Fire and Police Personnel Reporter

AELE Seminars:

Lethal and Less Lethal Force
Oct. 26-28, 2009 - Las Vegas

Public Safety Discipline and Internal Investigations
April 13-15, 2009 – San Francisco
Dec. 14-16, 2009 – Las Vegas

Click here for more information about all AELE Seminars

© Copyright, 2009 by A.E.L.E., Inc.

Contents may be downloaded, stored, printed or copied,

but may not be republished for commercial purposes

Search the Case Law Digest

ISSN 0164-6397

An employment law publication for law enforcement,
corrections and the fire/EMT services

Cite this issue as:
2009 FP Feb

This publication highlighted 424 cases or items in 2008.

This issue contains 35 cases or items in 28 topics

Click here to view information on the editor of this publication.

Access the multiyear Employment Law Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™ must be used to view contents.

Some links are to PDF files

Adobe Reader™ must be used to view content

CONTENTS

Monthly Law Journal Article

Legal Aspects of Firearms Restrictions - Part One

Management’s Right to Restrict or Forbid

an Officer from Carrying Firearms - I

2009 (2) AELE Mo. L. J. 201

Monthly Case Digest

Civilian Review

Collective Bargaining - Duty to Bargain

Criminal Liability

Disciplinary Investigations

Disciplinary Offenses – Insubordination

Disciplinary Procedures - Time Limits (2 cases)

FLSA – Overtime

First Amendment Related (2 cases)

Hairstyle and Appearance Regulations

Handicap Discrimination – Accommodation (2 cases)

Handicap Discrimination - Specific Disabilities (3 cases)

Heart Problems

Injuries to Employees

Minimum Staffing Requirements

Past Practices

Pay Disputes

Political Activity

Pregnancy Policies and Discrimination

Psychological Exams and Standards

Racial Harassment

Race Discrimination - In General

Race - Disparate Discipline (2 cases)

Race: Reverse Discrimination

Religious Discrimination

Sick Leave & Abuse (2 cases)

Suspensions

Untruthfulness & Resume Fraud

Wrongful Discharge

MONTHLY CASE DIGEST

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, via Internet.

• Most Federal District Court opinions can be accessed via PACER. Registration is required.

• Labor arbitration awards can be obtained for a fee, from BNA Plus.

Some of our links are to cases on the FindLaw website. Registration is required; no fees.

Civilian Review

Appellate court finds that Berkeley’s Police Review Commission had a duty to (1) maintain the confidentiality of its investigatory records and findings, (2) close its evidentiary hearings to the public and (3) afford all officers all rights and protections provided by the California Public Safety Officers Procedural Bill of Rights Act. Berkeley Police Assn. v. City of Berkeley, #A118537, 167 Cal.App.4th 385, 84 Cal.Rptr.3d 130, 2008 Cal. App Lexis 1567 (2008).

Collective Bargaining - Duty to Bargain

Rhode Island court declines to hear a union’s request for an order enjoining the governor from increasing health care deductibles for state workers to compensate for a revenue shortfall. Although a governor lacks the authority to suspend state laws when he deems it expedient, the Labor Relations Board has the primary duty to expeditiously determine and enjoin unfair labor practices. Rhode Island C-94 AFSCME v. Carcieri, P.C.#08-5073, 2008 R.I. Super. Lexis 99 & 117, 185 LRRM (BNA) 2372 (R.I. Super. 2008).

Criminal Liability

NYPD sergeant charged in federal court for accessing a computer list of names on the terrorist watch list and then disseminating that information to a third party, in violation of 18 U.S. Code §1030(a)(2)(B). U.S. v. Khalil, #08-Crim-1279 (S.D.N.Y. 2008).

• Editor’s Note: Information on the FBI’s Terrorist Screening Database.

Disciplinary & Administrative Investigations

Federal court dismisses a civil action brought by two police officers that were temporarily placed on administrative reassignment and investigated for official misconduct. The reassignment was rationally related to the department’s interest in ensuring that their officers were in compliance with regulations and the law. Abel v. City of Algona, 2008 U.S. Dist. Lexis 83556 (W.D. Wash. 2008).

Disciplinary Offenses - Insubordination

Arbitrator sustains a one-day suspension of the president of a prison officer’s union, after telling a secretary to inform the warden that “he can kiss my ass.” “Flagrant, vulgar and demeaning language in an office venue ... falls into the category of not having to tell an employee to not roll under a moving freight train.” Fed. Bur. of Prisons and AFGE L-3828, FMCS Case #07/51854-3, 125 LA (BNA) 1067 (Moore, 2008).

Disciplinary Procedures - Delays & Time Limits

Arbitrator annuls suspension of an off-duty officer accused of conduct unbecoming because management failed to initiate disciplinary action within the time limits required under the bargaining agreement. Central State Univ. Police Dept., Ohio and Frat. Order of Police Ohio Labor Council, FMCS Case #08/03136, 125 LA (BNA) 981 (Sellman, 2008).

The fact that an order or judgment previously has been reentered or revised in an immaterial way does not extend the time for which review must be sought. Peo. ex rel. Madigan v. Illinois Commerce Cmsn., #105131, 2008 Ill. Lexis 1432, citing Federal Trade Cmsn. v. Minneapolis-Honeywell, 344 U.S. 206 at 211 (1952).

FLSA - Overtime - In General

Federal Air Marshals are not exempt from limitations on overtime earnings; the Congress could have expressly exempted them from FLSA, as it did with customs-service pilots. Management is exempted from paying overtime under §207(a) until the number of hours worked by an Air Marshal within a seven-day work period exceeds forty-three hours. Federal Air Marshals v. United States, #06-233, 2008 WL 4997346, 14 WH Cases2d (BNA) 442 (Fed. Cl. 2008); prior ruling at 74 Fed. Cl. 484, 2006 U.S. Claims Lexis 369.

First Amendment Related

Although the filing of a grievance is a constitutionally protected activity under the First Amendment’s Petition Clause, a plaintiff also must present evidence that would allow a jury find that the filing of the grievance was a substantial motivating factor in the decision to impose discipline. Viola v. Bor. of Throop, #3:06cv1930, 2008 U.S. Dist. Lexis 88176; prior ruling at 2008 U.S. Dist. Lexis 59470 (M.D. Pa.).

Tenth Circuit rejects a suit brought by a former county employee, claiming that she was fired for her refusal to testify before the state legislature. The county proved that her position was unnecessary and that it was not re-staffed after her termination. Benton v. Adams County, #08-1089, 2008 U.S. App. Lexis 25414 (Unpub. 10th Cir.).

Hairstyle and Appearance Regulations & Discrimination

Federal appeals panel partially agrees that Custom’s management is not required to bargain over the agency’s grooming standards. Customs and Border Protection policy prohibits all facial hair other than beards maintained for medical reasons and “conservative” mustaches kept within “the corners of the mouth” and above “the upper vermillion of the lip.” The court remanded a proposal addressing beards, because there was a lack of evidence about the use of respirators by customs officers. NTEU v. Labor Relations Auth., #081015, 2008 U.S. App. Lexis 25581 (D.C. Cir.).

Handicap/ Abilities Discrimination - Accommodation – In General

A corrections deputy sheriff suffering from depression and anxiety pleaded factual issues as to whether she was suspended and later terminated because of her disability, where the sheriff stated that he did not want any “half-employees” working for him. Lucke v. Multnomah County, # CV-06-1149, 2008 U.S. Dist. Lexis 71861, 14 WH Cases2d (BNA) 23 (D. Ore. 2008).

Officer with a spinal injury, who was unable to requalify on the firing range to maintain her certification, loses her ADA accommodation claim. She lacked evidence that any civilian positions were vacant at the time she sought reassignment. Iverson v. City of Shawnee, #07-2304, 2008 U.S. Dist. Lexis 75703 (D. Kan.).

Handicap/ Abilities Discrimination - Specific Disabilities

A city employee with a chemical sensitivity to scented substances raised factual issue as to whether she was substantially limited in her ability to breathe. She had missed work due to coughing and vasomotor rhinitis. McBride v. City of Detroit, # 07-12794, 2008 WL 5062890, 2007 U.S. Dist. Lexis 87391, 20 AD Cases (BNA) 65 (E.D. Mich.).

Seventh Circuit rejects an employee’s claim that chemical sensitivity is a disability under the ADA. Robinson v. Morgan Stanley & Co., # 07-3359, 269 Fed. Appx. 603, 2008 U.S. App. Lexis 6229, 20 AD Cases (BNA) 644 (7th Cir. 2008).

A detention officer suffering from lupus and thrombocytopenia conditions was not disabled. Although her daily activities were restricted, her treating physician stated that her impairments did not substantially limit any major life activity. McNeill v. Wayne County, #07-2325, 2008 U.S. App. Lexis 23156 (Unpub. 6th Cir. 2008).

Heart Problems

Pennsylvania appellate court orders the Compensation Board to restore benefits to a firefighter with heart disease. A cardiologist testified that his passive exposure to noxious smoke was a causative risk factor for atherosclerosis. Repash v. W.C.A.B. (City of Philadelphia), #114 C.D. 2008, 2008 Pa. Commw. Lexis 335 & 566.

Injuries to Employees

Arbitrator sustains a grievance that management wrongfully denied paid leave for a duty-incurred injury. Although there was no requirement that firefighters engage in physical fitness activities at the fire station, workouts were allowed and exercise “impacts on a firefighter’s ability to safely perform his or her job,” citing Gray v. City of East Orange, #A-0472-05T50472-05T5, 2007 WL 1373216 (Unpub. N.J. App. Div.). IAFF L-863 and City of Newton, AAA #113900005208 (Irvings, 2008).

Minimum Staffing Requirements

Arbitrator finds that management violated the bargaining agreement when it did not maintain a manning level of 21 firefighters, where there was a past practice for 15 years, under five contracts, to assign 21 employees per shift. Vil. of Oak Lawn, Illinois and Prof. F/F Assn., IAFF L-3405, FMCS Case #08/55365, 125 LA (BNA) 994 (Kravit, 2008).

Past Practices, Precedents & Zipper Clauses

Arbitrator finds that management violated the bargaining agreements when it unilaterally limited the amount of vacation leave employees can accrue to 5 weeks, where, for as long as anyone can remember, employees have been able to accumulate and combine annual leave up to three years. In re City of Urbana and FOP Ohio & IAFF L-1823, FMCS Case #08/02423, 125 LA (BNA) 1143 (Jacobs, 2008).

Pay Disputes - In General

Union members win a ruling to compel DHS and FPS to obey an order issued by an administrative law judge to pay the prevailing wages to employees performing contractual services for the Federal Protective Service. United Govt. Security Officers L-52 v. Chertoff, #07-173, 2008 U.S. Dist. Lexis 95476 (D.D.C.).

Political Activity/Patronage Employment

Federal court declines to dismiss a suit by a police sergeant who alleged retaliation because her husband ran for public office. Riddell v. Gordon, #04-1201, 2008 U.S. Dist. Lexis 88410 (D. Del.).

Pregnancy Policies and Discrimination

Florida appellate court reinstates an action brought by a pregnant firefighter who was denied a light duty assignment in the fire dept. while others with physical restrictions had been accommodated with light duty in the fire dept. Carsillo v. City of Lake Worth, #4D07-4236, 2008 Fla. App. Lexis 18071.

Psychological Exams and Standards

- Fitness for Continued Duty or a Return to Active Duty

After reporting widespread misconduct, a V. A. police officer acted erratically and was insubordinate. Management terminated him after a psychiatric evaluation, but the M.S.P.B. ordered his reinstatement because of a lack of psychiatric grounds justifying his removal. The reinstatement order related only to his mental fitness, not to the underlying charge of insubordination, for which he could still be disciplined. Holst v. Veterans Affairs, #2008-3012, 2008 U.S. App. Lexis 22998 (Unpub. Fed. Cir. 2008), affirming 106 M.S.P.R. 499 (2007).

Racial Harassment

In a racial harassment action, the fact that some of the incidents occurred outside of the workplace does not mean that they are irrelevant to his claim. Brown v. N.Y. Dept. of Corr. Serv., #02-CV-6666, 2008 U.S. Dist. Lexis 87312 (W.D.N.Y.).

Race Discrimination - In General

The plaintiff, an Asian-American, sued after he was not promoted to captain. Because he presented no evidence concerning the candidates’ relative qualifications, he was unable to show that the gap in qualifications was so great as to give rise to an inference of discrimination. Jo v. Dist. of Columbia, #03-1677, 2008 U.S. Dist. Lexis 86724 (D.D.C.).

Race or Sex Discrimination - Disparate Discipline

Any inferences as to race that could have been drawn from a disparate treatment claim were undermined by the plaintiff’s admission that he was suspended for attempting to end an internal investigation inquiring into ticket-fixing allegations. Lightner v. City of Wilmington, #07-1442, 2008 U.S. App. Lexis 22688 (4th Cir.).

Plaintiff 911 operators failed to show that the coworkers who received lesser punishment had engaged in similar misconduct. Terrell v. City of Harrisburg Police Dept., #06v0787, 549 F.Supp.2d 671, 2008 U.S. Dist. Lexis 34956 (M.D. Pa.).

Race: Reverse Discrimination

Two unsuccessful promotional candidates claimed that management’s use of a “slide banding” method, to select who to promote to lieutenant, resulted in African-American and female candidates being promoted instead of white male candidates, regardless of their ranking following a written test and assessment. The court held that the plaintiffs failed to state a disparate impact claim. Johnson v. Metro. Govt. of Nashville, #3:07-0979, 2008 U.S. Dist. Lexis 59663 (M.D. Tenn.).

Religious Discrimination

In a religious discrimination action brought by a police officer, his lawyer had summarized 11 depositions and distilled thousands of pages of testimony into a 26-page report for the plaintiff’s expert witness. The expert did not independently verify that the summarized information was accurate and did not review the depositions. The court granted the city’s motion to strike the expert report and bar the expert from testifying at trial. Sommerfield v. City of Chicago, #06-cv-3132, 2008 U.S. Dist. Lexis 88760 (N.D. Ill.).

Sick Leave & Abuse

State police sick leave policy violated the ADA because it required officers to disclose the nature of their illness when requesting sick leave, resulting in officers divulging information about their disabilities. Pa. State Troopers Assn. v. Miller, #1:06-CV-1079, 2008 U.S. Dist. Lexis 76816 (M.D. Pa.).

Arbitrator sustains the termination of a worker for dishonesty; the grievant claimed he was suffering from an injury, not an illness, and it is “clear to anyone who watched the video of him at Home Depot that he was ambulatory and had a fair range of motion in both shoulders.” Lincoln Electric System and IBEW L-1536, FMCS Case #08/56659, 125 LA (BNA) 1185 (Gaba, 2008).

Suspensions & Administrative Leave

Third Circuit recognizes a due process claim for suspending a firefighter for having failed to complete training requirements before a hearing. After the news media reported his suspension, a hearing was held and he was found in compliance. He had a procedural due process interest in not being suspended without just cause. He also stated a claim for the stigma. Dee v. Bor. of Dunmore, #07-1720, 2008 U.S. App. Lexis 24494 (3rd Cir.).

Untruthfulness & Resume Fraud

Rejected Haitian applicant for state trooper position failed to establish that he was qualified, after a supplemental investigation revealed six discrepancies in his application: (1) false statements to the Social Security Administration; (2) omission of having filed for divorce; (3) omission of school transcripts; (4) omission of a physical altercation with his wife; (5) automobile insurance fraud; and (6) fraud in applying for a Florida driver’s license. Gaston v. State of New Jersey, #08-1831, 2008 US App (3rd) 1572, 2008 U.S. App. Lexis 23576 (3rd Cir).

Wrongful Discharge - In General

City could not defeat a wrongful termination suit because the plaintiff, a former police chief, applied for retirement benefits. He sought retirement benefits only because the city left him with no alternative, as he had no other income and his family needed health insurance coverage. State ex rel. McClaran v. City of Ontario, #2007-2100, 119 Ohio St.3d 105, 2008-Ohio-3867, 2008 Ohio Lexis 1998.

RESOURCES

Government organization:

• Executive Branch Reorganization and Management Initiatives: A Brief Overview, Congressional Research Service (2008).

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

CROSS REFERENCES

Collective Barg. - Duty to Bargain - see: Hairstyle Regulations

Expert Witnesses - see: Religious Discrimination

Grievance Procedures - see: First Amendment Related

Handicap Discrimination - see: Sick Leave

Injuries to Employees - see: Physical Fitness Programs

Light Duty Assignments - see: Pregnancy Discrimination

Past Practices - see: Minimum Staffing Requirements

Privacy Rights - see: Civilian Review

Privacy Rights - also see: Sick Leave

Untruthfulness - see: Sick Leave and Abuse

Report non-working links here