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Disciplinary Hearings - Untenured

     A law enforcement cadet enrolled in a training academy was terminated for allegedly making sexual remarks to female cadets as well as falling asleep in class and showing up late. Addressing his complaint that he was improperly denied a name clearing hearing on the sexual harassment accusations, a federal appeals court agreed that even an at will public employee has a right to notice and an opportunity to be heard when they are fired "in a manner that creates a false and defamatory impression about him and thus stigmatizes him and forecloses him from other employment opportunities." In this case, however, the ex-cadet did not demonstrate that the sheriff had publicized the allegedly defamatory statements about him and why he was being fired. Bellard v. Gautreaux, #10-31266, 2012 U.S. App. Lexis 5436 (5th Cir.).

Disciplinary Offenses - In General

     The Wyoming Supreme Court overturned the termination of a deputy who had been accused of not performing his duties relating to report writing and firearms security. His conduct did not violate the department's written policies. There was undisputed evidence that the deputy's shotgun had been secured in a gun locker at his brother's house, which complied with the department's policy for securing a weapon with a lock when it was outside of a deputy's immediate control. Cook v. Laramie County Sheriff's Dept., #S-11-0152, 2012 WY 47, 2012 Wyo. Lexis 50.

Disciplinary Punishment - In General

     Termination was an appropriate penalty for a correctional officer who told an inmate to hang herself and allegedly acted dishonestly in trying to cover up the incident, as well as making rude remarks to the officer who reported the incident. There was no substantial evidence to support an administrative law judge's finding that the correctional department had failed to prove its allegations. Further, the ALJ's findings concerning the officer's dishonesty and rudeness to another officer were sufficient to independently support his termination. Cate v. California State Personnel Board, #E053011, 204 Cal. App. 4th 270, 2012 Cal. App. Lexis 284 (4th Dist.).

Family, Medical & Personal Leave

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

     A state court employee sued his employer for alleged violations of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. § 2601 et seq., claiming that it had refused to provide him with self-care leave (personal sick leave). A plurality of the U.S. Supreme Court ruled that the provisions of the statute concerning leave for self-care were distinguishable from those concerning family-care leave. On claims for family-care leave, the Eleventh Amendment sovereign immunity from suit enjoyed by the states has been validly abrogated based on evidence at the time of the law's enactment that state family-leave policies concerning leave for the care of a spouse, son, daughter, or parent with a serious medical condition discriminated against women. No such evidence was presented about similar discrimination on self-care leave policies. Congress did not abrogate the states' Eleventh Amendment immunity on claims under the FMLA concerning denials of self-care leave. Coleman v. Court of Appeals of Maryland, #10–1016, 2012 U.S. Lexis 2315.

Handicap Laws/Abilities Discrimination - Specific Disabilities

     An employee who is bipolar convinced a federal judge that his former employer's assorted half-dozen different rationales for firing him were all simply pretexts for disability discrimination. He was awarded $6,500 in back pay along with $50,000 in damages for emotional pain and suffering. Other remedies approved include an injunctive order requiring three years of training by the company of human resources personnel and management employees on anti-discrimination employment laws and the legal prohibitions on retaliating against employees who exercise their legal rights. EEOC v. Cottonwood Financial, Ltd., #CV-09-5073 (E.D. Wash. March 28, 2012). EEOC press release.

Military Leave

     The federal government sued an agency of the state of Alabama under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C.S. 4301 et seq., challenging its alleged lengthy delay in reinstating an employee after he finished his military service in Iraq. A lawsuit against the state by the employee himself would be barred under the Eleventh Amendment, but a federal appeals court ruled that the U.S. government was not similarly barred from suing, and could do so to promote its goal of encouraging military service. Despite the fact that the facility where the employee had previously worked before he went on active military service had subsequently closed, he was entitled to an award of lost wages and benefits. He never expressed any intent to resign, and informed the employer when he declined a transfer that he would be deploying shortly to active duty overseas. U.S. v. Alabama Dept. of Mental Health and Mental Retardation, #10-15976, 2012 U.S. App. Lexis 5550 (11th Cir.).

Privacy

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

   A pilot who contracted HIV and applied for FAA medical certificates multiple times without disclosing his HIV status or his medications pled guilty to making false statements to a government agency. The plea came after the Social Security Administration (SSA) revealed his HIV status to the Department of Transportation (DOT). He sued the DOT, FAA, and SSA, for violating his privacy rights by unlawful disclosure of confidential medical information causing him mental and emotional damages.   The Privacy Act of 1974, 5 U.S.C. § 552a, while permitting recovery against government agencies for actual damages, does not unequivocally include damages for mental or emotional damages as within the definition of "actual damages." Therefore, the statute did not waive the sovereign immunity of the federal government for claims for mental or emotional damages arising out of violations of privacy rights. Federal Aviation Administration v. Cooper, #10-1024, 2012 U.S. Lexis 2539

Race Discrimination

     A Caucasian state police sergeant used the agency's official email system to send "humorous" descriptions of fictitious Barbie Dolls to fellow officers. Each fictitious doll was a caricature of a stereotypical woman living in an identifiable area in and around the state capitol. He was disciplined for this action, suspended for thirty days, and suffered the lowering of his promotion rating. He sued, claiming that he was subjected to race discrimination. Rejecting this claim, a federal appeals court found that the plaintiff failed to show that non-Caucasians had been treated differently for similar conduct. There was absolutely no evidence of any discriminatory attitude towards him for being Caucasian. His argument that, had he been an African American he would not have been suspended for 30 days was pure speculation. Hanners v. Trent, #11-1754, 2012 U.S. App. Lexis 5636; 114 Fair Empl. Prac. Cas. (BNA) 965 (7th Cir.).

     An African-American police officer was suspended with pay while the department conducted its investigation of allegations that he took a 15-year-old girl to a hotel with knowledge that she was a runaway. Subsequently, he was suspended without pay, and finally terminated. He sued, arguing that he had been punished more severely than white police officers engaged in similar conduct or conduct more serious. The court rejected this claim. It noted that he had pled guilty to endangering the welfare of a child, which automatically required his termination under state law. Accordingly, he could not challenge any adverse employment action taken against him following his guilty plea. The court stated that it was possible that even a suspension with pay might be an adverse employment action in some circumstances. It found that it did not, in this case. Brown v. City of Syracuse, #10-0529, 2012 U.S. App. Lexis 5281 (2nd Cir.),

Sex Discrimination

     A former county employee sued the county, claiming that she had been offered a less favorable severance package than had been provided for male employees in comparable jobs. The trial court ruled erroneous in dismissing her sex discrimination claim by holding that it was not an adverse employment action to engage in discriminatory denial of a non-contractual employment benefit. The trial court's alternative rationale, that the employer had fired her before making the offer of the allegedly discriminatory severance package, also failed to defeat her claim that she had suffered an adverse employment action. Title VII protects former employees as well as current employees, and she also alleged that she was still an employee when she was offered the severance package. Gerner v. County of Chesterfield, #11-1218, 2012 U.S. App. Lexis 5559; 114 Fair Empl. Prac. Cas. (BNA) 976 (4th Cir.).

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     Corruption: The Center for Public Integrity has created a website entitled "Grading the Nation: How accountable is your state?" with statistics, integrity ratings, and other information concerning various forms of corruption, state by state.

     Officer Safety: The IACP National Law Enforcement Policy Center has published "Officer Safety and Risk Management: Avoiding and Mitigating Officer Deaths, Assaults, and Injuries." The publication can be ordered in print or in electronic form.

Reference:

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AELE Seminars:

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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