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Age Discrimination

    A detective for a county prosecutor's office claimed that his termination was part of the agency's "well-known and established practice to push out older workers through termination or forced resignation." He unsuccessfully pursued an internal grievance and received a right to sue letter on his claims for age discrimination under the Age Discrimination in Employment Act (ADEA). He sued for that, as well as for violation of equal protection under 42 U.S.C. Sec. 1983. ADEA claims against the county were properly dismissed as the plaintiff had not named the county as a defendant on the EEOC intake questionnaire, and had not identified it as a defendant on the age discrimination claim until after the deadline for doing so had passed. ADEA claims against the district attorneys' office, however, were improperly dismissed as he had properly named it as a defendant in a timely fashion before the EEOC and adequately pleaded that he had exhausted available administrative remedies. Age discrimination claims may not be brought by a state or local government employee under Sec. 1983, but may only do so under the ADEA. Hildebrand v. Allegheny Cnty, #13-1321, 2014 U.S. App. Lexis 12136 (3rd Cir.).

First Amendment Related

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

     An ex-employee of a community college who directed a program for underprivileged youth there learned that a state representative also employed by the program had not been reporting for work, so he fired her, and later testified under subpoena in two federal prosecutions against the representative for mail fraud and theft in a program receiving federal funds. The community college president later terminated the director, citing budget shortfalls. The director claimed, however, that it was because of his testimony. A federal appeals court ruled that the testimony was not protected by the First Amendment because he was a public employee and did not speak as a citizen while testifying. The appeals court also found that the community college president was entitled to qualified immunity.

     The U.S. Supreme Court reversed, unanimously finding that the testimony given was protected by the First Amendment, while agreeing that the community college president was entitled to qualified immunity in his individual capacity, as the law on the subject had not been clearly established, so he reasonably could have believed that a government employer could fire an employee because of testimony given outside the scope of his ordinary job responsibilities. He was entitled to Eleventh Amendment immunity in his official capacity. Further proceedings were ordered to determine if the community college president's successor could be ordered to reinstate the plaintiff. The sworn testimony was outside the scope of the plaintiff's ordinary job duties and constituted speech as a citizen on corruption in a public program, a matter of public concern. There was no indication, further, that the testimony was false and erroneous. Lane v. Franks, #13-483 189 L. Ed. 2d 312, 2014 U.S. Lexis 4302.

     A deputy sheriff ran for election as sheriff, but was defeated by the incumbent. The day after the election, the deputy was fired, and he asserted a claim for First Amendment retaliation. The sheriff was entitled to qualified immunity for the firing, as at least some of the deputy's campaign speech did not have First Amendment protection. The sheriff could have reasonably believed that some of the deputy's statements could be potentially damaging to and disruptive in relation to co-workers' harmony and discipline. He also could have reasonably believed that the decision to fire the deputy was within the "breathing room" he had as a public official to make reasonable choices, even if they are mistaken. Nord v. Walsh County, #12-3249, 2014 U.S. App. Lexis 12019 (8th Cir.).

 Pensions

     A retired Chicago police officer who served as the supervisor of the department's violent crimes unit was granted pension benefits in 1997. A later federal civil rights lawsuit claimed that officers under his command had engaged in torture and abuse of criminal suspects. He denied, under oath, having any knowledge of, or participation in torturing or abusing suspects in custody. He was later convicted of federal charges of perjury and obstruction of justice for this testimony, and given a sentence of four and a half years in prison. He was not indicted for conduct that occurred while he was serving in the police department. He argued that his pension benefits should continue, as a statute provided only that no benefits be paid following a felony conviction for conduct relating to or arising out of or in connection with his service as a policeman. His conviction, he asserted, was solely for the giving of false testimony in a civil lawsuit filed years after his retirement. The Illinois Supreme Court reversed a decision of an intermediate appeals court ending his benefits, ruling that the issue of whether to terminate such pension benefits was within the exclusive, original jurisdiction of the Retirement Board of Policemen's Annuity and Benefit Fund of Chicago, which had declined to do so. People ex rel. Madigan v. Burge, #115635, 2014 IL 115635, 2014 Ill. Lexis 846.

     Members of the New York City police and fire departments appointed on July 1, 2009 or after that date are classified as "tier three" members of the applicable pension funds. Some tier three employees challenged the city's deduction from their gross wages of three percent as mandatory employee pension contributions, arguing that the deductions were unlawful under a state statute requiring a public employer to pay an employee's statutorily required pension contribution. The highest court in New York rejected this argument, finding that the statute in question only covered temporary programs that had been in place as of 1974 for tier one or tier two public employee retirement system members. Lynch v. City of New York, #119, 2014 N.Y. Lexis 1489, 2014 NY Slip Op 4873.

Retaliatory Personnel Actions

    Two employees of a county Emergency Services Department, who were members of a firefighters' union local, argued that they had been subjected to retaliatory fitness-for-duty examinations as a result of their prior grievances and charges against the county. A Jury agreed, but the trial court found that insufficient evidence supported the jury's verdict. The appeals court reversed, reinstating the jury verdict, ruling that the jury was permitted, under the evidence submitted, to find that an intent to retaliate was a "but-for" case of the county's actions. Booth v. Pasco Cty., FL, #12-4194, 2014 U.S. App. Lexis 12838 (11th Cir.).

Retirement Benefits

     Statutory standards for the state of Illinois' contributions to health insurance premiums for members of three of the state's employee retirement systems were constitutionally protected by a pension protection clause of the state Constitution. The Illinois Supreme Court rejected the argument that this protection only applied to retirement annuities while not applying to health insurance. Kanerva v. Weems, #115811, 2014 IL 115811, 2014 Ill. Lexis 847.

     Amendments to Maine statutes that had the effect of reducing cost-of-living adjustments (COLAs) to retired state employees' benefits did not violate either the Contract Clause or the Takings Clause of the U.S. Constitution. There was no unmistakable intent by the state of Maine to be contractually bound to the prior COLA scheme and an existing statutory commitment barring reduction of enumerated benefits did not apply to COLAs. ME. Ass’n of Retirees v. Bd. of Trustees, #13-1933, 2014 U.S. App. Lexis 12164 (1st Cir.).

Sex Discrimination

     A county was not entitled to summary judgment on male deputies' federal and state sex discrimination challenge to a policy barring them from supervising female inmates in jails. The county failed to show that there was no genuine issue of material fact as to whether it was entitled to a "bona fide occupational qualification" (BFOQ) defense to the sex discrimination claim. The BFOQ defense could not be established merely by deferring to the sheriff's judgment. There were also factual issues as to whether the sheriff arrived at the policy by engaging in a reasoned decision-making policy, as well as whether the policy legitimately furthered important underlying interests, such as protecting the safety of female inmates. Ambat v. City & Cnty. of San Francisco, #11-16746, 2014 U.S. App. Lexis 12512 (9th Cir.).

Workers Compensation: Claim Validity

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

     Under California law, a county jail correctional sergeant's off-duty injury, suffered while doing jumping jacks in his home as part of his regular exercise program, arose in the course of his employment. This was the case because a department order required him and others in similar jobs to "maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer," and he was required to periodically engage in training exercises involving physical activity. He and other employees were not given an opportunity to engage in a fitness regime during working hours. The claimant's belief that he was expected to engage in off-duty exercise to retain his physical fitness was objectively reasonable, given these facts. Young v. WCAB, #C075047, 2014 Cal. App. Lexis 562.

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     Body Armor: Body Armor for Law Enforcement Officers, by Nathan James (Congressional Research Service, May 2014).

      Criminal Investigation: Criminal Investigative Analysis: Practitioner Perspectives (Part One of Four), by J. Amber Scherer and John P. Jarvis, FBI Law Enforcement Bulletin (June 2014).

      Criminal Investigation: Criminal Investigative Analysis: Skills, Expertise, and Training (Part Two of Four), J. Amber Scherer and John P. Jarvis, FBI Law Enforcement Bulletin (July 2014).

     Officer Safety: Officer Survival Spotlight: Accidental Deaths Among Law Enforcement Officers, by Philip D. Wright, FBI Law Enforcement Bulletin (June 2014).

Reference:

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

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