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Age Discrimination

     A 54-year-old federal employee, having been rejected for an interview and promotion in favor of a 42-year-old co-worker, stated a valid claim for age discrimination. Once an employee or applicant shows a prima facie case of age discrimination, the employer has the burden of production of articulating a legitimate non-discriminatory reason for the allegedly adverse employment decision. The employee, in response to the statement of such reason must then show that there is a disputable issue of fact as to whether the reason given is a pretext for age discrimination. In this case, the fact that a supervisor inquired about the two employees' future retirement dates was sufficient to suggest that other reasons given could be a pretext.

     The framework for deciding motions for summary judgment set forth in McDonnell Douglas Corporation v. Green, #72-490, 411 U.S. 792 (1973), remains available for application in federal age discrimination in employment cases despite the subsequent case of Gross v. FBL Financial Services, Inc., #08-441, 129 S. Ct. 2343 (2009) under which the trial court improperly granted summary judgment against the plaintiff on the basis that he had not shown that he would have received the promotion "but for" his age. Shelley v. Geren, #10-35014, 666 F.3d 599 (9th Cir. 2012).

Disability Rights and Benefits - Line of duty related / disputed

     To be eligible for continuing health coverage benefits under the Illinois Public Safety Employee Benefits Act, 820 ILCS 320/10, a disabled employee must suffer an injury due to an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response. A firefighter who suffered a "catastrophic" injury to his shoulder during a training exercise with a live fire when a hose got tangled on a piece of furniture was eligible for such benefits. He reasonably believed that he was responding to an emergency. A second firefighter who suffered a knee injury during a controlled exercise with no live fire that went on just as scheduled was not eligible. The injury occurred when a co-worker tried to free him from an obstacle, but there were no unforeseen developments and no imminent danger, and therefore no emergency. Both firefighters were awarded line-of-duty disability benefits, and only the continued payment of health benefits was at issue. Gaffney v. The Board of Trustees of the Orland Fire Protection District, #110012, 2012 Ill. Lexis 313, 2012 IL 110012.

     A police officer who suffered an injured knee during a traffic stop, and claimed that he had continuing pain and reduced functioning after undergoing two surgical procedures was properly denied both a line-of-duty disability pension and a not-in-duty disability pension. A functional capacity evaluation (FCE) evaluator presented a comprehensive report documenting that the officer was able to perform his job functions at a medium physical demand level, with only some limitations on lifting and carrying. The pension board properly relied on that report, and on the opinion of a doctor who reviewed the report and agreed with its conclusion that the injured employee could continue to function as a police officer. Goodman v. Morton Grove Police Pension Board, #1-11-1480, 2012 Ill. App. Lexis 87, 2012 IL App (1st) 111480, (1st Dist.).

Discovery, Publicity and Media Rights

     A former parole agent for the California Department of Corrections and Rehabilitation appealed the denial of his request to see and review his personnel and internal affairs files. An intermediate California appeals court ruled that former employees have no right under the state Public Safety Officers Procedural Bill of Rights Act, Gov. Code, § 3300 et seq to review their records. The plaintiff had been terminated six months earlier, and only had the right under the statute to review his records up until the effective date of his termination. He was given notice of the intent to terminate him, advised of his right to contest the termination, and given copies of all documents relied on in making the decision. He did not show that any relevant documents were withheld from that prior disclosure. Barber v. California Dep't of Corrections and Rehabilitation, #E052296, 2012 Cal. App. Lexis 134 (2nd Dist.).

Employee Harassment - Sexual Orientation

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

     A male homosexual city emergency management employee claimed that co-workers "mocked" him. His alleged romantic relationship with a male co-worker ended when the co-worker started an involvement with a co-worker. He then told his supervisor that he wanted to not have to work together with his ex-boyfriend, and that he feared a possible physical attack. He was transferred to a "graveyard" shift, and later also transferred to administrative duties at a cemetery. He sued the city and its mayor, claiming that his transfers and the ridicule of his co-workers amounted to sex discrimination, a hostile work environment and unlawful retaliation in violation of his equal protection rights. He sought damages for violation of his federal civil rights. The supposed mocking was not shown to be significant enough or pervasive enough to create a hostile work environment, and the transfer, even if not what he desired, had no impact on his rank, duties, or pay. Ayala-Sepulveda v. Municipality of San German, #10–2123, 2012 U.S. App. Lexis 947; 114 Fair Empl. Prac. Cas. (BNA) 234 (1st Cir.).

Family, Medical & Personal Leave

     A Fire and Safety Officer on the night shift at a state facility for delinquent boys failed to show that he was terminated because of his Caucasian race. He did state possibly meritorious claims for violations of his rights under the Family and Medical Leave Act (FMLA), however, as well as for retaliation against him for exercising his rights under the FMLA. He intended to visit his mother when his shift ended because he had been informed that she was not likely to survive the night. When his replacement called in sick, his supervisor allegedly ordered him to remain at work under threat of being fired, even though a co-worker voluntarily stated that they would take over. The appeals court reasoned that not allowing the officer to go be with his dying mother may have violated his rights under the FMLA even though his sister was available to care for her. Under current regulations covering leave requests, an employee need not be the only family member available to care for a sick individual to qualify for leave. Roman v. Michigan Department of Human Services, #10-2174, 2012 U.S. App. Lexis 3004; 2012 Fed. App. 0046P (6th Cir.).

Homosexual & Transgender Employee Rights

      A federal court has ruled that the Defense of Marriage Act (DOMA) is an unconstitutional violation of the equal protection rights of a federal employee legally married to another person of the same sex. The statute bars the recognition of same sex marriages for purposes of granting federal benefits, and was used to prevent the employee from enrolling her wife in the health benefits program available to opposite sex spouses of employees of the federal judiciary. Golinski v. U.S. Office of Personnel Management, #10-00257, 2012 U.S. Dist. Lexis 22071 (N.D. Cal.).

     Editor's note: Information about other court cases challenging DOMA can be found at the Marriage Equality USA website, including information on pending cases.

Political Activity/Patronage Employment

      After a lieutenant lost his election bid to replace the incumbent sheriff, during which he accused the sheriff-coroner of corruption, he was placed on administrative leave and then demoted. In a lawsuit by the ex-lieutenant charging unlawful retaliation in violation of his First Amendment rights, a federal appeals court rejected the sheriff's defense that the plaintiff had been a policymaker and therefore could be dismissed for politically motivated reasons. "Moreover, dismissals on the basis of political considerations must further a 'vital government end' [absent here] because they infringe upon a constitutional right."

     The court ruled that the sheriff was entitled to qualified immunity from liability, however, in light of the plaintiff's concurrent service as chief of police services for a city under a contract between the city and county. Under these circumstances, the sheriff could have mistakenly believed that political loyalty was required for someone with the lieutenant's job responsibilities. Hunt v. County of Orange,  #10-55163, 2012 U.S. App. Lexis 2815 (9th Cir.).

Race and National Origin Discrimination

     A part-time police officer, who was born in Jordan, sued the city that employs him, claiming that he suffered national origin discrimination when he was passed over for promotion to full-time positions that became available. While he claimed that a police captain made derogatory statements about him, he failed to show that the captain was a decision-maker with input into the promotion decision. The police chief indicated that he made hiring decisions himself, and there was no evidence of discriminatory animus on the part of the chief. There was also evidence that other candidates were hired for the full time positions because they were better qualified, had more experience, there had been a citizen complaint against the plaintiff, and there was a concern that the plaintiff might be unable to work rotating shifts because of his ownership of gas stations. There was no indication that these stated reasons were a pretext for discrimination. Othman v. City of Country Club Hills, #11-1142, 2012 U.S. App. Lexis 4175 (8th Cir.).

Retaliatory Personnel Action

     A city was liable to a former female spokesperson for the police department for a total of $417,955.34, including $167,955.34 in attorneys' fees and costs. She was transferred to patrol duty from her spokesperson position, and then was assigned to a more prestigious job with promises of overtime after pursuing a union grievance. Believing that she is not receiving as much overtime as other employees, she makes copies of their paystubs to pursue a complaint, but was allegedly then threatened by a city attorney with criminal prosecution for doing so if she didn't drop her EEOC complaints The jury awarded her damages on her claims that the city retaliated against her because of her complaints of gender discrimination. The award included amounts for pain, suffering, emotional distress and injury to her reputation. Lore v. City of Syracuse, #09–3772, 2012 U.S. App. Lexis 1954, 114 Fair Empl. Prac. Cas. (BNA) 466, remanded by 2012 U.S. App. Lexis 4404 (2nd Cir.).

     Editor's note: In the final opinion rendered above by the appeals court, it notes that the plaintiff elected to drop her cross-appeal of the dismissal of her challenge to her removal from the position as departmental spokesman. She had been offered the option of either doing that and accepting the present judgment, or having the judgment vacated and receiving a new trial encompassing both the retaliation claim, on which the current judgment was based, and her gender discrimination claims.

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     Family and Medical Leave: Proposed amendments to FMLA regulations, 77 No. 31 Federal Registry 8960 (February 15 2012).

     Statistics: "Justice Expenditures and Employment, 1982-2007 - Statistical Tables," by Tracey Kyckelhahn, Ph.D. (December 16, 2011 NCJ 236218).

     Training: "Focus on Training: Interpersonal Skills Training in Police Academy Curriculum," by Peter J. McDermott and Diana Hulse, Ed.D., FBI Law Enforcement Bulletin (February 2012).

     Vehicle Safety: "Emergency Vehicle Safety," by Thomas J. Connelly, FBI Law Enforcement Bulletin (February 2012).

Reference:

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Oct. 15-17, 2012 – Las Vegas

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Dec. 10-12, 2012 - Las Vegas

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