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Demotions

     The plaintiffs claimed that they were improperly terminated or demoted because the county's board voted to dissolve the Office of Public Safety, where they were employed, and merge its functions with the county sheriff's department. The plaintiffs failed to qualify for deputy jobs, but were instead offered lower paying jobs. An intermediate California appeals court dismissed the lawsuit, finding that the decision was immune from liability under a state statute as a legislative enactment, and the lawsuit was primarily for money damages not injunctive relief. A federal court had already previously decided that the plaintiffs were not entitled under state law to be offered comparable jobs or administrative hearings or appeals to challenge the county's actions, so they were barred from relitigating the issue. Esparza v. County of Los Angeles, #B243496, 2014 Cal. App. Lexis 209.

Disability Rights and Benefits -- Line of duty related/ disputed

     An Illinois intermediate appeals court upheld a determination that a former firefighter/paramedic's degenerative arthritis of the knee was due to a preexisting knee condition rather than any acts while on duty. She was therefore properly awarded non-duty disability, rather than duty disability. The Pension Board could choose to believe the opinions of two doctors rather than the differing opinions of four other physicians, as the first two doctor's opinions were not shown to be unreliable or at odds with the available evidence. Carrillo v. Park Ridge Firefighters' Pension Fund, #1-13-0656, 2014 IL App (1st) 130656, 2014 Ill. App. Lexis 82.

Handicap Laws/Abilities Discrimination -- In General

    A federal employee sought a work schedule accommodation under the Rehabilitation Act so that he could undergo rehabilitation treatment without using his work leave. The defendant agency was properly granted summary judgment in his lawsuit over its denial because he failed to exhaust his available administrative remedies before suing. He ceased participating in the investigation of his claim, citing privacy concerns, and failed to furnish sufficient information to the employer. This refusal was unjustified and he failed to show how his concern over the disclosure of medical records required him to fail to provide testimony to the investigator, or what was supposedly inadequate about the "extensive" privacy protections for medical records included in the contract the agency had with the investigator. Koch v. White, #12-5139, 2014 U.S. App. Lexis 4246 (D.C. Cir.).

Handicap Law/Abilities Discrimination -- Accommodation in General

     In a lawsuit concerning a disability discrimination claim by a firefighter who lost all vision in one eye in an accident unrelated to work, there was a genuine issue of fact as to whether driving a fire apparatus under emergency lights was an essential function of a firefighter's job. The department claimed that his vision loss prevented him from driving at high speeds. The trial court prematurely ruled, as a matter of law, that the employee could not meet the burden of demonstrating that his requested accommodation was reasonable. The parties disputed whether there was a vacant job opening in the Fire Prevention Bureau when the plaintiff made a request for a transfer. A First Amendment retaliation claim was rejected, as the firefighter's testimony that was supposedly the basis for the retaliation was about a purely private matter. Rorrer v. City of Stow, #13-3272, 2014 U.S. App. Lexis 3592, 2014 Fed App. 38P (6th Cir.).

Pensions

     A judgment in favor of the plaintiff city in a lawsuit over how police and fire retirement benefits were calculated was vacated. The city was precluded from relitigating a previously decided issue concerning holiday premium pay being included in the calculation. The city was also barred from trying to require retirees to repay any retirement benefits because of the previous erroneous inclusion of shift differential pay in the calculation as compensation attached to rank. The city's retirement system board could, however, try to recoup benefits that were improperly paid to retirees in three years because of the inclusion of an inflated number of pensionable holidays for those years. City of Oakland v. Oakland Police & Fire Retirement System, #A136769, 2014 Cal. App. Lexis 192.

     When a retiree had worked both as a city employee and as a member of the city council, the state public employees' retirement system could calculate his benefits on a bifurcated basis, using his highest employee salary and his highest salary as an elected official. Chaidez v. Board of Administration of California Public Employees' Retirement System, #C065913, 223 Cal. App. 4th 858, 2014 Cal. App. Lexis 109.

Retaliatory Personnel Action

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

     While there was a settlement agreement in place concerning certain issues arising in a firefighters corps, that agreement did not bar claims for alleged unlawful retaliation against the plaintiff, a transitory employee, for unlawful retaliation against her that arose after the settlement agreement. Specifically, she claimed that she was subject to various forms of abuse in retaliation for her early lawsuit claiming that she was not hired as a firefighter because of her gender. Rodriguez-Vives v. PR Fire Fighters Corps, #13-1587, 2014 U.S. App. Lexis 2894 (1st Cir.).

Search and Seizure

   Police officials did not violate the Fourth Amendment rights of police officers by searching them after the residents of a home that they were searching accused them of stealing $1,750 in cash during the search. A reasonable person in the plaintiffs' position would not have feared arrest or detention if they had refused the defendants' request to search them for the money. The fact that one of the plaintiffs agreed to the search only because he was taking a nonprescription supplement to clean his colon and therefore had an immediate need to use the restroom and couldn't do so until he had been searched did not turn what occurred into a "seizure." Carter v. City of Milwaukee, #13-2187, (7th Cir.).

Sexual Harassment

     A female former employee of French national origin at a maximum security prison failed to show that the employer was liable for alleged sexual harassment or discrimination against her on the basis of gender and national origin. The employer apparently corrected all the behavior by co-workers that the plaintiff reported, and she failed to show that any similarly situated non-French non-female employees were subject to different treatment than the treatment she complained of. Claims of retaliation were also rejected. Chaib v. Indiana, #13-1680, 2014 U.S. App. Lexis 3417 (7th Cir.).

     A female former employee of a county sheriff's department claimed that while working at a jail she was subjected to offensive comments about her breasts, saw sexually offensive material on workplace computers, and frequently heard graphic sexual conversations. Her perception was that the male employees who engaged in this kind of conduct were not punished but instead were ultimately promoted, and that female employees who complained were given undesirable assignments and otherwise retaliated against. A federal appeals court found that there was a factual issue as to whether her immediate manager qualified as a supervisor on the basis for apparent authority, barring summary judgment under Title VII on his supervisory status. There was also a genuine issue of disputed fact as to whether the county's response to the plaintiff's sexual harassment complaints involved reasonable efforts to remedy the problem, establishing an affirmative defense. Federal civil rights claims against the county were rejected, however, as it was not shown to have been deliberately indifferent to the problem. Kramer v. Wasatch Co. Sheriff's Office, #12-4058, 2014 U.S. App. Lexis 3468 (10th Cir.).

Workers' Compensation

     A finding and award by a judge was properly rescinded by the Workers' Compensation Appeals Board when the agreed upon medical examiner issued findings that the police officer claimant's left foot condition--plantar fasciitis--was equivalent to a limp with arthritis, which resulted in a 7 percent whole person impairment for purposes of determining permanent disability. An appeals court rejected the arguments by the employer that a rating of impairment by analogy to a different condition is impermissible when (as here) no objective abnormalities are found and the rating is based solely on subjective complaints of pain. The city also argued that a “rating by analogy” is permissible only in complex or extraordinary cases, and that plantar fasciitis is neither. No error had been shown in the medical examiner's assessment. City of Sacramento v. WCAB, #C072944, 222 Cal. App. 4th 1360, 167 Cal. Rptr. 3d 1, 2013 Cal. App. Lexis 1078, 79 Cal. Comp. Cases 1. (Certified for publication 2014).

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     Hostage Negotiation: “Crisis” or “Hostage” Negotiation? The Distinction Between Two Important Terms, By Jeff Thompson, FBI Law Enforcement Bulletin (March 2014).

     Interrogation: Reading People: Behavioral Anomalies and Investigative Interviewing, By David Matsumoto, Lisa G. Skinner,, and Hyisung C. Hwang, FBI Law Enforcement Bulletin (March 2014).

     Police Licensing: Police Licensing and Revocation, by Thomas Jurkanin, Ph.D. Police Chief Magazine (Feb. 2014).

Reference:

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Dec. 15-17, 2014 – Orleans Hotel, Las Vegas

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