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Collective Bargaining - Duty to Bargain

     A state Employment Relations Board made a determination that a town had violated a provision of the New York Civil Service Law when it unilaterally ended the practice of assigning town-owned vehicles to certain employees on a permanent basis to drive to and from work. The highest court in New York found that the determination was supported by substantial evidence and reasonably applied applicable precedent, but that the Board's remedial order was unreasonable in requiring the town to restore the vehicle assignments to the employees affected by the change. The section of the law at issue made it an improper practice for a public employer to refuse to negotiate in good faith with the bargaining agent for its employees, and many of the employees who lost "take home" vehicles belonged to blue- or white-collar collective bargaining units. The case was remanded for the fashioning of a proper remedial order. Town of Islip v. New York State Public Employment Relations Board, #95, 2014 N.Y. Lexis 1300, 2014 NY Slip Op 4043.

Disciplinary Punishment - In General

     An arbitrator reinstated an Alaska state trooper who was fired for having consensual sex with a domestic violence victim hours after participating in the arrest of her husband. The Alaska Supreme Court, by a 3-2 vote, declined to vacate the reinstatement under a public policy exception to the enforcement of arbitration rulings. It noted that the decision did not violate any explicit well-defined public policy as there was no statute, regulation, or written policy barring progressive discipline. The arbitrator analyzed whether the misconduct in question was egregious under the relevant collective bargaining agreement and past State disciplinary practice involving sexual misconduct. As that disparate treatment analysis was not "grossly erroneous," the arbitrator did not make a gross error in finding no just cause for the firing. There was no "zero-tolerance" policy in Alaska on off-duty sex with a crime victim, so the court deferred to the conclusion that there should be discipline but not termination. The court's majority did say that they would have most likely concluded that there was just cause foe the firing if they were deciding the issue instead of the arbitrator. State of Alaska v. Public Safety Employees Assn., #S–14701, 323 P3d 670 (Alaska 2014).

     A police captain sued challenging his punishment for objecting to an order requiring that he either himself attend a law-enforcement appreciation event hosted by a local Islamic Society or else order subordinates to do so. He claimed that the order violated the First Amendment's establishment of religion clause as well as impairing the free exercise of religion and freedom of association. A federal appeals court upheld summary judgment for the defendants. The plaintiff's own religious freedom rights were not burdened as he was not required to violate his personal religious beliefs by necessarily himself attending the event. Further, there was no establishment of religion because "no informed, reasonable observer would have perceived the order or the event as a government endorsement of Islam;" There was no violation of his right to freedom of association as there was no interference with his freedom to determine what organizations he wished to become a member of. The appeals court found that an equal protection challenge was duplicative of the free exercise of religion claim and also failed. Fields v. City of Tulsa, #12-5218, 2014 U.S. App. Lexis 9521 (10th Cir.).

Family, Medical, and Personal Leave

     A defendant city was not entitled to judgment as a matter of law on a Family Medical Leave Act retaliation claim. A reasonable juror could find that the plaintiff, a former employee, was able to perform the essential functions of a position that he interviewed for, since his doctor had released him to perform work, and that there was sufficient evidence to support an inference that the city had a retaliatory motive in not granting him that job. He was the most qualified applicant and a supervisor said that it would be a mistake to hire him because of his past Family Medical Leave Act leave following surgery. A state law disability discrimination claim was rejected as there was no proof that the city knew about his allegedly disabling condition when he sought to be rehired. The appeals court upheld the vacating of a jury award for emotional distress damages as unsupported by the evidence and overturned the trial court's denial of liquidated damages since the city provided no evidence to support the trial court's finding that it refused to rehire the plaintiff in good faith. Jackson v. City of Hot Springs, #13-1772, 2014 U.S. App. Lexis 8810 (8th Cir.).

Injuries to Applicants, Trainees, Participants & Observers

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

     The Washington State Patrol appealed a trial court's denial of its motion for summary judgment in a lawsuit brought by a trooper for alleged deliberately intentional infliction of "certain injury" from being shot with a Taser in the dart mode during training. An intermediate state appeals court, finding that the plaintiff had presented a genuine issue of material fact on his claim that the defendant intentionally inflicted "certain injury," upheld the denial of summary judgment and remanded the case for trial. The Taser exposure caused the plaintiff instant temporary pain, discomfort, trouble breathing, and incapacitation. He was later diagnosed with a fracture in his vertebrae and a "bulged disc."

     The court said that the description, by the person responsible for developing the training program, of the Taser's "most typical effect's, together with the Taser manufacturer's warning that Taser probes cause "wounds," were sufficient evidence of "certain injury" to create a material issue of fact as to that claim allowing a lawsuit despite the providing of workers' compensation benefits. Under state law, workers' compensation immunity from an injury lawsuit does not apply if an employer knows of and willfully disregarded certain injury. This exception does not depend, the court ruled, on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this "certain injury." Whether the defendant willfully disregarded that injury would occur was a question of fact for the factfinder. Taken in the light most favorable to the plaintiff, the evidence submitted could be interpreted as showing that the employer knew that the mandatory Taser training would certainly cause the injuries of the probes inflicting wounds and the exposure to an electrical current, yet disregarded this by still requiring the training. Michelbrink v. Wash. State Patrol, #44035-1-II, 2014 Wash. App. Lexis 973.

Pensions

     An intermediate Illinois appeals court ruled that the estate of a deceased former recipient of an Illinois Pension Code annuity for firefighters could not bring a lawsuit against the Retirement Board of the Fireman's Annuity & Benefit Fund of Chicago for the benefit of the estate's heirs. Any right that the deceased former recipient of the annuity had to receive a retroactive salary increase under the terms of a collective bargaining agreement ended with her death. Hooker v. Retirement Board of the Fireman's Annuity & Benefit Fund, 2014 IL App (1st) 131568, 2014 Ill. App. Lexis 344.

Racial Discrimination

     A forest preserve employee was fired after he was recorded by a security camera having sex with a co-worker in the office of an Aquatic Center where he worked. Almost two and a half years later, he sued under both 42 U.S.C. Sec. 1983 and 1981, claiming that he was fired rather than being given due process through progressive discipline, fired because of his race in violation of equal protection, and racially discriminated against in making and enforcing contracts. He conceded during proceedings that his Sec. 1983 claims were time barred by the applicable statute of limitations. The trial court dismissed the Sec. 1981 racial discrimination in making and enforcing contracts claim, which had a four year rather than two year statute of limitations, finding that Sec. 1983 provided the exclusive remedy for violations of Sec. 1981 carried out by state actors. A federal appeals court upheld this result. Campbell v. Forest Pres. Dist. of Cook Cnty., #13-3147, 2014 U.S. App. Lexis 9169 (7th Cir.).

Religious Discrimination

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

     An employee of the Department of Homeland Security claimed that he was passed over for a position as a deportation officer because of his Muslim religion, African-American race, and/or his Arabic national origin. A federal appeals court vacated summary judgment for the employer, finding that the plaintiff presented sufficient evidence that he had been subjected to discrimination to present a question of fact for a jury. The evidence indicated that his language skills, long job tenure, and exemplary record made him more qualified than other applicants selected for the position. Further, there was evidence of past hiring and promotions which excluded minorities, including the selection of three white males for the positions, from which discriminatory animus in the selection process could be inferred. Ahmed v. Napolitano, #13-1054, 2014 U.S. App. Lexis 9454 (1sr Cir.).

Retaliatory Personnel Action

     When the record showed that a former jail guard had unsuccessfully contested her termination in three prior federal lawsuits (as well as two state lawsuits), she was properly barred from pursuing her current claim that she was fired in retaliation for having supported her co-worker's sexual harassment claim. She was fired after she was investigated for smuggling drugs and contraband to prisoners and was arrested for shoplifting. The fact that her current lawsuit made additional race and sex discrimination claims not previously raised did not avoid the application of the principles of preclusion or res judicata, requiring all legal theories arising from the same event to be brought in a single lawsuit. The appeals court further noted that the immediate lawsuit was brought approximately a decade after the expiration of the applicable statute of limitations. The present lawsuit was deemed frivolous. Averhart v. Sheriff of Cook County, Ill., #13-2949, 2014 U.S. App. Lexis 9874 (7th Cir.).

Workers Compensation

     The dependents of a correctional officer killed in a car accident while driving home from work were properly denied workers' compensation benefits. The Workers Compensation Appeals Board properly found that the officer's hold-over shift as watch commander performed after his regular shift did not qualify as extraordinary under the "going and coming " rule and its "special mission" exception. The work could reasonably be found to be routine when it was carried out at the usual location, did not necessitate an extra trip, and was not necessarily more demanding than the employee's usual work. The Board's determination constituted a finding of fact and was supported by substantial evidence. Lantz v. WCAB, #F065934, 2014 Cal. App. Lexis 431.

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