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Back Pay Claims and Awards

     Full back pay for a reinstated employee may be a proper remedy even if a worker does not look for other employment after being terminated. It is the obligation of the employer to show there were comparable opportunities available. Candari v. L.A. Unif. School Dist., #B218306, 2001 Cal. App. Lexis 262.

Civil Liability

     Court denies qualified immunity to a deputy sheriff who entered the private residence of a dead person residence and carried away personal property, some of which he stored and some of which he sold. Qualified immunity applies to Fourth Amendment claims relating to his initial entry on the property and securing the property of the deceased. But there can be no qualified immunity for claims that he misappropriated property for his own benefit. Mathis v. County of Lyon, #08-17302, 2011 U.S. App. Lexis 1956 (9th Cir.).

Criminal Liability

     Eleventh Circuit affirms a 12-month sentence for a federal employee who violated workplace policies prohibiting personal access to the agency's database and obtained personal information on friends and acquaintances. The Computer Fraud and Abuse Act, 18 U.S. Code 1030(a)(2)(B) does not require that a person acted for financial gain to violate the misdemeanor provisions of the law. U.S. v. Rodriguez, #09-15265, 628 F.3d 1258, 2010 U.S. App. Lexis 26203 (11th Cir.).

     An insolvent medical testing company agreed to plead guilty to fraud charges for rigging physical exams that were given to more than 10,000 applicants to the Chicago Police and Fire departments. The firm faces a fine of up to $1.8 million under federal sentencing guidelines, but their lawyer told a federal judge that the company is insolvent and unlikely to pay any fine or restitution. U.S. v. U.S. Occupational Health, Inc. (N.D. Ill.). As many as 4,000 police applicants may be retested. Sources: Chicago Sun-Times (Mar. 19, 2011) and Chicago Tribune (Feb. 17, 2011).

     Illinois appellate court overturns the conviction of a former police detective for official misconduct. Violations of police department regulations cannot alone sustain a conviction under the state's official misconduct statute. Police regulations are not "laws" within meaning of statute, as there was no evidence that they were enacted, sanctioned, or approved by a governing body. People v. Dorrough, #1-09-3200, 2011 Ill. App. Lexis 70 (1st Dist.).

Disciplinary Evidence - Admissibility/In General

     In rejecting petitioner's claim that he ingested marijuana unknowingly, the NYPD Commissioner relied on scientific evidence that inadvertently ingesting marijuana in contaminated food and inhaling secondhand smoke could not cause the high levels of marijuana in appellant's hair samples. The court also rejected a claim that using the radioimmunoassay method of hair testing violated the Fourth Amendment because the use of that method was not authorized by the collective bargaining agreement with the union. Matter of Chiofalo v. Kelly, #1151 (115958/07), 2010 NY Slip Op 00785, 70 AD 3d 423, 893 N.Y.S.2d 552; 2010 N.Y. App. Div. Lexis 735 (1st Dept).

Disciplinary Hearings - Proof Required

     Federal appeals court overturns a termination because management considered several alleged past instances of misconduct that were "not referenced in the Notice of Proposed Removal, leaving the employee entirely unaware that such incidents would be considered as grounds for his removal." Ward v. Postal Service, #2010-3021, 2011 U.S. App. Lexis 3199 (Fed. Cir.).

Disciplinary Offenses - Conduct Unbecoming

     Arkansas Supreme Court sustains the termination of a firefighter for fleeing a police officer while off-duty. Lawrence v. City of Texarkana, Ark., #10-146, 2011 Ark. 42, 2011 Ark. Lexis 43.

Disciplinary Punishment - In General

     Federal Merit Boards sustains the termination of a criminal investigator for untruthfulness and failing to timely inform management of a confidential informant's misconduct. Bencomo v. Dept. of Homeland Security, #DA-0752-09-0332-I-1, 2011 MSPB 22.

     Federal appellate panel sustains the removal of an Administrative Law Judge for conduct unbecoming. There was substantial evidence that he used violence against his domestic partner and the physical altercation resulted in the involvement of neighbors and police officers. Long v. Soc. Secur. Admin., #2010-3108, 2011 U.S. App. Lexis 5005 (Fed. Cir.).

Disciplinary Searches

     Eighth Circuit holds that cell phone searches are similar to computer searches. See U.S. v Kramer, #10-1983, 2011 U.S. App. Lexis 2367 (8th Cir. 2011).

Handicap Laws / Abilities Discrimination - In General

     The EEOC has published the final regulations to the ADA Amendments Act of 2008, along with an accompanying Q&A document and fact sheet. FR Doc. 2011-6056 (25 Mar. 2011).

Last Chance Agreements

     A Last Chance Agreement is a contract. To have an enforceable contract, there must be consideration, i.e., a performance or a return promise that must be bargained for and does not involve the performance of a pre-existing duty. Waivers of appeal rights are unenforceable when there is no consideration for the employee's waiver. Black v. Dept. of Transportation, #AT-0752-09-0926-I-1, 2011 MSPB 13.

Medical Separations - Right to Hearing

     Terminating a medically disabled employee and applying to place the employee on disability retirement are mutually exclusive, inconsistent means of removing the employee from his or her employment. A California peace officer is entitled appeal any "punitive action" at a posttermination administrative hearing under POBRA § 3304.5. Riverside Sheriffs' Assn. v. Co. of Riverside, #E050596, 193 Cal. App. 4th 20, 2011 Cal.App. Lexis 220 (4th Dist.).

Military Leave

     Supreme Court holds that "if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable" under the USERRA. A jury had awarded the employee $57,640 in damages after it determined that the plaintiff was fired because of his military service. Staub v. Proctor Hospital, #09-400, 131 S.Ct. 1186, 2011 U.S. Lexis 1900, 111 FEP Cases (BNA) 993.

     Military service laws do not protect reservists against harassment. Pilots alleged that airline management created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service. "We decline to infer a cause of action for hostile work environment under USERRA." Carder v. Continental Airlines, #10-20105, 2011 U.S. App. Lexis 5847 (5th Cir.).

     Federal appeals panel overturns a holding that a postal employee abandoned his civilian career in favor of a military career and waived the USSERA's antidiscrimination protection. His period of military service did not exceed five years and the evidence did not support an inference that he manifested a clear intention to abandon his civilian career. Erickson v. U. S. Postal Service, #2010-3096, 2011 U.S. App. Lexis 3815, 190 LRRM (BNA) 2321 (Fed. Cir.).

Pay Disputes - In General

     When counsel for a party subpoenas a California peace officer, both the litigant and counsel are the party at whose request the subpoena is issued and both are liable for the reimbursement of the officer's compensation. Maddox v. City of Costa Mesa, #G043297, 2011 Cal. App. Lexis 339 (4th Dist.).

Political Activity/Patronage Employment

     In a political affiliation case, the plaintiff alleged that he was fired from his job at the Puerto Rico Dept. of Correction because his superiors disagreed with his political beliefs. A grant of summary judgment for the defendants was affirmed because he failed to show that the defendants knew of his political affiliation. Del Toro-Pacheco v. Pereira, #09-2532, 2011 U.S. App. Lexis 2344 (1st Cir.).

Race and National Origin Discrimination

     The FDNY's use of written exams in selecting entry-level firefighters violated Title VII. The city's use of the examinations discriminated against black and Hispanic applicants. United States v. City of New York, #07-cv-2067, 731 F.Supp.2d 291, 2010 U.S. Dist. Lexis 78641, 110 FEP Cases (BNA) 203 (E.D.N.Y.).

Retaliatory Personnel Action

     Federal court reduces the damage awarded a woman police who complained about male employees watching pornography, and management responded by listening to her recorded conversation. "It was unreasonable for the jury to award plaintiff nearly half of a million dollars because plaintiff suffered alleged and unsubstantiated 'damages' due to defendants eavesdropping on one telephone conversation when the record established that plaintiff knew that her telephone conversations were being recorded. ... Based upon the record, a new trial will be held on the issue of compensatory damages unless plaintiff accepts an award of compensatory damages of $50,000.00." Dotson v. City of Syracuse, #5:04-CV-1388, 2011 U.S. Dist. Lexis 20374 (N.D.N.Y.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     California appellate panel affirms an award of $1,237,086 in compensatory damages and an equal amount in punitive damages against an employer. "...there was substantial evidence supporting the jury's finding that plaintiff's complaint of sexual harassment of a colleague was a motivating reason for her discharge." Green v. LAIBCO, #B212933, 192 Cal.App.4th 441, 2011 Cal. App. Lexis 119, 111 FEP Cases (BNA) 783 (2nd Dist.).

Union and Associational Activity

     Statements by a public employee to a union steward are not private (privileged), if the steward voluntarily discloses the content to management. The employee had told him, "If I get fired, I'll kill myself." Berkner v. Dept. of Commerce, #DC-0752-09-0667-I-1, 2011 MSPB 27.

Whistleblower Requirements and Protection

     A Supervisory Border Patrol Agent's disclosures were not protected by the federal Whistleblower Act because management was already aware of those allegations. Stiles v. Dept. of Homeland Security, #DA-1221-08-0402-W-2, 2011 MSPB 28.

     Whistleblower claim rejected. Management demonstrated that the employee, a language instructor, was unable to implement lesson plans with her students and a failed to demonstrate an acceptable level of teaching proficiency. Royal v. Dept. of the Army, #2010-3190, 2011 U.S. App. Lexis 5732 (Unpub. Fed. Cir.).

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Electronic Weapons:

• Article, "The respiratory, metabolic, and neuroendocrine effects of a new generation electronic control device [TASER X3]," by Donald Dawes, et al., 207 (1) Forensic Science International 55-60 (Apr. 2011). Abstract.

Promotions:

• Article, "An Exploratory Study of Two Decades of Promotional Testing in a Metropolitan Police Department," by Bruce W. Topp, Journal of Police & Criminal Psychology (Nov. 2010).

Reference:

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

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CROSS REFERENCES
Drug Screening - see: Disciplinary Evidence
Employee Harassment - see: Military Leave
Privacy Rights - see: Criminal Liability
Untruthfulness - see: Disciplinary Punishment

AELE Seminars:

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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