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Age Discrimination

     A border patrol agent claimed that the failure to promote him was age discrimination. Reversing summary judgment for the defendant employer, a federal appeals court acknowledged that the average age difference between the plaintiff and the average selected Assistant Chief Patrol Agent was eight years, which was presumably insubstantial, but the plaintiff established a prima facie case of age discrimination by showing that the agency considered age to be significant in making these promotions and that the Tucson Chief Patrol Agent considered the plaintiff's age as specifically pertinent in considering whether to promote him. There was also a factual issue as to whether the Chief's articulated nondiscriminatory reasons for not promoting the plaintiff--his lack of leadership and judgment required for the position--were a pretext for age discrimination. France v. Johnson, #13-15534, 2015 U.S. App. Lexis 13487, 127 Fair Empl. Prac. Cas. (BNA) 1336 (9th Cir.).

First Amendment Related

     A city/county employee claimed that he was wrongfully fired in unlawful retaliation fo engaging in protected First Amendment speech, specifically complaining to his supervisors about the alleged unlawful hiring of temporary exempt employees in violation of the San Francisco Charter. A federal appeals court upheld the dismissal of the lawsuit, finding that the plaintiff's complaints arose primarily out of concern about his own professional advancement and his own status as a temporary employee. A due process claim also was rejected, as temporary, non-civil service employees did not have a protected liberty interest in continued employment. Turner v. City and County of San Francisco, #13-15099, 2015 U.S. App. Lexis 9788 (9th Cir.).

Handicap/Ability Discrimination -- Reasonable Accommodation: In General

     A police detective resigned from the department after suffering two strokes six weeks apart. The second stroke rendered him unable to perform his duties as a detective. He sued for discrimination under the Americans with Disabilities Act, arguing that the municipality failed to reasonably accommodate him after his return to work following the first stroke by not allowing him to work exclusively at a desk. A federal appeals court upheld summary judgment for the employer. A Title VII claim for race and national origin discrimination occurring years before was time barred as it was not filed with the EEOC within 300 days of the alleged discrimination, and the ADA claim was deficient because of the fact that the plaintiff's doctor recommended that he work "part-time" following his first stroke. The court noted that the employer allowed him to work part-time after the first stroke and granted a request to extend his leave following his second stroke in order to permit him to stay on the employer provided health insurance plan. Swanson v. Village of Flossmoor, #14-3309, 2015 U.S. App. Lexis 12804, 31 Am. Disabilities Cas. (BNA) 1560, 127 Fair Empl. Prac. Cas. (BNA) 1272 (7th Cir.).

     A county opened a new call center using software that was inaccessible to blind employees, and therefore did not transfer a blind employee there along with her sighted co-workers. Summary judgment should not have been granted to the employer on a disability discrimination claim under the Rehabilitation Act, as there were genuine disputed issues of material fact as to whether she could perform the essential functions of the job, whether the county failed to reasonably accommodate her, and whether the alleged failure to accommodate her was excused due to undue hardship. Summary judgment was, however, properly granted on a claim under Title II of the ADA regarding disability discrimination in the providing of governmental services and programs, as Title II did not allow public employees to bring employment discrimination claims. Reyazuddin v. Montgomery County, #14-1299, 789 F.3d 407 (4th Cir. 2015).

Handicap/Ability Discrimination -- Retaliation

     An employee claimed that he was constructively discharged from his job with the Kansas Department of Social and Rehabilitation Services (SRS) in unlawful retaliation for advocating better accommodation for a disabled co-worker. A federal appeals court upheld summary judgment to the defendant state agency on claims under both the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as the agency was entitled to sovereign immunity on the ADA claim and the Rehabilitation Act claim was time-barred under an applicable statute of limitations. There was no clear evidence that Congress intended states to waive ADA immunity by accepting federal funds, as opposed to liability under the Rehabilitation Act. Levy v. Kansas Dept of SRS, #14-3061, 789 F.3d 1164 (10th Cir. 2015).

Race Discrimination: Reverse Discrimination

     A white employee of the U.S. Foreign Service Office claimed that the State Department's hiring plan aiming to increase racial diversity among the Foreign Service Office's officer corps was racial discrimination in violation of Title VII. A federal appeals court rejected the claim, finding that the defendant employer engaged in a valid affirmative action plan. The employer provided evidence that the plan was targeted at remedying manifest racial imbalances in senior-level positions in the Foreign Service that were the result of past racial discrimination. The plaintiff failed to show that the justification was pretextual or that the plan was invalid. The plan ceased to exist over 20 years ago and was only in effect for two years, but the plaintiff claimed that, because of it, he entered the Foreign Service at a lower level than he would have had he been minority applicant. Shea v. Kerry, #13-5153, 2015 U.S. App. Lexis 13806 (D.C. Cir.).

Retailatory Personnel Action

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

     A sergeant working at a county jail was also a union leader. The union initiated mandatory contract arbitration with the sheriff's officer. At the arbitration, an undersheriff testified regarding training on CPR, firearms, and Taser. The sergeant then testified that the undersheriff had misrepresented the degree of training provided. Following this, the sergeant was told to wear business attire or his uniform to subsequent arbitrations. He later wore a golf shirt and blazer and was investigated for disobeying a direct order. He was then told that there would be an investigation regarding his actions during a power outage at the jail, and another investigation regarding subordinates' charges against him. He was ordered not to inquire into this last investigation with any witnesses or investigators but admittedly asked his subordinates for details concerning it.

     He was subsequently suspended without pay for several days and demoted for having created an unprofessional and hostile environment for subordinates as well as having made derogatory statements to female detainees. In a lawsuit for unlawful retaliation, a federal appeals court upheld summary judgment for the county. While his testimony at the arbitration was protected by the First Amendment, he failed to prove that his demotion and suspension were the result of him being punished for his criticism, rather than being punished for his own "extensive misconduct." Boulton v. Swanson, #14-2308, 2015 U.S. App. Lexis 13195, 2015 Fed. App. 170P (6th Cir.).

Seniority

     A town police employee was laid off after 31 years on the job. A collective bargaining agreement between the police union and the town required the recall of qualified employees based on seniority. During the year following the plaintiff's layoff, he was not recalled, although a number of vacancies in the police department did open up. The plaintiff claimed that the failure to recall him deprived him without due process of a property interest in his right to be recalled. The trial court entered judgment for the town, based on a bargaining agreement it found imposed a condition precedent that the plaintiff submit his address and phone number to the town following a layoff in order to assert his recall rights, which he did not do. A federal appeals court vacated the judgment, finding that the bargaining agreement recall provision did not unambiguously create a condition precedent, and that the timing of that obligation was not clear, and therefore further fact-finding proceedings were required. Clukey v. Town of Camden, Maine, #14-1264, 2015 U.S. App. Lexis 13957, 203 L.R.R.M. (BNA) 3621 (1st Cir.).

Sex Discrimination

     A man was a candidate for a police academy class, and scored high on the examination, placing him at the top of a list of eligible candidates who did not qualify for reemployment or a statutory preference, but ranked 214 on the eligibility list because of such preferences. He was not admitted, and claimed that he had been subjected to sex discrimination arising from preferential treatment of females in hiring candidates. Under Massachusetts state law, gender discrimination in employment was not permitted unless the employer had a bona fide occupational qualification (BFOQ) to limit the position to a specific gender. The fact that there was a statistical disparity between the number of female defendants/arrestees and the number of female officers was generally insufficient to be such a BFOQ. In this case, however, the highest court in Massachusetts ruled that the claim should be dismissed for lack of standing as the alleged injury was not sufficiently concrete and imminent to give the plaintiff standing.

     "Nothing in the record speaks to the relative likelihood that the candidates ranked ahead of the plaintiff would have been granted conditional offers of employment, whether they would have passed the required fitness and medical review, or even if they would have accepted or rejected said offers. Although it is possible that most of the people ranked ahead of the plaintiff would have either turned down an offer or would have failed the fitness and medical review, such a position is purely speculative based on the record before us." Pugsley v. Police Dep’t of Boston, #SJC-11740, 472 Mass. 367, 2015 Mass. Lexis 486, 127 Fair Empl. Prac. Cas. (BNA) 1359.

Whistleblower Protection

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

     A police chief sanctioned an officer for releasing to the media a recording of an Emergency Response Team's radio communications during an incident involving a suspect exchanging gunfire with officers and barricading himself inside a home. The officer claimed that this was unlawful retaliation for protected speech in violation of the First Amendment and a D.C. Whistleblower protection statute. The appeals court upheld the rejection of the First Amendment claim as the response team recording was within the provisions of a valid general order issued by the department against the disclosure of confidential information that could jeopardize ongoing investigations. The police department's interest in non-disclosure outweighed the interests of the public and the plaintiff in releasing the recording. Release of the recording could have harmed pending criminal investigations into the incident, since the confidential information concerning the barricade, if kept confidential, could provide a basis to gauge other evidence offered by witnesses and those involved in the incident. The whistleblower claim was rejected as the plaintiff failed to show how the release of the recording was a "protected disclosure" under the statute as in effect at the time of the incident. Baumann v. District of Columbia, #13-7189, 2015 U.S. App. Lexis 13530 (D.C. Cir.).

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

     Media Relations: Focus on Media Relations: A Recipe for Success with News Outlets, by Christina Cotterman, FBI Law Enforcement Bulletin (September 2015).

     Officer Suicide: Addressing Officer Crisis and Suicide: Improving Officer Wellness, by Brian R. Nanavaty, FBI Law Enforcement Bulletin (September 2015).

Reference:

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