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ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
Cite this issue as:
2008 FP Dec
This publication discussed 424 cases or items in 2008.
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CONTENTS
Monthly Law Journal Article
Weight and Fitness Requirements
2008 (12) AELE Mo. L. J. 201
Digest Topics
Arbitration Punishment Awards (2
cases)
Bargaining
Unit Determinations
Bill
of Rights Laws (2 cases)
Death
Benefits
Disability
Benefits - Benefit disputes
Disability
Benefits - Line of duty related (2 cases)
Disciplinary
& Administrative Investigations
Disciplinary
Hearings - Proof Required
Disciplinary
Procedures - In General
Disciplinary
Punishment - Disparate Treatment
Discovery,
Publicity and Media Rights
Domestic
Partner Rights
First
Amendment Related
Handicap
Discrimination - Amendments
Homosexual
& Transgendered Employee Rights
National
Security Issues
Pensions
Privacy
Rights
Psychological
Counseling
Psychological
Exams
Race
and Sex Discrimination
Religious
Discrimination
Retaliatory
Personnel Action (2 cases)
Retirement
Rights and Benefits (2 cases)
Sick
Leave & Abuse (2 cases)
Stress
Related - Research Articles
Untruthfulness
Whistleblower
Protection (2 cases)
Workers’ Compensation - Claim Validity (2 cases)
Report non-working links here
AELE Seminars:
Public Safety Discipline and Internal
Investigations
Apr. 13-15, 2009 – San Francisco
Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas
Click here for more information about all AELE Seminars
Some of the case digests do not have a link to the full opinion.
- Cases that have a Lexis citation can be retrieved, for a fee, at: http://web.lexis.com/xchange/forms/uas/catalog.asp
- Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
- BNA arbitration awards can be obtained, for a fee, from BNA Plus.
- Access to cases linked to www.findlaw.com may require registration, which is free.
Arbitration Punishment Awards -
Right of Courts to Interfere
* * * Editor’s
Alert * * *
Federal appeals panel vacates a 342-day
“time served” disciplinary suspension as arbitrary and capricious, because it
was based solely on the length of time that elapses between the date of the
termination and the date of the arbitrator’s decision. “There are many factors
that a reviewing authority may and should take into account when determining
the appropriate length of an employee’s suspension. But it may not set the
length of a suspension based solely on the time that it takes the reviewing
authority to reach a decision. To permit the length of a suspension to be based
solely on “time served” would make the penalty depend not on the Douglas
factors, which reflect the individual employee’s particular situation, but on
the speed with which (1) the employee or his representative handled the case,
and (2) the tribunal rendered its decision.” Greenstreet v. Social
Secur. Admin., #2007-3312, 2008 U.S.
App. Lexis 20155 (Fed. Cir.).
Pennsylvania appellate court overturns an
arbitration award reinstating a worker who “repeatedly and egregiously sexually
harassed” a coworker by engaging in behavior that was “lewd, lascivious and
extraordinarily perverse.” “If forced to
honor the arbitration award, [management] will not be complying with Title VII
... which requires that an employer impose appropriate discipline for proven
cases of sexual harassment in order to ensure a safe work environment free of
sexual harassment.” Phila.
Housing Auth. v. AFSCME C-33, L-934,
#2405 C.D. 2004, 2008 Pa. Comm. Lexis 417.
Bargaining Unit Determinations
Illinois appellate panel finds that police
sergeants in an agency are “supervisors.” They are responsible for continually
monitoring their subordinates, documenting instances of wrongdoing and
completing performance evaluations. They “have authority to issue verbal
reprimands and recommend more severe disciplinary action and they consistently
use independent judgment in exercising such authority.” Village
of Hazel Crest v. Illinois Labor Relations Board, #1-07-2722, 2008 Ill. App. Lexis 938.
Bill of Rights Laws
Arbitrator orders the reinstatement of a
police officer who was removed for violating a conduct regulation. Management
failed to comply with state law and provide him with a signed complaint. A
“Garrity Warning” form is not a signed complaint. City
of Lubbock, Texas, and Individual Grievant, 125 LA (BNA) 554, AAA Case #71-390-00053-08 (Moore,
2008).
Although verbal statements must be
suppressed for not complying with the state’s Bill of Rights law, a California
appellate panel declines to exclude evidence of an officer’s act of pointing
her loaded firearm at a sergeant during her interrogation. “Although this
action occurred during an interrogation which was conducted in a questionable
manner, the remedy of suppression protects statements, not actions ...” Perez
v. City of Los Angeles, #B199810, 2008
Cal. App. Lexis 1469 (2nd Dist.).
Death Benefits
Federal PSOBA payments to a statutory
beneficiary of a law enforcement officer who is killed in the line of duty are
payable to the claimant’s estate, if the beneficiary dies before the claim is
fully processed. However, the beneficiary must still be alive and file a claim
after the death of the officer. White v. U.S., #007-5126, 2008 U.S. App. Lexis 007-5126 (Fed. Cir.).
Disability Rights and Benefits
- Benefit disputes
Because a statute was silent about
cost-of-living increases for the widows of disabled police officers, an
Illinois appellate court concludes that the legislature did not intend for
surviving spouses to receive such COLA increases. Therefore a pension board has
no authority to grant COLA increases. Village
of Roselle v. Police Pension Bd., #2-07-0354, 889 N.E.2d 665, 2008 Ill. App. Lexis 470 (2nd Dist.).
Disability Rights and Benefits
- Line of duty related/ disputed
Although driving a car involves only an
ordinary risk, a police officer acts in a capacity that involves a special risk
when engaged in routine patrol. Appellate court reverses a holding that he was
entitled only to non duty-related disability benefits. Jones
v. Bd. of Trs., Police Pension Fund of Bloomington, #4-07-0687, 2008 Ill. App. Lexis 920 (4th Dist.).
A police officer’s tripping over a snow
bank and falling from a fence while chasing suspects are “inherent risks of his
employment and not the result of unexpected events.” N.Y. appellate panel holds
that the officer’s application for accidental disability retirement benefits
were properly denied. Melendez
v. N.Y. State Comptroller, #504636,
2008 N.Y. App. Div. Lexis 6756 (3rd Dept.).
Disciplinary &
Administrative Investigations
California appeals panel rejects
preliminary injunctive relief because a sheriff’s dept. revised its procedures
to prevent officers, who were either involved in or witnessed an
officer-involved shooting to consult with legal counsel and or labor
representatives collectively or in groups (two or more officers consulting at
the same time with the same legal counsel/labor representative. They may
continue to consult counsel individually, or to be represented as a group at a
later time. Nothing in the constitution or bargaining laws warrants an
injunction against the policy change while the litigation is pending. Assn.
L.A. Deputy Sheriffs v. Co. of Los Angeles, #B197611, 2008 Cal. App. Lexis 1460 (2nd Dist.).
Note: AELE has two Monthly Law Journal articles on point:
Disciplinary Hearings -
Proof Required
Arbitrator sets aside a 60 working-day suspension
of a corrections officer for misdirecting a security camera. Management failed
to prove that the grievant abused property because of an unproven burst of
anger. Clermont Co. Sheriff and Ohio FOP L-112, 125 LA (BNA) 592, FMCS
Case #08/00909 (Bordone, 2008).
Disciplinary Procedures -
In General
Arbitrator finds that the grievant, a
corrections officer, brought a mobile phone into the facility, allowed an
inmate to use it, and then was deceptive and untruthful about her actions.
However, she was not provided with notice that management had rejected a
hearing officer’s recommendation of a 45-day suspension, and terminated her.
Because of a lack of due process, the 45-day suspension recommendation was
determinative, and her termination is annulled. Virgin Islands Bur. of
Corrections and UIW-SIU, Case #RA-010-08, 125 LA (BNA) 626 (Henner, 2008).
Disciplinary Punishment -
Disparate Treatment
Appellate court rejects a disciplinary
bias claim. The appellant, a terminated black officer, “cited no examples of
comparable employees who were similarly situated” that were treated more
favorably. Greene
v. City of Cincinnati, #C-070830, 2008
Ohio App. Lexis 4121 (1st Dist.).
Discovery, Publicity and
Media Rights
Noting that the U.S. Government widely
disseminated photos of emaciated prisoners and corpses found in Japanese and
German WWII prison camps, the Second Circuit upholds a FOIA action to release
21 photographs depicting abusive treatment of detainees by U.S. soldiers in
Iraq and Afghanistan. ACLU v. Dept. of Defense, #06-3140-cv, 2008 U.S. App. Lexis 20074 (2nd Cir.).
·
View the ACLU’s report,
“Enduring Abuse: Torture and Cruel Treatment by the United States at Home
and Abroad” (2006).
Domestic Partner Rights
Connecticut Supreme Court strikes a ban on
same sex marriages in a 4-to-3 holding. “... in light of the history of
pernicious discrimination faced by gay men and lesbians, and because the
institution of marriage carries with it a status and significance that the
newly created classification of civil unions does not embody, the segregation
of heterosexual and homosexual couples into separate institutions constitutes a
cognizable harm.” Kerrigan v. Commissioner
of Public Health, #SC 17716, 289 Conn.
135, 957 A.2d 407, 2008 Conn. Lexis 385.
First Amendment Related
Appellate panel rejects a suit filed by an
at-will probation officer who was fired after she wrote a letter to a judge
which was critical of her supervisor. The letter was a personal grievance, not
a matter of public concern. Miller v.
Clinton County, #07-2105, 2008 U.S.
App. Lexis 20682 (3rd Cir.).
Handicap Laws / Abilities Discrimination
- In General
* *
* Editor’s Alert * * *
President signs S. 3406 to modify the holdings in three Supreme Court cases:
* School Bd. of Nassau Co.
v. Arline, 480 U.S. 273 (1987);
* Sutton
v. United Air Lines, 527 U.S. 471 (1999);
* Toyota Motor Mfg v.
Williams, 534 U.S. 184 (2002).
The amendments are now Public
Law No.110-325, and become effective Jan. 1, 2009. Among other things,
the law has these definitions and features:
1. Major life activities include, but are
not limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.
2. A major life activity also includes
the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions.
3. An individual meets the requirement of
“being regarded as having such an impairment” if the individual establishes
that he or she has been subjected to an action prohibited under this Act
because of an actual or perceived physical or mental impairment whether or
not the impairment limits or is perceived to limit a major life activity.
Impairments that are transitory (6 months or less) or minor do not count..
4. An impairment that substantially
limits one major life activity need not limit other major life activities in
order to be considered a disability.
5. An impairment that is episodic or in
remission is a disability if it would substantially limit a major life activity
when active.
6. The determination of whether an impairment
substantially limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures such as medication, medical
supplies, equipment, or appliances, low-vision devices (which do not include
ordinary eyeglasses or contact lenses), prosthetics including limbs and
devices, hearing aids and cochlear implants or other implantable hearing
devices, mobility devices, or oxygen therapy equipment and supplies ...
Note: The amendments do NOT affect federal workers. Federal
government employees are covered under Section 501 of the Rehabilitation
Act of 1973.
Homosexual &
Transgendered Employee Rights
In a third interim ruling, a federal court
finds that the Congressional Research Service unlawfully denied a
position as a terrorist analyst to an applicant who was undergoing gender
reassignment surgery. The government
revoked its job offer when management learned that a man named David intended
to become a woman named Diane. The suit was launched by the ACLU. Schroer
v. Billington, #1:05-cv-01090, Pacer
Doc. 70, 2008 U.S. Dist. Lexis 71358 (D.D.C. 2008); prior decisions at 525
F.Supp.2d 58 and 424 F.Supp.2d 203.
·
See, Legal
Rights of Transsexual Public Safety Employees, 2007 (6) AELE Mo. L. J. 201.
National Security Issues
Federal court rejects a national origin discrimination
suit brought by a Treasury Dept. worker who was subjected to an intensive
security investigation. Management believed the employee was traveling to
Afghanistan because his mother was ill and later discovered that the employee’s
mother was already deceased. Asghar v. Paulson, #06-0400, 2008 U.S.
Dist. Lexis 73279 (D.D.C.).
Pensions
Florida pension trustees file a class
action lawsuit in N.Y. City, claiming that a major insurance and financial
services firm artificially inflated its share prices and concealed risky
investments, resulting in investor asset losses. Jacksonville Police and
Fire Pension Fund v. American International Group, #1:2008cv04772, Complaint,
Pacer Doc. 1 (S.D.N.Y. 2008).
Privacy Rights
California appellate court holds that city
officials must not disclose police officer personnel records and must cease
permitting the public to access the Police Review Commission’s investigations,
reports, hearings, and findings. Berkeley
Police Assn. v. City of Berkeley,
#A118537, 2008 Cal. App. Lexis 1567 (1st Dist.).
Psychological Counseling
Defense Dept. revises its policy
on intelligence interrogations, detainee debriefings and tactical questioning.
Among other things, it limits the role of psychologists advising interrogators:
“Behavioral science consultants may not be used to determine detainee phobias
for the purpose of exploitation during the interrogation process.” DoD
Directive 3115.09 (9 Oct. 2008).
Psychological Exams and
Standards
- Fitness for Continued Duty or
a Return to Active Duty
Ohio appellate court sustains the
suspension and demotion of a fire lieutenant for failing to submit to a
psychological exam following a 5-month absence from work after undergoing back
surgery. A separate action against the union for failing to seek arbitration also
was dismissed. A psychological evaluation request was reasonable and is not an
unlawful search of his mind. Jenkins
v. City of Sandusky, #E-07-067, 2008
Ohio App. Lexis 3966 (6th App. Dist.).
Race and Sex Discrimination
Study shows that job discrimination
plaintiffs win only 15% of the time. “The most significant observation about
the district courts’ adjudication of these cases is the long-run lack of
success for employment discrimination plaintiffs relative to other plaintiffs.
Over the period of 1979-2006 in federal court, the plaintiff win rate for jobs
cases (15%) was lower than that for non jobs cases (51%).” Employment
Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 (1) Harvard Law & Policy Review 1 at 30 (Winter
2009).
Religious Discrimination
Jury awards a former worker $147,174 for
economic losses, $500,000 for emotional distress and $5.9 million in punitive
damages against her former employer. Initially, a federal district court in
Sacramento dismissed her lawsuit. Reversing, the Ninth Circuit recognized a
claim of reverse religious discrimination. The plaintiff had alleged she was
denied a promotion because she was not a member of a favored religious group.
Post-trial, the judge reduced the punitive damages award to $647,174, plus
attorney’s fees. Noyes v. Kelly Services, #2:02-cv-2685, Pacer Doc. 226
(7/31/2008); prior decis. at #04-17050, 488
F.3d 1163 (9th Cir. 2007).
·
The employer
unsuccessfully argued that punitive damages should be limited on a 1-to-1 ratio
of economic losses, excluding the $500,000 for emotional distress.
Retaliatory Personnel Action
Fifth Circuit rejects claims raised by a
former prison nurse. Allegations of unfriendly behavior, being reprimanded in
front of coworkers, unpleasant work meetings, and unfair treatment do not
constitute adverse employment actions. King v. Louisiana
Dept. of P.S. & C., #07-31069,
2008 U.S. App. Lexis 20294 (5th Cir.).
Federal court dismisses a §1983 suit by a
former state trooper who claimed that a superior violated his right to equal protection
by treating him differently because of personal malice. His claim was not based
on membership in a particular group, and “class of one” equal protection claims
are invalid in the public employment context. Stas v. Lynch,
#3:07-CV-0268, 2008 U.S. Dist. Lexis 70783 (D. Conn.).
Retirement Rights and Benefits
Florida appellate court grants limited
relief to a retired city employee who was mistakenly informed that he would
receive $175,000 if he enrolled in a Deferred Retirement Option Plan (DROP) but
the actual amount was around $75,000. Retirement
Board, City of Coral Gables v. Pinon,
#3D08-1114, 2008 Fla. App. Lexis 15120.
Federal Merit Board declines to excuse or
abate a $45,341 claim against a former federal worker who collected disability
pay in excess of the income limitations provided by law [5 C.F.R. §831.1209(a)
and §8337(d)]. Zelenka
v. O.P.M., #PH-831M-07-0316-B-1, OPM
Claim #328-9-643, 2008 MSPB 228.
Sick Leave & Abuse
Appellate panel sustains the termination
of a female city worker who called in sick so that she could extend her
vacation. She was unable show that male workers were treated less harshly for
misusing sick leave and lying to their superiors. Hughes
v. City of Bethlehem, #07-2349, 2008
U.S. App. Lexis 20974 (Unpub. 3rd Cir.).
Arbitrator finds that management did not
have just cause to discipline a firefighter for dishonesty when he took sick
leave for a sore wrist. He was videotaped carrying bicycles and washing his
vehicle. There was no evidence to believe that he had “faked” an injury and the
modest tasks that he was photographed performing did not prove that he was fit
for the considerable physical demands of an active firefighter. City of
Rialto and IAFF L-3668, CSMCS #ARB-06-0255, 125 LA (BNA) 550 (Gentile).
Stress Related Claims and
Defenses - Research Articles
University of Buffalo pilot studies have
shown, that “officers over age 40 had a higher 10-year risk of a coronary event
compared to average national standards; 72 percent of female officers and 43
percent of male officers, had higher-than-recommended cholesterol levels; and
police officers as a group had higher-than-average pulse rates and diastolic
blood pressure.” NIOSH/Buffalo Cardio-Metabolic Occupational Police
Stress Study news (9-25-2008).
Untruthfulness & Resume
Fraud
- Resume fraud or job
application omissions and falsehoods
Arbitrator orders the reinstatement of a
Bureau of Prisons employee in spite of her failure to disclose an investigation
of her at another location. She had an excellent work record and was cleared of
charges. Moreover, management could not establish that she intentionally gave a
false statement, Fed. Bur. of Prisons and AFGE L-0922, FMCS Case
#07-02327, 125 LA (BNA) 573 (Nicholas).
Whistleblower Requirements and
Protection
Ninth Circuit rejects a whistleblower
claim raised by a terminated air marshal. He revealed to the media the contents
of a DHS decision to suspend air marshal protection for overnight flights. The Whistleblower
Protection Act did not apply to the TSA staffing decision because it was
not a personnel action. Mac Lean v. Dept.
Homeland Security, #04-17050, 2008
U.S. App. Lexis 19618 (9th Cir.).
The failure to reappoint a detective
sergeant constitutes an adverse employment action sufficient to support a §1983
action; his whistleblower claims should be decided by a jury, since there was a
question of fact as to whether he was not reappointed because of his
involvement in a grand jury investigation. Welch v. Campi, #072470, 2008 U.S. App. Lexis 20485 (1st Cir.).
Workers’ Compensation - Claim Validity
Appellate court denies comp. benefits to an injured D.C. officer, who was assaulted in Maryland while off-duty. The fact the Maryland county has a reciprocal enforcement agreement did not make his injuries duty-incurred. Smallwood v. D.C. Metro. Police Dept., #07-CV-851, 2008 D.C. App. Lexis 396.
A claimant’s earnings from subsequent employment
should not be subtracted from a vocational rehabilitation maintenance
allowance, because it is not a wage replacement benefit. Medrano
v. Workers’ Comp. App. Bd., #B202828,
2008 Cal. App. Lexis 1462.
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RESOURCES
Post-Traumatic Stress
• Guide: Combat
Deployment and the Returning Police Officer, Institute for Law and Justice,
Alexandria, VA.
Reference:
• Abbreviations of Law Reports,
laws and agencies used in our publications.
• AELE’s list of recently noted
employment law resources.
• Discrimination
Laws plus EEOC Regulations and Policy Guidance
Report non-working links here
Bill of Rights Laws - see: Privacy Rights
Disciplinary
Evidence/Exclusionary Rule - see: Bill of Rights Laws
Disciplinary
Punishment - see: Arbitration Punishment Awards
Discovery
and Media Rights - see: Privacy Rights
Free
Speech - see: Whistleblower Protection
National
Origin Discrimination - see: National Security Issues
National
Security Issues - see: Discovery, Publicity & Media Rights
Retaliatory
Personnel Action - see: First Amendment Related
Retirement Benefits - see: Disability Benefits
AELE Seminars:
Public Safety Discipline and Internal
Investigations
Apr. 13-15, 2009 – San Francisco
Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas
Click here for more information about all AELE Seminars
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