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Age Discrimination

     Under a collective bargaining agreement entered into by a prison system and a union, an early retirement incentive system had an "age 55 cliff." Under it, if employees retire at 55, the employer continues to make unreduced contributions towards their health and dental insurance costs. Employees who continue to work past 55, however, are denied such contributions. A federal appeals court upheld the EEOC's position that this arrangement constituted a violation of the Age Discrimination in Employment Act (ADEA). The court ruled that a so-called "safe harbor" exception to the law for voluntary early retirement programs "consistent with the purposes" of the ADEA did not apply, since the plan here was based solely on the age of the retiring employees. It was therefore at odds with the statute's purpose of avoiding age discrimination. EEOC v. Minnesota Department of Corrections, #10–2699, 2011 U.S. App. Lexis (8th Cir.).

Disciplinary Offenses - Insubordination

    An employee of a county sheriff's department was working as a civil deputy process server, but was entitled to carry a weapon and had arrest powers. He was asked to undergo Taser training, and, as part of that training, to receive a single one-to-five-second exposure to a Taser shock. He sought to avoid this part of the training because of a medical condition involving his back, for which he had previously undergone surgery. He was offered the alternative of either termination or transfer to another position monitoring prisoners on a computer screen at the county jail. He declined the transfer, and was fired.

     He claimed that his termination was disability discrimination in failing to reasonably accommodate his medical condition by allowing him to avoid the Taser shock exposure training exercise. The court ruled that undergoing the Taser training involved an essential job function of the plaintiff's position. Even if he were held to have a disability, the offer to transfer him to another job constituted a reasonable accommodation. The court also rejected the plaintiff's due process claims concerning his termination.  Robert v. Carter, #1:09-cv-0425, 2011 U.S. Dist. Lexis 47975 (S.D. Ind.).

FLSA - Administrative & Executive Exemptions

     The professional duties of police sergeants did not make them management, and did not make them qualify for the bona fide executive exemption of the overtime pay provisions of the Fair Labor Standards Act, 29 U.S.C.S. § 207(a)(1). Summary judgment for the defendants on the sergeants' overtime pay claims, therefore, was reversed. Mullins v. City of New York, #09-3435, 2011 U.S. App. Lexis 16132 (2nd Cir.).

First Amendment

****Editor's Case Alert****

     A correctional facility training officer married a coworker who was subsequently promoted to superintendent. A union representing correctional officers at the facility was concerned about possible nepotism issues arising out of the marriage. The training officer was subsequently fired after he brought a gun to work, but was later reinstated, after which the wife was transferred to a correctional institution in another city. The couple sued the department for unlawful retaliation interfering with their First Amendment right of association. A federal appeals court upheld the denial of qualified immunity to the defendants, stating that "monogamous, rather than adulterous, relationships deserve constitutional protection." Gaspers v. Ohio Department of Youth Services, #09–3829, 2011 U.S. App. Lexis 16129 (6th Cir.).

Race or National Origin Discrimination

     Based on budgetary considerations, a county decided that it could make do with one dentist at its jail, eliminating four dentist jobs. Because an African-American dentist was the one kept on staff, a Caucasian dentist sued, claiming race discrimination. Rejecting this claim, a federal appeals court found that there was sufficient evidence to support a determination that the selection was based on merit, and that the African-American dentist was more qualified than the plaintiff. Everett v. Cook County, #10-1975, 2011 U.S. App. Lexis 17681 (7th Cir.).

     A city discarded the results of its firefighter promotional exams because of concerns that the exams had a discriminatory disparate impact on African-American candidates. Following this, the city was sued by non-African-Americans who claim that abandoning of the test results caused them to be discriminated against and lose promotions. The U.S. Supreme Court in Ricci v. DeStefano, #07-1428, 129 S. Ct. 2658 (2009) ruled that the city should certify the test results and grant promotions based on them. A federal appeals court subsequently held that African-American candidates can now themselves pursue their claim that the tests have a discriminatory disparate impact against them. The U.S. Supreme Court's prior ruling did not preclude their claims. Briscoe v. City of New Haven, #10–1975, 2011 U.S. App. Lexis 16834 (2nd Cir.) .

Retaliatory Personnel Actions

     A jury awarded a total of $10 million in damages to three Caucasian officers who allegedly faced retaliatory actions because they opposed discriminatory treatment of minority officers. The trial court reduced the damage awards to $300,000 per plaintiff. On appeal, the city claimed that hearings held by its internal disciplinary review board, which resulted in the termination of one of the plaintiffs, severed any causal connection between a supervisor's alleged retaliatory animus and the final decision to fire the officer.

     The appeals court noted that, in Staub v. Proctor Hosp, #09-400, 131 S. Ct. 1186 (2011), the U.S. Supreme Court had rejected a "singular influence" test requiring that the plaintiff show that the decisionmaker was no more than a rubber stamp of the nondecisionmaker. The correct test, instead, was that of proximate cause, with the burden on the city to prove that the officer's termination was for reasons unrelated to the supervisor's original allegedly biased action in bringing charges against the officer. In this case, the review board hearing did not absolve the city of liability for the supervisor's retaliatory actions. McKenna v. City of Philadelphia, #09-3567, 2011 U.S. App. Lexis 17199 (3rd Cir.).

Retirement Rights and Benefits

     While a county employee's retirement fund need not disclose to a newspaper the ages of pension recipients at retirement, it did have to disclose, under California state law, the names of retirees, and the gross amount of the pension benefits that each retiree received. Sonoma County Employees Retirement Assn. v. Superior Court (The Press Democrat), #A130659, 2011 Cal. App. Lexis 1124 (1st Dist.).

Suspensions & Administrative Leave

     A number of deputy sheriffs who were suspended without pay after being charged with felonies claimed that their suspensions violated due process. Such deputies were not entitled to pre-suspension procedural due process hearings, but were entitled to post-suspension hearings. A federal appeals court ruled that some deputies who received post-suspension hearings presented viable claims that the hearings' outcomes were decided in advance. The appeals court also held that a county policy under which such deputies who decided to retire were denied hearings was a violation of due process. Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, #08-56283, 2011 U.S. App. Lexis 16801 (9th Cir.).

Union and Associational Activity

     In a federal civil rights lawsuit against an officer alleging excessive use of force, the plaintiff asked to depose the officer's union representative. The trial court ruled that a conversation between the officer and his union representative would be privileged under federal law, but that the union representative, in this case, improperly attempted to invoke the privilege in refusing to answer even "foundational" questions. The privilege does not apply to answering questions about whether the conversation involved acting in the role of union representative. Bell v. Village of Streamwood, #10-C-3263, U.S. Dist. Court (N.D. Ill. Aug. 15, 2011).

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     Disability Discrimination: "Americans with Disabilities Amendments Act of 2008," by Lisa A. Baker, FBI Law Enforcement Bulletin (August 2011).

     Justice Department Documents: "U.S. Justice Department Settles Allegations of Employment Discrimination in Promotion of Police Sergeants in New Jersey," press release (Aug. 1, 2011).  

     Training: "The Importance of Privacy, Civil Rights, and Civil Liberties Protections in American Law Enforcement and Public Safety" is a training video that was developed by the U.S. Department of Justice's Global Justice Information Sharing Initiative's Criminal Intelligence Coordinating Council to assist local, state, and tribal law enforcement line officers in understanding their role in the protection of privacy, civil rights, and civil liberties as they perform their everyday duties.

Reference:

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

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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

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 - Las Vegas
Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 - Las Vegas

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