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Disability Rights and Benefits - Line of Duty: Disputed

     A school police officer injured on the job applied for line-of-duty disability retirement benefits. He had returned to light duty, but was not able to return to full work duty, and was terminated. The court ruled that the officer's preexisting health condition, which contributed to his total disability, did not bar him from qualifying for receiving line-of-duty disability retirement benefits. The officer was required to show that he suffered at least a 25 percent impairment in at least two specified body parts as a result of carrying out his actual duties. Since the hearing officer found that the worker injured suffered a 25 percent impairment to his back and a 25 percent impairment to his right arm due to an assault he suffered at work, he qualified. The hearing officer had erroneously assumed that the officer had to show that his impairment was caused exclusively by the incident that occurred at work. Employees' Ret. Sys. of City of Baltimore v. Dorsey, #29/12, 2013 Md. Lexis 13.

Disability Rights and Benefits - Benefits Disputes

     A deputy sheriff injured his knee at work. He received 52 weeks of salary continuation benefits under Cal. Labor Code § 4850, payable to him as an injured public safety officer. He then received another 52 weeks of temporary disability indemnity under Cal. Lab. Code, § 4653. The county then stopped payment of further benefits, citing a statutory 104-week limit on aggregate disability payments for an injury that causes temporary disability to an employee. An intermediate California appeals court annulled a trial court order requiring the city to keep paying the deputy temporary disability benefits. This was improper, as the 52 weeks of salary continuation benefits first received by the employee after his injury did count towards the maximum limit of 104 weeks of temporary disability benefits. Workers' Compensation Co. of Alameda v. Workers' Comp. Appeals Bd., #A135889, 2013 Cal. App. Lexis 65.

First Amendment

     A Hispanic police officer was promoted to sergeant. He claimed that the department and police chief subsequently failed to promote him to lieutenant and initiated a number of internal affairs investigations into his conduct that were based on his race or national origin. He also claimed that the police chief retaliated against him because he spoke out at a press conference about an incident in which some of the city's officers used excessive force against a Hispanic person, in violation of his First Amendment rights. The court rejected these claims, finding that the officers had failed to show that reasons given for the failure to promote him, such as a pending hearing on misconduct charges, were pretextual, or that discriminator animus motivated the investigations against him. As for the First Amendment retaliation claim, while the appeals court agreed that speaking out concerning alleged excessive use of force by the department against Hispanics was a matter of public concern, the police chief was entitled to qualified immunity from liability. The court found no evidence that the chief decided not to promote the plaintiff or initiated the investigations against him for any retaliatory reason. Garcia v. Hartford Police Department, #11-4618, 2013 U.S. App. Lexis 1920 (2nd Cir.).

Heart Problems

     A prison guard suffered a heart attack shortly after arriving at work. He later required a triple bypass operation. In a workers' compensation action, the state's Industrial Commission ruled that he failed to successfully prove that the heart attack was an industrial accident. The employee's cardiologist could not say whether the plaque rupture that cause the heart attack was triggered by events before he came to work or after he came to work. Affirming an order denying the employee compensation, the Idaho Supreme Court found that the Commission's factual findings were not "clearly erroneous," and therefore should not be overturned. Henry v. Dept of Corrections, #39039-2011, 2013 Ida. Lexis 31.

Pensions

     A federal employee served as a criminal investigator or special FBI agent until she retired in 2008. From when she started working in 1983 until early in 2001, she received "availability pay" as provided by a statute, 5 U.S.C. 5545a. This pay was equal to 25 percent of her base pay, and to qualify for it, she had to work at least 40 hours a week and at least be available to work, if needed, up to two extra hours each work day. A federal appeals court ruled that she had not been eligible for, and had not received, such availability pay after she started working part time until her retirement. As a consequence, her average pay used in calculating the amount of her retirement annuity should not include availability pay. Her highest three years of pay were at the end of her years of service, 2006-2008, but she did not then receive availability pay. Denney v. Office of Pers. Mgmt., #12-3094, 2013 U.S. App. 2753 (Fed. Cir.).

    The Florida Supreme Court has ruled that the state legislature did not violate the Florida Constitution by changing the Florida Retirement System for state employees from noncontributory to contributory and requiring all current members of the system to contribute three percent of their salaries to it. The legislature also had the power to eliminate further retirement cost of living adjustments to creditable service after the effective date of the statute. None of these changes breached any statutorily created contract rights or any state constitutional right, such as the prohibition against an unconstitutional "taking." The changes merely prospectively changed benefits for future service performed. Scott v. Williams, #SC12-520, 2013 Fla. Lexis 65.

Pregnancy Policies and Discrimination

    A city employee claimed that she had been fired because of her pregnancy in violation of California state law, while the city argued that she had been terminated for poor job performance. The trial court refused to instruct the jury that if it found a mix of both legitimate and discriminatory motives for the firing, then the city could avoid liability by proving that the legitimate motive, standing by itself would have resulted in it making the same decision to terminate her. The jury then returned a substantial verdict for the plaintiff.

     The California Supreme Court ruled that, under the state employment discrimination statute "when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay, or an order of reinstatement." However, in such cases, a plaintiff can still be awarded declaratory or injunctive relief to stop discriminatory practices and be awarded reasonable attorney's fees and costs. The damage award was overturned, and further proceedings were ordered. Harris v. City of Santa Monica, ##S181004, 2013 Cal. Lexis 941.

Promotional Rights, Procedures Performance Appraisals

     A group of firefighters claimed that a city failed to provide a fair and impartial promotional process by failing to prevent cheating on a promotional exam for jobs as fire lieutenant. The trial court enjoined the city from making permanent promotions based on the challenged test results. As part of its order, firefighters who underwent a retest, who had scored at certain levels the first time around, were to lose their provisional promotion if their second score deviated more than a specified number of points from their first test score. Firefighters who had not previously been parties to the case claimed that the injunctive order improperly identified them as probable cheaters on the first test and that they were singled out for demotions, as well as having special requirements imposed on them after the second test that did not apply equally to others. The Georgia Supreme Court ruled that these firefighters had a right to intervene in the case because its results had an impact on them. The court also found that the trial court engaged in an abuse of its discretion by creating an injunctive order that singled out these firefighters for specific relief without them being joined as parties to the lawsuit. Barham v. City of Atlanta, #S12A1720, 2013 Ga. Lexis 106.

Religious Discrimination

     A federal judge ruled that a city and its police officials did not violate the religious freedom rights of a police captain who was disciplined for refusing, on religious grounds, to attend a community policing event at a local mosque or else order his subordinates to attend. A directive indicated that someone should attend a law enforcement appreciation day at the mosque. The plaintiff argued that doing so would violate his Christian religious beliefs. The court found that no reasonable jury could find that the captain was personally ordered to attend the event "because the directive at issue permitted him to assign others to attend rather than attend himself. Therefore, the directive did not conflict with [his] sincere religious belief that he must proselytize when confronted by others whose religious beliefs differ from his." The court said that it need not decide whether a directive requiring him to personally attend the event would have violated his rights. Fields v. City of Tulsa, #11-cv-115, 2012 U.S. Dist. Lexis 176698 (N.D. Okla.).

Retaliation

     A nurse working for a correctional medical provider suffered an off-duty injury shattering the right side of her pelvis while horseback riding. She was later fired, and claimed that this happened in rertaliation for her requesting an accommodation for her disability under federal and state law. She had needed surgery and had a number of restrictions, including using crutches and not using her hands for lifting. Her ability to bend and squat was also limited. The trial court granted summary judgment to the defendant employer. The federal appeals court reversed, finding that the plaintiff presented sufficient circumstantial evidence from which a jury could conclude that her supervisor was hostile to any accommodation of her disability, based on both comments and actions. The jury could have concluded that the plaintiff's refusal to obey one instruction from that supervisor was only a "convenient pretext" for firing an employee who had repeatedly asked for accommodations of her disability. Kelley v. Corr. Med. Servs., Inc., #11-2246, 2013 U.S. App. Lexis 2588 (1st Cir.).

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     Social Media: "Social Media: Establishing Criteria for Law Enforcement Use," by Robert D. Stuart, FBI Law Enforcement Bulletin (Feb. 2013).

     Training:  "Terror Liaison Officer Training," by J.T. McBride, FBI Law Enforcement Bulletin (Feb. 2013).

Reference:

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AELE Seminars:

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

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 – Las Vegas

Lethal and Less Lethal Force
Oct. 7-9, 2013 – Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 - Las Vegas

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