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Arbitration Procedures

     A transit authority fired two of its police officers for misconduct who were represented by a police union, reinstated them on administrative leave after an arbitration award ordered them to do so, and then fired both of them a second time after the state of Maryland declined to recertify them as police officers. The union challenged the second firing in federal court, claiming that it violated the arbitration award, and the trial court ordered the officers again reinstated. A federal appeals court reversed. It held that the employer didn't violate the arbitration awards by the second firing, and that the federal courts lacked authority to decide whether the employer's actions violated the collective bargaining agreement, as the officers' grievances belonged being decided by arbitration, not by a federal court. The denial of their recertification resulted in a new independent basis for the officers' termination, which could only be challenged by the filing of a new grievance. FOP Metro Transit Police Labor Committee, Inc. v. Washington Metropolitan Area Transit Authority, #14-1332, 780 F.3d 238 (4th Cir. 2015).

    A trial court declined to compel the individual arbitration of grievances by county union employees represented by a deputy sheriffs' association, ruling that state law gave it discretion to stay the arbitration while the court first resolved issues between the parties that were not subject to arbitration and which could render the arbitrations unneeded. An intermediate state appeals court reversed, finding that all issues between the parties were subject to arbitration, so the state statute at issue did not apply. The grievances sought overtime pay for "donning and doffing" uniforms and equipment and off the clock supervisory activities by certain employees. Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, #B254982, 234 Cal. App. 4th 459, 183 Cal. Rptr. 3d 854, 2015 Cal. App. Lexis 144, 202 L.R.R.M. (BNA) 3381.

Disciplinary Evidence - Admissibility/In General

     Recordings of phone conversations between an employee of the state Department of Justice and his former girlfriend made by the girlfriend as part of a criminal investigation under the direction of the employer were properly admitted as evidence in administrative proceedings concerning the employee's termination. The recordings were properly obtained under state criminal law and their use was not limited to the criminal case. Because the employer had carried out an independent criminal investigation, the procedural rights given to officers under administrative investigation did not apply. Telish v. California State Personnel Board, #B250856, 234 Cal. App. 4th 1479, 2015 Cal. App. Lexis 220.

Injuries to Employees

     A South Carolina prison guard was attacked and shot multiple times in his home, with the attack ordered by a an inmate at the prison where he worked, using a contraband cell phone to talk to the shooter. The injured guard and his wife sued a number of cellular phone service providers and owners of cell phone towers in state court, asserting claims for negligence and loss of consortium. The lawsuit was removed to federal court, and claimed that the defendants were aware that their services and towers facilitated prisoners' illegal use of cell phones, creating an unreasonable risk of harm to others, including the plaintiff. A federal appeals court found that the trial court was erroneous in finding that there was federal question of jurisdiction over the claims, as the Federal Communication Act did not completely preempt the state law claims. The case was properly removed to federal court on the basis of diversity jurisdiction, but the plaintiffs failed to state a claim as a matter of law, since there was insufficient information about the specifics of what occurred. The plaintiffs did not identify the wireless service provider who carried the alleged call or when the alleged call occurred. "A wireless service provider would likely be unable to determine whether it carried the alleged call without more identifying information." If further investigation revealed new information, the plaintiffs were free to file a new lawsuit, but currently, the complaint "resembles a prohibited fishing expedition rather than a properly pleaded complaint." Johnson v. American Towers, LLC, #13-1872, 2015 U.S. App. Lexis 4844 (4th Cir.).

Pregnancy Discrimination

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

     In a case involving a private employer, the U.S. Supreme Court, by a 6-3 vote, further clarified the analysis of what is required for an employer to raise a claim of disparate treatment for pregnancy discrimination under Title VII. A pregnant employee must show that the employer's accommodation policy imposes a "significant burden" on pregnant employees and that the employer's basis for enforcing that policy does not have a "sufficiently strong justification." In this case, a UPS driver became pregnant and her doctor directed that she not lift more than 20 pounds, while the employer required its drivers to lift up to 70 pounds. The employer refused to let her work under her doctor's lifting restriction, and the employee argued that this imposed a disparate burden on pregnant employees as other policies better accommodated employees who were injured on the job, disabled employees covered by the Americans with Disabilities Act, or who had lost Department of Transportations certifications. The Supreme Court vacated summary judgment for the employer, finding that the employee created a genuine dispute as to whether the employer provided more favorable treatment to some employees whose situation could not reasonably be distinguished from hers. Young v. United Parcel Service, Inc., #12-1226, 2015 U.S. Lexis 2121, 25 Fla. L. Weekly Fed. S 155, 126 Fair Empl. Prac. Cas. (BNA) 765.

Race: Reverse Discrimination

     A woman who worked as a Lieutenant trainer for a state law enforcement department claimed that she was denied promotion to the position of Training Director on the basis of her white race, instead promoting a black less qualified officer of lower rank to fill the position. A federal appeals court found that the trial court erred in granting summary judgment in favor of the employer, since the plaintiff presented evidence which, if believed by a jury would have established "a fumbling, bumbling case of determined efforts" to deny the plaintiff the promotion on the basis of race. The employer failed to offer a legitimate non-discriminatory reason for its promotion decision. McMullin v. MS Dept of Public Safety, #14-60366, 2015 U.S. App. Lexis 5523 (5th Cir.).

Race and Sex Discrimination

    A black woman claimed that a state Department of Transportation's State Highway Administration refused to hire her for two different positions that she applied for because of her race and sex, despite her being "highly qualified." She claimed that the employer's decision makers were biased and "pre-determined" that they would only hire white applicants for the jobs. A federal appeals court upheld the dismissal of the lawsuit, finding that the plaintiff failed to adequately allege any facts that supported her claims that the employer discriminated against her because she was African-American or female. An adequate complaint must allege more than a "sheer possibility" that an employer has acted unlawfully. McCleary-Evans v. Maryland Department of Transportation, #13-2488, 780 F.3d 582 (4th Cir. 2015).

Retaliatory Personnel Action

     A former employee of the Department of Veterans Affairs claimed that her employer had subjected her to unlawful retaliation after she reported alleged sexual harassment of interns. A federal appeals court found that all the adverse actions taken against her before September 2004 were "discrete acts" and not part of a "continuing violation" and therefore her claims as to them were time barred. When the plaintiff was transferred to a small windowless office, and allegedly stripped of all her duties, the plaintiff should have known that she had suffered an adverse employment action, and acted promptly to assert her claim instead of waiting almost three years to do so. Ayala v. Shinseki, #13-2260, 780 F.3d 52 (1st Cir. 2015).

     A black male of Jamaican descent worked for the U.S. Embassy in Saudi Arabia as the FBI's main liaison to Saudi intelligence. He accused certain supervisors of discriminating against him on the basis of race and national origin, after which one of those supervisors sent a special agent to Saudi Arabia on a short assignment where he grew suspicious about the plaintiff. An investigation later determined that any alleged security risks were "unfounded." He then filed a lawsuit claiming unlawful retaliation for the earlier discrimination complaints. Summary judgment for the FBI was upheld on appeal because the memo on which the plaintiff based his claim, which triggered the investigation was not written by one of the accused supervisors but by the special agent who was not himself accused of discrimination and had no apparent reason to engage in retaliation against him. Rattigan v. Holder, #13-5374, 780 F.3d 413 (D.C. 2015)

Retirement Rights and Benefits

     Two county employees sought a mandamus order requiring the county employees' retirement association to allow them to buy retirement service credit for military service as midshipmen at the U.S. Navy Academy. The state intermediate appeals court ordered the order issued. It ruled that the terms "public service" and "military service" in the county's employee retirement law included such service at the Academy, and that the employees were entitled under state law to purchase such retirement service credits. Lanquist v. Ventura County Employees' Retirement Association, #B251179, 2015 Cal. App. Lexis 239.

     San Francisco city and county voters passed a ballot initiative under which the payment of supplemental cost of living allowance (COLA) to retired city and county employees on the retirement fund being fully funded based on the market value of the assets for the prior year. A political action committee representing the retired city employees' interests sought to invalidate that initiative as an illegal impairment of vested contractual rights in violation of the U.S. and California Constitution's contract clauses. An intermediate state appeals court ruled that the full funding requirement could not be enforced as to current city employees and those who retired after the supplemental cost of living allowance went into effect in November, 1996 pursuant to an earlier initiative. However, city employees who retired before that date had no vested contractual rights to the supplemental COLA payments, so the initiative could be applied to their pensions. Protect Our Benefits v. City and County of San Francisco, #A140095, 2015 Cal. App. Lexis 269.

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     Fitness: Staff Fitness Centers, Federal Bureau of Prisons Program Statement 3792.08 (March 27, 2015).

     Law Enforcement Cooperation: Creating the Preferred Future Today for Law Enforcement Cooperation Tomorrow: A Case Study, by Mike Masterson, Ernst Weyand, and Douglas Hart, FBI Law Enforcement Bulletin (April 2015).

     Sexual Harassment: The Handling of Sexual Harassment and Misconduct Allegations by the Department's Law Enforcement Components, Evaluation and Inspections Report 15-04, U.S. Department of Justice, Office of the Inspector General (March 26, 2015).

     Statistics: Justice Expenditure and Employment Extracts, 2012 - Preliminary, by Tracey Kyckelhahn, Bureau of Justice Statistics (February 26, 2015 NCJ 248628).

     Workers' Compensation: Worker`s Compensation Program, Federal Bureau of Prisons Program Statement 1601.04 CN-1 (March 30, 2015).

Reference:

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

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