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Age Discrimination

     An employee of the Alabama Board of Pardons and Paroles sued her employer for age discrimination in state court. The Board removed the case to federal court. The federal court then entered judgment for the Board on a claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.S. §§ 621-634, on the basis of Eleventh Amendment sovereign immunity. A federal appeals court upheld that result, finding that the defendant, as a state agency, did not waive its immunity from liability for an ADEA claim by voluntarily removing the case to federal court. The removal did not affect the availability of a sovereign immunity defense, although the Board had waived its defense of immunity from litigation in federal court. Stroud v. McIntosh, #12-10436, 2013 U.S. App. Lexis 14868 (11th Cir.).

Disciplinary Offenses - Sufficiency of Proof

    A police officer claimed that his termination was improper and violated his due process rights. He had been on temporary sick leave at the time and was suspended without pay and ultimately fired on the basis of various accusations stemming from an off-duty verbal and physical fight he had been involved in outside a restaurant/bar. His termination was vacated and he was awarded back pay and a new disciplinary hearing ordered because the disciplinary hearing did not hear live testimony from complaining witnesses or witnesses to the fight, but instead hearsay statements from the department's internal affairs investigation and testimony from the officer who put together the internal investigation report. The New Jersey Supreme Court reversed, finding that the intermediate appeals court should have determined whether sufficient competent evidence supported the charges. The evidence presented was both competent and sufficient to support the claim that the officer had engaged in inappropriate behavior that constituted conduct unbecoming an officer. It was enough to warrant his firing. Neither the officer's decision to proceed with the hearing without an attorney nor the hearing officer's decision not to call a witness to the fight violated the officer's due process rights. Ruroede v. Borough of Hasbrouck Heights, #a-95-11 ,2013 N.J. Lexis 598.

Disciplinary Surveillance

    The New Jersey Supreme Court has required law enforcement officers to get a warrant to obtain tracking information from a cell phone. While the decision came in a criminal case, the reasoning is broad enough to cover other situations. The decision holds that individuals have a reasonable expectation of privacy in their cell phone location data under the state Constitution. State v. Earls, #A-53-11/068765, 2013 N.J. Lexis 735

Handicap/ Abilities Discrimination

     An unpaid volunteer Police Reserve Officer for a city was terminated. He had previously experienced leg, back, and shoulder injuries on the job that had lingering effects. The stated reason for his termination was his alleged off-duty sale of a product containing the active ingredient of the drug Viagra. He claimed that his termination constituted disability discrimination under California state law. An intermediate California appeals court ruled that the plaintiff, as an unpaid volunteer, was not an employee entitled to assert a disability discrimination in employment claim under state law. While the city had extended workers' compensation coverage to volunteer officers and the plaintiff had previously received workers compensation benefits for several injuries, that did not transform him into an employee for disability discrimination purposes. Estrada v. City of Los Angeles, #B242202, 2013 Cal. App. Lexis 581.

Race Discrimination

    An African-American firefighter had worked for the department since 1977 and had become a District Chief, a member of the department's at will personnel management team in 2000. When a new Fire Commissioner, also an African-American, was selected, he chose his own management team, and the plaintiff was demoted to a floating assignment. The federal appeals court upheld the rejection of his racial discrimination claim. While the plaintiff claimed that his demotion was a pretext for racial discrimination, the new Fire Commissioner had sufficient knowledge of and experience with the plaintiff to support his argument that his level of enthusiasm and demeanor were incompatible with his desired style of management. Bates v. City of Chicago, #12-1500, 2013 U.S. App. Lexis 16563 (7th Cir.).

     A city held promotional exams for fire department positions of Captain and Lieutenant. Candidates were promoted in rank order based on a score that combined exam scores and additional points for seniority. After a hearing, a federal trial court concluded that the exam had adversely impacted 12 white Captain candidates and three Lieutenant candidates on the basis of race, and adversely impacted 11 Lieutenant candidates on the basis of their age. The trial court ordered the promotion of 18 candidates, and awarded each impacted Lieutenant candidate $9,000 in compensatory damages and $72,000 in front pay and each impacted Captain candidate $10,000 in compensatory damages and $80,000 in front pay. A federal appeals court upheld this result, finding that the plaintiffs met the standards for injunctive relief, as they demonstrated that substantially delaying their promotions would irreparably harm their careers. Howe v. City of Akron, #11-3752, 2013 U.S. App. Lexis 14745 (6th Cir.).

Retaliatory Personnel Action

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

     An assistant state's attorney was subpoenaed by a special prosecutor to testify before a grand jury and then at a trial arising out of an investigation of his boss for allegedly improperly influencing cases involving political allies and relatives. His boss later interrogated him and fired him. Suing, he claimed that his termination was unlawful retaliation for his exercise of his First Amendment rights by offering truthful eyewitness testimony. A federal appeals court rejected the trial court's conclusion that the testimony was not constitutionally protected because it was made as part of his official duties. While the plaintiff had worked in criminal justice, presenting eyewitness testimony in court was not part of his employment duties. The appeals court also found that First Amendment protection for giving such testimony was clearly established, rejecting a qualified immunity defense. Punishing someone for subpoenaed testimony, the court said, chills civic discourse "in significant and pernicious ways." Chrzanowski v. Bianchi, #12-2811, 2013 U.S. App. Lexis 16053 (7th Cir.).

    An employee at a county jail wrote a letter to the editor of a newspaper during an election campaign for sheriff, expressing his support for the current sheriff's reelection and opposing his political opponent. When the opponent was elected, the employee and a number of others were told that they had two months to improve conditions at the jail or they would be fired. Subsequently, the employee was demoted, and he took retirement, and he sued the sheriff, his office, and the county for unlawful retaliation in violation of the First Amendment. A federal appeals court found that summary judgment for the defendants was inappropriate since there was evidence from which a jury could find that the defendants had failed to show that they would have taken the same actions against the plaintiff in the absence of his protected speech. The court found that the plaintiff, in writing the letter, was speaking as a citizen supporting a candidate during an election. Haverda v. Hays County, #12-51008, 2013 U.S. App. Lexis 14485 (5th Cir.).

Retirement Benefits

     Michigan's governor appointed an emergency manager for a city having economic difficulties. That manager, acting under a law known as Public Act 4, modified the collective bargaining agreements of the city's retired employees. He also modified severance benefits, including pension benefits, that the city had previously given to retirees who were not covered by a collective bargaining agreement. Retired employees challenged the emergency manager's power to reduce their retirement benefits, claiming that it violated their federal constitutional rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause. A federal appeals court noted that there was a question of Michigan state law as to whether the legislature violated the state constitution in passing Public Act 4, and, additionally, that Michigan's voters had subsequently rejected Public Act 4 in a ballot referendum, which may have rendered the emergency manager's actions void. The appeals court, therefore, declined to rule on the federal constitutional claims, remanding for further proceedings to determine whether the actions taken under the now rejected law still have any power. City of Pontiac Retired Emps. Ass'n v. Schimmel, #12-2087, 2013 U.S. App. Lexis 16519, 2013 Fed. App. 0215P (6th Cir.).

Workers' Compensation: Claim Validity

     A Utah park ranger experienced pain in his lower back when he momentarily lost and then regained his balance on a boat dock while getting ready to go out on a boating patrol. He was denied workers' compensation benefits on the basis of a determination that the accident that occurred at work may have aggravated his preexisting back condition and that what caused him to slightly lose his balance, an unanticipated wave, was not the legal cause of his injury. The Utah Supreme Court upheld this result. While it ruled that an intermediate appeals court had erroneously applied an "abuse of discretion" legal standard while upholding the denial of benefits, even under a non-deferential legal standard of review, the plaintiff had failed to show that the boat accident instead of his preexisting back condition had caused his injury. Murray v. Utah Labor Comm'n., #20120232, 2013 UT 38, 2013 Utah Lexis 91.

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     Female Officers: “The Feminine Arm of the Law: Police Wives, Policewomen, and Gender Politics in the Chicago Police Department, 1950 – 1984," by Megan Adams Labor (2013) 10(2): 77-103. Abstract. Full Text for purchase.

    Military Law: Military Sexual Assault: Chronology of Activity in Congress and Related Resources.

     Video Recording: "The Right to Speak with Another's Voice—Why the Seventh Circuit Should Characterize the Right to Record as the Limited Right to Gather Information Under the First Amendment," by Prava Palacharla, 8 Seventh Circuit Rev. 416 (2013).

     Workplace Violence: "The Phenomena of Workplace Violence," by George Cartwright, FBI Law Enforcement Bulletin (August 2013).

Reference:

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AELE Seminars:

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

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

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