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Attorneys' Fees

     Claims for wrongful termination and defamation filed by five former part-time and seasonal village police officers against the county defendants, who did not employ or supervise them, were frivolous from the beginning, requiring the county defendants to litigate continuously at taxpayer expense for years. Accordingly, the trial court's award of $63,990 in attorneys' fees and costs to the prevailing county defendants was within its discretion. Carter v. Incorporated Village of Ocean Beach, #13-815, 2014 U.S. App. Lexis 13865 (2nd Cir.).

Disciplinary Punishment -- In General

     Under a state public employee disability law, a village police officer received 100% of his salary from the date of his fall on ice which resulted in an injured arm and fractured knee. He also received two thirds of his regular income from the employer's workers compensation carrier, despite the fact that the village's normal practice was to keep such workers' comp checks from the insurance company. Since the officer provided an innocent explanation for his actions and was found not to have committed a theft, an appeals court declined to overturn an arbitrator's ruling that the officer's termination was not for just cause, so he should be reinstated with an award of lost wages and benefits. Village of Posen, Illinois v. Illinois Fraternal Order of Police Labor Council, 2014 IL App (1st) 133329, 2014 Ill. App. Lexis 573.

Family, Medical & Personal Leave

     A former employee of the Michigan Department of Corrections sued the warden of the facility at which he worked, claiming that he was harassed, intimidated, retaliated against, and finally fired, all because he took leave under the self-care provision of the Family Medical Leave Act. The remedy sought was reinstatement. That claim, the court held, was untimely under the two year statute of limitations in the Act. While there was an extended three year statute of limitations in the Act for willful violations, the plaintiff's complaint was devoid of any assertion of willfulness. Crugher v. Prelesnik, #13-2425, 2014 U.S. App. Lexis 14767, 2014 Fed. App. 169P (6th Cir.).

Handicap/ Abilities Discrimination -- Medical Exams

     The U.S. Marshals Service was sued by former officers who had been medically disqualified from becoming federal court security officers. An appeals court rejected due process claims, finding that the plaintiffs had no right to an oral hearing where they were afforded an opportunity ro submit more medical information in response to the concerns of the doctor making the final decision. Claims of disability discrimination under the Rehabilitation Act were barred for plaintiffs who failed to exhaust their available administrative remedies. The trial court, however, abused its discretion in denying leave to include the claims of twelve additional new plaintiffs in an amended complaint. Barkley v. United States Marshals, #12-5306, 2014 U.S. App. Lexis 17191 (D.C. Cir.).

Moonlighting

     An intermediate Illinois appeals court upheld the decisions of a Sheriff's Merit Board terminating or suspending seven correctional officers for prohibited moonlighting. They each had engaged in unauthorized work as security guards in businesses engaged in the sale of alcohol. These actions violated departmental general orders and regulations and the plaintiffs failed to seek permission through submitting a request form. Further, one made false statements and another violated a rule requiring him to report, within a year, an accusation that he had assaulted a business patron and stolen from him. The court reduced penalties against two officers, however, as disproportionate. Roman v. Cook County Sheriff's Merit Board, #1-12-3308, 2014 IL App (1st) 123308, 2014 Ill. App. Lexis 554.

Privacy Rights

    A court order requiring a police department to allow prosecutors access to officer personnel files to look for possible exculpatory Brady materials was challenged. The court found that this did not constitute a breach of confidentiality as the prosecutor had a duty to identify and disclose material evidence favorable to the defense. Disclosure of the material in such files to the defense, however, required the prosecutor to first seek a court order authorizing the disclosure. People v. Superior Court (Johnson), #A10768, 228 Cal. App. 4th 1046, 2014 Cal. App. Lexis 722.

Religious Discrimination

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

     A Jewish police officer was awarded $540,000 in damages against a now retired supervising sergeant who he said taunted him for years with anti-Semitic and racist remarks, calling him a "bloodsucking parasite," a "Fucking Jew boy," and similar epithets. The sergeant would allegedly greet him with a Nazi salute, and several times showed a swastika logo to the plaintiff, a German Jew who lost relatives in the Holocaust during World War II. The City of Chicago was previously dismissed from the lawsuit, so the award is only against the retired sergeant. Sommerfield v. City of Chicago, #1:08-cv-03025, U.S. Dist. Ct. (N.D. Ill. July 28, 2014).

Retaliatory Personnel Action

     White employees of a sheriff's department stated that they had shaved their heads as a sign of solidarity with a coworker who lost his hair after chemotherapy for cancer. The department, however, then launched an investigation into claims that the plaintiffs were white supremacist skinheads. They filed complaints of racial harassment to the EEOC. They sued the Department, claiming unlawful retaliation against them for their racial harassment complaints and threats to charge them with making a false report to the EEOC. While this made out a prima facie case of retaliation, the retaliation claims were properly dismissed. The Department showed a non-retaliatory purpose for the threats as the plaintiffs provided very inconsistent accounts concerning a black deputy's alleged harassing conduct of labeling them skinheads, and the plaintiffs failed to show that this was just a pretext for retaliation. Cox v. Onondaga Cnty. Sheriff's Dep't., #12-1526, 2014 U.S. App. Lexis 13962, 98 Empl. Prac. Dec. (CCH) P45120, 123 Fair Empl. Prac. Cas. (BNA) 1185 (2nd Cir.).

Sexual Discrimination - Correctional Facilities

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

     An investigator looking for breaches of security at a maximum security prison found out that employees on the night shift were having sex on the desk of a female substance abuse counselor who worked there. He told her that he wasn't concerned about this happening, but that she should consider washing her desk each morning. The superintendant subsequently stated that he also was not concerned about the sex, as long as prisoners were not involved. Soon after, the substance abuse counselor and the Major in charge of custody were both fired when the superintendant learned that they were having an affair and allegedly having sex on his desk. The Major appealed his termination and received a settlement allowing him to keep his benefits and pension, to soon get unemployment benefits and to keep working at the prison as a contractor. He was called to testify against the counselor at her appeal, and she was not given similar opportunities and benefits. A federal appeals court found that her lawsuit stated viable claims for sex discrimination, and a hostile work environment, but upheld a trial court ruling that she failed to present sufficient evidence of unlawful retaliation to overcome summary judgment. The appeals court rejected the trial court's finding that the sexual tenor of the work environment at the facility was not pervasive or severe enough to be hostile, as there was evidence of a constant stream of sexually charged comments and her complaints about it were ignored. Orton-Bell v. State of Indiana, #13-1235, 2014 U.S. App. Lexis 13993, 123 Fair Empl. Prac. Cas. (BNA) 1200 (7th Cir.).

Survivors

     Surviving family members of eight firefighters who died in 2003 were denied survivors' benefits under the Public Safety Officers’ Benefits Act, 42 U.S.C. 3796. The firefighters had not been public safety officers within the meaning of the Act, as they were employed by a private company that worked as an independent contractor supplying firefighters to the state and government agencies for a fee. Under the Act, a public safety officer is defined as "an individual serving a public agency in an official capacity. Accordingly, no survivor benefits were available to the families under the Act. Moore v. Dep't of Justice, #13-8001, 2014 U.S. App. Lexis 14149 (Fed. Cir.).

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     Criminal Investigation: Criminal Investigative Analysis: Measuring Success (Part Three of Four), by J. Amber Scherer and John P. Jarvis, FBI Law Enforcement Bulletin (August 2014).

Criminal Investigation: Criminal Investigative Analysis: Applications for the Courts (Part Four of Four), J. Amber Scherer and John P. Jarvis, FBI Law Enforcement Bulletin (September 2014).

      Veteran's Rights: MSPB's Office of Policy and Evaluation has released a new report, "Veteran Hiring in the Civil Service: Practices and Perceptions".

Reference:

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AELE Seminars:

Lethal and Less Lethal Force
Oct. 13-15, 2014 – Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2014 – Orleans Hotel, Las Vegas

Jail and Prisoner Legal Issues
Jan. 12-15, 2015 -- Orleans Hotel, Las Vegas

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