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Arbitration Procedures

     A police sergeant who served as a union representative was transferred on the basis of the city's expressed concerns about his exercise of supervisory authority. The union tried to enforce a provision of the collective bargaining agreement prohibiting the transfer without voluntary agreement of certain union representatives between stations. A grievance arbitrator ordered the officer's reinstatement to his original position and damages, finding that the contract had been violated. The highest court in Massachusetts ordered that the award be vacated, finding that the arbitrator exceeded his authority in overturning the transfer, since the police commissioner had statutory non-delegable powers to assign and transfer officers within the department.  City of Boston v. Boston Police Superior Officers Fed'n, #SJC-11238, 466 Mass. 210, 2013 Mass. Lexis 688.

Disciplinary Punishment

     An officer was fired for allegedly using excessive force while booking a prisoner at the city jail. The Utah Supreme Court upheld the termination, finding that the decision to fire the officer was not inconsistent with prior instances of discipline for violating the excessive force policy and that any procedural due process violations at the officer's hearing had been harmless. The city employee appeals board adequately justified any disparate application of the department's policy. The court found that an intermediate appeals court had properly applied an abuse of discretion standard to review the termination. Nelson v. City of Orem, #20120626, 2013 UT 53, 2013 Utah Lexis 127, 741 Utah Adv. 56.

Family, Medical & Personal Leave

     After a police dispatcher was fired, he sued under the Family Medical Leave Act (FMLA). The trial court ruled that he did not qualify as an eligible employee under the law because the city had only 41 employees, not the required 50. It regarded between 25-30 volunteer firefighters as not constituting employees. The federal appeals court reversed, finding that these firefighters were employees because they were paid $15 an hour when responding to emergency calls or maintaining equipment, even though they were not required to respond to emergency calls, had no consistent schedule, and did not receive health insurance, vacation or sick time or social security benefits. They constituted employees both for purposes of FMLA and the Fair Labor Standards Act. Mendel v. City of Gibraltar, #12-1231, 2013 U.S. App. Lexis 16922, 2013 Fed App. 0232P (6th Cir.).

Homosexual & Transgendered Employee Rights

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

     A former Colorado State Trooper Captain has been awarded $768,000 in front pay damages because he was denied reemployment after a polygraph question compelled him to reveal that he was gay. The hearing officer at a state personnel board determined that the polygraph was used to reveal the plaintiff's homosexuality and deny him employment. The hearing officer ordered the employer to "immediately designate a command-level point-of-contact for gay Patrol members." The requirement of a polygraph exam and full background check when the plaintiff applied for rehiring was a departure from prior policy. Williams v. Dept. of Public Safety, Colorado State Patrol, #2011G026, State Personnel Board, State of Colorado (July 16, 2013).

     The U.S. Dept. of Defense has extended all marital benefits for employees to lawfully married same-sex spouses. Secretary of Defense Memorandum of 8/13/2013.

Racial Harassment

     Two former police officers sued a municipality, claiming that they had been subjected to a racially hostile work environment. They asked for mental anguish damages and the defendant municipality attempted to engage in discovery regarding the basis for their mental anguish claims. The plaintiffs refused to comply with the discovery requests, asserting that physician and psychotherapist doctor-patient privilege protected their medical, prescription, and psychological counseling records. The Alaska Supreme Court agreed, concluding that a plaintiff asserting "garden-variety" mental anguish claims in the context of an employment discrimination lawsuit did not constitute an automatic waiver of the applicable privileges. Kennedy v. Municipality of Anchorage, #S-14762, 2013 Alas. Lexis 104.

Retaliatory Personnel Action

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

     An en banc panel of the 9th Circuit overruled a previous decision, Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696 (9th Cir. 2009) which held that an officer had no First Amendment protection from employer retaliation for his report of internal corruption to the FBI. The court reasoned that, after Garcetti v. Ceballos, 547 U.S. 410 (2006), courts must make a "practical" inquiry to determine the scope of a government employee's professional duties and that Huppert erred in concluding that California broadly defines police officers' duties as a matter of law for the purpose of First Amendment retaliation claims. The court also held that being placed on administrative leave, as the plaintiff was, could amount to an adverse employment action. The dismissal of the retaliation claim was therefore reversed. Dahlia v. Rodriguez, #10-55978, 2013 WL 4437594, 2013 U.S. App. Lexis 17489 (en banc 9th Cir.).

     Editor's Note: For a more detailed analysis of this case, see "Blowing the Whistle on Police Corruption. The Dahlia Decision: Restoring Constitutional Protections for Police Whistleblowers in the Ninth Circuit," by Michael P. Stone and Muna Busailah, 2013 (10) AELE Mo. L.J. 501 (October 2013).

Security Clearance

     The Transportation Security Administration suspended and then revoked a federal Air Marshal's security clearance, relying on allegations about his misconduct during previous jobs as a deputy sheriff and police officer. The lack of security clearance rendered him ineligible for his job. He argued that the failure to provide him in a timely fashion with the documentary material relied on to suspend his security clearance violated his procedural due process rights. Upholding a decision of the Merit Systems Protection Board affirming the revocation of the security clearance, a federal appeals court found that decisions about security clearances do not implicate any due process rights. Accordingly, the fact that the plaintiff was not provided with copies of the materials until three months after he was suspended from his job did not violate his rights. Gargiulo v. Dep't of Homeland Sec., #12-3157, 2013 U.S. App. Lexis 17014 (Fed. Cir.).

Sexual Harassment - By Inmates in Correctional Facilities

     A female correctional officer who worked in a sex offender unit at a youth correctional facility claimed that a male prisoner targeted her for sexual harassment, including open masturbation and various threats. She quit her job and sued the facility for a hostile work environment, sexual harassment, and retaliation. Upholding a judgment for the defendant on all claims, the Montana Supreme Court found that the defendant had extended and held open an offer of a transfer to a different unit to the plaintiff for approximately one year before she quit and that it also promptly and reasonably offered a solution to end the inmate's harassment of her by making the transfer available. Puskas v. Pine Hills Youth Corr. Facility, #DA 12-0515, 2013 MT 223, 371 Mont. 259, 2013 Mont. Lexis 313.

Wrongful Termination

     A woman who was fired from her independent contractor position as a nurse sued correctional officials after she was unable to find other work with the correctional system because of negative job references. A federal appeals court ruled that the simple fact that the agency had instituted performance review procedures for independent contractors did not create any constitutionally protected property interests for such contractors, Even if there had been a constitutionally protected interest in an independent contractor's job, the plaintiff would have to show a guarantee of employment by the government or an affirmative grant of tenure, neither of which occurred here. Blantz v. Cal. Dep't of Corr. & Rehab., #11-56525, 2013 U.S. App. Lexis 16940 (9th Cir.).

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     Interrogation: "Criminal Interrogations of Police Officers After Use-of-Force Incidents," by Jeffrey J. Noble, J.D., and Geoffrey P. Alpert, Ph.D., FBI Law Enforcement Bulletin (September 2013).

     Social Media: "COPS Report: Social Media and Tactical Considerations For Law Enforcement," Police Executive Research Forum (PERF) (May 2013).

     Social Media: "Interactive Social Media: The Value for Law Enforcement," by Timothy J. Henton, FBI Law Enforcement Bulletin (September 2013).

     Stress: "Post-Traumatic Stress Disorder and Other Mental Health Problems in the Military: Oversight Issues for Congress," Congressional Research Service (Aug. 2013).

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. 7-9, 2013 – Las Vegas

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

Jail and Prisoner Legal Issues
In two modules:
Module One – Operational and Administrative Legal Issues
Jan. 20-21, 2014 – Las Vegas
Module Two - Security and Incident Liability
Jan. 22-23, 2014 – Las Vegas

Management, Oversight and Monitoring of Use of Force
– Including ECW Post-Incident Forensics
Mar. 3-5, 2014 – Las Vegas

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