Some of the case digests do not have a link to the full opinion.
• Cases that have a Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration is required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus
• Some of our links are to cases on the FindLaw website. Registration is required; no fees.

Arbitration Punishment Awards – Right of Courts to Interfere

     Upholding the termination of a police sergeant, a five-judge appellate panel wrote that "an arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." In this case, the arbitrator found that termination was the right penalty for the sergeant, who did not attempt to stop an allegedly intoxicated police detective from leaving a parking lot when he had reportedly been speeding, driving in an erratic manner, and hit a parked car. In re Arbitration Between Albany Police Supervisor's Assn. and the City of Albany, 95 A.D.3d 1491, 944 N.Y.S.2d 675, 2012 N.Y. App. Div. Lexis 3704, 2012 NY Slip Op 3704.

Handicap Laws/Abilities Discrimination -- Accommodation in General

     After a city public works employee twice suffered back injuries on the job, he experienced numbness in his left leg. He underwent surgery, and was subsequently cleared to perform up to four hours of sedentary work per day, but otherwise was found by a doctor to be totally and permanently disabled from his prior job, which required heavy lifting. The city had no position available that he could perform, so he was fired. Rejecting his disability discrimination claim under the Americans with Disabilities Act (ADA), a federal appeals court noted that the duty to reasonably accommodate a disability does not require an employer to create a new position or to eliminate or reallocate an essential job function. Otto v. City of Victoria, #11-2753, 2012 U.S. App. Lexis 14773, 115 Fair Empl. Prac. Cas. (BNA) 814 (8th Cir.).

Health Insurance

     A city received shares of stock from the company that provides health insurance for its employees. The shares were issued when the insurer converted from mutual to stock status. The city sold the shares for $55 million, using the money for various city projects. City employees and retirees claimed that the shares of stock or money derived from them should have gone to them rather than the city. The city was the policyholder and the insurer was an Indiana company. Under Indiana law, the city was entitled to the shares and the proceeds of their sale. The court rejected the plaintiffs' argument that the city could not be the policyholder because a "municipality has no health of its own to insure." Mell v. Anthem, Inc., #10–3440, 2012 U.S. App. Lexis 15299, 2012 Fed. App. 0230P (6th Cir.).

Military Leave

     While serving as an Army officer in Kuwait, a man was apprehended manufacturing homemade wine and sharing it with an enlisted man. When he returned to employment with a city-county police force, he did not disclose that his separation from the service, though classified as "honorable," was in lieu of him undergoing a court martial trial. When the employer found out, it delayed his rehiring, and failed to restore his rank of sergeant. The employer was required by the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.S. §§ 4301-4335, to restore him to his former position without any "additional prerequisites" or rescreening. The employer may have been able, after reemploying him in his former position and rank, to fire him for dishonesty, but since it never did restore him to his job, the trial court properly exercised its discretion in awarding him back pay and ordering him reinstated. The court also found that denying him permission to moonlight as a security guard was unlawful discrimination under USERRA. Petty v. Metropolitan Government of Nashville and Davidson County, #10-6013, 2012 U.S. App. Lexis 15181, 2012 FED App. 0226P (6th Cir.).

Privacy Rights

     Illinois enacted a law prohibiting an employer from requesting or requiring a current or prospective employee to provide a password to gain access to the person's account or profile on a social networking website, such as Facebook or Twitter. There is no exception in the law for law enforcement or other sensitive occupations. Illinois Public Act 097-0875 (eff. 1/1/13). A similar law was passed earlier in the year in Maryland, Labor and Employment Ch. 234, Sections 3-712. (eff. 10/1/12).

Product Liability

     A police officer was shot in the back with his service revolver by his three-year-old son. His injuries rendered him a paraplegic. He sued the manufacturers and sellers of his gun and holster, asserted products liability claims. He argued that the gun was defective because it lacked a safety mechanism to prevent accidental firing and had a light trigger pull. The appeals court ruled that summary judgment for the defendant gun manufacturer and retailer was improper on a design defect claim. The defendants failed to show that the plaintiff had no evidence that the alleged design defect caused his injuries. An expert witness for the plaintiff stated the opinion that a small child's hand would not have the leverage or size to depress a grip safety had the gun had one, and at the same time extend his finger far enough out to pull the trigger. The court upheld summary judgment on claims related to the holster, and against the gun's manufacturer and retailer for failure to warn the plaintiff that the gun should only be used with specific holsters, since the plaintiff was a sophisticated user. Chavez v. Glock, Inc., #B230346, 2012 Cal. App. Lexis 832  (Cal. App.).

Race Discrimination - In General

     A port authority appealed from a determination following a jury trial that it engaged in racial discrimination by failing to promote seven Asian-American police officers who were current or former employees. The appeals court held that the trial judge properly allowed into evidence background data from before the beginning of the statute of limitations period. There was sufficient evidence from which a reasonable juror could find that the employer discriminated against the seven prevailing plaintiffs (out of eleven plaintiffs) within the limitations period. The trial court acted erroneously, however, in submitting a pattern-or-practice disparate treatment theory of liability to the jury in a non-class action lawsuit. The trial court also erroneously concluded that a doctrine of "continuing violation" applied to the disparate impact theory in a manner which permitted the jury to award compensatory damages and back pay for a time before the onset of the statute of limitations. A new trial was granted on the damages for all prevailing plaintiffs, and reconsideration of equitable relief was also ordered, after the appeals court vacated the back pay awards for four of the plaintiffs and injunctive relief for three of them. Chin v. Port Authority of New York and New Jersey, #10–1904, 2012 U.S. App. Lexis 14088 (2nd Cir.).

     Data that is employer specific was not required as a matter of law to support a factual finding that a test used for promotion to fire lieutenant was job related and supported by business necessity so as to defeat a disparate impact racial discrimination claim by African-American firefighters. The city used tests for promotions that were derived from a common statewide job analysis. M.O.C.H.A. Society, Inc. v. City of Buffalo, #11-2184, 2012 U.S. App. Lexis 15715, 115 Fair Empl. Prac. Cas. (BNA) 929 (2nd Cir.).

Sex Discrimination

     A former police cadet claimed that she was mistreated at the police academy because of her gender. Her lawsuit was filed only as a constitutional equal protection claim under 42 U.S.C. Sec. 1983 (as well as a claim for the use of excessive force against her), and did not assert a Title VII statutory gender discrimination claim. Because of that, she was not required to exhaust available administrative remedies under Title VII before proceeding with her lawsuit. Henley v. Brown, #11-2561, 2012 U.S. App. Lexis 15413, 115 Fair Empl. Prac. Cas. (BNA) 949 (8th Cir.).

Sexual Harassment

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

     A county was liable for $70,000 to a female employee who claimed that the director of its jail program, who was her supervisor, subjected her to sexual harassment, including repeatedly calling her his "bitch" and other gender-based remarks and epithets. Such verbal harassment can meet the test for "severe or pervasive harassment." The court rejected, however, a $4 million jury award to the plaintiff for her lay-off a year after the director left his job. The court found that there was no evidence that the lay-off was based on her gender, and the county maintained that it was simply part of broad budget cutbacks. Passananti v. Cook County, #11-1182, 2012 U.S. App. Lexis 14875 (7th Cir.).

• Contents menu.

• Report non-working links here

     Staffing: "Austin Police Department. Patrol Utilization Study. Final Report," Police Executive Research Forum (July 2012).

     Technology: "How Are Innovations in Technology Transforming Policing?," Police Executive Research Forum (January 2012)

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Report non-working links here

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

 Search the Case Law Digest