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Back Pay Claims and Awards

     Back pay award of $183,653 to a transsexual whose job offer was wrongfully rescinded was properly calculated under the periodic mitigation method. "There are two ways to calculate lost back pay and benefits: the periodic mitigation method and the aggregate mitigation method." The periodic method compares anticipated wages and benefits with actual earnings during a calendar year. The aggregate method compares anticipated earnings with actual earnings over the entire recovery period, and gives employers an incentive to delay reinstatement for as long as possible. Schroer v. Billington, #1:05-cv-01090, 2009 U.S. Dist. Lexis 43903 (D.D.C.).

Civilian Review

     As an independent constitutional officer, a Florida Sheriff does not derive his authority from the County’s charter or the board of county commissioners, and is neither generally accountable to the Board for his conduct in office nor subject to the board’s direction in the fulfillment of his duties. A citizen review board with members appointed by county commissioners infringes on the sheriff’s constitutional powers. Demings v. Orange Co. Citizens Review Bd., #5D08-1063, 2009 WL 1490778, 2009 Fla. App. Lexis 6554 (5th Dist.).

Disciplinary Offenses - Conduct Unbecoming

     Arbitrator sustains the termination of a fire lieutenant who had a "relationship" with the estranged wife of a subordinate. Although the employer did not have a fraternization policy, the subordinate asserted that he could not work with" the grievant if he was reinstated. "The record also evidences that, given the size of the Department, were the grievant to be returned to duty it would be inevitable that at some point they would be called upon to work together in a supervisor-subordinate relationship. ... It may well be anomalous that lawful private conduct may be subject to sanction on the basis of co-worker reaction, but such is the state of the law ..." City of Quincy and Firefighters L-63 IAFF, 126 LA (BNA) 534, FMCS Case No. 08/0421-02331-A (Finkin, 2008).

Disciplinary Offenses/Punishment - Sexual Misconduct

     In an appeal where an FBI agent was fired for videotaping sexual encounters with women without their consent, a federal appeals court remanded the case to the Merit Systems Protection Board for further adjudication. One judge wrote that he would have reversed the Board outright on the ground that the agency failed to establish a nexus between the charged conduct and the efficiency of the service.

     The majority held that the Board failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the "efficiency of the service." The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty. Doe v. DoJ, #2008-3139, 2009 U.S. App. Lexis 10031 (Fed. Cir.).

Disciplinary Punishment - In General

     Appellate court overturns a civil service commission ruling that reduced the demotion of a sergeant to deputy rank, replacing it with a 30-day suspension without demotion. After a sexual harassment complaint had been filed he told her not to tell anyone about the meeting, and then lied to his supervisor. Dishonesty by a sergeant is a breach of public trust and his interference with the internal investigation exposed the county to litigation. County of Santa Cruz v. Civil Service Cmsn. (Jack), #H032222, 171 CaL.App.4th 1577, 90 Cal.Rptr.3d 394, 2009 Cal. App. Lexis 408 (6th Dist.).

Discovery, Publicity and Media Rights

     Federal court rejects most of the objections raised by the FBI to publication of a 500-page manuscript critical of the Bureau’s counterterrorism program. The manuscript had been submitted for pre-publication review in October 2001 by a retired agent. "In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity." Wright v. FBI, #02-915 & #03-226, 2009 U.S. Dist. Lexis 38931 (D.D.C.).

• Editor’s Note: Judicial Watch, a public interest group that investigates government corruption and abuse, represents Special Agent Robert G. Wright, Jr. In 2002 it claimed that "the FBI continues to dodge accountability and cover-up its negligence and dereliction of duty in pursuing terrorists who pose a direct threat to the United States."

     In denying additional discovery in a case alleging religious discrimination against a police officer, the court noted that the attorney’s "extensive but inept and wholly unsuccessful efforts to conduct class actions have drawn unusually pointed criticisms from Illinois state judges." Sommerfield v. City of Chicago, #06-C-3132, 2009 U.S. Dist. Lexis 39430 (N.D. Ill.).

     In a discovery request, a California appellate court affirms a trial court ruling that a police dept. properly withheld internal investigative materials that it was not authorized to use in making personnel determinations. McMahon v. City of Los Angeles, #B206254, 172 Cal.App.4th 1324, 92 Cal.Rptr.3d 68, 2009 Cal. App. Lexis 510 (2nd Dist).

Domestic Partner Rights

     California Supreme Court upholds a voter initiative to restrict marriage to heterosexual couples, but rules that same-sex married couples do not lose their marital status. California also has an existing domestic partner law for same-sex couples. Strauss v. Horton, #S168047, 2009 Cal. Lexis 4709.

Emotional Distress

     In a gender bias appeal by the employer, the jury was properly instructed that "a combination of seemingly minor incidents, once they reach a certain critical mass, may form the basis for a violation, even though each minor act, considered in isolation, would not otherwise rise to the level of an adverse employment action." Three women were awarded $500,000, $400,000 and $100,000 in compensatory damages for emotional distress. Olsen v. County of Nassau, #CV 05-3623, 2009 U.S. Dist. Lexis 38938 (E.D.N.Y.).

FLSA - Overtime - in General

* * * Editor’s Case Alert * * *

     Differing from other courts, in an opinion with 148 endnotes, a federal judge granted a summary judgment in favor of management, holding that time spent donning and doffing police gear by Phoenix patrol officers is not compensable under the Fair Labor Standards Act. Dager v. City of Phoenix, #2:06-cv-01412, 2009 U.S. Dist. Lexis 20205 (D. Ariz.).

     A federal jury in San Diego found that the time that eight police officers spent performing various tasks prior to their shifts was not compensable under the Fair Labor Standards Act. The officers alleged that departmental policy required them to load equipment into their squad cars and to check for e-mails and voicemail before their shifts began. Abbe v. City of San Diego, #05cv1629 (S.D. Cal.).

     In an earlier ruling the court found that the "time spent donning and doffing safety gear is de minimis as a matter of law," and is not compensable. See 2007 U.S. Dist. Lexis 87501, 2007 WL 4146696; and 2006 U.S. Dist. Lexis 79010.

• Also see, Overtime Pay for Preduty Preparations in the Jan. 2009 issue of the AELE Monthly Law Journal. An Appendix to the article lists 22 items of typical police equipment that are loaded before each shift. The article has a link to the eye-opening Declaration of W. Ken Katsaris, an expert witness who supported officer assertions concerning time spent loading their equipment before going on duty. The case is Bamonte v. City of Mesa, #CV06-1860, 2007 Misc. Filings Lexis 3324 (D. Ariz.).

Firearms/Weapons - Other Issues

     Appellate court sustains the termination of a sheriff's officer who repeatedly failed to qualify with her duty weapon. Moreover, "if a shooter is permitted to continue to shoot a failing qualification course without intervention to correct their improper habits and/or techniques, this will actually reinforce their improper habits and techniques which continually lead to the same negative results." In the Matter of Joan Ivan, #A-1070-07T2, 2009 WL 1118735 (Unpub. N.J. App. Div.).

Handicap/ Abilities Discrimination - Specific Disabilities

     Federal court concludes that color blindness is not a protected disability. Lekich v. Municipal Police Officers Educational Training Commission, #08-1048, 2009 U.S. Dist. Lexis 16645, 21 AD Cases (BNA) 1409 (E.D. Pa.).

Health Insurance & Benefits

     Current city employees lack standing to sue over a lack of health-care benefits for retirees. Bova v. City of Medford, #08-35091, 2009 U.S. App. Lexis 9606, 106 FEP Cases (BNA) 206 (9th Cir.).

Hearing (Audio) Impairment

     Tenth Circuit finds that the NPS did not discriminate against a law enforcement ranger, by requiring him to get an annual waiver for his hearing impairment, and to wear a hearing aid. He successfully performs his duties and there is no evidence that management regards him as disabled. Detterline v. Salazar, # 07-1443, 2009 U.S. App. Lexis 7489 (10th Cir.).

Injuries to Applicants, Trainees, Participants & Observers

     Federal court dismisses a suit brought by U.S. Navy civilian police officers and their unions, challenging the direct application of pepper spray into the faces of trainees. The DoD properly determined that the risk of injury by the spray was offset by the benefit of training. There was no showing that the DoD harbored a malicious or sadistic intent to injure trainees that would support a substantive due process claim. FOP v. Gates, #8-0039, 2009 U.S. Dist. Lexis 20403 (D.D.C.)

Injuries to Employees

     After statutory immunity was denied, a gun dealer has purportedly paid $487,500 to settle a suit brought by a police officer who was shot by a former employee that had stolen a firearm. Schramm v. Sarco Inc., #MRS-L-2481-04 (Morris Co. NJ Super. 2009); stlmt. rep. in N.J. Law Jour. 6/4/2009.

Military Leave

     Although for nine years a city allowed police officers who missed their weekend work shifts while attending National Guard duties to make up the time on their scheduled days off, management was not obliged to continue that policy, because non-Guard employees who miss work for non-military activities are not provided with a comparable scheduling benefit. Crews v. City of Mt. Vernon, #08-2435, 2009 U.S. App. Lexis 11718 (7th Cir.).

Pay Parity

     Appeals court rejects a claim that lawyers in the California AG’s office are under-compensated compared to those in other civil service job classifications. "The union’s argument ... betrays a fundamental misunderstanding of the meaning of the merit principle. It is not our role to mediate salary disputes ... There is nothing in the plain language, history, or broader context [of the law] to suggest that the merit principle encompasses the notion of like pay for like work." California Attorneys, etc. v. Schwarzenegger, #C058415, 2009 Cal. App. Lexis 856 (3rd Dist.).

Psychological Exams and Standards
- Retaliatory or Discriminatory Reasons Alleged

     Fifth Circuit rejects a disability discrimination that management ordered a psychological evaluation of a public employee related to theft accusations, but did not order the same evaluation for a coworker. The panel noted that the appellant failed to demonstrate "why a mere examination would qualify as less favorable treatment." Citing Benningfield v. City of Houston, 157 F.3d 369 at 376 (5th Cir. 1998), a referral for psychological testing is not an adverse employment action." Rather, the referral was designed to gather facts to form the basis for an employment decision." Wilson v. City of Baton Rouge, #08-31018, 2009 U.S. App. Lexis 10555 at fn. 2 (Unpub. 5th Cir.).

Retaliatory Personnel Action

     Illinois village settles a federal retaliation lawsuit with a fire captain for $80,000, inclusive of attorney’s fees and costs, along with his promotion to shift commander. He had claimed the Village used pension funds for various political purposes. Iovinelli v. Pritchett, #06-C-6404 (7th Cir.); settlement document; prior decision at 2008 U.S. Dist. Lexis 52617.

Retirement Rights and Benefits

     Ninth Circuit holds that retired employees who receive healthcare benefits, while no longer members of a valid bargaining unit, have standing to challenge an end of benefits as "plan participant" under ERISA, 29 U.S. Code §1132. Poore v. Simpson Paper Co., #05-36060, 2009 U.S. App. Lexis 11174 (9th Cir.).

     Appellate court declines to find that a voluntary retirement constituted constructive discharge. The plaintiff, a police commander accused of sexual harassment, chose early retirement in order to retain lifetime health coverage, which he would have forfeited if he was terminated. His §1983 action fails, because he was not forced to make an on-the-spot decision. Knappenberger v. City of Phoenix, #07-15774, 2009 U.S. App. Lexis 11106 (9th Cir.).

Suicide Related

     It was proper to award workers compensation death benefits following the suicide of a police lieutenant. A nationally-known researcher on police suicides testified that the "suicide was most strongly influenced by his work-related exposure to and involvement in the Cranford Township flood, the precipitating traumatic event." In New Jersey, compensation may be awarded if a suicide was directly caused by an acute post trauma stress reaction brought about by an incident-specific work event. Wilde v. Twp. of Cranford, #A-3391-07T2, 2009 WL 1025193 (N.J. App. Div.).

Sexual Harassment - In General

     Second Circuit holds that an accused sexual harasser established a prima facie case that he was fired because of a stereotype that men have propensity to sexually harass female coworkers, even though he admitted to calling the complainant at home and sending her a note after she refused to have to sex with him. Employers must not overreact to a fear of lawsuits and "presume male employees to be ‘guilty until proven innocent’ based on invidious sex stereotypes." Sassaman v. Gamache, #07-2721-cv, 2009 U.S. App. Lexis10937 (2nd Cir.).

Union and Associational Activity

     Dues check off – Supreme Court, in a 6 to 3 ruling, holds that Idaho’s "Right to Work Act," which allows public employees to authorize payroll deductions for general union dues, but prohibits deductions for union political activities, does not violate the unions’ First Amendment rights. "The First Amendment ... does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote the speech by allowing employee check offs for political activities." Ysursa v. Pocatello Educ. Assn., #07-869, 129 S.Ct. 1093, 2009 U.S. Lexis 1632.

     Federal labor board upholds the termination of two courthouse security officers for neglect of duty. Although they had a legal right to confer about work activities, they created a security risk by convening a meeting of officers in a room where they could not effectively monitor the courthouse. However, the employer unlawfully ordered officers not to speak to an agent of the National Labor Relations Board or to others regarding discharges of employees. Akal Security and United Govt. Security Officers L-118, #2009.19-CA-30891, 354 NLRB No. 11, 186 LRRM (BNA) 1097, 2009 NLRB Lexis 131.

Untruthfulness & Resume Fraud
- Lying in a judicial proceeding or otherwise when under oath

     Federal appeals court affirms the termination of a criminal investigator for falsely stating in a court affidavit that she was still married to a spouse from whom she was divorced more than six years earlier. Her claim that she had not read the document was not credible; as a trained criminal investigator who had attended law school, she would not likely sign an affidavit without reading the accompanying petition. Hernandez v. Department of Homeland Security, #2009-3038, 2009 U.S. App. Lexis 10021 (Unpub. Fed. Cir.).

Whistleblower Requirements and Protection

     Federal Merits Systems Protection Board overturns the dismissal of a TSA employee’s whistleblower claim. Although he may have lacked formal education or training in explosives-related technology, his four years of experience in conducting tests using detection machines was more than sufficient to support a reasonable belief in the fallibility of the machines. Miller v. Dept. of Homeland Security, #DC-1221-08-0274-W-1, 2009 MSPB 75, 2009 MSPB Lexis 2328.

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National security:

1. President Obama announced a new approach to classification of government documents, in light of his pledge to increase transparency. President’s remarks at the National Archives (2009).
2. Report, The State Secrets Privilege and Other Limits on Litigation Involving Classified Information, Congressional Research Service #R40603 (2009).
3. Report, Dept. of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress, Congressional Research Service #R40602 (2009).

Personnel management:

     OPM issues Memo for heads of executive departments and agencies pertaining to the effective use of recruitment, relocation, and retention incentives.

President’s Office of Legal Counsel:

      Budget request and job description. During the G. W. Bush administration, the OLC issued controversial opinions pertaining to interrogation of detainees and warrantless surveillance. As a result of President Obama’s Executive Order of Jan. 22, 2009 (to close the Guantanamo Bay Detention Camp), implementation of the EO "will raise numerous legal issues, thereby placing OLC at the center of some of the most fundamental policy shifts of the new Administration."

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