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Disciplinary Punishment

     An employee of a private company was given a formal warning after he engaged in "mooning" of two of his supervisors. He was subsequently fired after it was decided that his actions were serious enough to be harmful to the employer and undermine the authority of its managers. A state intermediate appeals court found that his actions violated his duties to the employer and rules stated in an employee handbook prohibiting acting in an unruly, abusive, or disruptive manner. Selch v. Columbia Management, #05-CH-16773, 2012 Ill. App. Lexis 710, 2012 IL App (1st) 111434 (1st Dist.).

Disciplinary Surveillance

     In a criminal prosecution for drug trafficking, a federal appeals court held that a warrant was not required under the Fourth Amendment for GPS cell phone tracking of a suspect's real-time physical location. The federal agents used data being sent by the GPS device in the defendant's pay-as-you-go cell phone. The defendant had no reasonable expectation of privacy in the GPS data since the agents were tracking a known number and he was voluntarily using it while traveling on public roads. The court also commented that no "extreme" comprehensive tracking was present in the immediate case. U.S.A. v. Skinner, #09-6497, 2012 U.S. App. Lexis 16920, 2012 Fed App. 262P (6th Cir.).

     Editor's note: For more on this issue, see GPS Devices and the Fourth Amendment, 2010 (12) AELE Mo. L. J. 101 and Cell Site Location Evidence: A New Frontier in Cyber-Investigation, 2011 (2) AELE Mo. L. J. 401.

Family, Medical & Personal Leave

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

     A county employee had worked as supervisor of released adult offenders for a decade before developing sacroiliac joint dysfunction. This condition rendered her unable to work outside of her home, or to visit the offenders in the jail or at their homes. She was granted a lengthy leave of absence, but was still unable to perform all of her job functions. She was then fired. Her claims under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) were both properly rejected as she could not show that she could return to her job, with or without reasonable accommodations when her FMLA leave ended. She was not an "otherwise qualified" disabled person under the ADA, as supervising offenders in person was a necessary component of her job which she could not perform. At the time she was fired, the employer had no reasonable estimate of when, if ever, she would be able to resume all of her essential job functions. Robert v. Board of County Commissioners of Brown County, #11–3092, 2012 U.S. App. Lexis 18365 (10th Cir.).

Handicap Laws/Abilities Discrimination
- Applicant/Employee Medical Exams

     County employees covered by group health insurance were offered a wellness program, featuring testing for various maladies, such as asthma, hypertension, diabetes, congestive heart failure, and kidney disease, using both biometric screening and an online health risk assessment questionnaire. When the risks of such diseases were indicated, employees were offered a disease management coaching program. Any employee who declined to participate in the wellness program was penalized by having $20 deducted from each paycheck. A class action lawsuit by former county employees argued that these requirements violated prohibitions in the Americans with Disabilities Act (ADA) on disability-related inquiries and non-voluntary medical examinations. Upholding summary judgment for the defendant county, a federal appeals court held that, as the wellness program was a "term" of the group health insurance program, it was exempted from these prohibitions by the ADA's "safe harbor" provisions for insurance plans. Seff v. Broward County, #11-12217, 2012 U.S. App. Lexis 17501 (11th Cir.).

     An emergency medical technician (EMT) working for an ambulance authority was fired after she declined to comply with her employer's request that she seek psychological counseling, made after co-workers expressed concerns about her well-being. These concerns were apparently expressed after she began a romantic relationship with a co-worker. She sued under the Americans with Disabilities Act (ADA), contending that the demand that she seek counseling had amounted to a prohibited non-voluntary medical exam. A federal appeals court vacated summary judgment for the defendant employer. The psychological counseling she was told to attend did constitute a medical examination because, regardless of the employer's intention, as it was likely to explore whether she suffered from a mental-health disability. Such exams are prohibited unless justified by "business necessity" or "job relatedness," since they may provide information about a disability and serve as a basis for discriminatory treatment. Kroll v. White Lake Ambulance Authority, #10-2348, 2012 U.S. App. Lexis 17727, 2012 Fed App. 276P (6th Cir.).

Retaliatory Personnel Action

     A city detective was placed on administrative leave by the chief of police after he reported to the county sheriff that he had seen deputies beating pre-trial detainees while interrogating them. He claimed that this constituted unlawful retaliation in violation of his First Amendment rights. Under a prior, controlling decision of a panel of the 9th Circuit, Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696 (9th Cir. 2009), a police officer's disclosure of incriminating facts contrary to the instructions of superiors was within his official duties under California law, and therefore not protected by the First Amendment. The federal appeals court expressed its reservation about the prior case, wondering whether it was wrongly decided, but believed that it was controlling precedent in this case, until and unless it was overruled. Dahlia v. Rodriguez, #10-55978, 2012 U.S. App. Lexis 16377 (9th Cir.). Update: On December 11, 2012, the Ninth Circuit agreed to rehear Dahlia en banc, during March, 2013. The 3-judge panel decision is no longer applicable.

     Editor's note: In Huppert, a Ninth Circuit panel noted that in retaliation lawsuits, the issues are: (1) whether the employee spoke on a matter of public concern; (2) whether the employee spoke as a private citizen or as a public employee; (3) whether the employee's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the agency had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the agency would have taken the adverse employment action absent the protected speech. The district court properly dismissed the complaint because the officers were not acting as citizens. "Testifying before a grand jury charged with investigating corruption is one part of an officer's job. If a police officer were subpoenaed to testify, he or she would have two choices. One choice would be to testify before the grand jury. In that event, the officer could lawfully be fired in retaliation for his or her testimony. The other choice would be to refuse to testify. In that event, the officer would face contempt (and possibly other adverse consequences) for failing to comply with a subpoena."

Sex Discrimination - In General

     A female corrections officer sued the county and a former chief deputy sheriff for sex discrimination under 42 U.S.C. Sec. 1983, arguing that she had commenced a sexual relationship with the former chief deputy, who served as jail administrator, and allowed it to continue because she believed that ending it might lead to her termination. He allegedly continued to hug and kiss her at work after she said she wanted to end the relationship, as well as having intercourse with her at work. A federal appeals court upheld the denial of qualified immunity to the former deputy. The plaintiff presented adequate evidence that she had let him know that his romantic attention was unwelcome. Under the totality of the circumstances that she alleged existed, his actions could be viewed as severe enough to alter the terms and conditions of her employment in the view of a reasonable person. She had adequately alleged that he acted in a physically threatening and severe manner which unreasonably interfered with her work performance. She adequately alleged gender discrimination in violation of her Fourteenth Amendment rights, despite the defendant's claim that her sexual relationship with him was voluntary. A reasonable public official would have known that the defendant's alleged conduct was unlawful, violating the plaintiff's clearly established rights. Williams v. Herron, #11–2894,   687 F.3d 971 (8th Cir. 2012).

Sex Harassment

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

     A female former corrections officer sued the county sheriff and her supervisor at the jail, the chief deputy, for creating a sexually hostile work environment. The sheriff allegedly asked her out several times and bought her chocolates, but she declined and complained about his advances to the chief deputy, her supervisor. The chief deputy then allegedly began pursuing her sexually on and off the job, and they had sex approximately ten times, with some of the sex occurring in county vehicles while driving back from transport trips. She admitted that it had been voluntary, except to the extent she protested the first time. He later allegedly instructed a subordinate to fire her after he accused her of having sex with a friend of hers. While the sheriff's conduct was not sufficiently pervasive or severe enough to create a sexually hostile work environment, the chief deputy was not entitled to qualified immunity on the sexual harassment claim. Voluntary sexual activity may be "unwelcome harassment." The court found that it was clearly established that a "supervisor's attempt to have sex with a subordinate violates the subordinate's civil rights." Crutcher-Sanchez v. County of Dakota, #11-2898, 687 F.3d 979 (8th Cir. 2012).

     A female former corrections officer failed to show that her supervisor, the jail administrator, had subjected her to hostile environment sexual harassment or engaged in "widespread sexual favoritism." He had never asked her to go out with him or have sex with him. She failed to identify any opportunities or benefits the supervisor denied her, or that a promotion available to her instead went to another employee who had a sexual relationship with the supervisor. Indeed, she herself chose not to apply for a promotion because she feared damage to her reputation. Further, the supervisor's conduct was not physically threatening or humiliating and did not unreasonably interfere with her work performance. The supervisor was therefore entitled to qualified immunity from her claims. Duncan v. County of Dakota, #11–2467, 687 F.3d 955 (8th Cir. 2012).

Taxation

     A former state employee was awarded back and front pay in a successful Title VII wrongful termination lawsuit. He claimed that he had been fired in unlawful retaliation for cooperating in an investigation of race discrimination by his supervisors. The state deducted state and federal income taxes and Federal Insurance Contributions Act (FICA) from the amounts awarded and only paid him the remainder of the awards, reasoning that the amounts awarded constituted taxable wages. A federal appeals court agreed, finding that the amounts awarded were subjected to withholding. It overturned a trial court decision that the awards were not subject to withholding. It also ordered the former employee to repay to the state the amounts previously withheld, which had been repaid to him after the trial court's ruling. Noel v. N.Y. State Office of Mental Health Central N.Y. Psychiatric Center, #10–3483, 2012 U.S. App. Lexis 18526 (2nd Cir.).

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     Ethics: "Focus on Ethics: The Power of Police Civility," by Andrew Borrello, FBI Law Enforcement Bulletin (August 2012).

     First Amendment: "The Chill of a Wintry Light: Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment," by William A. Herbert, 43 University of Toledo Law Review No. 2 (Spring 2012).

     Privacy: "Electronic Privacy and Employee Speech," by Pauline T. Kim, Chicago-Kent Law Review (Forthcoming 2012).

     Public Pensions: "Statutes as Contracts? The 'California Rule' and Its Impact on Public Pension Reform," by Amy B. Monahan, 97 Iowa Law Review 1029 (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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