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Discovery, Publicity and Media Rights

     After police officers and motorcycle club members had a battle that left two officers wounded and one club member dead, a newspaper sought under an Ohio state public records law to compel a police chief to reveal information about the identities of the wounded officers. The Ohio Supreme Court held that law enforcement agencies may withhold the identity of officers who face substantiated threats of injury or death in retaliation for their job-related actions. An officers’ constitutional right to privacy and personal protection supersedes the state's public records laws. Revealing the wounded officers' identities to the media under these circumstances could place them at risk of serious harm. State ex rel. Cincinnati Enquirer v. Craig, #2011-1798, 2012 Ohio 1999, 2012 Ohio Lexis 1024.

First Amendment

     After a corrections officer complained to members of the state legislature about a prison holding a rap competition for young prisoners, she was reassigned from a position in the prison's school to a general job with less favorable hours, losing her schedule that gave her holidays and weekends off. A federal appeals court ruled that she had sufficiently alleged facts constituting a First Amendment retaliation claim, since her letter to the legislators involved a matter of public concern. She told the legislators about activities that she believed could offend crime victims and their families, and possibly put prisoners, staff members, and members of the public eventually at risk. Mosholder v. Barnhardt, #10-2586, 2012 U.S. App. Lexis 9556; 2012 Fed. App. 0132P (6th Cir.).

Handicap/ Abilities Discrimination - Regarded as Disabled

     A fire captain's injured right knee did not constitute a perceived disability for purposes of a failure to promote discrimination claim under the Americans with Disabilities Act (ADA), 42 U.S.C. Secs. 12101-12213. He claimed that he was not promoted to fire district chief because of the injured knee. The court noted that, despite the injury, he was not disabled from working a broad class of jobs, and was currently employed as a fire inspector.

     A "perceived disability to perform the fire district chief position is not the same as a perceived disability which materially limits a major life activity." There was no direct or indirect evidence presented that the city regarded him as disabled. He failed to demonstrate that the reasons given for not giving him the job were a pretext.

     A defendant testified that he chose lower ranking candidates for the available jobs because they were educationally superior and understood the department's vision. The plaintiff, on the other hand, even if he had higher test scores, "did not read the information setting forth the department's vision, and came to the interview unprepared." St. Martin v. City of St. Paul, #11-1716, 2012 U.S. App. Lexis 11281 (8th Cir.).

Homosexual & Transgender Employee Rights

     A federal appeals court ruled that the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 and 28 U.S.C. § 1738C, which denies federal economic and other benefits to same-sex couples lawfully married under state law violates equal protection of law under the Fourteenth Amendment. The appeals court agreed to continue a stay of an injunctive order against enforcement of the law issued by the trial court, pending possible review by the U.S. Supreme Court. Massachusetts v. U.S. Department of Health and Human Services, #10-2204,  2012 U.S. App. Lexis 10950 (1st Cir.).

Injuries to Applicants, Trainees, Participants & Observers

     A fire department "live burn" training exercise got out of hand. A recruit participating in the exercise became trapped on the third floor of the three-story vacant building being burnt, and died from her injuries. Her surviving family filed a federal civil rights lawsuit claiming that the city had acted with deliberate indifference to the decedent's safety, in violation of substantive due process. Such a claim could not be pursued in the absence of any evidence that the department actually intended to inflict harm on the participating recruits, for which there was no evidence. Slaughter v. Baltimore, #10-2436, 2012 U.S. App. Lexis 11482 (4th Cir.).

     A training officer entered the area where a training exercise simulating an arrest was being enacted. He was supposed to fire his weapon into a sandbox, but failed to do that. When he pointed his gun at a prone officer playing the role of the arrestee, the weapon discharged, killing him. His surviving family filed a federal civil rights lawsuit asserting Fourth, Eighth, and Fourteenth Amendment claims. A federal appeals court found that the plaintiffs had not adequately alleged a Fourth Amendment excessive force claim, merely mentioning the Fourth Amendment without stating how it was violated. The Eighth Amendment claim was also inapplicable as there was no criminal prosecution or "adjudication of guilt" against the dead officer.

     The court did find that the failure to follow necessary safety precautions could be found to "shock the conscience" in violation of substantive due process. There was no basis for liability claims against the mayor or municipality, however, since the mayor was not involved and there was no showing that the death was caused by an official policy or custom. Due process claims against defendant officers present at the incident, including a supervisor, could proceed, as well as claims against some police defendants not present that day, but who had direct responsibility for the training exercise. Marrero-Rodriguez v. Municipality of San Juan, #11-1195, 677 F.3d 497 (1st Cir. 2012).

     Editor's note: for more on this topic, see Legal Aspects of Training Injuries -- Part One, 2007 (8) AELE Mo. L. J. 201 and Legal Aspects of Training Injuries -- Part Two, 2007 (9) AELE Mo. L. J. 201.

Pay Disputes - In General

     Because the state of Illinois faced a major fiscal crisis, a union representing 40,000 state employees agreed to postpone a portion of a wage hike promised in a negotiated contract. Subsequently, the state legislators refused to appropriate sufficient funds to pay the deferred wage increases to 75% of the employees. The union's lawsuit against state officials asserting violations of the Contract Clause of the U.S. Constitution and the Equal Protection Clause of the Fourteenth Amendment was barred by Eleventh Amendment immunity. State officials could not be compelled by such a federal lawsuit to pay funds from the state treasury. The court also found that there was no Contract Clause violation in the outcome, which was the result of non-appropriation of funds and a mere breach of contract, insufficient to establish a constitutional claim. Any Equal Protection argument would be defeated by the fact that imposing cost savings measures rationally served a legitimate governmental interest in light of the fiscal crisis. Council 31 of AFSCME, AFL-CIO v. Quinn, #11–3111, 2012 U.S. App. Lexis 9897 (7th Cir.).

Retaliatory Personnel Action

     Speaking at two union meetings, a police officer voiced several criticisms of department officials. At approximately the same time, he was disciplined for several violations of department policy. Following that, he did not pass a fitness-for-duty evaluation, and the department sought to fire him. Following arbitration, he was suspended rather than terminated. A federal appeals court rejected his retaliation claim. He failed to show that his speech, even if protected, was a motivating factor in the actions taken against him. The adverse employment actions did not follow closely after his speech, and his own deficient job performance was a significant intervening event. Given that the serious deficiencies in his performance justified discipline, he could not point to merely technical deviations from routine procedure to create an inference of unlawful retaliation. Kidwell v. Eisenhauer, #11-1929, 2012 U.S. App. Lexis 10233  (7th Cir.).

Sex Discrimination - In General

     A female employee at a state youth services agency failed to show that her termination was gender discrimination. She argued that her firing for lying about having had concerns about the wisdom of releasing a young man from residential custody into a community-based treatment program was a pretext for sex discrimination. The young man released committed a murder. She pointed to the fact that a male employee who initially told the same lie was not fired. The appeals court found that the two employees were not similarly situated as to their acts of dishonesty, in that the male employee quickly retracted his initial lie, while the plaintiff did not. Twiggs v. Selig, #11-1682, 2012 U.S. App. Lexis 11210 (8th Cir.).

Search and Seizure

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

     A city concerned about the suspected ongoing theft of water services decided to perform a water use survey using current and retired city employees as a test group. It felt this would work well, as the city had good information about how many people lived in the employees' households. Finding that employees from the public services department appeared to be paying far lower water bills, the city decided to look into this more by sending inspectors to their homes to attempt to inspect the water meters to see if they were working properly or had been tampered with. Employees who refused to let the inspectors enter were informed that they had to consent to entry "or else." A number of employees whose water meters had been sabotaged were fired.

     A group of terminated employees sued city officials for violation of their Fourth Amendment rights against unreasonable search and seizure. Two defendants were entitled to qualified immunity on the Fourth Amendment claim, since it was not clearly established that "public employees cannot be given a stark choice between asserting a constitutional right and keeping their jobs." The plaintiffs further failed to show that they were fired in unlawful retaliation for trying to assert their Fourth Amendment rights. The court also rejected First Amendment right to association and municipal liability claims. Clemente v. Vaslo, #10-2506, 2012 U.S. App. Lexis 9746; 2012 Fed. App. 0135P (6th Cir.).

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     Employment Discrimination. FY 2009 - 2011 EEOC Charge Receipts by State (includes U.S. Territories) and Basis. An online searchable tool that can be used to see what types of employment discrimination claims (and how many) are being filed in each state and territory.

   Social Media: On May 2, 2012, Maryland became the first state in the country to enact a law Labor and Employment Ch. 234, Sections 3-712 (Annotated Code of Maryland) prohibiting employers from requiring either job applicants or current employees to reveal their login user names and passwords for social media accounts such as Facebook or Twitter. While signed by the governor, it will not take effect until Oct. 1, 2012.

     Transgender Employees: "Lost in Transition: The Challenges of Remedying Transgender Employment Discrimination Under Title VII," by Jason Lee, Harvard Journal of Law and Gender, Vol. 35, No. 2, 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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