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Age Discrimination - Entry

     Montana Supreme Court strikes down an age 34 upper limit for firefighters. It violated the equal protection clause of the state’s constitution. Jaksha v. Butte-Silver Bow County, #DA 08-0457,2009 MT 263, 214 P.3d 1248, 2009 Mont. Lexis 398, 106 FEP Cases (BNA) 174.

Back Pay Claims and Awards

     Ohio appellate court orders a city to pay a terminated corrections officer, who was reinstated by an arbitrator, his back wages and established benefits (longevity pay, uniform allowance, and holiday pay). Sick pay and special assignment premium pay are not includable in his back pay award, because of the uncertainty in fixing the amounts. Outside earnings should be deducted from any back pay award, but only if earned during the duty hours that he would have worked if he had not been terminated. State ex rel. Crumbley v. Cleveland, #90900, 2009 Ohio 6100, 2009 Ohio App. Lexis 5110 (8th Dist.).

Body Armor

     Divided California appellate panel overturns the conviction of a ex-felon who was wearing a ten-pound fragmentation flak jacket, with handgun impedance capability. The majority reasoned that the definition of body armor was imprecise and impermissibly vague. The dissenting judge wrote that “the clear legislative intent behind Penal Code section 12370 was to stop the threat of violent felons who are able to thwart police officers by wearing body armor, potentially injuring or killing innocent officers or civilians in the process.” Peo. v. Saleem, #B204646, 2009 Cal. App. Lexis 2011 (2nd Dist.).

Damages, Remedies and Enforcement of Settlements

     California Supreme Court limits punitive damage awards. The justices ruled that the maximum permissible punitive award should be 1.4 times the amount of compensatory damages. The plaintiff alleged that she was wrongfully terminated because of a medical condition and a related disability (panic attacks and medication-induced body odor). Although public employers in California are exempt from punitive awards, managers and supervisors are not. Roby v. McKesson Corp., #S149752, 47 Cal.4th 686, 2009 Cal. Lexis 12374.

Demotions

     Pennsylvania arbitrator sustains a five-day suspension of a sergeant for assaulting a subordinate officer, but overturns a demotion. The bargaining agreement did not specify demotion as a disciplinary option and a suspension plus demotion was double punishment for the same misconduct. City of Duquesne and Teamsters L-205, 126 LA (BNA) 1723 (Felice, 2009).

Disability Rights and Benefits - Benefit disputes

     Because an Illinois officer’s disability resulted from a prior condition, which existed at the time that her line-of-duty injury was sustained, she is only entitled to a duty disability benefit at 50% of her salary rate, instead of the usual 75% rate. Cole v. Retirement Board of the Policemen’s Fund of Chicago, #1-08-2722, 2009 Ill. App. Lexis 1180 (1st Dist.).

Disciplinary Hearings - Proof Required

     Relying on Ludlum v. DoJ, #01-3093, 278 F.3d 1280 (Fed. Cir. 2002), the Merit System Personnel Board remanded an appeal for additional findings. An investigator was charged with a lack of candor during an I-A interview, but the record did not reveal the questions asked or what he should or should not have been expected to disclose in response to the questions. Robertson v. Dept. of Transportation, #DE-0752-09-0072-I-1, 2009 MSPB 229, 2009 MSPB Lexis 8498.

Disciplinary Interviews & Compelled Reports
- Criminal Investigations and Immunity

****Editor's Case Alert****

     Because of Garrity violations, a federal court dismissed all charges against Blackwater tactical support team members arising out of the 2007 Nisour Square shootings in Iraq.

     “In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. ...

     “The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements ... The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

     “In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.” U.S. v. Slough, #1:08-cr-00360 (D.D.C. 2009).

Disciplinary Offenses - In General

     Arbitrator sustains disciplinary action against a border patrol agent for using discourteous language to a citizen. Because she had been warned previously about her language, a three-day suspension was appropriate. DHS Customs and Border Patrol and AFGE L-3725, FMCS Case #08/04329-3, 26 LA (BNA) 1629 (Skulina, 2009).

E-Mail/Internet - Legal Issues

     Kentucky appellate court affirms the termination of a Lexington police officer for comments in his MySpace™ webpage.  The site allegedly contained derogatory comments or images concerning homosexuals and the mentally disabled; inappropriate comments concerning the use of force; and an altered photograph depicting him with a celebrity entertainer after he had arrested him. Cromer v. Lexington-Fayette Urban Co. Gov’t, #20088-CA-000698, 2009 Ky. App. Unpub. Lexis 71.

     Appellate court overturns the termination of a firefighter for accessing violent content videos on the employer’s computers. The Township did not have a computer use policy and the videos that he accessed were legal and non-pornographic. Bowman v. Butler Twp., #23240, 2009-OH-6128, 2009 Ohio App. Lexis 5145.

FLSA - Overtime - in General

     Oakland, California, city council approves a settlement with 571 police officers who brought “don-and-doff” overtime claims. In addition to paying $1.75 million in legal fees, current officers will receive 130 hours of vacation time and 60 retired officers will receive $3,500 each. Valladon v. City of Oakland, #3:06-cv-07478, 2009 U.S. Dist. Lexis 97485 (N.D. Calif. 2009).

• See Overtime Pay for Preduty Preparations in the Jan. 2009 AELE Monthly Law Journal.

Free Speech

     Relying on Garcetti v. Ceballos, #04-473 547 U.S. 410 (2006), California appellate panel affirms the termination of a county law librarian after he sent a scathing e-mail criticizing his superiors. If a public employee makes statements pursuant to official job duties, the employee is not speaking as a private citizen and lacks First Amendment protections. Kaye v. Board of Trustees of the San Diego Co. Law Library. #D053644, 179 Cal.App.4th 48, 29 IER Cases (BNA) 1826, 2009 Cal. App. Lexis 180 (4th Dist. 2009).

Hairstyle and Appearance Regulations & Discrimination

     Although a bargaining agreement allowed officers to wear moustaches, an arbitrator concludes that the chief retained the authority to require them to be neat and trimmed. Sylvania Twp. and Ohio PBA, FMCS Case #09/52215, 126 LA (BNA) 1601 (Lalka, 2009).

     Citing safety concerns with the use of respirators, a federal court upholds no-beards rule for police SWAT members. Stewart v. City of Houston, #H-07-4021, 2009 U.S. Dist. Lexis 79174 & 79188 (S.D. Tex. 2009).

• See Grooming and Appearance Rules for Public Safety Workers, Hair Regulations, in the Jan. 2007 AELE Monthly Law Journal.

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     Federal court declines to dismiss an ADA action brought by a former police detective who claims that management regarded him as mentally disabled. Management had ordered him to disarm and refused to assign him to a light duty position. Carraway v. Bor. of Wilkinsburg, #2:09-cv-00372, PACER Doc. 17, 2009 U.S. Dist. Lexis 83356 (W.D.Pa. 2009).

Hearing (Audio) Impairment

     City of Atlanta agrees with the Justice Dept. to “contract with one or more local qualified oral/sign language interpreter agencies to ensure that the interpreting services will be available on a priority basis, twenty-four hours per day, seven days a week, to its police or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).” The city also agreed to ensure that each police station, substation and detention facility is equipped with a working TTY. U.S. v. City of Atlanta, DJ #204-19-216, settlement agreement (12/8/2009).

Privacy Rights

     An employer’s regulations notifying employees that they had no expectation of privacy for the use of workplace computers did not convert an employee’s e-mails with her attorney, sent through the employee’s personal, password-protected, web-based email account into the employer’s property. The attorney-client privilege outweighs an employer’s unilaterally imposed privacy regulations. “We reject the employer’s claimed right to rummage through and retain the employee’s emails to her attorney.” Stengart v. Loving Care Agency, #A-3506-08T1, 973 A.2d 390, 408 N.J. Super. 54, 2009 N.J. Super. Lexis 143; appeal pending, 200 N.J. 204, 976 A.2d 382; 2009 N.J. Lexis 922.

Psychological Exams and Standards
- Psychological Screening of Applicants

     New Jersey appellate court rebuffs a suit filed by a rejected police applicant. The decision not to hire him was based on a second, independent psychological evaluation. Even if the first psychologist negligently or improperly conducted the pre-employment evaluation, the independent analysis severed the chain of proximate causation, precluding any recovery in negligence. Terry v. Guller, #A-2867-07T1, 2009 N.J. Super. Unpub. Lexis 2008.

Race Discrimination - In General

     Connecticut Supreme Court rejects a complaint that a city engaged in racial discrimination by not promoting candidates to vacant fire captain positions. “Because the plaintiffs presented no evidence that the practice of underfilling reduced the chances of African-American firefighters as a class to obtain a promotion to captain or increased the chances of non-African-American firefighters as a class for such a promotion, we agree with the defendants that there was insufficient evidence to support a finding that they had violated the plaintiffs’ equal protection rights.” Broadnax v. City of New Haven, #SC 17971, 294 Conn. 280, 2009 Conn. Lexis 529, 107 FEP Cases (BNA) 1763 (Conn. 2009).

Race or Sex Discrimination - Disparate Discipline

     Eighth Circuit denies summary judgment on a warden’s qualified immunity defense to a black female correctional officer’s equal protection violation claim that she was fired for accidentally discharging a burst of pepper spray, a white male officer who sprayed an inmate was not disciplined. “They were involved in similar pepper-spray conduct but were disciplined in different ways. Based on the summary judgment record, [she] established a prima facie case of discrimination.” Wimbley v. Cashion, #08-2829, 2009 U.S. App. Lexis 26253, 2009 WL 4348276, 107 FEP Cases (BNA) 1603 (8th Cir.).

     Federal court declines to dismiss a race discrimination action brought by a black police officer who was terminated for loss of a firearm. He alleged that Caucasian officers who committed criminal acts and violated departmental policies were only temporarily suspended, rather than terminated. A reasonable jury could find that the chief’s different treatment of the plaintiff is evidence that the stated reasons for his termination were pretextual. Hadley v. City of Pine Bluff, #5:08cv00184, 2009 U.S. Dist. Lexis 120253 (E.D. Ark.).

Religious Discrimination

     Seventh Circuit finds that a sheriff violated the First Amendment’s “Establishment” of a religion clause, by inviting a Christian group to speak at a number of mandatory employee meetings. The presentations gave the appearance of an endorsement. Milwaukee Deputy Sheriffs’ Assn. v. Clarke, #08-1515, 2009 U.S. App. Lexis 26344, 107 FEP Cases 1571 (7th Cir, 2009).

Union and Associational Activity

     Federal court declines to intervene in the removal of a union secretary from office for an alleged failure to properly perform his duties, even if his removal was intended to stifle his free-speech rights. Ferrer v. Intern. Longshoremen’s Assn. L-1740, #3:2008cv01505, 2009 U.S. Dist. Lexis 102888 (D.P.R. 2009).

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Family leave:

     DOL Wage and Hour Division guidance on the availability of FMLA leave where an employee or family member is ill with pandemic flu.

Free speech:

     Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 Univ. of Richmond Law Rev. 561 (2008).

Privacy:

     An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  

Secrecy and confidentiality:

     List of Controlled Unclassified Information (sensitive, and not publicly disclosed).

     National Security Agency Guide, “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF.”

     Reducing Government Secrecy: Finding What Works, by Steven Aftergood, 27 Yale Law & Policy Rev. 399-416 (2009).

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CROSS REFERENCES
Double Punishment - see: Demotions
E-Mail/Internet – see: Free Speech
E-Mail/Internet – see: Privacy Rights
Light Duty – see: Handicap Discrimination

AELE Seminars:

Lethal and Less Lethal Force
Mar. 08-10, 2010 – Las Vegas
Oct. 11-13, 2010 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

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