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Age Discrimination - Termination / Mandatory Retirement

     California Supreme Court splits from federal courts on the "stray remarks" rule announced by Justice O'Connor in Price Waterhouse v. Hopkins, #87-1167, 490 U.S. 228 (1989). Comments by superiors and coworkers may help prove age bias. The plaintiff, who was terminated when a program was eliminated, claimed that employees told him that his ideas were obsolete and that he was slow, fuzzy, sluggish, lethargic, and lacked energy. A unanimous court held that "the stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker." The lower court "properly considered ... discriminatory comments made by decision makers and coworkers along with all other evidence in the record." Reid v. Google Inc., #S158965, 2010 Cal. Lexis 7544.

Back Pay Claims and Awards

     City was not liable for back pay differential after promotions were delayed because of pending litigation and an injunction. State ex rel. Worsham v. Cincinnati, #C-090328, 2010-Ohio-2765, 2010 Ohio App. Lexis 2293 (1st Dist.).

Collective Bargaining - Duty to Bargain

     State labor board overturns management's decision to remove exercise equipment from fire stations. Firefighters had used the equipment for ten years, without a recorded injury, and the equipment was not purchased with city funds. City of Newton and F/F Assn, L-8632, #MUP-08-5369 (Mass. Lab. Rltns. 2010).

Conflicts of Interest

     Office of Government Ethics concludes that all former federal employees are legally prohibited for a one-year period, from contacting employees of their former agency for the purpose of influencing official actions. OGE Legal Opinion re: 18 U.S. Code 207c (2010).

Death Benefits

     Rhode Island Supreme Court upholds surviving spouse claim for pension benefits of a deceased firefighter. The couple lived as husband and wife for 35 years but never formally married. Fravala/Phillips v. City of Cranston, #2009-197, 996 A.2d 696, 2010 R.I. Lexis 91.

Disciplinary Offenses - Insubordination

     Appellate court sustains the termination of a sheriff's lieutenant. When superiors served an order requiring that he surrender all of his firearms, he was alleged to have stated "no f***ing way are you taking my guns. I will go home right now, load those f***ers and I will be waiting." The panel determined that there was substantial evidence establishing that the lieutenant was guilty of misconduct and insubordination, as well as incompetence because he was no longer able to legally carry a firearm due to a domestic relations order. Matter of Guynup v. Co. of Clinton, #508781, 2010 NY Slip Op 4914, 903 N.Y.S.2d 580, 2010 N.Y. App. Div. Lexis 4810

Disciplinary Surveillance

     D.C. Circuit concludes that a warrant is required to attach a GPS tracking device to monitor a suspect's vehicle over a prolonged period. "Here the police used the GPS device ... to track [the suspect's] movements 24 hours a day for 28 days ..." U.S. v. Maynard, #08-3030, 2010 U.S. App. Lexis 16467 (D.C. Cir.).

• Editor's Note: The 7th and 9th Circuits have held the use of a GPS tracking device to monitor an individual's movements in his vehicle over a prolonged period is not a search, U.S. v. Pineda-Moreno, #08-30385, 591 F.3d 1212 (9th Cir. 2010) and U.S. v. Garcia, #06-2741, 474 F.3d 994 (7th Cir. 2007). The 8th Circuit has held the use of a GPS device to track a drug trafficking operation was not a search. U.S. v. Marquez, #09-1743, 605 F.3d 604 (8th Cir. 2010), writing that "when police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, they install a non-invasive GPS tracking device on it for a reasonable period of time."

Domestic Partner Rights

     Federal court strikes down a voter-initiated measure that banned same-sex marriages in California. Perry v. Schwarzenegger, #C-09-2292, 2010 U.S. Dist. Lexis 78817 (N.D. Cal.).

     Acting in two cases, a federal court in Boston strikes down Sec. 3 of the federal Defense of Marriage Act, 1 U.S. Code §7. It defined marriage as a legal union between one man and one woman and therefore violates the Equal Protection Clause. Gill v. OPM, #1:09-cv-10309, 2010 U.S. Dist. Lexis 67874 and Comm. of Mass. v. U.S. Dept. of Health and Human Serv., #1:09-cv-11156, 2010 U.S. Dist. Lexis 67874 (D. Mass).

Family, Medical & Personal Leave

     Under the FMLA, front pay is an equitable remedy that must be determined by the court rather than by the jury, both as to the availability of the remedy and the amount of any award. Traxler v. Multnomah County, #08-35641, 596 F.3d 1007, 2010 U.S. App. Lexis 4050 (9th Cir.).

Firearms - Restrictions on Wearing

     Seventh Circuit rejects a Second Amendment challenge to a permanent ban on owning firearms that is imposed on perpetrators of misdemeanor domestic violence. The Supreme Court's decision in Dist. of Col. v. Heller, #07-290, 128 S.Ct. 2783 (2008) did not offer any relief. "Domestic assaults with firearms are approximately twelve times more likely to end in the victim's death than are assaults by knives or fists." Moreover, the recidivism rate for domestic violence is high. U.S. v. Skoien, #08-3770, 2010 U.S. App. Lexis 14262 (7th Cir. en banc)

First Amendment Related

     Tenth Circuit concludes that it was unlawful for the Utah Highway Patrol Assn. to construct 12-ft. high Latin style crosses on public land in memory of fallen state troopers. The memorials were inspired by military cemeteries, and were designed by Mormons (which is a religion that does not use the cross as a religious symbol). "This case involves memorials using a Latin cross, which "is unequivocally a symbol of the Christian faith... [and] there is little doubt that Utah would violate the Establishment Clause if it allowed a private group to place a permanent unadorned twelve-foot cross on public property without any contextual or historical elements that served to secularize the message conveyed by such a display." American Atheists, Inc. v. Duncan, #08-4061, 2010 U.S. App. Lexis 17249 (10th Cir.).

   
         UHPA memorial cross
      (Trooper's name removed)

Health Insurance & Benefits

     Rhode Island court restores dental health benefits to retired police officers, because they had vested rights and were not represented by the union that represents employed officers. Beauchemin v. City of Woonsocket, #10-2066, 2010 R.I. Super. Lexis 104.

Hearing (Audio) Impairment

     Terminated court security officer was not disabled because of a hearing impairment that was corrected by wearing hearing aids. The 2008 amendments to the ADA were not retroactive. Kemp v. Holder, #09-30255, 610 F.3d 231, 2010 U.S. App. Lexis 13964 (5th Cir.).

Injuries to Applicants & Trainees

     Appellate court upholds the right of an injured Chicago police academy trainee to bring a workers' comp. claim. Dodaro v. Illinois Workers' Comp. Cmsn., #1-09-0447WC, 2010 Ill. App. Lexis 799 (1st Dist.).

Reductions in Force

     In a case involving bumping rights due to employment layoffs, an Ohio appellate court concludes that provisions of a collective bargaining agreement prevail over conflicting laws, rules and regulations of a chartered municipality. Zupp v. Civil Serv. Cmsn. for City of Columbus, #09AP-895, 2010-Ohio-2614, 2010 Ohio App. Lexis 2157 (10th Dist.).

Retaliatory Personnel Action

     Appellate panel rejects retaliation and hostile workplace claims brought by a consistently under-performing police officer. Thompson v. City of Monrovia, #B216252, 186 Cal. App. 4th 860, 2010 Cal. App. Lexis 1142.

     A change in an employee's parking space location or a relocation to an office without a window are petty annoyances and do not constitute an adverse personnel action for the purpose of proving a hostile workplace claim. Fercello v. Co. of Ramsey, #09-2587, 2010 U.S. App. Lexis 15619, 612 F.3d 1069, 109 FEP Cases (BNA) 1516 (8th Cir.).

Sex Discrimination - Correctional Facilities

     Ninth Circuit overturns a lower court holding that perpetuated a practice of only assigning women lieutenants at a women's prison. There is no reason to believe "that individuals in the correctional lieutenant role are particularly likely to sexually abuse inmates." Breiner v. Nevada Dept. of Corrections, #09-15568, 2010 U.S. App. Lexis 13933, 109 FEP Cases (BNA) 1153 (9th Cir.).

Smoking Rights/Restrictions & Air Quality

     Pennsylvania Supreme Court holds that a municipal employer must bargain with its police labor organization over a ban on the use of tobacco products in the workplace and in municipal vehicles. "While local legislation which promotes clean air and warns of the risks of tobacco use may be laudatory, it may not serve as a barrier to negotiations over this topic when it constitutes a working condition subject to mandatory bargaining." Bor. of Ellwood City v. Pa. Labor Rels. Bd., #44 WAP 2008, 2010 Pa. Lexis 1532.

Standby Duty Pay Claims

     Class action suit raises overtime claims for thousands of Chicago Police sergeants who were issued mobile PDAs such as BlackBerry® devices. The complaint alleges that the plaintiff "received numerous phone calls, e-mails and work orders while off the clock and was not compensated for the time spent receiving and responding to these communications" during the preceding two-year period. Complaint, Allen v. City of Chicago, #1:10-cv-03183 (N.D. Ill.).

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

Uniforms, Clothing and Equipment

     Third Circuit panel splits 2-to-1, upholding a regulation barring correctional employees from wearing non-uniform headwear. The complaint was lodged by a Muslim woman who wanted to wear a khimar. Equal Empl. Opp. Cmsn. v. GEO Group, #09-3093, 2010 U.S. App. Lexis 15973, 109 FEP Cases (BNA) 1633 (3rd Cir.).

• See the Feb. 2007 AELE Monthly Law Journal article: Grooming and Appearance Rules for Public Safety Workers: Tattoos, Piercings, Jewelry, Dental Ornamentation, Cosmetics and Religious Headwear

Untruthfulness & Resume Fraud

     Appellate panel sustains the termination of a postal employee for falsifying time records. White v. Postal Service, #2010-3057, 2010 U.S. App. Lexis 12062 (Unpub. Fed. Cir.).

Wages and Hours

     Oklahoma Supreme Court invalidates a city's two-year collective bargaining agreement with firefighter's union that contained a 6.1% wage hike in the second year. The state constitution prohibits a political subdivision, without voter approval, from creating an obligation in one year that results in a debt in a succeeding year. City of Stillwater v. IAFF L-2095, #107477, 2010 OK 55, 2010 Okla. Lexis 61.

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Reference:

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CROSS REFERENCES
Collective Bargaining: in General - see: Wages & Hours
Collective Bargaining: Duty to Bargain - see: Smoking Rights
Firearms - Restrictions on Wearing - see: Disciplinary Offenses
Promotional Rights - see: Back Pay Claims
Unfair Labor Practice - see: Collective Bargaining/Duty to Bargain

AELE Seminars:

Lethal and Less Lethal Force
Oct. 11-13, 2010 - Las Vegas

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

Jail and Prisoner Legal Issues
Operational and Administrative Issues
Jan. 10-12, 2011
Security and Incident Liability
Mar. 7-9, 2011

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