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Collective Bargaining - Duty to Bargain

    A county had the right to reduce the work schedules for an unspecified number of correctional peace officers. The reserved management rights in a memorandum of understanding (MOU) contemplated that this could be done so long as the county first met and conferred with the union about the implementation of the plan. Accordingly, since the county had complied with that obligation, the union was not entitled to a writ of mandate challenging the decision to reduce hours for the officers for budgetary reasons. Santa Clara County Correctional Peace Officers' Association v. County of Santa Clara, #H037418, 224 Cal. App. 4th 1016, 2014 Cal. App. Lexis 245.

Firearms - Restrictions on Wearing

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

     The U.S. Supreme Court has ruled that a man's prior conviction for "intentionally or knowingly causing bodily injury to" his child's mother qualified as a misdemeanor crime of domestic violence for purposes of 18 U.S.C. Sec. 922(g)(9), which forbids anyone convicted of such crimes from possessing firearms. The requirement of physical force can be satisfied by the "offensive touching" degree of force that supports a common-law battery conviction. The effect of the ruling will be to expand the types of convictions that will be classified as misdemeanor crimes of domestic violence barring those convicted of firearms possession. United States v. Castleman, #12-1371, 188 L. Ed. 2d 426, 2014 U.S. Lexis 2220, 82 U.S.L.W. 4207.

F.L.S.A. - 7K Exemption

     City employees assigned to duties as fire department dispatchers or aeromedical technicians claimed that the employer violated the Fair Labor Standards Act by providing them compensation as "fire protection" employees under Sec. 207(k). A federal appeals court ruled that neither the dispatcher nor the aeromedical technicians were engaged in fire suppression, and accordingly, they should not have been denied standard overtime pay. Sec. 207(k) did not apply to them. Liquidated damages and a third year of withheld overtime pay, rather than the standard two, were proper when the city acted in willful violation of the law. Haro v. City of Los Angeles, #12-55062, 2014 U.S. App. Lexis 5094 (9th Cir.).

Handicap Laws/Abilities Discrimination - Accommodation – in General

     A city hospital employer was improperly granted summary judgment on a terminated disabled employee's state law and city law disability discrimination claims. The employer failed to show that it responded to his request for a particular accommodation for his pneumoconiosis, an occupational lung disease, by engaging in a good faith interactive process regarding the feasibility of that accommodation before firing him. Jacobsen v. New York City Health & Hosps. Corp., #34, 2014 N.Y. Lexis 570, 2014 NY Slip Op 2098.

Marital Status Discrimination

     A federal employee of the U.S. Office of Personnel Management (OPM) who worked as a criminal investigator appealed his termination to the Merit Systems Protection Board (MSPB), claiming that his firing constituted marital status discrimination. He agreed to withdraw that claim when the employer agreed to pay him a $50,000 settlement. Part of the settlement agreement provided that the OPM's director of human resources would be the contact for reference inquiries and only disclose the dates of his service, with a termination letter to be removed from his personnel file and both parties barred from disclosing the grievance of the settlement agreement. He later took a job with a private firm that contracts with federal agencies to carry out background investigations. He was suspended from the job without pay, however, when OPM employees, allegedly at the direction of the OPM's security office, discussed his termination with the employer. The OPM's director of human resources was not involved in that discussion.

     A MSPB ALJ found that the OPM had materially breached the settlement agreement, but found that the MSPB lacked jurisdiction to award damages for breach, so the only remedy available there would be to rescind the agreement and reinstate the initial appeal of the termination, along with the employee returning the $50,000 settlement amount. He did not want to accept that course of action, so the ALJ dismissed his enforcement action. A federal appeals court ruled that the employee was not barred from filing a breach of contract lawsuit for damages in the U.S. Court of Claims, since a damages remedy had not been available before the MSPB. Cunningham v. United States, #13-5055, 2014 U.S. App. Lexis 6493 (Fed. Cir.).

National Security Issues and Security Clearances

     A man employed by the Navy for 29 years was required to maintain a top secret security clearance for his job as the Security Manager for the Naval Facilities Engineering Service Center. After a duty officer found an outer vault door of the Secret Internet Protocol Router Network room left open, an investigation was conducted, and it was recommended that all security personnel at the center have their access to classified material suspended because of various problems. The plaintiff's security clearance was suspended pending a final determination. He was eventually returned to duty status, assigned to a sensitive position, and found eligible for a Top Secret security clearance. The Navy did not give him back pay for the nine months of his suspension, or treat him as having been employed for purposes of the calculation of retirement benefits. He claimed that his suspension had been motivated by retaliatory animus for his past participation in an EEOC proceeding. A federal appeals court ruled that the employee was not entitled to back pay and that neither the Merit Systems Protection Board nor the court could review the merits of a security clearance revocation or suspension. Biggers v. Dep't of the Navy, #13-3059, 2014 U.S. App. Lexis 5304 (Fed. Cir.).

Race Discrimination - In General

     An African-American male who worked as a public safety officer for a city for 23 years claimed that he was subjected to heightened scrutiny, selectively enforced policies, and harassment and discrimination by various individuals which the employer was complicit in, all on the basis of either his race or his complaints about discrimination. He pointed to a performance evaluation downgrade, denials of a request to attend outside training, and tampering with an "Obama screensaver" on his computer. After he filed two EEOC charges, he was involved in a conflict with other officers at an event at which President Obama was present. After information about the incident appeared in the press, he resigned, but claimed that he was constructively discharged. A federal appeals court found that he failed to show that he had been constructively discharged, defeating his race discrimination claim. It also ruled, however, as to his Title VII retaliation claim, that the requirement that he show a "materially adverse action" for retaliation was substantially different than the "adverse employment action" element in a Title VII race discrimination claim, so the fact that he could not show that he was constructively discharged did not dispose of his retaliation claim, given the presence of evidence of other adverse employment actions. For retaliation, he only needed to show that an action might have dissuaded a reasonable employee from asserting or supporting a discrimination charge. The appeals court rejected a First Amendment retaliation claim, since there was no evidence that he had complained about a purported illegal activity. Laster v. City of Kalamazoo, #13-1640,2014 U.S. App. Lexis 4700, 2014 Fed App. 48P(6th Cir.).

Sex Discrimination - In General

     A federal trial court improperly dismissed a woman's gender discrimination claim against a municipality for refusal to hire her as a firefighter. It was reasonable to infer that the employer declined to hire her seven times, despite the fact that she was the most qualified candidate, because she was a woman, and only subsequently hired her after an adverse EEOC determination on her sex discrimination claim. The trial court also erroneously found the plaintiff's post-hiring retaliation claims implausible solely on the basis of a five month time period between the protected conduct and the adverse employment event. Garayalde-Rijos v. Municipality of Carolina, #13-1487, 2014 U.S. App. Lexis 5798 (1st Cir.).

Sexual Harassment - In General

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

     A female former police officer received a jury award of $300,000 in compensatory damages and $7.2 million in punitive damages from a city Board of Police Commissioners on an unlawful retaliation claim. She had asserted that a male sergeant, who had been her supervisor, sexually harassed her by creating a mock "Wanted" poster displaying her picture and making comments about her body. She also said that, despite the fact that she was married and his subordinate, he had asked her to skinny-dip in his hot tub and to sit on his lap. The jury returned a verdict for the defendant municipality on the sexual harassment claim, but awarded damages on the claim that the officer faced retaliation after she complained about her supervisor's alleged conduct. She claimed that, after she complained, a Lieutenant started assigning her to unfavorable shifts, evaluating her less favorably in performance reviews, and denying requests off for training that others were allowed to attend, Ross-Paige v. St Louis Board of Police Commissioners, St. Louis Circuit Court (March 21, 2014).

Sexual Harassment - Same Gender

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

    A heterosexual man who was a city employee asserted a valid claim for same-gender sexual harassment under California law against a male supervisor who allegedly made numerous gifts and frequent lunch purchases for him, along with making sexual jokes and displays of pornographic computer images over a period of several months. Summary judgment was properly granted, however, on similar claims against a second male supervisor. While he had displayed pornographic computer images to a group of employees, there was no allegation that he in any way tried to pursue a romantic or sexual relationship with the plaintiff, that he made any sexual proposals, either explicit or implicit, towards him, or that he acted out of any sexual interest in the plaintiff. Judgment for the defendant city on sexual harassment and unlawful retaliation claims were reversed. The trial court should not have excluded the plaintiff's testimony about explicit sexual images that he saw on a supervisor's computer, as it was relevant to whether the employee later suffered adverse employment actions in retaliation for engaging in the protected activity of complaining about those images. Lewis v. City of Benicia, #A134078, 2014 Cal. App. Lexis 282.

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     Statistics: Crime Against Persons with Disabilities, 2009-2012 - Statistical Tables, by Erika Harrell. Bureau of Justice Statistics (February 25, 2014) NCJ 244525.

      Training: Officer Survival Spotlight. By the Numbers: Turning LEOKA Data into Training Opportunities, FBI Law Enforcement Bulletin (April 2014).

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