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Arbitration Procedures

     A woman was employed by the U.S. Citizenship and Immigration Services, and was covered by a collective bargaining agreement. The employer placed her on a performance improvement plan after she was found to have unsatisfactory performance, and was subsequently evaluated as having failed to improve. This eventually led to her termination. She took the issue to arbitration, which was allowed but not required under the agreement. The arbitrator concluded that she could not challenge the key bases for her removal with respect to her failure to improve her performance under the improvement plan. The collective bargaining agreement, pursuant to 5 U.S.C. 7121, spelled out the exclusive process, including time limits, for challenging the determinations of her unsatisfactory performance, but the employee had abandoned the process after initially filing grievances, so the time deadlines had passed. Accordingly, the arbitrator barred any reconsideration of issues raised in her prior grievances or that could have been raised then. A federal appeals court upheld this result, finding that the arbitrator acted properly in enforcing a grievance process that the collective bargaining agreement designated as the exclusive remedy. Appleberry v. Dep't of Homeland Sec., #14-3123, 2015 U.S. App. Lexis 11715 (Fed. Cir.).

Drug Abuse & Rehabilitation: Prescriptive Drugs

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

     While the state of Colorado has legalized the use of marijuana for both medical and recreational purposes, the Colorado Supreme Court has ruled that a quadriplegic employee who uses marijuana, even with a prescription and even off-duty can be fired for such use. In this case, an employee who tested positive for THC during random drug testing could not sue for wrongful discharge under state law despite being a medical marijuana patient, with a prescription granted for the drug to help control violent muscle spasms. Because the use of marijuana is unlawful under federal law, its use does not fall within the protection of a state statute governing "lawful" activities. Under the Supremacy Clause of the U.S. Constitution, when there is a conflict between federal and state law, federal law prevails, including in the context of marijuana regulation. While the case involved a private employer, the same reasoning would apply with a public employer. Coats v. Dish Network, LLC, #13SC394, 2015 Colo. Lexis 520.

     Editor's Note: For a further discussion of this topic, see Medical Marijuana and Public Safety Personnel,2011 (11) AELE Mo. L. J. 201. State Supreme Courts in four other states have taken essentially the same position on the issue as the Colorado ruling reported above. See Ross v. Ragingwire Tel., #S138130, 174 P.3d 200, 2008 Cal. Lexis 784; Johnson v. Columbia Falls Aluminum Co. , #08 - 0358, 2009 MT 108N, 2009 Mont. Lexis 120; Emerald Steel v. Bur. of Labor & Indus., #S056265, 230 P.3d 518, 2010 Ore. Lexis 272; and Roe v. TeleTech Customer Care Mgmt., #83768-6, 257 P.3d 586, 2011 Wash. Lexis 393. The U.S. Supreme Court has concluded that the federal Controlled Substances Act does not contain a "medical necessity" exception that permits the manufacture, distribution, or possession of marijuana for medical treatment. U.S. v. Oakland Coop., #00-151, 532 U.S. 483 at 49 (2001). Twenty-three states and Washington, D.C. currently allow medical marijuana, while Alaska, Colorado, Oregon, Washington, and Washington, D.C. have legalized recreational marijuana.

Family and Medical Leave Act

     A federal appeals court has held that employers who receive a faulty request for leave filed under the Family and Medical Leave Act cannot simply reject it, but instead must inform the employee about the deficiency of their request and give them an opportunity to correct it. The case involved a nurse's assistant at a hospital who requested medical leave for a then undiagnosed condition with symptoms of shortness of breath, nausea and vomiting. After taking five days off in a two week period, she was fired for excessive absenteeism and at that time, the employer stated that her request was faulty and had been denied. The doctor had filled out a medical certification, and her condition was later determined to be diabetes and high blood pressure. The employer took the position that since her condition wasn't diagnosed and her request was only for a month, she could not show that she had a serious medical condition that would persist for an extended period of time, as required by the FMLA. The appeals court rejected that reasoning. Department of Labor regulations, the court ruled, require employers to notify employees of perceived deficiencies in FMLA requests. They must also notify the employee of what information would be needed to correct the incomplete or insufficient request. Hansler v. Lehigh Valley Health Network, #14-1772, 2015 U.S. App. Lexis 10444 (3rd Cir.).

First Amendment Related

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

     Anti-abortion demonstrators were planning to display signs with pictures of aborted fetuses outside an abortion clinic. An officer finishing an overnight shift drove by and noticed the demonstrators. He stopped his vehicle and told them they could not impede traffic or block anyone from entering the premises. He threatened them with arrest if they did not comply. One of the demonstrators subsequently claimed that the officer called her a "fat fucking cow," while others said the officer used profanity. While admitting that the confrontation had been "adversarial," the officer denied using profanity. Later, off-duty, and in civilian clothes, he returned to confront the demonstrators about their signs. He returned in his personal vehicle. He spoke to an officer on duty there, and to the female demonstrator he had previously confronted, allegedly making negative comments about her weight and touching her, and represented himself as an off-duty police officer. Another demonstrator requested assistance in dealing with him by dialing 911. A departmental investigation into his conduct concluded that his conduct towards the public was "harsh, profane, and unruly and caused a huge disturbance." He had previously received two written reprimands and five suspensions, and he was terminated after a hearing on the last incident. A federal appeals court upheld summary judgment against him on a First Amendment retaliation claim, finding that his statements were not constitutionally protected because they directly conflicted with his responsibilities as an officer and the department's interests in running an efficient law enforcement agency outweighed his free speech interests. The court overturned summary judgment in favor of the police board on the plaintiff's administrative review claim, as the trial court made that ruling spontaneously, without giving him an opportunity to argue it. Lalowski v. City of Des Plaines, #12-3604, 2015 U.S. App. Lexis 10151 (7th Cir.).

Handicap/Ability Discrimination - In General

     An employee of the Kansas Department of Labor who suffered from asthma complained that perfumes and other strong fragrances in the workplace impaired her ability to work. She was moved to a basement work space in an attempt to alleviate her problem but she would continue to suffer asthma attacks when certain perfume wearing co-workers came to talk to her. She made further complaints to her supervisor, and she was subsequently fired. The defendant employer was not entitled to Eleventh Amendment immunity as a state agency against being sued in federal court for disability discrimination. The agency waived its immunity by accepting  federal financial assistance, even if the plaintiff herself worked in a division that did not receive such funds. The agency's waver of its immunity covered all its divisions. Arbogast v. Kansas Department of Labor, #14-3091, 2015 U.S. App. Lexis 10387 (10th Cir.).

Homosexual & Transgender Employee Rights

     The U.S. Supreme Court, by a 5-4 vote, has ruled that there is a constitutional right to same-sex marriage and that each state must also recognize such marriages legally entered into in other states. Departments and agencies will now universally have to recognize same-sex marriages, whether entered into in their state or in another state as the same as opposite sex marriages for purposes of benefit, retirement/pension, family leave, and similar purposes. Obergefell v. Hodges, #14-656, 2015 U.S. Lexis 4250.

Political Activity/Patronage Employment

     After a new mayor was elected for an Indiana city, he replaced many city staff members with his political supporters. A federal appeals court ruled that it could not exercise pendant jurisdiction over the city's appeal on employees' First Amendment claims, as these claims were not "inextricably intertwined" with the mayor's appeal from a partial denial of qualified immunity against him personally, qualified immunity was properly denied as to one employee's claim, as unless evidence to the contrary was presented at trial, it did not appear that political affiliation was an appropriate requirement for a job as the city utility department's customer service supervisor. Allman v. Smith, #14-1792, 2015 U.S. App. Lexis 10680 (7th Cir.).

Retaliatory Personnel Actions

       Police officers were fired after they contacted an association, state officials, and the N.C. State Bureau of Investigation about alleged corruption and misconduct at their department. The defendants in their lawsuit were not entitled to qualified immunity on their First Amendment retaliation claims. The officers spoke as citizens on issues that were indisputably of public concern, and it was clearly established that speech about serious misconduct in a law enforcement agency was protected speech. Hunter v. Mocksville, # 14-1081, 2015 U.S. App. Lexis 10033 (4th Cir.).

Sex Discrimination - Correctional Facilities

     Male correctional officers claimed unlawful sex discrimination when the Washington state Department of Corrections made a decision to designate certain discrete sex-based correctional officer positions at its women's prison, resulting in some male officers losing some overtime. Rejecting this claim, a federal appeals court found that the decision was an individualized well-researched decision, which was justified because sex was a bona-fide occupational qualification reasonably necessary for the operation of women's prisons. The defendant was motivated by wishing to see that rampant abuse of female prisoners should not be an accepted part of prison life. The state agency was entitled to summary judgment. Faced with sexual abuse and misconduct by prison guards, breaches of inmate privacy, and security gaps, the defendant determined that a primary driver of these problems was the lack of female correctional officers to oversee female offenders and administer sensitive tasks, such as observing inmates showering and dressing and performing the pat-down and strip searches. The state then undertook a comprehensive assessment and ultimately designated a limited number of female-only correctional positions—specifically, 110 positions to patrol housing units, prison grounds, and work sites. Teamsters Local Union No. 117 v. Washington Dep't Corrections, #13-35331, 2015 U.S. App. Lexis 9883 (9th Cir.).

Whistleblower Protection

     Fire investigators for the District of Columbia sued under the D.C. Whistleblower Protection Act, claiming that they had been unlawfully reassigned to less desirable jobs in retaliation for them having accused some of their superiors of gross mismanagement and workplace racial discrimination. But the employer made the unrebutted explanation that they had been reassigned because prosecutors refused to work with them and not because of their filing of Equal Opportunity complaints regarding alleged racial discrimination. The plaintiffs' failure to rebut this explanation meant that they had failed to create a genuine issue of material fact as to the reason for their reassignment. Additionally, their transfers to their new assignments occurred before their racial discrimination complaints were filed. Bowyer v. District of Columbia, #13-7012, 2015 U.S. App. Lexis 11624 (D.C. Cir.).

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    Body-Worn Cameras: Special Report: Body-Worn Cameras, Police Magazine (Jul. 2015).

     Mental Health: The Importance of Mental Health Training in Law Enforcement, by Nicholas Wilcox, FBI Law Enforcement Bulletin (July 2015).

     Statistics: Local Police Departments, 2013: Equipment and Technology, by Brian A. Reaves, Bureau of Justice Statistics (July 7, 2015 NCJ 248767).

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
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