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Age Discrimination

     Firefighters in a city who took a promotional exam for Lieutenant or Captain but were not promoted sued under the Age Discrimination in Employment Act and an Ohio statute, claiming that the process had a disparate impact on firefighters over the age of 40. After a trial, a jury found that both promotional processes adversely impacted applicants over age 40 and that the city had not justified the age discrimination by demonstrating a business necessity. Backpay of $616,217.75 was awarded, and the trial court entered a permanent injunction against the age discrimination and appointed a court monitor. A federal appeals court upheld the finding of liability, reversed the backpay award for a new trial on the amount to be awarded since the trial court used an incorrect start date to calculate the back pay amount and other errors were made, and the court monitor's involvement in the process was limited to one promotional cycle. Howe v. City of Akron, #14-3352, 2015 U.S. App. Lexis 16529, 2015 Fed. App. 0231P (6th Cir.).

Disciplinary Punishment -- In General

     A deputy sheriff pled guilty to driving under the influence and he was relieved of duty when arrested. That action did not preclude the department from imposing discipline based on both that offense and subsequent misconduct that involved driving with a suspended license. Even though he had been relieved of duty, he remained a county employee under state and county law, and this was especially the case in light of the fact that he still held himself out as a deputy and "maintained the accoutrements" of a deputy after being relieved of duty. The sheriff's department had the authority to discharge the deputy. Negron v. Los Angeles Cnty. Civ. Serv. Comm., #B258031, 2015 Cal. App. Lexis 847.

     The plaintiff was appointed to a position as Park Superintendent of a National Historical Park in Sitka, Alaska. Two years later, she was removed from her job after she refused management's reassignment to a different job at the same grade and pay in Anchorage,. Alaska. A federal appeals court reversed a decision of the Merit Systems Protection Board reinstating the plaintiff in her job, ruling that the agency had shown by a preponderance of the evidence that there were legitimate management reasons for the reassignment, and the plaintiff failed to rebut this prima facie justification. Cobert v. Miller, #14-3101, 2015 U.S. App. Lexis 15566 (Fed. Cir.).

FLSA - Overtime - In General

     Current and former Vermont State employees sued the state in state court for alleged violations of the Fair Labor Standards Act (FLSA). The state removed the lawsuit to federal court, and the trial court subsequently granted the defendants' motion to dismiss. While the state's removal of the case to federal court may have had the effect of waiving Eleventh Amendment immunity from suit in federal court, the defendants had not expressly waived the state's general sovereign immunity from a private FLSA lawsuit. The dismissal was therefore proper. The fact that the state had recognized, in a state statute, its legal obligation to comply with the FLSA did not constitute an intentional waiver of immunity from a lawsuit against it under the FLSA's private right of action provisions. Beaulieu v. State of Vermont, #13-4198, 2015 U.S. App. Lexis 16505 (2nd Cir.).

     Firefighters and emergency medical personnel were not entitled to overtime under the FLSA for time spent loading and unloading gear from their cars and taking their gear to temporary duty stations other than their homes. The time spent on this activity was not "integral and indispensable" to the principal work they were employed to perform, and rather was "preliminary" or "postpreliminary" under the Portal-to-Portal amendments to the FLSA. The court further ruled that the defendant agency did not act in violation of the FLSA when it excluded money paid to the plaintiffs from their "regular rate" of pay which was then used to calculate the proper rate of overtime. Balestrieri v. Menlo Park Fire Protection Dist., #12-15975, 2015 U.S. App. Lexis 15785 (9th Cir.).

Health Insurance

     A police officer responding to an emergency call fell after slipping on ice. He was found to be suffering from significant osteoarthritis in both hips, which was aggravated by the fall. After two hip replacement surgeries, he was awarded a line-of-duty disability pension. The employer sought a court ruling that it was not required to pay for his health insurance premiums under the Illinois Public Safety Employee Benefits Act, 820 ILCS 320/10. The Illinois Supreme Court rejected this argument, upholding rulings from the trial court and an intermediate appeals court. Once a line-of-duty disability pension is awarded, that establishes that an officer suffered a "catastrophic" injury obligating the employer to pay the officer' health insurance premiums. The employer was not entitled to a hearing to satisfy due process requirements, and was not denied due process, as it made the decision not to intervene in the officer's disability pension proceeding or to object to the award of the line-of-duty disability pension. Village of Vernon Hills v. Heelan, 2015 IL 118170, 2015 Ill. Lexis 774.

Political Discrimination

     A Georgia deputy sheriff's First Amendment rights were not violated when an elected sheriff, upon taking office, allegedly transferred her to a position with less responsibility and authority, as well as less prestige because she had supported his opponent. Under state law, political loyalty was an appropriate requirement for the position of deputy sheriff. The claim that her transfer constituted gender discrimination was rejected. The sheriff stated that she was transferred to remedy problems with the jail, and she failed to show that this was a pretext for discrimination. Ezell v. Darr, #13-15851, 2015 U.S. App. Lexis 16851 (11th Cir.).

     At a time when Illinois had a Democratic governor, the plaintiff, a conservative who votes Republican, was working in Chicago as a special agent for the state liquor control commission. She bought a home in southern Illinois, and asked about transferring to that area. She failed to submit a formal transfer request or apply for the job, and did not get the position. She sued state officials, claiming that she was denied the transfer in violation of her First Amendment rights because of her political affiliation, as well as because of her gender. A federal appeals court upheld summary judgment in favor of the defendants, since the undisputed evidence showed that the plaintiff did not receive the desired transfer because she never submitted the proper transfer request paperwork or otherwise apply for the desired position. There was no causal link between this and her Republican political affiliation. Bisluk v. Hamer, #14-3365, 2015 U.S. App. Lexis 16037, 127 Fair Empl. Prac. Cas. (BNA) 1729 (7th Cir.).

Training Rights, Requirements and Cost Reimbursement

     In the absence of any evidence that would allow apportionment of police academy costs between basic training for state certification and employer-mandated training, a city could not legally enforce a contract requiring recruits to reimburse the city for a portion of their training if they left within five years and went to work for another law enforcement agency within one year after leaving. In re Acknowledgment Cases, #E058460, 239 Cal. App. 4th 1498, 2015 Cal. App. Lexis 770.

Whistleblower Protection

     A Correctional Department Lieutenant filed a lawsuit in federal court claiming both federal civil rights violations and violations of a California state whistleblower protection statute by his employer. He claimed that adverse actions, including his dismissal, were taken in retaliation for him disclosing alleged improper governmental actions to his superiors, including negligent inmate supervision resulting in an escape, exhibiting a movie to inmates that violated Department policy, attempts to collect overtime for work not done, and allowing in contraband. The trial court rejected the state whistleblower claim, finding that the plaintiff was barred from "relitigating" it because it had already been litigated during hearings before the state Personnel Board. A federal appeals court reversed, finding that the decision by the state Personnel Board did not preclude the plaintiff under theories of either res judicata or collateral estoppel from litigating his whistleblower retaliation damage claim in the trial court. Wabakken v. CA Dep't of Corr. & Rehab., #13-56075, 2015 U.S. App. Lexis 16307 (9th Cir.).

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     Hiring: The Right Person for the Job: Police Chiefs Discuss the Most Important Commodity in Law Enforcement, by Susan Hilal and James Densley, FBI Law Enforcement Bulletin (October 2015).

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