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Age Discrimination - Termination / Mandatory Retirement

     Even if older prosecutors were replaced by younger ones, Assistant State's Attorneys are not protected by the ADEA because they hold policymaking positions. Opp v. Office of the State's Attorney of Cook County, #09-3714, 2010 U.S. App. Lexis 26318 (7th Cir.).

Associating with Known Criminals

     Appellate court rejects the claims of a deputy sheriff who was terminated for engaging in a personal relationship with a known prostitute and heroin addict in violation of the department's association policy. Bautista v. County of Los Angeles, #B219035, 2010 Cal. App. Lexis 2054.

Attorneys' Fees, Sanctions and Legal Defense Rights

     Federal Merit Board upholds an award of legal fees against the DoJ, arising over the successful defense of an officer charged with excessive force. A fee award is not improper simply because a percentage will be turned over to a union's litigation fund. Thompson v. Dept. of Justice, #CH-0752-08-0632-A-1, 2010 MSPB 244.

Disciplinary Procedures - Delays & Time Limits

     A 180-day time limit for initiating disciplinary actions applies to complaints from outside the agency, and not to charges that are generated internally. McQuade v. Dept. of Corrections, #1D10-507, 32010 Fla. App. Lexis 18677 (1st Dist.).

     A conversation between a grievant and the fire chief does not extend the period to file a disciplinary grievance, as limited by the bargaining agreement. IAFF L-863 and City of Newton, AAA #11-390-00347-09 (Hanson, 2010).

Disciplinary Punishment - In General

     Appellate court sustains a civil service commission's reduction of punishment of two firefighters from one 24-hour period to written reprimands. One firefighter took his child to the top of an extended fire truck ladder. The penalty reduction was within the province of the commission's authority. St. Tammany Parish Fire Prot. Dist. No. 4 v. Picone, #2010 CA 0481, 2010 La. App. Lexis 1750.

Ergonomics

     Illinois pays $1.5 million in 2009-2010 to corrections officers at Menard Correctional Center for hand, wrist and elbow injuries purportedly caused by repetitive motions while locking, unlocking, opening and checking inmate cells. Individual workers comp. settlements ranged from $21,860 to $119,184, according to the Illinois Workers' Compensation Commission. Medical bills, sick pay and legal fees were in addition to compensation for injuries. The facility opened in 1878 and is not equipped with electrical cell doors or locks. Starkweather v. Illinois Dept. of Corrections (IWCC, 2010).

FLSA - Overtime - Roll Call & Meal periods

     Because California's wage and hour statutes do not apply to public employees, an action seeking compensation for state correctional officers must fail. California Correctional Peace Officers' Assn. v. State of California, #A125679, 188 Cal.App.4th 646, 115 Cal.Rptr.3d 361, 2010 Cal.App. Lexis 1613.

Injuries to Applicants & Trainees

     Federal court dismisses a wrongful death action brought by the family of a recruit firefighter who was killed in a live burn training exercise in a three-story row house. The deceased's hose was not charged with water pressure and her team had been instructed to bypass fires on the first two floors and to proceed directly to the third floor. Reckless conduct on the part of training supervisors is not a constitutional violation. Slaughter v. Mayor of Baltimore, #L-10-1157, 2010 U.S. Dist. Lexis 127698 (D.Md.).

• View the NIOSH summary of the incident.

Minimum Staffing Requirements - Law Enforcement

     City of Oakland did not make an impermissible use of neighborhood patrol tax funds by indirectly hiring and training new officers to replace veteran officers who were assigned to neighborhood beat positions. The city was required to appropriate funds, but not actually staff the police force with the minimum number of officers specified. Sacks v. City of Oakland, #A126781, 2010 Cal. App. Lexis 2077 (1st Dist.).

National Origin Discrimination

     In a national origin failure to promote case, the Second Circuit declares that "Experience, however, is not a substitute for performance, and defendants had every right to place greater emphasis on the performance evaluations of the candidates for promotion." Performance ratings trump seniority. Estate of Paulette Hamilton v. City of N.Y., #9-4318, 2010 U.S. App. Lexis 24666 (2nd Cir.).

Pay Disputes - In General

     President signs legislation to prohibit statutory pay adjustments for non-military Federal civilian employees for a 2-year period. Executive Order, Adjustments of Certain Rates of Pay.

Political Activity/Patronage Employment

     Federal appeals court orders a jury trial on liability and damaged for a lieutenant who claimed that he was wrongfully demoted to sergeant because of a political party affiliation. Eckerman v. Tennessee Dept. of Safety, #09-6181, 2010 U.S. App. Lexis 25849, 2010 FED App. 0387P (6th Cir.).

Privacy Rights

     Government employees in Texas have a privacy interest in keeping their birth dates from the news media. Release "would constitute a clearly unwarranted invasion of personal privacy." Texas Comptroller of Public Accounts v. Attorney General of Texas, #08-0172, 2010 Tex. Lexis 890.

     Cook County, IL, settles political hiring claims for $555,772. A forest preserve police applicant was put on a "failed" test list after scoring 66 %, while another candidate who scored 49 % was hired. Four police applicants did not appear on the "failed" police test list, but were never hired. At the same time, the district hired another applicant who failed the police written and psychological exams and who was rated the "least acceptable candidate." Compliance Administrator Report, Shakman v. Democratic Organization of Cook County, #1:69-cv-02145 (N.D. Ill. 2010).

Promotional Rights, Procedures and Performance Appraisals

     "To survive summary judgment on the strength of his credentials, [a plaintiff] must show that his credentials are so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the [plaintiff] for the job in question." Abraham v. New York City, #09-2238, 2010 U.S. App. Lexis 19686 (Unpub. 2nd Cir.).

Reductions in Force

     After a bargaining agreement expires a town may give notice that it no longer intends to be bound by a minimum workforce requirement. The town has a duty to bargain over the issue, but a reduction of the workforce is "arbitrable only insofar as the decision to reduce the workforce affects hours, wages, and other terms and conditions of employment of the remaining employees." Town of North Providence v. Drezek, #PC-09-5835, 2010 R.I. Super. Lexis 98, 188 LRRM (BNA) 3118.

Retirement Rights and Benefits

     A city may grant a retirement incentive, but it is not considered "salary" for pension calculation purposes. Smith v. Westchester Police Pension Bd., #1-09-0917, 2010 Ill App. Lexis 1251 (1st Dist.).

     Federal employee was entitled to reinstatement after taking a retirement, which was based on erroneous information about his benefits. Although the Army did not intentionally miscalculate his future benefits, it made no effort to verify them. Salazar v. Dept. of the Army, #DE-0752-09-0415-I-1, 2010 MSPB 235.

Sex Discrimination - In General

     Fourth Circuit rejects a defense motion for summary judgment in a hostile environment sex discrimination lawsuit. The plaintiff was the only female recruit in the police academy. She was consistently made to feel like an outsider by her classmates and some instructors, with one instructor even referring to her as a "bitch." Mosby-Grant v. City of Hagerstown, #09-2161, 2010 U.S. App. Lexis 25850 (4th Cir.).

     Fifth Circuit affirms a failure to promote sex discrimination jury award of $50,000 in past compensatory damages, $428,421 in attorneys' fees and $15,873 in costs. "The jury heard a number of women testify about the rampant sex discrimination in the department, including evidence that women feared retaliation for complaining of such occurrences or voicing their concerns about them. However, the panel overturned an award of $25,000 in future compensatory damages."

     The plaintiff had had been promoted to Investigator before this case went to trial and she did not adduce evidence that she will suffer any physical effects or mental anguish in the future as a result of the constitutional violation that she experienced in the past. Lewallen v. City of Beaumont, #09-40337, 2010 U.S. App. Lexis 17613 (5th Cir.).

Sick Leave & Abuse

     Office of Personnel Management issues final regulations on the use of sick leave for serious communicable diseases, including pandemic influenza. Absence and Leave; Sick Leave, 75 (232) Federal Register 75363 (12/03/2010). Effective in 2011.

Transfers - Non Disciplinary/Punitive

     Tenth Circuit rejects a deputy sheriff's claim that he had been demoted and constructively discharged in violation of due process. He was laterally transferred to another division at the same pay grade. He failed to report for work at his new assignment and did not attend a hearing he had requested. Lauck v. Campbell Co., #09-8085, 2010 U.S. App. Lexis 25352 (10th Cir.).

Unemployment Compensation Claims

     Louisiana appellate court sustains a decision to deny unemployment benefits to a former police officer who was fired for altering a police report. Chester v. City of Ponchatoula, #2010 CA 0139, 2010 La. App. Unpub. Lexis 470.

Uniforms, Clothing and Equipment

     NIJ issues a voluntary standard for Chemical, Biological, Radiological and Nuclear (CBRN) Protective Ensemble for Law Enforcement, Standard 0116.00, NCJ 221916 (2010).

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Medical:

• Online guide - American College of Occupational and Environmental Medicine publishes the first edition of Guidance for the Medical Evaluation of Law Enforcement Officers (2010).

Reference:

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

Whistleblowers:

• Report: U.S. Merit Systems Protection Board, Whistleblower Protections for Federal Employees (2010).

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CROSS REFERENCES
Grievances - see: Disciplinary Procedures - Time Limits
Promotional Rights - see: National Origin Discrimination

AELE Seminars:

Jail and Prisoner Legal Issues
Security and Incident Liability
Mar. 7-9, 2011 – Las Vegas

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force
Oct. 10-12, 2011 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

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