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Alcohol Abuse

     The Utah Supreme Court has upheld the termination of a police officer who reported for duty under the influence of alcohol. Substantial evidence supported this determination as a portable breath test administered accurately measured the officer's breath and blood alcohol content. A state statute supposedly barring a deviation from the city's policy of using urine testing to see whether an employee reported for work under the influence of alcohol did not apply to the city. Becker v. Sunset City, #20120320, 309 P.3d 223 (Utah, 2013).

Bill of Rights Laws

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

     The California Firefighters' Procedural Bill of Rights (FFBOR) states that a firefighter's employer cannot have any adverse comment entered in an employee's personnel file or any other file utilized for personnel purposes without the firefighter first having the right to read it and sign an acknowledgment that they are aware of it. Daily logs about firefighters' activities maintained by a captain were used for personnel purposes and therefore were covered by the FFBOR. An intermediate California appeals court therefore overturned a judgment in favor of a defendant in a lawsuit objecting to adverse comments being placed in that log without compliance with the statute. The firefighter should have been made aware of those adverse comments when made and allowed to respond to them then. Letting him know about them only at an annual evaluation was not adequate, as he could not be expected to remember the details of all events months later in order to adequately respond. Poole v. Orange County Fire Authority, #G047691, 2013 Cal. App. Lexia 889.

Handicap/ Abilities Discrimination

     A female police officer started to experience unspecified psychological difficulties after seven years on the job. She was found fit to continue to work during four psychological exams she was ordered to undergo. She sued, asserting that making her take the exams amounted to race, sex, sexual orientation, and disability discrimination. She was suspended without pay pending discharge proceedings twice and then a discharge proceeding was begun. After that, she filed a second lawsuit for disability discrimination, dismissing the first suit. The second lawsuit was dismissed, finding no evidence of disability discrimination. She then filed a third lawsuit, repeating the disability discrimination claim, which was dismissed as barred by the earlier lawsuit. Upholding this result, a federal appeals court noted that while she claimed that she was vulnerable to workplace stress, she didn't claim that this prevented her from performing an essential job function, rendering her an otherwise qualified disabled person. She did not show that she was suspended or terminated because of her disability. Brumfield v. City of Chicago, #11-2265, 2013 U.S. App. Lexis 22571 (7th Cir.).

     A county employee sued his employer for disability discrimination, harassment, and unlawful retaliation under state law. The county sought to compel arbitration of the claim under the provisions of a collective bargaining agreement. An intermediate California appeals court held that the employee, who had a statutory disability discrimination claim could not be compelled to arbitrate that claim when the bargaining contract did not contain a promise amounting to an unmistakable and clear waiver of the right to pursue the statutory discrimination lawsuit. Volpei v. County of Ventura, #B243954, 2013 Cal. App. Lexis 903.

Homosexual & Transgender Employee Rights

     The male same-sex partner of a Missouri highway patrolman killed in the line of duty challenged two state statutes. The first provides benefits to the spouse of a state highway patrolman killed in the line of duty, while the second statutes provides that the word spouse in the first statute only refers to a marriage between a man and a woman. The plaintiff was denied survivor benefits and argued that he was denied his equal protection rights under the state Constitution on the basis of his sexual orientation. Rejecting this claim, the Missouri Supreme Court held that the plaintiff was not entitled to survivor benefits because he was not married to the decedent, and that would be the case even if they had been a heterosexual couple but unmarried. The statute concerning benefits discriminated solely on the basis of marital status, not sexual orientation. The plaintiff did not have standing to challenge the ban on benefits for same-sex married couples as he was not a member of that class of persons. Glossip v. Mo. Dep't of Transp. & Highway Patrol Employees' Ret. Sys., #SC92583, 2013 Mo. Lexis 294.

Pay Disputes

     A county sheriff's office paid varying amounts to a group of sergeants within an established pay range. A grievance by the sergeants challenged the discrepancy, and the department's civil service board upheld the grievance and ordered that the sheriff equalize the pay of all the sergeants. The Tennessee Supreme Court disagreed, stating that in the absence of any proof that the sheriff had violated the civil service manual or a provision of state law, the board did not have the power to order the equalization of salaries. The civil service manual explicitly gave the sheriff the authority to make individual determinations of pay, and there was no proof that the sheriff violated any state law, so the board exceeded its authority. Hammond v. Harvey, #E2011-01700-SC-R11-CV,2013 Tenn. Lexis 640.

Racial Discrimination

     The plaintiff was the only African-American officer among approximately 75 officers, and has been employed for 20 years. In early 2011, he was promoted to sergeant and also placed on the midnight shift after having earlier filed a racial discrimination claim. He filed a second complaint claiming that he was disciplined in retaliation for filing the first complaint. He was subsequently denied a request that he be transferred off the midnight shift. His complaint about his initial placement on the midnight shift was time barred as he filed it with the EEOC over 300 days after it happened. He could proceed, however, with his claims about being denied a transfer from the midnight shift constituting racial discrimination and his treatment while on that shift. He claimed that being assigned to the midnight shift for an indefinite time period diminished his job responsibilities, stripped him of his authority as a sergeant, and rendered him "virtually powerless." The court found no basis, however, for the retaliation claim. Lavalais v. Vill. of Melrose Park, #13-1200, 2013 U.S. App. Lexis 21682 (7th Cir.).

Sexual Assault

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

     A city worker was allegedly attacked and raped by a coworker at work. She sued the city for intentional, willful, and wanton disregard for the safety of others in selecting and controlling the co-worker. The Supreme Court of Ohio found that a lawsuit for such an intentional wrong may fall within an exception to political subdivision immunity, and that the city had not established that it was entitled to such immunity in this case as a matter of law. Such a claim could qualify as one that arose out of an employment relationship. Vacha v. City of N. Ridgeville, #2011-1050,136 Ohio St. 3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, 2013 Ohio Lexis 1683.

Workers' Compensation: Claim Validity

     The Pennsylvania Supreme Court ruled that a lower court acted erroneously in overturning an award of workers' compensation disabilities benefits based on a finding that the officer had established the existence of a mental disability caused by abnormal working conditions, specifically, the death of a mentally ill person who ran in front of his patrol car, apparently in a suicidal act. The disability prevented him from working. Payes v. WCAB (PA State Police), #50 MAP 2011, 2013 Pa. Lexis 2588.

     A former University of California at Davis police officer who used pepper spray on "Occupy" demonstrators at a campus sit-in in 2011 in a highly publicized incident has received a $38,05 workers compensation settlement from the university employer for depression and anxiety he said he suffered from after receiving death threats and other negative reactions based on the publicity. A psychiatric report released by the California Department of Industrial Relations characterized his disability of a damaged psyche as moderate, with no improvement in his condition a year after the incident. John Pike and University of California, California Workers Compensation claim, decision of administrative law judge Harter, Oct. 16, 2013, reported in The Davis Enterprise, Oct. 24, 2013.

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     Morale: "Perspective: Evaluating the Paramilitary Structure and Morale," by David Cruickshank, FBI Law Enforcement Bulletin (Oct.-Nov. 2013).

     National Security Issues: DoD Evaluation of Over-Classification of National Security Information (Redacted), Inspector General Department of Defense (Sept. 30, 2013).

     Performance Evaluations: "Leadership Spotlight. Build Bridges, Not Dams: Performance Evaluations," by J.E. Granderson, FBI Law Enforcement Bulletin (Oct.-Nov. 2013).

Reference:

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AELE Seminars:

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Dec. 16-18, 2013 - Las Vegas

Jail and Prisoner Legal Issues
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Jan. 20-21, 2014 – Las Vegas
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Jan. 22-23, 2014 – Las Vegas

Management, Oversight and Monitoring of Use of Force
– Including ECW Post-Incident Forensics
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