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Arbitration Punishment Awards – Right of Courts to Interfere

     Appellate court concludes that an arbitrator improperly used a "just cause" analysis to set aside the grievant’s termination; the parties were bound by a last chance agreement "which limited the employee’s right to grieve/appeal." City of Yakima v. Yakima Police Assoc., #26799-7, 2009 Wash. App. Lexis 81.

Attorneys’ Fees, Sanctions and Legal Defense Rights

     Sixth Circuit affirms a judgment of $660,103 in legal fees and expenses assessed against African-American court employees and their attorney "for maintaining frivolous discrimination claims long after those claims had clearly become groundless." 93.8% of African-American employees received a position upgrade, while only 70.1% of Caucasians did. "These statistics are hardly supportive of the appellants’ disparate-impact claims." Garner v. Cuyahoga Co. Juvenile Court, #07-3602, 2009 U.S. App. Lexis 1289 (6th Cir.).

Back Pay Claims and Awards

     Federal appeals panel upholds a post-trial motion to augment a backpay award to offset the negative tax consequences a litigant would incur from receiving a lump-sum backpay award. The ruling follows a similar 10th Circuit decision but is contra to a holding in the D.C. Circuit. Eshelman v. Agere Systems, #05-4895, 2009 U.S. App. Lexis 1947 (3d Cir.).

Disciplinary Appeals & Challenges - Reviewing Standards

     Although a personnel board, civil service commission, or hearing officer has discretion to reduce the discipline imposed on a public employee, the exercise of that discretion has to be reasonable. It was reversible error to reduce a demotion to a 30-day suspension where a sergeant berated a subordinate who had filed a harassment complaint against him and then was untruthful about his conduct. County of Santa Cruz v. Civil Service Cmsn. of Santa Cruz (Jack), #H032222, 2009 Cal. App. Unpub. Lexis 1090 (Unpub. 6th Dist.).

Disciplinary Evidence - Admissibility/In General

     Electronic records: A Justice Dept. Office of Legal Counsel Opinion concludes that "Federal official personnel and civil service retirement records that have been converted from paper to electronic format should be admissible in evidence in federal court under the Business Records Act, 28 U.S.C. § 1732, and should also qualify as ‘public records’ admissible under Rule 1005 of the Federal Rules of Evidence. ... Converting such documents to electronic format should not affect their admissibility under hearsay rules."

Disciplinary Hearings - Tenured/General

     Arbitrator allows bargaining unit employees to elect whether their disciplinary suspensions and terminations will be reviewed by grievance arbitration or by the Board of Fire and Police Commissioners, but not both. A Fire and Police Board "consists of political appointees" and it is perceived that its members cannot decide a sensitive case with the same neutrality as an outside arbitrator. Vil. of Shorewood and Illinois FOP, ILRB #S-MA-07-199, 125 LA (BNA) 1427 (Wolff, 2008).

Disciplinary Offenses - In General

     Federal Merit Board sustains the termination of a U.S. Army Criminal Investigation Special Agent for rudeness. "...rude and obnoxious behavior toward private citizens by a federal agent in the course of carrying out his investigative responsibilities was an embarrassment to his agency and the government ... [and] is not what is expected of a CID agent ..." Lizzio v. Dept. of the Army, Docket #PH-0752-06-0546-M-1, 2009 MSPB 10.

Disciplinary Offenses/Punishment - Sexual Misconduct

     Federal court rejects the suit of a fire captain who was demoted for maintaining a sexual relationship with a subordinate and untruthfulness. "...courts have historically recognized that rights of intimate association and marriage are not absolute, and may appropriately give way in the government employment context where the exercise of the right creates unreasonable interference or impediment to the effective functioning of the public office." Starling v. Bd. of Co. Cmsnrs., #08-80008, 2009 U.S. Dist. Lexis 7030 (S.D. Fla.).

Disciplinary Punishment - In General

     Appellate court sustains the termination of an officer who, while off-duty, engaged in a high-speed pursuit and failed to report that another officer had discharged his weapon. He "stood mute as L__ lied about firing his gun. … When police officers fail to correct misinformation from their fellow officers, and lie to obstruct investigation into official misconduct, they have forsaken their central duties to protect the citizens of the community." Remus v. Sheahan, #1-06-0756, 2009 Ill. App. Lexis 18 (1st Dist.).

     Appellate court affirms a 10-day loss of vacation time for not promptly following a superior’s order. She intentionally delayed reporting to an assignment. Clifford v. Kelly, #4391, #103179/07, 2009 N.Y. App. Div. Lexis 85, 870 N.Y.S.2d 317, 2009 N.Y. Slip Op. 42 (1st. Dept.).

Discovery, Publicity and Media Rights

     The Justice Dept. Office of Legal Counsel has issued an Opinion concluding that "It is legally permissible for the President to assert executive privilege in response to a congressional subpoena for reports of Dept. of Justice interviews with the Vice President and senior White House staff taken during the Department’s investigation ... into the disclosure of Valerie Plame Wilson’s identity as an employee of the Central Intelligence Agency."

Domestic Partner Rights

     New York appellate court holds, 3-to-2, that same-sex spouses of state employees who were married in other states are entitled to health insurance benefits, even though New York’s definition of marriage is limited to persons of the opposite sex. A recognition of a same-sex marriage celebrated elsewhere is not abhorrent to public policy. Lewis v. N.Y. Dept. of Civil Service, #504900, 2009 N.Y. App. Div. Lexis 415, 2009 WL 137504, 2009 N.Y. Slip Op. 283 (3rd Dept.), citing a sister court’s panel opinion in Martinez v. Co. of Monroe, 50 App. Div. 3d 189, 850 N.Y.S.2d 740, 2008 N.Y. Slip Op. 909 (4th Dept. 2008); appeal dismissed 10 N.Y.3d 856, 889 N.E.2d 617 (2008).

FLSA - Standby Time

     Appellate court overturns a decision holding that Maryland state juvenile transportation officers were not entitled to compensation under the FLSA and for time spent while on a restrictive on-call duty. "All the employee witnesses testified that they could not leave the house without taking the risk that, if paged, they would not be able to respond within the two-hour response time ..." Hess v. Dept. of Juvenile Services, #2025, 2008 Md. App. Lexis 166.

• See the Nov. 2008 AELE Monthly Law Journal article, "On-Call Duty."

Family, Medical & Personal Leave

     Federal court rejects a FMLA claim brought by a city worker who was fired for excessive absenteeism. She had told her supervisor she did not want to take FMLA leave. Knox v. City of Monroe, #07-606, 2009 U.S. Dist. Lexis 1014 (W.D. La.).

Military Leave

     City settles claims raised by firefighter who was suspended for three days and denied a raise because he timely reported for military duty although the National Guard delayed in providing him with written orders. Slocum v. City of Iola, Civil #08-1409 (D.Kan. 2009).

Political Activity/Patronage Employment

     A public employee’s decision to remain politically neutral in the general election is entitled to the same protection as a choice to support a political opponent of the mayor. Zerante v. DeLuca, #08-1381, 2009 U.S. App. Lexis 2278 (7th Cir.).

Polygraph Exams

     Federal appeals panel sustains the demotion of a police lieutenant who refused to submit to a polygraph examination as part of an internal investigation. The panel rejected her First Amendment objections to the test. "It is clear in this case that the plaintiff’s ‘speech’ was of no public concern whatever and, therefore, is not protected by the First Amendment." Luty v. City of Saginaw, #07-2035, 2009 U.S. App. Lexis 2674 (Unpub. 6th Cir.).

Privacy Rights

     Government agrees to settle privacy claims for $20 million, arising from the 2006 theft of a laptop containing the names, birth dates and Social Security numbers of more than 26 million veterans and active-duty troops. The laptop was recovered and the FBI determined no data had been breached. Veterans who show harm from the data theft will be able to receive payments ranging from $75 to $1,500. Dept. of Veterans Affairs Data Theft Litigation, #1:06-mc-00506, Pacer Doc. 53-2 (D.D.C. 2009); prior ruling at 2007 U.S. Dist. Lexis 96696.

Product Liability

     Canadian firm pays more than $1 million to end Justice Dept. claims that its ballistic vests were defective. The vests were manufactured with Toyobo Zylon®, a thermoset polyurethane synthetic polymer. U.S. v. Barrday Corp.; DoJ Press Doc. #09-062 (2009).

• Editor's note: Under a 2005 settlement, Toyobo Corp. created a $29 million settlement fund to defray the cost of replacement vests.

Promotional Rights, Procedures and Performance Appraisals

     A patrol officer was next in line for promotion to sergeant when the eligibility list expired. A new list was created and the officer was not promoted to sergeant until two years later. Although the management sometimes made promotions before a vacancy became official, there was no obligation to do so. Jones v. City of Springfield, #08-2085, 2009 U.S. App. Lexis 1874 (7th Cir. 2009) affirming 540 F.Supp.2d 1023 (C.D. Ill. 2008).

Race Discrimination - In General

     Justice Dept. and City of Dayton agree to settle a pattern or practice action alleging discrimination against African-Americans in the hiring of entry-level police officers and firefighters. U. S. v. City of Dayton, #3:08-cv-348, Complaint (S.D. Ohio 2008); DoJ Press Doc. 09-172.

Race or Sex Discrimination - Disparate Discipline

     Appellate panel affirms the dismissal of a white officer’s race and age action, following a suspension for failing to assist another officer and his re-assignment to less desirable duties. "While ... discriminatory comments might be sufficient to establish the requisite background circumstances, [the plaintiff] cannot establish a prima facie case of discrimination because ... he cannot show that similarly situated individuals were treated better. Furthermore, the reassignments do not constitute adverse actions." Nagle v. Village of Calumet Park, #07-1157, 2008 U.S. App. Lexis 27145, 105 FEP Cases (BNA) 749 (7th Cir.).

Retaliatory Personnel Action

     Supreme Court reinstates a civil rights suit filed by a public employee who claimed that she was fired after reporting sexual harassment by a superior. The ex-employee did not initiate a harassment complaint; the allegations were made during an internal investigation where she responded to questions. The anti-retaliation provision of Title VII extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford v. Met. Govt. of Nashville, #06-1595, 2009 U.S. Lexis 870.

Sex Discrimination - In General

     The Puerto Rican Police and the Justice Dept. have reached a settlement to resolve a complaint alleging gender-based employment discrimination and retaliation. U.S. v. Policía de Puerto Rico, #08-1264, Complaint (D.P.R. 2008); DoJ Press Doc. 09-076.

Union and Associational Activity

     Eleventh Circuit upholds the termination of two police union officials who attempted to put financial pressure on government by initiating a citation-writing slow-down campaign, and also violated a policy against secretly audio-taping others. Douglas v. DeKalb Co., #08-10052, 2009 U.S. App. Lexis 1266 (Unpub. 11th Cir.).

     Arbitrator finds that management retaliated against a police union steward by denying a request for light-duty assignment, where other employees had been given such assignments, and the chief ordered officer to fire from kneeling position during a qualification test after grievant had returned from knee injury, even though the grievant "had been instructed at academy not to include this dangerous maneuver as part of qualification course." Dept. of Veterans Affairs and AFGE L-1539, FMCS Case #08/57425, 125 LA (BNA) 1528 (Neigh, 2008).

     Federal court refuses to enjoin an internal union hearing of charges brought against officials of a local. The plaintiffs were unable to show imminent irreparable harm or bias by members of the executive board. Babler v. Futhey, #1:08cv912, 2008 WL 3822179, 2009 U.S. Dist. Lexis 10484, 195 LRRM (BNA) 2993 (N.D. Ohio).

Whistleblower Requirements and Protection

     Jury awards $3.127 million to a white L.A. police officer who claimed that he was involuntarily transferred for reporting that a sergeant had made racist statements about blacks and Latinos and had pilfered money from a Police Explorer fund. The award included $3 million in damages for emotional distress and $127,000 for past and future wage losses. Hill v. City of Los Angeles, L.A. Co. Super. Ct. (Verdict, 2008).

     Appellate court rejects a retaliation action brought by a campus officer who was not selected as chief, after he reported the prior chief for misconduct. The officer failed to prove his disclosure was a factor in the university’s decision to select a major with the state DPS instead of promoting him. Davenport v. Univ. of Arkansas, #08-1438, 2009 U.S. App. Lexis 2501 (8th Cir.).

Wrongful Discharge/Discipline: Damages & Settlements

     D.C. government employee, who lost her job after serving four months of jury duty, is awarded reinstatement, backpay, retroactive employment benefits, costs, attorney’s fees, and a statutory penalty of $5,000. Madison v. Dist. of Columbia, #07-289, 2009 U.S. Dist. Lexis 4630 (D.D.C.).

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RESOURCES

     Earnings disparities: Article, Biological Gender Differences, Absenteeism and the Earnings Gap, Andrea Ichino & Enrico Moretti, 1 (1) Applied Economics (AEA) 183-218 (Jan. 2009); Natl. Bur. of Economic Research Working Paper 12369 (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