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Death Benefits

     A woman was married to a man for 40 years before his death. During the last six years of his life, he was a civilian federal employee, entitling his widow to Basic Employee Death Benefits under 5 U.S.C. Sec. 8442(b)(1)(A). She died, however, before signing or filing an application to receive those benefits. Her son, the co-administrator of her estate, completed, signed, and filed such an application on her behalf after her death. A federal appeals court upheld the denial of the application, finding that it had to be filed before her death. A representative may only file an application on behalf of a living person. Devlin v. Office of Pers. Mgmt., #14-3018, 2014 U.S. App. Lexis 17612 (Fed. Cir.).

First Amendment Related

     A corrections officer was fired from his employment with the county after he spoke to a news reporter about the arrest of a university football player without authorization from the sheriff. He argued that this violated his First Amendment right to free speech. Rejecting this claim, a federal appeals court found that the statements made were ordinarily within the scope of his duties, and did not merely concern those duties. He did not speak to the news reporter as a private citizen and therefore his speech was not protected against employer discipline under the First Amendment. Hurst v. Lee County, #13-60540, 2014 U.S. App. Lexis 16153, 38 I.E.R. Cas. (BNA) 1607 (5th Cir.).

     A deputy who worked at a county jail was vice president of an employee union. He claimed that a seven-day suspension that he received was retaliatory in violation of his First Amendment rights. He had told a captain and a sergeant that he believed that mandatory overtime imposed the previous day violated a collective bargaining agreement. While he was speaking about a matter of public concern in his capacity as the union vice president, and therefore as a citizen, he failed to show a causal connection between his comments and the suspension, which the employer said was for his having signed a deficient memo book. Graber v. Clarke, #13-2165, 763 F.3d 888 (7th Cir. 2014).

Handicap/Abilities Discrimination - Specific Disabilities - Other

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

     A police officer was fired because he had severe interpersonal problems with other officers. He claimed that these problems stemmed from his attention deficit hyperactivity disorder (ADHD) and that his firing constituted disability discrimination in violation of the Americans with Disabilities Act (ADA). Rejecting this claim, and overturning a jury verdict for the plaintiff, the appeals curt found that the record did not contain substantial evidence that the officer's ADHD substantially limited his ability to work, rendering him disabled, as he was in many ways a skilled police officer and there was testimony that he had developed compensatory mechanisms enabling him to succeed in his job. While his condition may have impaired hisw ability to get along with others that was not the same as a "substantial limitation" on that ability. No reasonable jury could find him disabled as defined in the ADA. Weaving v. City of Hillsboro, #12-35726, 763 F.3d 1106 (9th Cir. 2014).

Political Activity

     The collective bargaining organization representing Philadelphia police officers, the Fraternal Order of Police, operated a political action committee to distribute political contributions to candidates for state and local office. The union, the political action committee, and four officers sued to question the constitutionality of provisions of the city charter that barred employees of the police department from making contributions "for any political purpose. The provision only applied to police, and not to other city employees and was adopted in 1951 because of a history of patronage employment. The federal appeals court found that the ban was unconstitutional, reasoning that it may address valid concerns (such as police partiality and politicized personnel practices) but that the city did not explain how the ban addressed the feared harms in a direct and material way. There was a lack of fit between the city's stated purpose and the means chosen to promote it, and it was illogically under-inclusive. Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, #13-1516, 763 F.3d 358 (3rd Cir. 2014).

Race Discrimination

     The plaintiff, who was an African-American police detective, was suspended, along with two white police detectives, for allegedly falsifying time sheets. The plaintiff claimed that he was subjected to racial discrimination after all three detectives were reinstated. The appeals court found that, viewing the evidence in the light most favorable to the plaintiff, he stated a viable claim, since he alleged that, after he was reinstated, he suffered the equivalent of a demotion, while the white detectives did not. His employer allegedly rewrote and restricted his job description so much that he no longer functioned as a detective, but only as an assistant to the other detectives. Thompson v. City of Waco, TX, #13-50718, 2014 U.S. App. Lexis 17089, 124 Fair Empl. Prac. Cas. (BNA) 730 (5th Cir.).

Retaliatory Personnel Action

     A psychologist at an Illinois state prison claimed that he suffered retaliation in violation of the First Amendment after he was elected to his union's Executive Board and engaged in advocacy for union members, voicing employee concerns to management. Adverse actions allegedly included relocating his office, increasing his work load, denying his request for advance leave time, revising directives affecting his job duties without his input, removing him from a hostage crisis team, and making him meet with mentally ill inmates without a guard in the same room. He was, however, not fired, disciplined, or denied an employment opportunity. A federal appeals court upheld summary judgment for the defendants, ruling that because the plaintiff was acting as a union official, not as a public employee, when he made the statements that were at issue, and they were therefore not protected by the First Amendment. His complaints to management about the collective bargaining agreement and work conditions were merely employee grievances and he did not show that he addressed matters of public concern. Olendzki v. Rossi, #12-1340, 2014 U.S. App. Lexis 16866 (7th Cir.).

Sex Discrimination

     A county employee claimed that her employer discriminated against her on the basis of her sex and age when they fired her. The appeals court upheld the rejection of this claim, noting that the county had a legitimate, non-discriminatory reason for her termination--that she repeatedly made record keeping errors. The plaintiff failed to provide evidence adequate to raise a genuine issue of fact as to whether the county's reason was pretextual. Doucette v. Morrison County, Minnesota, #13-2424, 763 F.3d 978 (8th Cir.).

Whistleblowers

     An employee of the Texas Department of Human Services reported wrongdoing to his supervisor, who allegedly then disciplined him for doing so. He then reported the wrongdoing he claimed to have witnessed to his supervisor's supervisor, and subsequently to the lead program manager, after which he was fired. He sued his former employer under a state Whistleblower statute. The Supreme Court of Texas rejected the claim, holding that the plaintiff had not reported the alleged misconduct to appropriate law enforcement authorities (in this case the state's Office of Inspector General) as required for coverage under the statute. The court overturned a finding by an intermediate appeals court that the supervisors constituted appropriate law enforcement authorities. Additionally, the plaintiff, under the circumstances, could not have believed in good faith that he had done what was required for protection under the statute. Tex. Dep’t of Human Servs. v. Okoli, #10-0567, 2014 Tex. Lexis 685, 57 Tex. Sup. Ct. J. 1214

     A state statute protected a whistleblowing sheriff's deputy against retaliation even if he was not the first employee to report another deputy for alleged multiple unlawful acts, including a murder, a cover-up, and involvement in methamphetamine transactions. Additionally, substantial evidence supported a verdict that terminating the deputy for falsely reporting wiretapped conversations was a pretext. But the appeals court ruled that substantial evidence did not support the award of $2,006,015 in lost actual earnings, but upheld an award of $2,500,000 in non-economic damages. Hager v. County of Los Angeles, #B238277, 228 Cal. App. 4th 1538, 2014 Cal. App. Lexis 758, 38 I.E.R. Cas. (BNA) 1669.

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       Prison Rape and Sexual Abuse: Anti-Fraternization Policies and their Utility in Preventing Staff Sexual Abuse in Custody, by Brenda V. Smith and Melissa C. Loomis, Project on Addressing Prison Rape, American University, Washington College of Law (May 1, 2013).

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