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Arbitration Procedures

     A police officer was terminated for a series of incidents in which he appeared to act in a hostile and aggressive manner. An arbitrator ordered the officer's reinstatement after a grievance was filed, and the Montana Supreme Court held that the arbitrator did not exceed her authority under state law because her reasons for her decision were based on her interpretation of the provisions in a collective bargaining agreement governing discipline and termination. The award did not violate any management rights, such as the right to require officers to take fitness for duty examinations. The arbitrator was within her authority in determining that a fitness for duty examination was an improper approach under the circumstances. City of Livingston v. Montana Public Employees Association, #DA 14-0083, 2014 MT 314, 377 Mont. 184, 339 P.3d 41, 2014 Mont. Lexis 704. .

Handicap Laws/Abilities Discrimination - Accommodation in General

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

     A city employee who suffered a knee injury on the job sued the city for disability discrimination under California state law, claiming that the city failed to provide a reasonable accommodation for his disability, failed to engage in an interactive process to try to find accommodations for him, and unlawfully retaliated against him for seeking a reasonable accommodation. An intermediate state appeals court found that summary judgment for the defendant city was proper because the evidence showed that he was no longer able to perform the essential functions of his solid waste equipment manager job after his injury. There was no reasonable accommodation that would allow him to do the job and there were no other vacant jobs for which he was qualified. The plaintiff's exercise of his right to a reasonable accommodation for his disability was not protected activity for purposes of a state law retaliation claim. Nearly v. City of Santa Monica, #B246634, 2015 Cal. App. Lexis 139.

Family and Medical Leave

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

    An officer with the U.S. Capitol Police claimed that her employer violated her rights under the Family Medical Leave Act, 29 U.S.C. Sec. 2615, and retaliated against her for trying to exercise her rights. She sought pre-approval under the Act for a "bank" leave when she was suffering from bouts of depression following her husband's suicide. The Capitol Police had in place a system allowing an employee to obtain a pre-approval of a "bank" of leave under the Act, without identifying specific start or end dates. After providing medical documentation, she was granted a bank of 240 hours of leave. But after approving the leave, her employer ordered her to submit to a fitness for duty exam, stating that the facts supporting her leave request were the basis for the order. Her police powers were then revoked and she was assigned to administrative duties while she waiting to take the exam. These allegations adequately supported an inference of retaliatory motive, so the trial court should not have dismissed the lawsuit. Further, an employer's actions with a reasonable tendency to "interfere with, restrain, or deny" the exercise or attempt to exercise a right to take family or medical leave is enough for a valid interference claim, even if the plaintiff employee actually took the leave. Gordon v. United States Capitol Police, #13-5072, 2015 U.S. App. Lexis 2556 (D.C. Cir.).

First Amendment

     A former reserve deputy claimed that the county, its sheriff, and an undersheriff removed him from conducting investigations and revoked his reserve commission in retaliation for him providing testimony to support claims by a former criminal defendant of mistreatment by federal law enforcement officers. A federal appeals court rejecting the First Amendment claims against the sheriff and undersheriff, ruling that, at the time of the events, it was not clearly established that such testimony was constitutionally protected, so they were entitled to qualified immunity. At the same time, the appeals court did hold that the testimony was constitutionally protected and that explanations that the defendants provided for their actions were pretextual. Seifert v. Unified Government, #13-3153, 2015 U.S. App. Lexis 3223 (10th Cir.).

     An officer claimed that the city that employed him retaliated against him for speaking to his commanding officers about an alleged arrest quota policy at his precinct. A federal appeals court vacated the trial court's summary judgment for the defendants, finding that his comments on precinct policy didn't fall within his official duties. He pursued the same avenue to complain about a precinct-wide policy as would a concerned civilian, and the existence of a comparable civilian analogue for his speech also supported the conclusion that he "spoke as a citizen." Matthews v. City of New York, #13-2915, 2015 U.S. App. Lexis 3016 (2nd Cir.).

Race Discrimination

     The head prosecutor for a judicial district hired an African-American man as a deputy prosecutor but allegedly later fired him for racially discriminatory reasons. He claimed that the plaintiff failed to follow instructions about the allocation of county funds, that the senior deputy prosecutor and other court personnel had difficulty contacting him during working hours, that he incurred unapproved extraordinary expenses, and that he deviated from approved policies on felony bond reduction orders. Additionally, a judge allegedly contacted the head prosecutor about why the plaintiff failed to appear in court. The plaintiff, however, contended that he was treated harsher than a white prosecutor who was sanctioned for an ethics violation and was convicted of DUI, and that the reason for his termination was never explained to him. A federal appeals court upheld the denial of qualified immunity to the head prosecutor on a racial discrimination claim, finding that there was a disputed issue of material fact as to whether the reasons given for the plaintiff's firing were pretextual. The issue of pretext was one of fact, on which the appeals court lacked jurisdiction to review the sufficiency of the evidence. Austin v. Long, #14-2044, 2015 U.S. App. Lexis 2644 (8th Cir.).

Race: Reverse Discrimination

     White firefighters claimed that a city engaged in reverse disparate treatment racial discrimination against them by allowing the departmental promotion eligibility lists to expire before their maximum legal duration. Those lists were based on a controversial exam challenged by black firefighters as discriminatory against them. The highest court in New York held that the human rights claims asserted by the plaintiff white firefighters were not subject to the notice of claim requirement as they did not constitute personal injury, wrongful death, or property damage claims. Margerum v. City of Buffalo, #7, 2015 N.Y. Lexis 250, 2015 NY Slip Op 1378, 2015 NY Slip Op 01378.

Retaliatory Personnel Actions

     A woman worked for a sheriff's department for over 30 years as chief dispatcher and office manager. When a new sheriff was appointed, she disagreed with him regarding the handling of bond money, which he wanted taken directly to court rather than deposited in the sheriff's office account. The sheriff gave the plaintiff a reprimand, based on her alleged failure to follow his directives. Refusing to sign the reprimand, she left work, walked home, and never returned. She claimed that she had faced illegal retaliation for speech on a matter of public concern. Upholding summary judgment for the defendant sheriff, the federal appeals court found that the reprimand did not affect the plaintiff's terms and conditions of employment, and therefore could not be the basis for a retaliation claim. The reprimand was not a materially adverse employment action since the plaintiff was not terminated, nor did she receive a cut in pay or benefits or any alteration to her job duties. Wagner v. Campbell, #14-2031, 2015 U.S. App. Lexis 3400 (8th Cir.).

Workers' Compensation - Claim Validity

     A county sought review of a workers' compensation appeals board order holding that a sheriff's deputy placed on modified duty after injuring his shoulder at work was entitled to receive a shift differential he had previously received before his injury for working nights. A section of the state labor code provided that certain public employees placed on leave because of a disabling on the job injury are guaranteed no loss of salary, including such things as shift differential. An intermediate state appeals court found that this provision only applied to public employees "on leave," and not to an employee who returns to work on modified duty. County of Nevada v. Workers' Compensation Appeals Bd., #C074133, 223 Cal. App. 4th 579, 167 Cal. Rptr. 3d 455 (2014).

Wrongful Discharge- In General

     A city employee working as a general foreman placed orders for materials with an allegedly politically connected firm, and was later arrested and charged with theft of city property and violation of personnel rules. The employee claimed that the investigation improperly targeted him while protecting the firm and its owner for political reasons. A city human resources director allegedly told the employee's union representative that if he didn't resign, he would be fired, that any hearing would be a "sham," but that if he resigned, he would be rehired once acquitted of the criminal charges. He resigned and was acquitted, but was not rehired. Upholding the dismissal of the former employee's lawsuit, a federal appeals court found that his wrongful discharge claim was untimely and barred by the statute of limitations and that there was no protected property interest in rehiring for public employment. O'Gorman v. City of Chicago, #13-2877, 2015 U.S. App. Lexis 1185 (7th Cir.).

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     Body-Worn Cameras: Guidance for the Use of Body-Worn Cameras by Canadian Law Enforcement Authorities, The Privacy Commissioner of Canada (Feb. 2015).

     Presidential Task Force Reports: Interim Report of the President's Task Force on 21st Century Policing (March 1, 2015).

     Training: Emergency Medical Response in Active-Threat Situations: Training Standards for Law Enforcement, by John M. Landry, Sara J. Aberle, Andrew J. Dennis, and Matthew D. Sztajnkrycer, FBI Law Enforcement Bulletin (March 2015).

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

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