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Age Discrimination - Entry

     Cities that participate in a statewide police pension fund are subject to its age requirements. The trial court properly dismissed an age bias lawsuit of an applicant who was rejected for being over age 45. 29 U.S. Code §623(j) “provides that it shall not be unlawful for a local government to refuse to hire a person for a law enforcement position on the basis of age, if that person is over the maximum age of hire that the local government had in effect for that position as of March 3, 1983 ...” Kannady v. City of Kiowa, #07-7002, 590 F.3d 1161, 2010 U.S. App. Lexis 229 (10th Cir.).

Arbitration Procedures

     N.Y. appellate panel concludes that a public employee waives a right to seek binding arbitration by filing a civil action to challenge an alleged violation of the bargaining agreement. Matter of County of Rockland v. Rockland Assn. of Management, #2008-09321, 891 N.Y.S.2d 285, 2010 NY Slip Op 00144, 2010 N.Y. App. Div. Lexis 145 (2nd Dept.).

Associating With Known Criminals

     Federal appeals panel affirms the termination of a 20-year veteran Customs and Border Patrol officer because she married an illegal alien. The penalty was not unjust because she had been suspended four times since 2002. Olmos v. Dept. Homeland Security, #2010-3009, 2010 U.S. App. Lexis 2373 (Unpub. Fed. Cir.).

Collective Bargaining - Duty to Bargain

     New York’s highest court holds that management does not have to bargain a change from urine testing to radioimmunoassay hair testing for the drug screening of uniformed officers. City of New York v. Patrolmen’s Benev. Assn., #205, 2009 NY Slip Op 9314, 2009 N.Y. Lexis 4486.

Criminal Liability

     Court dismisses criminal charges against a police sergeant who used a password-protected computer in violation of Borough regulations. The sergeant improperly accessed a video of a vehicle stop and showed it to fellow officers, in order to embarrass another sergeant. The statute, N.J.S.A. 2C:20-23, was not intended to punish employees who misuse an employer-provided computer. State v. Riley, #08-09-0802, 2009 N.J. Super. Lexis 267 (Mercer County, published 2010).

     Former NOPD lieutenant pleads guilty in federal court to writing a false report to justify the 2005 Danziger bridge shootings, and conspiring with other officers to conceal the truth. U.S. v. Lohman, #10-032, Factual Basis Statement (E.D. La. 2/24/2010).

Disability Rights and Benefits - Line of Duty Related/ Disputed

     In deciding whether a disabling injury is duty-related, a subsequent off-duty accident that aggravates a work-related condition does not break the causal chain, and the officer is entitled to a duty-related pension. Devaney v. Bd. Trustees, Calumet City Police Pension Fund, #1-09-0458, 2010 Ill. App. Lexis 39 (1st Dist.).

     “Training exercises, although valuable as an educational tool to prepare officers and firefighters for the types of events they are expected to handle, are not responses ... what is reasonably believed to be an emergency, under any plain reading of the statute.” Gaffney v. Orland Fire Prot. Dist., #1-09-0046, 2009 Ill. App. Lexis 1315 (1st Dist.).  Note: this decision appears contrary to another ruling by the same appellate district – but with different panel members. See Lemmenes v. Orland Fire Prot. Dist., #1-09-1133, 2010 Ill. App. Lexis 30 (1st Dist.).

Disability Rights and Benefits - Hearing Procedures and Appeals

     Although it was proper for a police and fire pension board to allow the employer to intervene in a claim dispute, the claimant is entitled to due process at the hearing. While administrative proceedings are not judicial proceedings, “the parties are entitled to a fair hearing before a disinterested tribunal.” The Village attorney “assumed an advocacy role in support of the Village and against plaintiff. Her actions infected the whole proceedings and denied plaintiff a fair and impartial hearing.” Her role as a legal advisor to the Board was compromised by her partisan participation. Williams v. Bd. Trustees, Morton Grove Firefighters’ Pension Fund, #1-08-1212, 2010 Ill. App. Lexis 60 (1st Dist.).

Disciplinary Appeals & Challenges - In General

     Where civil service rules vest a civil service commission with jurisdiction over an employee’s appeal of his or her discharge, the employee’s retirement during the pendency of the appeal divests the commission of jurisdiction to rule on the justness of the termination. County of Los Angeles v. Civil Serv. Cmsn., #B211625, 180 Cal.App.4th 391, 102 Cal.Rptr.3d 684, 2009 Cal. App. Lexis 2033 (2nd Dist.).

Disciplinary Interviews & Compelled Reports - Weingarten Rights

    Where special or local laws regulate police disciplinary hearings in New York, a collective bargaining agreement cannot override those laws. Because of special legislation, an officer was not entitled to a Weingarten representative during an I-A interview. Harrison Police Benevolent Assn. v. Town of Harrison, #2008-06659, 892 N.Y.S.2d 495, 2010 NY Slip Op 00160, 2010 N.Y. App. Div. Lexis 111.

Disciplinary Offenses - Insubordination

     Appellate court sustains a 30-day suspension of a NYPD detective who disobeyed a superior’s order and was discourteous when questioned about the use of computer software. Matter of Nash v Kelly, #102272/08, 63 A.D.3d 483, 2009 NY Slip Op 4723, 880 N.Y.S.2d 286, 2009 N.Y. App. Div. Lexis 4527 (1st Dept.).

Employee Harassment - Nonsexual

     Appellate court sustains the termination of a county employee who wore a ribbon to demonstrate her membership in the “I Hate Teena Club.” Teena was a disliked coworker. The appellant also made threatening and intimidating comments to other coworkers and was known to be vindictive. Sindoni v. Co. of Tioga, #506921, 2009 NY Slip Op 08126, 67 A.D.3d 1183, 889 N.Y.S.2d 285, 2009 N.Y. App. Div. Lexis 7974 (3rd Dept.).

Handicap Laws / Abilities Discrimination  -  In General

     Tenth Circuit rejects a bias claim lodged by a woman with MS who failed to win a promotion. The male candidate was more qualified and the plaintiff lacked the academic credentials for the job. Also, she failed to establish that her multiple sclerosis substantially limited her ability to work. Johnson v. Weld County, #08-1365, 2010 U.S. App. Lexis 2595 (10th Cir.).

Medical Separations - Right to Hearing

     Judge upholds the termination of a corrections officer who was medically absent for 219 days in a two-year period. “it is well-settled law that an employee may be disciplined for medical incompetence based on excessive absenteeism due to legitimate illnesses, or even to illnesses or disabilities attributable to an on-the-job injury.” Dept. of Correction v. Duclet, #972/09 (NYC OATH).

Picketing

     Second Circuit holds that a privatized correctional service unlawfully terminated five corrections officers for engaging in recognition picketing. Civil Serv Empl. Assn. L-1000, AFSCME, v. N.L.R.B. (Correctional Medical Services), #07-5041, 569 F.3d 88, 2009 U.S. App. Lexis 13187, 186 LRRM (BNA) 2807 (2nd Cir.).  

Pregnancy Policies and Discrimination

     Pregnant police officer prevails in her gender discrimination lawsuit. Management could not deny her a light duty assignment because her “injury” was not duty-incurred. Germain v. County of Suffolk, #07-CV-2523, 2009 U.S. Dist. Lexis 45434, 108 FEP Cases (BNA) 208 (E.D.N.Y. 2009).

Privacy Rights

     New federal medical records privacy provisions, buried in the American Recovery and Reinvestment Act of 2009, extended federal civil penalties for HIPAA privacy violations. The law took effect Feb. 17, 2010 and contains the first federally-mandated data breach notification requirements. Before HITECH, entities that failed to protect medical information did not face governmental penalties. Health Information Technology for Economic and Clinical Health Act (HITECH), Pub. L. 111–5 §13402, 42 U.S. Code §17932, 123 STAT. 260. Interim final HHS regulations at 74 (79) Federal Register 19006 (2009).

Psychological Exams and Standards - Reasons Justifying Rejection of an Applicant

     Federal court declines to dismiss a gender bias action brought by a law enforcement applicant after she allegedly failed a pre-employment psychological fitness exam. The plaintiff had experience as a municipal police officer and as a store detective.

“Given [the psychologist’s] alleged emphasis on [the] Plaintiff’s appearance, his repeated focus on her ability to handle the sexual advances of the opposite sex, his comments that her appearance would cause further problems at her duty station, and his purportedly contemptuous attitude towards [the] Plaintiff having her first child at such a young age and ‘out of wedlock,’ the Court finds [that the] Plaintiff has produced substantial evidence that [the employer’s] reasons for not hiring her are [a] pretext for unlawful discriminatory behavior based on [the] Plaintiff’s gender.” Jimenez v. Dyncorp Intern., #3:08-CV-174, 635 F.Supp.2d 592, 106 FEP Cases (BNA) 1780 (W.D. Tex. 2009).

Residency - Continuing Requirements

     Ohio appellate panel rejects a suit filed by a civil service employee who was terminated for violating a residency requirement. The employee failed to exhaust his administrative remedies and challenged his separation by initiating collateral litigation. McNally v. City of Cleveland, #92697, 2010 Ohio 512, 2010 Ohio App. Lexis 452 (8th Dist.).

Retaliatory Personnel Action

     Islamic, Jamaican-born FBI agent wins $300,000 in his suit alleging retaliation after he had complained about discrimination. Rattigan v. Holder, #1:04-cv-02009, PACER Doc. 110; prior decisions at 636 F.Supp.2d 89 and 604 F.Supp.2d 33 (D.D.C. 2009).

     Washington state appellate panel sustains the termination of a police officer for violating a Last Chance Agreement. There was no proof that the city had retaliated against the officer for instigating a labor complaint with the PERC. Yakima Police Patrolmen’s Assn. and City of Yakima, #37865-5-II, 153 Wn. App. 541, 2009 Wash. App. Lexis 3087, 187 LRRM (BNA) 2880.

Sexual Harassment - In General

     In a Title VII sexual harassment suit, a newly elected sheriff replaced the old sheriff, and the district court substituted the new sheriff as a defendant in her official capacity. Although a sheriff in Virginia may be a singular entity with an independent tenure, state law cannot override Title VII in violation of the Supremacy Clause, and substitution of the new sheriff was proper. King v. McMillan, #08-1974, 2010 U.S. App. Lexis 2308 (4th Cir.).

Sick Leave & Abuse

     Illinois appellate court confirms the termination of a corrections officer who took repeated sick leave. “Management’s right to discipline and ultimately to discharge an employee for absenteeism and tardiness is based on its right to operate efficiently.” Marzano v. Cook County Sheriff’s Merit Board, #1-08-3415, 2009 Ill. App. Lexis 1340 (1st Dist.).

Workers’ Compensation - Claim Validity

     Although an Ohio police officer who is seriously injured while commuting to or from work is barred from received comp. benefits, that limitation applies to employees with a fixed place of work, and not to those who have a fluid work environment.  Klamert v. City of Cleveland, #93541, 2010 Ohio 443, 2010 Ohio App. Lexis 363 (8th Dist.).

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CROSS REFERENCES
Disciplinary Offenses – see: Assn. With Known Criminals
Disciplinary Offenses – see: Employee Harassment
Drug Screening – see: Collective Bargaining - Duty to Bargain
Sex Discrimination – see: Psychological Exams

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Lethal and Less Lethal Force
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