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Age Discrimination

     When the police chief announced his retirement, the plaintiff, who sought the job, was 51, one year past being retirement eligible, While he had the highest service score of the finalists, and an unprecedented perfect 100 score from each commissioner, he was not selected, an another candidate who had the same 143 point score total as the plaintiff, but was 43 years old, was hired as chief instead. One commissioner said that retirement eligibility "might have been a factor." A federal appeals court found that issues of material fact on the plaintiff's age discrimination claim precluded summary judgment for the city. Hilde v. City of Eveleth, #14-1016, 2015 U.S. App. Lexis 1802 (8th Cir.).

Disciplinary Punishment

     A deputy was demoted as a result of having allegedly used excessive force during an incident. Sheriff's deputies had bargained for and obtained an impartial review process set forth in a memorandum of understanding. The hearing officer upheld the demotion as punishment. The hearing officer was required under the memorandum of understanding to exercise independent judgment both on whether there were grounds for discipline and also on the nature of the discipline to be imposed. Overturning a trial court ruling that the hearing officer had not exercised independent judgment on the nature of the discipline to be imposed, an intermediate California appeals court found that any failure by the hearing officer to exercise independent judgment in deciding not to reduce the demotion to a suspension was not prejudicial as the hearing officer in response to this being questioned indicated that independent judgment would not have changed the outcome in this case. Quintanar v. Co. of Riverside, #E058232, 230 Cal. App. 4th 1226, 179 Cal. Rptr. 3d 82, 2014 Cal. App. Lexis 972.

First Amendment Related

     A police sergeant claimed that her termination was retaliation for critical comments against the police chief that she made on her Facebook page. A federal appeals court rejected her First Amendment claim. While the statements she made were not within the ordinary scope of her duty, so that she was speaking as a private citizen, her comments were not on a matter of public concern, but rather primarily involved her displeasure with the chief's intra-departmental decisions that impacted her personally. Further, even if they had involved matters of public concern, the department's substantial interests in preventing insubordination and maintaining discipline and close working relationships outweighed her minimal interest in making the statements. Graziosi v. City of Greenville, #13-60900, 2015 U.S. App. Lexis 370 (5th Cir.).

Handicap/Abilities Discrimination -- Accommodation in General

     A former deputy sheriff claimed that she suffered disability discrimination when her request for temporary light duty as an accommodation because of an on-the-job knee injury was denied, and she was instead eventually fired. She claimed that this was a request routinely granted to other deputies injured on the job. A federal appeals court held that the defendant sheriff had Eleventh Amendment immunity in his official capacity against the plaintiff's claims under Sec. 1983 and the Americans with Disabilities Act (ADA). Those claims were therefore ordered dismissed. Georgia sheriffs are an arm of the state and any judgment against him would be paid out of his budget, composed of both state and county funds and therefore be a drain on the state treasury. Pellitteri v. Prine, #13-14297, 2015 U.S. App. Lexis 474 (11th Cir.).

Injuries to Employees

     A correctional officer was injured on the prison grounds when he fell on an allegedly defective concrete step while walking to work from an apartment he rented on the premises. While he received workers' compensation for the injury, he then filed a premises liability lawsuit. Summary judgment for the state was reversed. A factual determination was required as to whether he was acting in the course of his employment at the time of the injury. He presented evidence that he was not required to live on the premises as a condition of employment and the mere fact that he was injured on property owned by his employer did not necessarily bar his personal injury lawsuit. Wright v. State of California, #A139034, 2015 Cal. App. Lexis 91.

Privacy Rights

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

     A newspaper publishing company obtained a number of police officers' birth date, weight, height, eye color, and hair color from state motor vehicle records and published that information in an article criticizing a homicide investigation lineup in which the officers participated. The officers sued, claiming that both obtaining and publishing the information violated their privacy rights under the Driver's Privacy Protection Act (DPPA), 18 U.S.C. Sec. 2721, which prohibits knowingly obtaining or disclosing "personal information" from motor vehicle records. A federal appeals court upheld the officers' claim, rejecting the publisher's assertions that the information published was not "personal information" as intended in the statute or that the First Amendment right of free speech and freedom of the press overrode the statute. The publisher had no constitutional right to obtain or disclose the information. Dahlstrom v. Sun-Times Media, LLC, #14-2295, 2015 U.S. App. Lexis 1941 (7th Cir.).

Retaliatory Personnel Actions

     A police department employee claimed that he was retaliated against in violation of his First Amendment rights. The trial court found that his communications with the media about certain cases of interest enjoyed First Amendment protection. The plaintiff presented enough direct evidence of retaliatory intent from which a jury could reasonably have found a causal connection and the Department's adverse employment actions, establishing a prima facie case of First Amendment retaliation, so the defendants were not entitled to summary judgment. The alleged retaliatory acts included investigation into his personal affairs, serving him with disciplinary charges, reassigning him to a lower-paying administrative position, suspending him without pay, and eventually forcing his retirement. Smith v. County of Suffolk, #13-1230, 2015 U.S. App. Lexis 600 (2nd Cir.).

     A police detective was a friend of the former police chief, who was running against the incumbent mayor. He was not, however, involved in his campaign, and could not even vote for him based on his city of residence. He did, however, at the request of his mother, who was bedridden, pick up one of the candidate's campaign signs to replace one that had been stolen from her lawn. An officer assigned to the mayor's security staff saw this, and the next day, the detective was demoted to a walking post as a result of his "overt involvement in a political election." He sued, claiming that this was unlawful retaliation for protected First Amendment activity. A federal appeals court rejected his free speech claim, as he did not intend to convey a political message when he picked up the sign. He did not show retaliation for an exercise of the right to freedom of association as he had no affiliation with the campaign. Prior precedent barred a claim of unlawful retaliation based solely on a "perceived," as opposed to actual, exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610, 2015 U.S. App. Lexis 967 (3rd Cir.).

Standby Duty Pay Claims

     Under a state commission wage order, private security guards were entitled to all on-call hours spent at their assigned worksites while under the control of their employer. The California Supreme Court therefore reversed a finding that federal and state regulations allowed the security firm to exclude sleep time from the plaintiff guard's 24-hour shifts. The court also held that all of the guards' on-call time constituted hours worked for which they should be compensated. Mendiola v. CPS Security Solutions, #S212704, 2015 Cal. Lexis 3.

Whistleblower Requirements and Protection

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

     The U.S. Supreme Court held that a federal appeals court did not err in finding that the federal Transportation Security Administration (TSA) violated an air marshal's whistleblower rights by firing him for disclosing to a reporter that the TSA had decided to cut costs by removing air marshals from some flights even though there was supposedly credible information that al Qaeda was planning attacks on passenger flights in the U.S. The reason given for his firing was disclosing sensitive security information without authorization. When Congress used the phrase "specifically prohibited by law" in crafting an exception to the federal Whistleblower statute, it chose not to use the phrase "specifically prohibited by law, rule, or regulation," and therefore did not remove protection for unauthorized disclosures that violated rules or regulations but not laws. TSA administrative regulations did not qualify as "law" for purposes of the exception, and the statute authorizing the TSA to issue regulations did not specifically prohibit the disclosures at issue. Department of Homeland Security v. MacLean, #13-894, 2015 U.S. Lexis 755.

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     Community Relations: Resource Guide for Enhancing Community Relationships and Protecting Privacy and Constitutional Rights, Bureau of Justice Assistance, Office of Community Oriented Policing Services, (NC J248508 November 2014).

     Management Resources: Performance Management Strategies for Effective Leadership: An Accountability Process, by Gary Ellis and Anthony H. Normore, FBI Law Enforcement Bulletin (February 2015).

Reference:

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AELE Seminars:

Use of Force:
Lethal and Less Lethal Force and the
Management, Oversight and Monitoring of Use of Force
– Including ECW Operations and Post-Incident Forensics
In two modules – Orleans Hotel, Las Vegas
Mar. 2-3 and 4-5, 2015

Public Safety Discipline and Internal Investigations
Oct. 12-14, 2015 – Orleans Hotel, Las Vegas

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