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Civil Liability

     Seventh Circuit overturns a $302,474 "breach of fiduciary duty" judgment against the former chair of the Board of Fire and Police Commissioners, who admitted that he had appointed unqualified police officers at the behest of the then mayor. "Acting in a way that might be contrary to one's own beliefs, but doing so on the orders of those who control one's employment, is commonplace and surely does not in itself violate any fiduciary duty." Gross v. Town of Cicero, #06-4042, 2010 U.S. App. Lexis 17911 (7th Cir.).

Damages, Remedies and Enforcement of Settlements

     City does not have to pay a $580,000 settlement to a terminated battalion chief. The former firefighter had filed for Ch. 7 bankruptcy, listing over $300,000 in credit card debt, and concealed the settlement. Reed v. City of Arlington, #08-11098, 2010 U.S. App. Lexis 19319 (5th Cir.).

     Seventh Circuit lowers an award of compensatory damages for reverse race discrimination from $200,000 to $20,000. The plaintiff also received awards of back pay, front pay and attorney's fees. Marion Co. Coroner's Office v. EEOC, #09-3595, 612 F.3d 924, 2010 U.S. App. Lexis 16236 (7th Cir.).

Disciplinary Appeals & Challenges - Reviewing Standards

     Three-judge panel overturns a lower court's order to reinstate a law enforcement officer who was terminated for submitting allegedly false duty records. In disciplinary appeals, a reviewing court should not make independent findings of fact. Haas v. North Carolina, #COA09-1367, 2010 N.C. App. Lexis 1667 (Unpub.).

Disciplinary Searches

     In rejecting a wrongful termination claim, the Eighth Circuit finds that it "is not unreasonable to search on a random basis" employees' vehicles parked outside a correctional institution if it can be shown that inmates have unsupervised access to those vehicles. "Randomly searching such a lot may be an efficient means of preventing the smuggling of contraband." The fact that visitors who park in the lot are not subjected to random searches is not a violation of the Equal Protection Clause. True v. Nebraska Dept. of Corr., #09-1788, 612 F.3d 676, 2010 U.S. App. Lexis 14007 (8th Cir.).

Disciplinary Surveillance

     Third Circuit concludes that probable cause may be needed to obtain stored mobile phone location data. In re Application of the USA - Electronic Communication Service, #08-4227, 2010 U.S. App. Lexis 18689 (3rd Cir.).

Emotional Distress

     A public employee sued his superiors after an advertisement was published in the local newspaper that appeared to solicit applicants for his job. He was embarrassed and stressed by the newspaper ad and questions about it from people in town. In rejecting his claims, the Montana Supreme Court noted that his employment was not terminated, no one was hired to replace him, and he suffered no loss of wages. Jensen v. Absarokee W&S Dist., #DA 10-0039, 2010 MT 189N, 2010 Mont. Lexis 291 (Unpub.).

Family, Medical & Personal Leave

     U.S. Dept. of Labor clarifies the definition of "son or daughter" under Sec. 101(12) of the Family and Medical Leave Act (FMLA). DoL Wage & Hour Div. Administrator, Interpretation #2010-3.

First Amendment Related

     Eleventh Circuit upholds a suit brought by a District Attorney's investigator who had been terminated because he was seeking election to the county commission, in opposition to the District Attorney's husband. The D.A. was entitled to qualified immunity in her personal capacity, but not in her official capacity. Randall v. Scott, #09-12862, 610 F.3d 701, 2010 U.S. App. Lexis 13377 (11th Cir.).

     There is a five-part test in actions brought by public employees who allege a First Amendment violation:

(1) Whether the employee spoke pursuant to his official duties.
(2) Whether the subject of the speech was a matter of public concern.
(3) Whether the employee's interest in commenting on the issue outweighed the interest of the employer.
(4) The employee must prove that his speech was a substantial or a motivating factor in a detrimental employment decision, and if so,
(5) The employer may demonstrate that it would have taken the same action against the employee, even in the absence of the protected speech.

Deutsch v. Jordan, #09-8042, 2010 U.S. App. Lexis 17677 (10th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Rejecting ADA claims, the Eighth Circuit finds that an emergency dispatcher who suffers from unipolar depression was not qualified to retain her position. Her condition interfered with her ability to function at full capacity and to concentrate. Wisbey v. City of Lincoln, #09-2100, 612 F.3d 667, 2010 U.S. App. Lexis 13684 (8th Cir.).

Handicap Laws / Abilities Discrimination
- TDD/Sign Language & Physical Barriers

     Attorney General issues final regulations revising the Justice Department's ADA regulations. Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 (178) Federal Register 56164 (Sep. 15, 2010).

Homosexual & Transgendered Employee Rights

     Federal court in Riverside, CA, overturns the "Don't Ask, Don't Tell" law pertaining to gays in the military. The government failed to show the discriminatory policy significantly furthered military readiness and unit cohesion. Log Cabin Republicans v. United States, #2:04-cv-08425, 2010 U.S. Dist. Lexis 93612 (C.D. Cal.).

     OPM directs federal agencies to allow unpaid leave for employees who accompany an elderly relative of their same-sex domestic partner, to routine medical or dental appointments or other professional services. LWOP Family Support Memorandum (10 Sep. 2010).

Occupational Safety & Disease

     OSHA subjects a shooting range to more than $2 million in penalties for exposing workers to lead and other hazards. OSHA v. EN Range, OSHA Inspections #314259854 & 314260605.

Psychological Exams and Standards
- Fitness for Continued Duty or a Return to Active Duty

     Ninth Circuit upholds a mandatory FFDE of a police officer. The panel wrote that prophylactic "psychological examinations can sometimes satisfy the business necessity standard, particularly when the employer is engaged in dangerous work. ... Undisputed facts show that [the officer] exhibited highly emotional responses on numerous occasions in 2005, four occurring in a single month immediately prior to his referral. ... Police officers are likely to encounter extremely stressful and dangerous situations during the course of their work." Brownfield v. City of Yakima, #09-35628, 612 F.3d 1140, 2010 U.S. App. Lexis 15324 (9th Cir.).

Race or Sex Discrimination - Disparate Discipline

     Appellate panel sustains the termination of an untenured black firefighter, who had been arrested six times during his career before he was arrested for a federal felony and fired. "Given the number of arrests and other infractions on [plaintiff's] record and the lack of evidence showing discrimination of any sort, [the plaintiff] cannot show the City and [Chief's] nondiscriminatory reason for his termination was pretextual and that racial animus was the motivating factor for his termination." Chism v. Curtner, #09-2632, 2010 U.S. App. Lexis 18148, 110 FEP Cases (BNA) 292 (8th Cir.).

Reductions in Force

     Arbitrator rejects a grievance interpreting a clause in a CBA that provides that other city employees must be laid off before police officers. City of Wellston (Ohio) and FOP Ohio, FMCS #030411-08835-6 (Byrne, 2010).

Retaliatory Personnel Action

     After a Dallas police officer complained of sexual harassment and retaliation, she was removed from FTO duties, other coworkers allegedly began "clicking" over her radio calls, refused to partner with her, and she was denied overtime assignments. The Fifth Circuit overturned a summary judgment for the city; "a genuine issue of material fact exists as to whether the City retaliated against [her] for filing a Title VII complaint by removing her from FTO duties." Magiera v. City of Dallas, #09-10826, 2010 U.S. App. Lexis 16802 (Unpub. 5th Cir.).

Retirement Rights and Benefits

     Massachusetts court reinstates the pension claim of a former police lieutenant who was convicted of 21 misdemeanor counts of unlawful access of computer records. Although accessing a computer system without authorization is certainly a serious offense ... the court does not find that it places at risk the integrity of the Peabody Police Department" and the fact that he was on duty at the time "was incidental to the conduct at issue." Public Employee Ret. Adm. Cmsn. v. Bettencourt, #09-3196-D, 2010 Mass. Super. Lexis 202.

Stress Related Claims and Defenses
- Claim Based on Dangerous Incident or Event

     Connecticut appellate court affirms the denial of benefits for psychic injuries suffered by a police officer who was in a gun battle at the end of a high-speed chase. Although the plaintiff's disorder was an occupational disease, it was not compensable under the Act because it did not arise from a physical injury. Biasetti v. City of Stamford, #AC 30867, 1 A.3d 1231, 123 Conn. App. 372, 2010 Conn. App. Lexis 366.

Suspensions and Administrative Leave

     Federal Merit Board holds that the DHS may not indefinitely suspend an employee merely because it has a pending investigation into allegations regarding her conduct. The appellant, an ICE Deportation Officer, had been arrested for battery while off-duty. Hodge v. Dept. of Homeland Security, #DA-0752-09-0457-I-1, 2010 MSPB 190, 2010 MSPB Lexis 5401.

Taxation

     Injured firefighter must pay taxes on the gross income that he received from the city while home for two years, because under the collective bargaining agreement he remained on full payroll. Bayse v. Commissioner of Internal Revenue, #2010-118, #22322-09S, 2010 Tax Ct. Summary Lexis 142 (Unpub. U.S. Tax Court).

Uniforms, Clothing and Equipment

     U.S. Army allows a non-citizen service member to wear a turban (dastaar), a beard and long hair, to accommodate his Sikh religious preferences. Recruited under the Military Accessions Vital to the National Interest Program, he is fluent in Punjabi and Hindi. In re Simran Lamba, G-1 Human Resources Policy Directorate (8/30/2010).

Ψ  Editor's note: More than 50 Members of Congress have written to military officials requesting that Sikhs be accepted into the U.S. Armed Forces

• See the Feb. 2007 AELE Monthly Law Journal article: Tattoos, Piercings, Jewelry, Dental Ornamentation, Cosmetics and Religious Headwear

Workers' Compensation - Claim Validity

     Officer was not entitled to job-related benefits for further damage to a knee that he twice injured while serving high risk warrants. The Compensation Board properly found it was a distinct and unconnected injury. Lowndes Co. Bd. of Cmsnrs. v. Connell, #A10A1213, 2010 Ga. App. Lexis 831.

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• Report non-working links here

Assessment centers:
• Book: Assessment Center Handbook for Police and Fire Personnel (3rd edition), by Charles D. Hale, C.C. Thomas Publ., ISBN 13-9780398079482 (2010).

Disciplinary searches:
• Report: Public Employees' Right to Privacy in Their Electronic Communications: City of Ontario v. Quon in the Supreme Court, Congressional Research Service, R41344 (July, 2010).

Ethics:
• Article: Maintaining Ethical Behavior, 79 (8) FBI Law Enforcement Bulletin 10 (Aug. 2010).

Military veterans:
• Article: The Returning Military Veteran: Is Your Organization Ready? 79 (8) FBI Law Enforcement Bulletin 1 (Aug. 2010).

National security:
• Article: Debt and Home Foreclosures: Their Effect on National Security Clearances.

Reference:
• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Religion:
• Justice Department releases a ten-year report detailing RLUIPA enforcement.

Suicide:
• Final report of the DoD task force on the prevention of suicide by members of the Armed Services (Aug. 2010).

Whistleblowers:
• Regulations: OSHA issues interim final rules on various whistleblower procedures.

Report non-working links here


CROSS REFERENCES
Defamation - see: Emotional Distress
Race: Reverse Discrimination - see: Damages
Religious Discrimination - see: Uniforms

AELE Seminars:

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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