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Demotions

     A police lieutenant was commander of a Violent Offenders Task Force involving the FBI, ATF, and U.S. Attorney's Office. During a task force investigation of a gang, he learned that gang members had plans to kill police officers. He told a local police chief that the U.S. Attorney's Office would brief him about the investigation. ATF officials believed that this disclosure was improper because of the existing wiretap and prohibited the lieutenant from entering ATF office space. Subsequently, in an unrelated investigation, a suspected gang leader identified six city police officers as corrupt. Because he doubted the veracity of these accusations, the lieutenant confronted the informant. The FBI told the police chief that the lieutenant was damaging the investigation, and he was first removed from that investigation and later from the task force. The lieutenant then filed a misconduct complaint, which was later determined to be unfounded, against a sergeant involved in his reassignment, and then allegedly made an anonymous phone call to the police chief's wife telling her that the FBI was "corrupt." He was disciplined for false allegations, placed on administrative leave, and then demoted. The plaintiff failed to show that his demotion or any of the steps that led to it were motivated by racial animus and a substantive due process claim was rejected as none of what he experienced was severe enough to "shock the conscience." Keefe v. City of Minneapolis, #13-3069, 2015 U.S. App. Lexis 7714, 127 Fair Empl. Prac. Cas. (BNA) 16 (8th Cir.).

Defamation

     Two employees of the U.S. Department of Homeland Security (DHS) sued a local police chief for slander and interference with advantageous business relations after he called another DHS agent to complain about their allegedly "unprofessional" behavior during an encounter. The grant of summary judgment to the defendant on both claims was upheld by a federal appeals court. The allegedly defamatory statements amounted to non-actionable opinions, and the chief fully disclosed the non-defamatory facts about the confrontation in a way that enabled the DHS agent contacted to form his own opinion. Piccone v. Bartels, #14-1989, 2015 U.S. App. Lexis 7582 (1st Cir.).

FLSA - Overtime in General

     Department of Veterans Affairs nurses claimed that they were improperly denied overtime pay for certain hours worked. Under the applicable statute, the agency was required to compensate for "officially ordered and approved" overtime work. The U.S. Claims Court rejected the nurses' claim, since they failed to allege that the agency had "expressly directed" them to work the overtime hours. A federal appeals court reversed finding that the statute did not require the official order or approval to be in a particular form, and the agency had not adopted any regulation mandating a particular procedure for approving overtime. The nurses did allege that the agency had "knowledge" that they work overtime on a recurring and involuntary basis, and that the employer approved or ordered such work through "expectation, requirement, and inducement." Further proceedings on the claim were therefore ordered. Mercier v. United States, #14-5074, 2015 U.S. App. Lexis 8003 (Fed. Cir.).

Handicap Laws/Abilities Discrimination - Specific Disabilities: Diabetes

     A D.C. correctional officer was fired for neglect of duty after falling asleep on the job. He sued his employer for disability discrimination, claiming that his disability of diabetes had not been reasonably accommodated. A jury returned a verdict for the defendant, finding that the plaintiff was not disabled within the meaning of the Americans with Disabilities Act. Upholding this result, a federal appeals court noted that there had been evidence presented at trial that the plaintiff could control his diabetes by simply eating three meals a day plus snacks, along with taking his medication. There was also sufficient evidence to support a finding that the plaintiff was allowed to eat his regular meals and snacks, and therefore a conclusion that he did not have a disability for ADA purposes. Coleman-Lee v. Government of D.C., #13-7123, 2015 U.S. App. Lexis 8183 (D.C. Cir.).

Race Discrimination - In General

     A terminated probationary Border Patrol agent claimed that he had been unlawfully fired because of his color and race. A federal appeals court upheld summary judgment for the employer. Even assuming that the plaintiff had established a prima facie case of discrimination, the employer had put forth a legitimate, non-discriminatory reason for his termination, his lack of candor about the facts in an incident involving the possible hazing of new recruits by subjecting them to intensive workouts at a checkpoint that resulted in injuries. There was no evidence that this was a pretext, and, as a probationary agent, he was not similarly situated with permanent agents allegedly involved in the same incident, undercutting his claim of disparate treatment. Thomas v. Johnson, #14-41085, 2015 U.S. App. Lexis 9185 (5th Cir.).

     A defeated candidate for sheriff who was a county police sergeant and African-American, sought after the election to be appointed either assistant chief or warden of the county jail, but a former chief was appointed to the assistant chief job and the current warden was retained. The plaintiff was instead offered, and accepted, a job in the Property Room sorting approximately 1,000 guns that had accumulated there. The job involved no change in rank or pay, but he expressed dissatisfaction months later and was offered a job in a Family Violence Unit, which he declined. The plaintiff claimed that he had been subected to racial discrimination, that his assignment to the Property Room was degrading, and that he was not asked about his possible interest in other positions that would have constituted promotions. A federal appeals court upheld summary judgment for the defendants. There was no evidence presented of racial hostility towards the plaintiff, and his qualifications were not as impressive as those of the individuals appointed to the positions he wanted. Miller v. St. Joseph County, #14-2989, 2015 U.S. App. Lexis 9603 (7th Cir.).

Religious Discrimination

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

     The U.S. Supreme Court, in an 8-1 ruling, held that an employer may have discriminated against a Muslim woman applicant for employment on the basis of religious discrimination when it failed to hire her because she wore a hijab headscarf to her interview. The subject of her religious beliefs never came up in the interview process, and the employer contended that its reason for the rejection was that the headscarf would violate its dress code. The Court held that in establishing a claim for unlawful disparate treatment under Title VII of the Civil Rights Act of 1964, it was not necessary to show that the employer had actual knowledge of the applicant's need for an accommodation, but only that the applicant's need for an accommodation for a religious practice was a motivating factor in the employer's decision. Further a discrimination claim based on failure to accommodate a religious practice did not have to be raised as a disparate impact claim rather than a disparate treatment claim, as religious practice was a protected characteristic that could not be accorded disparate treatment. Title VII gives favored treatment to religious practices rather than demanding that a religious practice be treated no worse than other practices. EEOC v. Abercrombie & Fitch Stores, Inc., #14-86, 2015 U.S. Lexis 3718.

Retirement Rights and Benefits

     Former police officers and firefighters who had been employed by local public agencies contended that the California Public Employees' Retirement System should be paying them additional enhanced retirement benefits under the Public Employees' Retirement Law, Gov. Code section 2000 et seq., based on either additional retirement service credit they had purchased or military service credit. They were denied the extra benefits because they received disability retirement benefits before age 50. An intermediate California appeals court rejected most of their claims, finding that neither the statute nor their contracts entitled them to the additional retirement benefits they sought. The court also rejected constitutional claims for violation of due process or equal protection. But the court allowed claims to go forward for rescission and breach of fiduciary duty, based on the plaintiffs' assertion that the defendant retirement system improperly failed to disclose the potential loss of the value of purchased service credit if plaintiffs suffered disability, Marzec v. CalPERS, #B246667, 236 Cal. App. 4th 889, 2015 Cal. App. Lexis 393.

Taxation

    A former employee of a Sheriff's Department was entitled to receive a disability pension of half his prior salary. Based on his 34 years of service, he was receiving an additional amount increasing his pension to the amount he would have received as a service pension. The IRS rejected his argument that the entire amount of his retirement allowance should be regarded as excluded from taxation because it was a workers' compensation program. The Tax Court and a federal appeals court held that the additional amount of his retirement allowance exceeding what he would have received based solely on his disability was taxable. The additional amounts were not paid on the basis of his injuries, but solely on the basis of his years of service, and therefore were taxable. Sewards v. CIR, #12-72985, , 2015 U.S. App. Lexis 7821 (9th Cir.).

Whistleblower Protection

     A former chief deputy in the sheriff's office sued the sheriff, claiming that his termination after he raised complaints about recordings being made in interrogation rooms violated his rights under a state whistleblower protection statute as well as constituting unlawful retaliation in violation of his First Amendment rights. The First Amendment claims failed because his complaints were made within the scope of his employment duties and therefore his speech was not protected. And he failed to establish a claim under the Louisiana whistleblower statute, because he did not show that the sheriff's office, in making the recordings, committed an actual violation of state law. Wilson v. Tregre, #14-31179, 2015 U.S. App. Lexis 8582 (5th Cir.).

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     Administrative Leave: Memorandum for heads of Executive Departments and Agencies on Administrative Leave, by Katherine Archuleta, Director, U.S. Office of Personnel Management (May 29, 2015).

     Statistics: Local Police Departments, 2013: Personnel, Policies, and Practices, by Brian A. Reaves, Bureau of Justice Statistics, May 14, 2015 NCJ 248677.

     Technology: The Considerations and Risks of Personal Communication Devices, by Leslie Stevens, Police Chief (May 2015).

     Workplace Diversity: Diversity in the Workplace, by Anni Lori Foster, Police Chief (June. 2015).

Reference:

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

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