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Discovery, Publicity and Media Rights

     The names of police officers involved in shootings were not made confidential by any of the possible exemptions in the California Public Records Act. The trial court therefore, properly refused to approve a police officers' association request to enjoin the disclosure of the names to a newspaper. Long Beach Police Officers Ass'n v. City of Long Beach, #B231245. 2012 Cal. App. Lexis 109 (Cal. App.).

Family, Medical & Personal Leave

     The office manager for a county court's probation office was fired on the recommendation of her supervisor who was dissatisfied with her frequent absences from work because of her kidney problems, heart disease, and diabetes. The supervisor can be held personally liable for her termination in alleged violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2611. on the basis of its provision imposing liability on "any person who acts, directly or indirectly, in the interest of an employer." The court found that the supervisor acted as an agent for the employer. The appeals court, therefore, overturned summary judgment for the supervisor. Haybarger v. Lawrence County Adult Probation and Parole, #10–3916, 2012 U.S. App. Lexis 1776 (3rd Cir.).

Handicap Laws / Abilities Discrimination - Psychiatric

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

     A jury has awarded $206,665.58 in back pay to a firefighter fired after she made a failed suicide attempt by setting a bathtub fire, as well as ordering her reinstated in her job with restored seniority. She had burned clothes in the bathtub, and tried to kill herself by inhaling the smoke. The plaintiff's claim was that her termination violated the Americans with Disabilities Act (ADA), based on her suffering from a disability of severe depression. She was prescribed different anti-depression medication after the suicide attempt, and medically cleared to return to work, but was then fired on the basis that setting the fire made her a danger to the safety of herself, fellow firefighters, and the public. In the lawsuit, there was expert testimony from two psychiatrists and a psychotherapist that there were no impediments to her returning to work. Wolski v. City of Erie, #1:08-cv-00289, (W.D. Pa.) Click here to read the complaint in the case. Click here to read the judgment. Prior decision denying defendant's motion for summary judgment Wolski v. City of Erie, #1:08-cv-00289, 773 F. Supp. 2d 577 (W.D. Pa. 2011).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A police officer who was terminated twice, and reinstated once, sued the city in federal court, claiming that her terminations were because of her disability of suffering from multiple sclerosis and that she had been subjected to harassment and retaliation on the basis of her disability. These issues, however, had previously been litigated in state court, so she was precluded from relitigating them in a federal lawsuit. The record showed, moreover, that her first termination, occurring years after she was diagnosed with multiple sclerosis, was for associating with a known drug dealer who was the father of her son, and lying to the department about this relationship. She was only reinstated because the department had relied, during the termination, on evidence from illegal wiretaps and because the disciplinary action was untimely. The second termination was based on her being shot in the face at home, with the department concluding she had attempted suicide. Again, there was no evidence of disability discrimination or retaliation. White v. City of Pasadena, #08-57012, 2012 U.S. App. Lexis 927 (9th Cir.)

Health Insurance

     An intermediate California appeals court rejected the claim of retired firefighters or their surviving spouses that two cities were required to make additional payments a year earlier than they did towards the cost of their health insurance under an amendment to a state statute designed to eliminate some of the disparities between municipal contributions to the health care costs of current employees and the contribution to the cost of health care for retirees. The court found that it should defer to the interpretation of the disputed language in the statute by the health care plan administrator that the increased contributions had to be made beginning on January 1, 2008, rather than on January 1, 2007, as the plaintiffs claimed. Bernard v. City of Oakland, #A127853, 2012 Cal. App. Lexis 81 (Cal App.).

Privacy Rights

     An undercover drug enforcement agent who accidentally shot himself in the leg during a speech to about 50 children and parents at a community center failed to show that his employer violated his privacy rights or was responsible for a video clip of the incident showing up on the YouTube website. The video of the one hour anti-drug speech had been made by a parent. Copies of the video were made as part of a DEA internal investigation of the shooting. The court ruled that the video clip was not a part of the DEA's "system of records," and further that it had never been shown who was responsible for releasing the video clip to the public.

     "The widespread circulation of the accidental discharge video demonstrates the need for every federal agency to safeguard video records with extreme diligence in this internet age of iPhones and YouTube with their instantaneous and universal reach." The court did say that the DEA’s handling of the video, including creating several versions of it, “undoubtedly increased the likelihood of disclosure and, although not an abuse of a system of records, is far from a model of agency treatment of private data.” Paige v. Drug Enforcement Administration, #11-5023, 2012 U.S. App. Lexis 906 (D.C. Cir.).

Race: Affirmative Action & Quotas

     A trial court rejected a motion asking for a six-year extension of a consent decree in effect for thirty years requiring that one out of every three new firefighters hired by a city be non-Caucasian. The court instead immediately terminated the consent decree, ruling that it had lasted long enough. The federal appeals court ruled that this swift termination was erroneous, and that the court should have instead held a hearing to determine whether the city's current hiring practices were sufficient to remedy past discrimination against minority firefighter applicants.

     "Although the court couched its decision in terms of whether the decree’s provisions remained 'necessary,' the question more precisely stated is whether, 31 years out, the decree's racial classifications continue to remedy past discrimination by the City's Fire Department. The district court did not make specific findings as to that question. It needs to make those findings before deciding whether to extend or terminate the decree." Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, #00-00301, 2012 U.S. App. Lexis 1475 (6th Cir.).

Race Discrimination - In General

     A deputy sheriff terminated during his probationary period challenges the employer's assertion that he was fired for disrespecting departmental policies, claiming that it was because he is African-American. But he failed to show that his discharge was motivated by race. There was no evidence that the sheriff or other supervisory personnel participated in any of the racially charged behavior he alleged, such as giving him racially tinged nicknames or occasional watching of the "Blazing Saddles" movie at work. He also did not show that supervisors were aware of his co-workers' allegedly offensive conduct towards him.

     The court also noted that the Mel Brooks satirical movie "Blazing Saddles," featuring a black sheriff in the old West, was not really racist. "The movie makes racism ridiculous, not acceptable." Finally, he failed to show that white co-workers who were not terminated for various problems during their probationary periods engaged in misconduct comparable to his, so they were not similarly situated. Harris v. Warrick County Sheriff's Department, #10–3706, 2012 U.S. App. Lexis 729 (7th Cir.).

Retaliatory Personnel Action

     After a fire department's diving team was eliminated for budgetary reasons, a boy drowned. An off-duty (and not in uniform) firefighter, who had been a member of the team, was suspended after he spoke at a village council meeting and told them that "A little boy had to die but you guys saved some money" He sued for unlawful retaliation based on his exercise of his First Amendment rights.

     A federal appeals court rejected the village's defense that the firefighter had "communicated nothing more than 'the quintessential employee beef: management has acted incompetently'." It overturned summary judgment for the village, and ordered further proceedings to determine whether his interest in speaking as a citizen on a matter of public concern "outweighed the defendants' interest in promoting the efficiency of the public services it performs." Westmoreland v. Sutherland, #10-3766. 662 F.3d 714 (6th Cir. 2011).

Sexual Harassment - Same Gender

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

     An award of more than $2 million to a male police officer who claimed that he was fired for filing a sexual harassment claim against a male co-worker was overturned by a California appeals court. He had told an Internal Affairs investigator that the co-worker had asked him for a date, which he turned down, saying that he was not gay. He claimed that the co-worker then made a number of harassing sexually-oriented comments to him. His allegations were later investigated, determined to have been fabricated, and he was fired. It was determined that he would have made his accusations earlier if they were true, and it was believed that he made them as the basis of a defense to possible discipline over an incident in which he went "end of watch" without checking out with the co-worker.

     The appeals court found that the plaintiff did not present substantial evidence at trial that his termination was motivated by retaliation for filing the sexual harassment complaint. Additionally, the jury instructions did not adequately spell out that retaliatory intent was necessary as an element of the officer's claim. Joaquin v. City of Los Angeles, #B226685, 202 Cal. App. 4th 1207, 2012 Cal. App. Lexis 35 (Cal. App.).

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     Compensation: Federal Employees Compensation Act: Benefits for Retirement-Age Beneficiaries, Government Accountability Office, Report 12-309R (Feb. 2012).

     Shift Length: "The Impact of Shift Length in Policing on Performance, Health, Quality of Life, Sleep, Fatigue, and Extra-Duty Employment," A Final Report Submitted to the: National Institute of Justice by Karen L. Amendola, Ph.D., David Weisburd, Ph.D., Edwin E. Hamilton, M.A., Greg Jones, M.A., Meghan Slipka, M.A. with Anneke Heitmann, Ph.D., Jon Shane, Ph.D., Christopher Ortiz, Ph.D., Eliab Tarkghen, B.S. (January, 2012).

Reference:

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AELE Seminars:

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 -Las Vegas

Lethal and Less Lethal Force
Oct. 15-17, 2012 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 10-12, 2012 - Las Vegas

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