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First Amendment Related

     After a paramedic/firefighter was suspended by the Fire District for failing to respond to a directive issued by the Fire Chief, he emailed a newspaper reporter with criticisms and concerns about the District and its chief. The email shocked and angered his co-workers and battalion chiefs found that it "fostered division" among co-workers and against the chief. The paramedic/firefighter was terminated. A federal appeals court rejected First Amendment retaliation claims, finding the defendants entitled to qualified immunity, as fire district board members reasonably believed that his statements were an attempt to undermine the chief's authority and would lead to disruption in the department. The court granted the plaintiff leave to amend his state law computer privacy claims, however, as he sufficiently alleged that the chief and his own ex-girlfriend had improperly accessed his email account and gained access to his private emails. Anzaldua v. Northeast Ambulance & Fire, #14-1850, 2015 U.S. App. Lexis 11906 (8th Cir.).

Homosexual & Transgender Employee Rights

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

     The federal Equal Employment Opportunity Commission has ruled by a 3-2 vote that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex under existing law--specifically Title VII of the Civil Rights Act of 1964. The case involved a sexual orientation discrimination complaint asserted by an air traffic controller against the U.S. Transportation Secretary. While sexual orientation is not explicitly mentioned in Title VII, the commission found that sexual orientation discrimination is sex discrimination because sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and “because it is associational discrimination on the basis of sex.” Complainant v. Foxx, #2012-24738-FAA=03 (EEOC July 16, 2015).

National Security Issues and Security Clearances

     An employee of FEMA in the Department of Homeland Security had a job requiring a top secret security clearance. Her access to classified information became suspended after she was indicted on federal criminal charges of conflict of interest, accepting a gratuity, and making a false statement. She was then indefinitely suspended without pay pending a further determination of her possible future access to classified information. She appealed her suspension to the Merit Systems Protection Board (MSPB). A federal appeals court upheld a MSPB decision upholding the suspension and finding that she was not entitled to consideration for transfer to a position not requiring a security clearance, despite her subsequent acquittal on the criminal charges. The denial of a security clearance is not subject to MSPB review. Ryan v. Dep't of Homeland Sec., #14-3181, 2015 U.S. App. Lexis 11995 (Fed Cir.).

Privacy Rights

     The highest court in Maryland held that police disciplinary records are exempt from disclosure as "personnel records" under a state public information law. The fact that the person had already identified the officer she was complaining about in a public forum, or that an investigation resulted in a sustained finding did not alter the result. The state law, in exempting personnel records from disclosure, did not make a distinction based on whether a citizen's complaint about a public employee was sustained or unsustained. Her complaint involved a state police officer who accidentally left a racial slur on her phone answering machine. She was informed that her complaint had been sustained and the officer had been disciplined, but was unable to learn the details. Maryland Department of State Police v. Dashiell, #84, 2015 Md. Lexis 477.

Probationary Employment

     California correctional officials' notice of rejection attempting to remove a man from the position of correctional sergeant was invalid since the effective date of the rejection was after the completion of the employee's probationary period. The court further held that the proper calculation of a civil service probationary period under California law includes the first day in the position, despite a general rule to the contrary for calculating time limits in several state statutes. CA Dept. of Corr. & Rehab. v. CA St. Personnel Bd., #F069100, 238 Cal. App. 4th 710, 2015 Cal. App. Lexis 608.

Race Discrimination

     Employees of a city sanitation department attempted to assert a class action race discrimination lawsuit under the Equal Protection Clause and 42 U.S.C. Sec. 1981, prohibiting racial discrimination in the making and enforcement of contracts. Upholding the rejection of these claims, a federal appeals court held that, under Equal Protection and Sec. 1981, plaintiffs attempting to show intentional racial discrimination based on statistics alone must not only demonstrate that the statistical disparity is significant in a mathematical sense, but also be of such a level that it makes other plausible non-discriminatory explanations very unlikely. The plaintiffs in this case failed to meet that burden. Further, the fact that each of the plaintiffs had been pomoted at some point undercut their claim for racial discrimination in the promotion of sanitation workers. Burgis v. New York City Dep’t of Sanitation, #14-1640, 2015 U.S. App. Lexis 13353 (2nd Cir.).

Residency - Preservice/Durational Requirements

     An applicant for a job with the Administrative Office (AO) of the U.S. Courts argued that the AO's refusal to consider her application because she did not live in the Washington, D.C. metropolitan area violated her constitutional right to travel. The geographic limitation on the consideration of applicants did not violate her right to travel under the Privileges and Immunities Clause of U.S. Const. art. IV, § 2, cl. 1, as the Clause did not apply to actions taken by branches of the federal government; and did not implicate her right to travel protected by the equal protection component of the Due Process Clause, as it did not penalize the exercise of her right to travel interstate, but gave her an incentive to do so. Pollack v. Duff, #13-5263, 2015 U.S. App. Lexis 11622 (D.C. Cir.).

Suicide Related

     A guard at a state prison was stabbed eight times by an inmate, suffering 44 percent permanent disability to his neck and psyche. As a result, he accepted a demotion to an entry level computer analyst position in the information technology department of the prison medical unit, giving up his peace officer status. He had trouble in that position, and was told that he was not passing probation, and subsequently committed suicide by shooting himself. An intermediate California appeals court ruled that because the Workers Compensation Appeals Board found that the death had an "industrial cause," it was error to simply award a workers' compensation death benefit to the surviving spouse, since the special death benefit provisions for Public Employees' Retirement System (PERS) members who were peace officers were applicable, and there should have been a joint calculation of the workers' compensation and PERS death benefits due to the surviving spouse. Dept. of Corrections and Rehabilitation v. WCAB, #C078345, 2015 Cal. App. Lexis 638.

Union and Associational Activity

     The Michigan Supreme Court held that a state civil service commission lacked the authority under state law to compel civil service employees who were union-eligible employees who opt out of union membership to pay agency shop fees. Public employee unions had previously negotiated various collective bargaining agreements with the state that contain agency shop fee arrangements covering the employees whom they represent. UAW v. Green, #147700, 2015 Mich. Lexis 1772.

Whistleblower Protection

     A discharged fire captain sued the department under a D.C. whistleblower protection act. The trial court granted summary judgment to the defendant department, but a federal appeals court ruled that this was erroneous. The plaintiff claimed that she was unlawfully terminated in response to her protected communications to supervisors following a major fire at a high rise building. The trial court, the appeals court found, should have considered her communications individually, rather than grouping them into broad categories for consideration. Considering the communications individually, however, a reasonable jury could determine that at least one of these communications qualified as a protected complaint, because it disclosed alleged gross mismanagement or a substantial and specific danger to public health and safety. Additionally, the defendant department failed to show by clear and convincing evidence that it had legitimate, non-retaliatory reasons for its actions. Coleman v. District of Columbia, #12-7114, 2015 U.S. App. Lexis 12350 (D.C. Cir.).

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     Education: Perspective. Advanced Degrees for Law Enforcement Personnel:: The Ideal Time to Enter a Higher Education Program, by Nick Francis, FBI Law Enforcement Bulletin (August 2015).

     Fair Labor Standards Act: FLSA: Delimiting the Exemptions for Executive, Administrative, Professional Employees, proposed rule and request for comments, Wage and Houe Division, U.S. Department of Labor (July 6, 2015).

     Officer Productivity: Improving Motivation and Productivity of Police Officers, by Jay Fortenbery, FBI Law Enforcement Bulletin (August 2015).

Reference:

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