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Arbitration Procedures

     An employee of the U.S. Government Printing Office belonged to a union that had negotiated a collective bargaining agreement providing a grievance procedure to contest adverse employment actions as an alternative to appealing to the Merit System Protection Board. When he was reassigned to a different job, resulting in a demotion to a lower grade as well as a cut in pay, he filed such a grievance, but the arbitrator dismissed the claim as not arbitrable because a four month deadline required by the agreement for holding a hearing had passed. Reversing, a federal appeals court found that the four month period was only a nonbinding "housekeeping" rule designed to encourage timely arbitration and failure to comply with that deadline, which was addressed to the arbitrator as well as the employee and employer, did not require dismissal of the grievance. Muller v. Gov't Printing Office, #15-3032, 2016 U.S. App. Lexis 638 (Fed. Cir.).

Equal Pay Laws

     A woman who worked for the Federal Aviation Administration claimed that she performed the duties of a program analyst, but was not given the position or compensated for extra work she allegedly did. She asserted a claim for violations of the Equal Pay Act, asserting that she was not given the pay provided to male employees doing comparable work. Her equal pay claim failed because she had not provided a description of any "common core of tasks" or of the male employees' hours, duties, background, and qualifications. Her failure to promote Title VII sex discrimination claim failed as she had not shown that she ever actually applied for the job of program analyst she complained about not getting. Additionally, a Title VII unlawful retaliation claim failed when she did not prove that she ever complained about the alleged discrimination before measures were taken to remove her from what she characterized as more challenging duties. Jaburek v. Foxx, #15-2165, 2016 U.S. App. Lexis 474 (7th Cir.).

First Amendment Related

     A female police officer assigned to work as a media liaison claimed that a male officer assigned to similar duties verbally assaulted her on a number of occasions and that when she complained about this and initiated an internal affairs investigation that sustained her complaint, both she and another officer who came to her assistance were reassigned to patrol duties, with her having to work the midnight shift in a dangerous neighborhood. She also claimed that the coworker who verbally assaulted her was never reprimanded. A federal appeals court found that her speech in complaining about the harassment was not constitutionally protected by the First Amendment, as she did not speak as a private citizen or on a matter of public concern, as the objective of her complaints was only to further her personal interest in remedying her employee grievance. Her speech was intimately connected with her job duties. Kubiak v. City of Chicago, #14-3074, 2016 U.S. App. Lexis 385 (7th Cir.).

Handicap/Abilities Discrimination - Reasonable Accommodation

     An employee of the District of Columbia suffered from sarcoidosis. While her employer was looking into the possibility of an accommodation for her disability through flexible hours, she suffered a serious injury as a result of which she was unable to perform her job duties. ultimately, she claimed, she was terminated and this constituted disability discrimination. A federal appeals court rejected this claim. The employer had been engaged in an interactive process of trying to accommodate her but after her injury she was no longer a "qualified individual" as she was unable to perform her job duties even with an accommodation. Minter v. District of Columbia, #14-7118, 809 F.3d 66 (D.C. Cir. 2015).

Health Insurance

     Speech-generating devices assist individuals with severe communication impairments by "speaking" typed messages out loud. A federal employee and a group advocating for such individuals sued the federal Office of Personnel Management ("OPM") and its director challenging the agency's approval of health benefits plans for federal employees that exclude or limit insurance coverage of speech-generating devices. The trial court dismissed the lawsuit for lack of standing. A federal appeals court upheld this result. The plaintiff employee failed in the trial court to show that he suffered a traditional financial injury-in-fact caused by the defendant's action, and then attempted on appeal to raise an entirely different theory of injury and standing not presented in the trial court. The appeals court said that it would not address the procedural injury or standing argument since it was not raised before. Huron v. Cobert, #14-5042, 2016 U.S. App. Lexis 788 (D.C.).

Political Discrimination/Patronage Employment

     Under a agreement known as the Shakman Accord, the city of Chicago agreed to eliminate political considerations in making employment decisions except for certain high level employees. Eight applicants for employment as city police officers who had been disqualified from further consideration claimed violations of the Shakman Accord as well as of the city's 2011 hiring plan. Claims under the Shakman Accord were properly dismissed as they were filed beyond the 180-day limit stated in the Accord itself. Further, the plaintiffs failed to assert any facts whatsoever relating to their political beliefs, affiliations, or activities, so no viable claim of political discrimination was established. Bonnstetter v. City of Chicago, #14-2977, 2016 U.S. App. Lexis 1795 (7th Cir.).

Race - Reverse Discrimination

    A white man employed by a city police department claimed that he suffered reverse race discrimination and conspiracy to conspire against him as a white person when an African-American woman was instead picked for the supervisory position in the department that he had applied for. A jury found for the plaintiff against three of his superiors. A federal appeals court upheld the result, finding that the materially different working conditions present in the supervisory position showed that the employee suffered an adverse employment action when he was not selected for the job, and there was also evidence to support the conclusion that two of his superiors reached an agreement to violate his rights. Bonenberger v. St. Louis Metro. Police Dept., #14-3696, 2016 U.S. App. Lexis 793 (8th Cir.).

Sex Discrimination - Reverse Discrimination

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

     A male flunked out of the FBI Academy by failing by one push-up to complete the 30 push-ups required of male trainees. He sued for sex discrimination on the basis that female trainees were only required to do 14 push-ups. The trial court granted summary judgment to the plaintiff on his sex discrimination claim, and the defendant appealed. The federal appeals court held that an employer does not violate Title VII when it uses physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each. Because the trial court failed to apply this rule in reaching its decision, further proceedings were required. Bauer v. Lynch, #14-2323, 2016 U.S. App. Lexis 379 (4th Cir.).

Whistleblower Protection

     An attorney hired by the International Boundary and Water Commission, a federal agency, within four months of hiring had prepared four legal memos challenging activities of the Commission as “gross mismanagement,” contrary to existing law, and characterizing certain officers as lacking “core competencies.” He also then submitted a report entitled “Disclosures of Alleged Fraud, Waste and Abuse” to the Office of Inspector General (OIG) and other federal agencies and informed his supervisor of his reports. His supervisor then fired him, listing his alleged failure to support the executive staff in a constructive manner as the reason. Relevant case law at that time established that reports made to an employee's supervisor about the supervisor's own conduct and reports made in the normal course of the employee's duties were not protected under the federal Whistleblower Protection Act. As a result, an administrative law judge, the Merit System Protection Board, and the U.S. Court of Appeals for the Federal Circuit found no unlawful retaliation.

     While these claims were pending, however, Congress enacted the Whistleblower Protection Enhancement Act of 2012, under which the legal memos at issue could be protected disclosures. That law can be applied retroactively to pending whistleblower cases. The plaintiff did not raise the issue of the change in the law while his petition for a rehearing was pending. Accordingly, the Merit System Protection Board refused to reopen his case, a ruling the federal appeals court upheld as the plaintiff had failed to exhaust his available Office of Special Counsel administrative remedies with respect to his legal memos, leaving the MSPB without jurisdiction to reopen his case. McCarthy v. Merit Sys. Protection Bd., #15-3072, 2016 U.S. App. Lexis 560 (Fed. Cir.).

     An employee of the Wisconsin State Department of Justice claimed that her employer took unlawful retaliatory action against her because she lawfully disclosed information in an email sent to her supervisor and two other employees expressing her concerns about her supervisor's announcement that the agency would provide the state Attorney General with 24-hour security services while he attended the Republican National Convention in another state. Her opinion was that this might be an improper use of state funds. One month later, she was removed from her job as Public Integrity Director and returned to her prior position as Special Agent-In-Charge. She claimed that her "disclosure" was protected from retaliation under a state whistleblower statute. The Wisconsin Supreme Court upheld the rejection of this claim. A mere opinion as to the lawfulness or appropriateness of a government action was not "information" being disclosed as defined in the statute. The email in question was also not a disclosure as all recipients already knew the information about the security plans. State Dep’t of Justice v. State Dep’t of Workforce Dev., #2013AP001488, 2015 WI 114, 2015 Wisc. Lexis 721

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     Conduct Unbecoming: Conduct Unbecoming: Lessons from the Military, by John M. (Jack) Collins, Police Chief Magazine (Jan. 2016)

     Drug Abuse: Leading At-Risk Employees: Law Enforcement and the Addiction Crisis, by Michael VanMeter, FBI Law Enforcement Bulletin (January 2016).

     Policing: Law Enforcement Organizations: Possibilities and Challenges for the Future, by Jay Fortenbery, FBI Law Enforcement Bulletin (February 2016).

Reference:

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