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Civil Liability and Indemnity

     A firefighter sued a city and a private attorney hired by the city to conduct an internal investigation of his conduct for violation of his civil rights under 42 U.S.C. Sec. 1983. The firefighter was suspected of malingering while supposedly off work on account of illness. The firefighter argued that the attorney's order to him to produce building materials stored at his home violated his Fourth and Fourteenth Amendment rights. He had been seen buying the building supplies and the issue was whether he had been installing the building materials rather than being ill. The U.S. Supreme Court held that the private attorney was entitled to qualified immunity along with other individual defendants despite not being a city employee. A private individual temporarily retained by a city to carry out its work is able to seek qualified immunity from civil rights liability. In this case, the city needed the attorney's experience and expertise in employment law. Filarsky v. Delia, #10–1018,   132 S. Ct. 1657; 2012 U.S. Lexis 3105.   

Drug Screening and Specimen Testing

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

     A federal judge enjoined as unconstitutional the Florida governor's order requiring random drug testing for up to 85,000 state employees. She found that the policy failed to specify the required public interests that would justify the invasion of privacy involved. The order characterized the testing as a violation of state employee's Fourth Amendment rights. "In the present case, the court searches in vain for any similarly compelling need for testing. The [executive order] does not identify a concrete danger that must be addressed by suspicion-less drug-testing of state employees, and the governor shows no evidence of a drug use problem at the covered agencies." The ruling did not address the issue of drug screening for applicants for state jobs, also mandated by the governor's order. The governor has stated that he will appeal the ruling. American Federation of State, County and Municipal Employees Council 79 v. Scott, #1:11-cv-21976 (S.D. Fla., April 27, 2012).

First Amendment

     After a village fired its village manager, a decision was made to eliminate the position of executive coordinator to the manager. The person holding the job sued, claiming that this violated her First Amendment right of association and friendship with the former manager. The appeals court ruled that the eliminated position was a policymaking and confidential one for which First Amendment protection was not available. Additionally, those who adopted the ordinance abolishing the job were entitled to legislative immunity, no matter what their motivation. The court also stated that it could not find "any appellate decision holding that friendship is a constitutionally impermissible basis of hiring or firing public employees." Benedix v. Village of Hanover Park, #   2012 U.S. App. Lexis 7610 (7th Cir.).

     A police department employee was first involuntarily transferred to a new job and then terminated shortly thereafter. She claimed that this was motivated by retaliation against her for exercising her First Amendment rights in giving deposition testimony under subpoena in a federal civil rights lawsuit filed by a former department employee against the city and an assistant police chief. The testimony she gave was adverse to the interests of the assistant police chief. The assistant police chief was not entitled to qualified immunity. The plaintiff spoke on a matter of public concern as a private citizen and there was evidence that retaliation against her for this protected speech motivated her discharge. It was clearly established that a supervisor cannot retaliate against an employee for such testimony. Karl v. City of Mountlake Terrace, #11-35343, 2012 U.S. App. Lexis 9311 (9th Cir.).

Homosexual & Transgender Employee Rights

     A transgender woman who was working as a police detective in Arizona decided to move to San Francisco for family reasons, and therefore applied for an open job there with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The job was one at a crime lab which the applicant was qualified for. At the time, the applicant was still known as a male, and had not made the transition to being female. At one point, the applicant was told that they could have the job pending a background check. The applicant claimed that a later notification that the job was no longer available was motivated by the employer being informed of the planned male to female change. "Intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination 'based on . . . sex,' and such discrimination therefore violates Title VII." Macy v. Holder, #0120120821; #ATF-2011-00751, 2012 EEOPUB Lexis 1181.

Military Leave

     An employee of the Air Force argued that the employer violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, by charging nonwork days against his military leave, causing him to exhaust his military leave and have to use his annual leave to fulfill his reserve obligation. The court upheld a decision of the Merit Systems Protection Board denying him compensation for six nonwork days. He failed to present evidence in the form of records identifying the days on which the Air Force charged him military or annual leave, instead relying only on his own testimony and documents created by his lawyer, which were not independent evidence supporting his testimony, but merely a summary of it. Duncan v. Dep't of the Air Force, #2011-3053, 674 F.3d 1359 (Fed. Cir. 2012).

Political Activity/Patronage Employment

     A police commander claimed that he had lost certain duties and perquisites and that this constituted a series of adverse employment actions taken against him because of political animus. He failed to show, however, that he was being discriminated against because of his participation in constitutionally protected activities or his party preference or any other political affiliation. Additionally as to a due process claim for alleged deprivation of a property interest in his job, he had not alleged that he was fired, demoted, or subjected to diminished compensation. He had no protected property interest in the loss of particular job-related duties. Rojas-Velazquez v. Figueroa-Sancha, #11-1447, 2012 U.S. App. Lexis 6395 (1st Cir.).

Pregnancy

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

     Several months after a computer technician for a sheriff's department informed the employer that she was pregnant, she was transferred to a less satisfying position at the same pay. When she was later transferred back, she was fired. A federal appeals court upheld a jury verdict awarding her $80,000 in back pay and $10,000 for emotional distress for pregnancy discrimination. She was only required to show that the pregnancy was one of the motivating factors in the adverse actions against her, not that it was the sole factor. In this case, a supervisor's statement that the pregnancy was part of her reasoning was sufficient on claims relating to the transfer. The sheriff's statement that he believed that the plaintiff was a contractor rather than an employee was not genuine or in good faith, and she prevailed on her claim that her pregnancy was a motivating factor for her firing. Holland v. Gee, #11-11659, 2012 U.S. App. Lexis 7729 (11th Cir.).

Sexual Harassment - Same Gender

     A female employee of the state parole department stated a viable claim for hostile environment sexual harassment by alleging that a female supervisor repeatedly touched her breasts, and that these touches were homosexual advances. A jury could permissibly find that this conduct was humiliating and that the actions were not incidental or minor, but rather intentional and repeated. There were factual issues to be resolved about the sufficiency of the employee's complaints about this conduct which were relevant to the issue of the employer's liability. Redd v. New York State Division of Parole, #10-1410, 2012 U.S. App. Lexis 9194 (2nd Cir.).

Untruthfulness & Resume Fraud

    A former FBI Agent who engaged in a sexual relationship with a confidential informant was sentenced to a year in prison for making a number of false statements to his supervisor and to Justice Department investigators. He falsely stated, while signing up the woman as a confidential informant, that she was not a suspect in any pending investigation, and lied about whether he had given FBI reports to the informant's attorney. U.S. v. [Adrian] Busby #1:11-cr-00370 (S.D.N.Y. 2012). DoJ press release. Indictment.

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     Employee Screening: EEOC “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.”

     Stress: "Changing Police Subculture," by Mark Malmin, FBI Law Enforcement Bulletin (April 2012).

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:

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

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

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

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