance to return to a Police Offcer position.

Bennett was reassigned to the Police Dispatcher position effective May 3, 2010(DISD/R. Bennett 0004). Bennett and his attorney agreed to accpt the assignment asa Dispatcher and he worked the position on May 14, 2010. Bennett then changed hismind and submitted an email to Assistant Chief Avera and Betty Kosters on May 17,2010, in which he respectfully declined the position (DISD/R. Bennett 0292). He laterstopped reporting for duty and, in effect, abandoned his position with the DISD PoliceDepartment. Bennett was also insubordinate by failing to report for a psychologicalexamination on July 22, 2010, after being given a direct order to do so. In my opinion,the DISD staff was as supportive and accommodating as they possible could be inassisting Bennett but he made the decision not to cooperate and not to follow lawfulorders.

Bennett was terminated effective on September 30, 2010. The reasons for thetermination listed in a letter from Dr. Claudia Rodriquez, Ph.D., the DISD ExecutiveDirector of Human Resources, were listed as follows:

"Your last day of reporting to your assignment was June 23, 2010- you failed toreport to work since then.You failed to comply with department and supervisor directives/requirements.You failed to comply with a fitness for duty exam.You abandoned your position." (DISD/R. Bennett 0066-0067).

Bennett was given 15 days to file a grievanæ challenging the termination or it wouldbecome finaL. The termination document (DISD/R. Bennett 0001) shows that he chosenot to utiize that administrative appeal process to challenge his termination thereby, inmy opinion, failing to exhaust his administrative remedies.

CONCLUSIONIt is my opinion that DISD actions in reemploying Bennett were reasonable, necessaryand appropriate and that they were consistent with the practices that other policedepartments would have utilized under similar circumstances. DISD made numerousand consistent efforts to assist Bennett in returning to a Police Offcer position but herefused to submit to a psychological examination for fitness and stopped reporting towork thereby abandoning his position with DISD. He was subsequently terminated.

It is my opinion that Bennett's refusal to comply with DISD directives and requirementsled to his termination and that there is insuffcient evidence to support that there wasany discrimination based on military service, disability or anything else.

9



CASES WITH TESTIMONY AS AN EXPERT WITNESSI have testified as an expert witness in trial or by deposition in only the following caseduring the last four years:

Christopher Bryant and Shante' Evans v. Home & Hearth Stemmons Freeway, L.P.d/b/a Hearthside By Vilager (Dallas) and Central Leasing Management, Inc.Dallas County, Texas County Court at Law NO.5Cause No. CC-06-14752-E

State of Texas vs. Larry FinneyDallas County District Court NO.7Cause No. F09-41136

COMPENSATIONCompensation for my expert witness services is $275 per hour plus expenses.

This is a preliminary report and may have to be supplemented when more information isavailable.

Wiliam M. RathburnRathburn & Associates, Inc.

Attachments1-Resume of William M. Rathburn

10



WilLIAM M. RATHBURNP.O. Box 930

Mineola, Texas 75773903-569-9434

FAX 903-569-2648Email: [email protected]

Professional Experience:

PresidentRathburn and Associates, IncorporatedSince 1996

Work activities include general security consulting, police consulting, policedepartment management reviews, special event security, expert witness case reviewand testimony and corporate consulting.

Assisted the Greek government with security planning for 2004 Olympic Games as aconsultant to the U.S. State Department under the Anti-Terrorism Assistance

Program. Negotiated a corporate sponsorship for Sensormatic ElectronicsCorporation, an electronic security company, for the 2002 Salt Lake City OlympicGames and assisted with sponsorship issues and Games preparations. AssistedSouth Africa on bids for the 2004 Olympic Games and the 2006 Soccer World Cup.

Served as Security Coordinator for World Energy Congress in Houston, the HarvardBusiness School Global Alumni Conference in Cape Town, South Africa, and theWorld Food Business Summits in Atlanta and Barcelona. Have served as consultantto Raytheon, NorthropGrumman, TAC, Sensormatic Electronics, WashingtonInternational Group, Exponent, Inc. and Wexford Group on homeland security and/orother security issues.

Licensed as a Qualified Security Manager by the Private Security Bureau of theTexas Department of Public Safety (License No. A11122).

Director of SecurityAtlanta Committee for the Olympic GamesMarch 1993 to November 1996

Direct responsibility for all aspects of security planning, preparation and delivery for1996 Olympic Games. Managed a $100 million budget and an Olympic Gamessecurity staff of more than 17,000. Coordinated the activities of 52 law enforcementagencies providing support for the Games. Oversaw and administered all securityoperations for the largest Olympic Games in history with over 10,000 athletes and8.6 million spectators.

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Expert Witness Report of Willam M. Rathburn May 9,2012

Chief of PoliceDallas, Texas Police DepartmentMarch 1991 to Marc 1993

Served as Chief of Police for the sixth largest police department in the United States.Notable achievements included major reductions in crime and in the level of

community concern about police abuse. Established a civil abatement unit toidentify and resolve long-standing crime and quality of life issues.

Member of the Los Angeles Police Department1963 to March 1991

Served as Police Offcer, Sergeant, Lieutenant, Captain, Commander and DeputyChief.

Los Angeles Police Department Experience Highlights:

Commanding Officer, Operations-South BureauFebruary 1988 to March 1991

Had line command over five divisions (Southwest, Southeast, 77th Street, Harborand South Traffc) that comprise South Central Los Angeles and the Los AngelesHarbor area. With a force of 1300 sworn and civilian employees, had directresponsibility for policing an area of 58 square miles with an ethnically diversepopulation of 550,000. The area had approximately 20,000 identified gang membersand experienced almost one homicide every day.

Commanding Officer, Personnel and Training BureauJune 1986 to February 1988

Had line command of Personnel Division, Training Division, Behavioral ScienceServices Section and the Evaluation and Administration Secion. Had responsibilityfor all centralized training, including recruit, in-service, supervisory and

management. Had responsibilty for all centralized personnel functions, includingbackground investigation, employee records management, medical liaison andpsychological services. Served as chairman of several Police Department boardsand committees including those covering the use of force by Police Departmentpersonnel, awards for exceptional service and uniforms and equipment.Responsible for developing policies on offcer tactics, for preparing final adjudicationreports on hundreds of offcer-involved shootings and other use-of-force cases, andfor evaluating the offcers' use of force and tactics for training and policy purposes.

Commanding Officer, Support Services BureauMarch 1985 to June 1986

Had line command over six support divisions, including Communications, AutomatedInformation, Scientific Investigation, Planning and Research, Records andIdentification and JaiL. Directed the activities of more than 1,200 employees andmanaged a budget totaling $30 million. Personally responsible for the acquisition ofa $7 millon Automated Fingerprint Identification System, which is now the mosteffective such system in the world.

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Administrative Commander, Office of the Chief of PoliceSeptember 1984 to March 1985

Directly advis and assisted the Chief of Police on a wide range of issues.Developed a plan to improve safety and security for major athletic events at the LosAngeles Memorial Coliseum.

Olympic Games Planning CoordinatorFebruary 1979 to September 1984

Directly responsible for all aspects of Los Angeles Police Department planning andpreparation for the 1984 Summer Olympic Games. Developed the conceptual plan,negotiated a $25.5 million budget, staffed the planning unit, acquired necessaryequipment, completed detailed security plans and oversaw the delivery of all policeand emergency service for what was then the largest and most successful OlympicGames in history. Chaired an Interagency Security Planning Committee with

responsibility for coordinating the activities of more than 50 law enforcementagencies. Developed a model for interagency coordination that is still widely usedfor major special events.

Police Department Traffic CoordinatorJanuary 1980 to September 1983

In addition to Olympic planning responsibilities, served as the LAPD TrafficCoordinator with Citywide functional responsibility for traffc and line responsibility forthe traffc staff function. Responsible for developing traffc policies and proceduresand served as the Police Department spokesperson on traffc matters. Representedthe Police Department on the Los Angeles County Peace Offcers' AssociationTraffic Committee, the California Peace Offcers' Association Traffic Committee andthe International Association of Chiefs of Police Highway Safety Committee.

October 1963 to February 1979

Various line and staff assignments in patrol, investigation, administration andmanagement as a Police Officer (five years), Sergeant (four years), Lieutenant (fouryears) and Captain (three years).

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Expert Witness Report of Willam M. Rathburn May 9,2012

Education: University of Southern CaliforniaMaster's Degree - Public Administration - 1976

Pepperdine Universit

Bachelor's Degree - Public Management - 1974Northwestern University

Certificate - Traffc Police Administration - 1973Cerritos College

Asate of Ars Deree- Criminal Justiæ- 1972

Professional Affilations and Activities:International Association of Chiefs of Police

Lifetime MemberFonner Member. Exective Board

Northwestern University Traffic Institute AlumniAssociation

MemberCalifornia Governor's Advisory Commission on JuvenileJustice and Delinquency Prevention

Former MemberSpeaker/Lecturer - Numerous presentations on security,

street gangs, special event security and crowd management.

Awards: Police Oficer of the Year 1985

International Association of Chiefs of Police and Parade Magazine

Los Angeles City Council Resolution of Commendation

Los Angeles Police Commission Unit Citation(Only the second ever awarded)

Man of the Year 1984Wilshire Rotary Club

Headliner of the Year 1992Press Club of Dallas

Man of the Year 1992Dallas Radio Station KRLD

Golden Torch News Maker of Year Award for 1992 AfricanAmerican Men against Narcotics

Order of the Rings Award, International Olympic Committee

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