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Attorneys' Fees

     A city sought to compel the city's employee retirement system to increase employee's contributions to their retirement fund to help pay for an $800 million investment loss the fund had suffered. Four public employee labor unions intervened in the case, echoing the arguments made by the retirement system as to why the city's request should be denied. The case was settled, with the city agreeing not to seek to make the employees pay for past unfunded accrued actuarial liabilities, and to meet and confer about any future changes. The unions sought to recover $1,785,147 in public interest attorneys' fees under a California state statute. An intermediate California appeals court upheld the denial of such a fee award when the unions failed to show that their intervention was necessary to the outcome of the case, or that the venue and discovery motions they filed had any significant impact on the litigation. San Diego Municipal Employees Assoc. v. City of San Diego, #D066886,244 Cal. App. 4th 906, 2016 Cal. App. Lexis 94.

Civil Service

     A former FBI agent sued the Justice Department under the Administrative Procedures Act (APa), claiming that the Deputy Attoney General's decision upholding a ruling of the Office of Attorney Recruitment and Management (OARM) that she had not been constructively discharged and denying her back pay was arbitrary and capricious. She had previously filed a lawsuit concerning her employment contending that the Office of Professional Responsibility (OPR) had not conducted its investigation about her complaints as required under applicable regulations and seeking injunctive relief under the APA. The employer's motion to dismiss was granted in the earlier lawsuit, based on the Civil Service Reform Act (CSRA) expressly barring judicial review of claims within the scope of the CSRA. The decision in the prior case, and the exclusivity of the CSRA barred her from relitigating the issues through her latest lawsuit. Turner v. DOJ, #14-3678, 2016 U.S. App. Lexis 2649 (8th Cir.).

First Amendment Related

     A police chief was entitled to qualified immunity in a lawsuit brought by a police officer claiming that he faced retaliation for various instances of speech critical of the chief's competence. The officer was both a member of and an officer of the police union. A federal appeals court ruled that it was not clearly established that a city police officer's speech as a union officer attacking the chief of police's competence as chief outweighed the chief's governmental interest in effective administration of the department. Lynch v. Ackley, #14-3751, 811 F.3d 569 (7th Cir. 2016).

Handicap/ Abilities Discrimination - In General

     An employee of the New York Attorney General's office claimed that she had a disability of Chronic Fatigue Syndrome and that she was ultimately terminated because of disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. The employer did attempt to reasonably accommodate her condition, allowing her to work at home up to three days a month. When she sued for disability discrimination, the employer sought to dismiss the claim under the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e-16a, 2000e-16b, which it contended barred the claim because the plaintiff had been employed at a policymaking level. The trial court denied the motion, finding that she had not been a policymaking level employee. A federal appeals court dismissed the employer's appeal, finding that such a denial was not immediately appealable. Fischer v. New York State Dept. of Law, #14-2556, 2016 U.S. App. Lexis 1979 (2nd Cir.).

Military Leave and Service

     A Drug Enforcement Agency (DEA) criminal investigator was also an officer in the Army Reserves. The DEA assigned him to its Lima, Peru office, where he served four years. He was unsuccessful in seeking a two-year extension of the assignment, and argued that the decision not to renew his tour was unlawfully based on his military service in violation of the Uniformed Services Employment and Reemployment Rights Act, (USERRA), 38 U.S.C. 430. An ALJ addressing this claim found it "unsupported," citing various "performance issues" in terms of his numbers of arrests, seizures, informant recruitments, and disruptions of criminal organizations, as well as alleged failure to follow his chain of command and "disrespectful and improper" emails to his supervisor. While the Merit Systems Protection Board denied his appeal, a federal appeals court ordered further proceedings, since the DEA failed to meet its burden of showing that it would have reached the same decision in the absence of the plaintiff's military service. McMillan v. Dep't of Justice, #15-3042, 2016 U.S. App. Lexis 2605 (Fed. Cir.).

Race Discrimination - In General

     An ex-police chief claimed that he was fired in retaliation for his desire to promote an African American member of the department. A federal appeals court found that he had failed to demonstrate that such retaliation was the basis for his termination or that the reasons the mayor gave for firing him were pretexts. The mayor cited problems with the chief making sure that all officers satisfied firearms certification requirements, and the exceeding of the allocated budget for purchasing dashboard cameras, legitimate non-discriminatory reasons. Evidence that the mayor and his friends had used derogatory language in referring to African American people was insufficient to serve as racially discriminatory animus. He did not claim that the statements in question were in any way made in connection with his employment. Hutton v. Maynard, #15-1300, 2016 U.S. App. Lexis 1774 (8th Cir.).

Race - Reverse Discrimination

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

     The plaintiff claimed that a village's former mayor had not appointed him chief of police because he was a white Italian-American, instead appointing a less qualified Hispanic candidate. A federal appeals court agreed with the trial court that race includes ethnicity for purposes of a Title VII claim, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination. The trial court therefore acted properly in refusing to dismiss the claim and in allowing it to go to trial. The jury awarded the plaintiff $150,000 for lost back pay, $1,000,000 for lost future pay, and $200,000 in punitive damages (against the ex-mayor personally). The appeals court, however, vacated the award, ordering a new trial because the trial judge erroneously allowed lay opinion testimony that speculated on the ex-mayor's reasons for not appointing the plaintiff. Since the case was close, the error was not harmless. Village of Freeport v. Barrella, #14-2270, 2016 U.S. App. Lexis 2629 (2nd Cir.).

Residency - Preservice/Durational Requirements

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

     The city of Chicago has agreed to pay $3.1 million to 47 immigrants denied jobs as police officers. The immigrants claimed that a rule that required applicants to have lived in the United States for the past ten years was discriminatory and denied them a fair opportunity to seek employment with the department. The city also requires that all employees currently live within the city. The ten-year residency rule was changed in 2011 to five years, so the settlement only addresses allegations of past discrimination. Under the settlement, eight of the rejected applicants will also be offered jobs. U.S. v. City of Chicago, #1:16-cv-01969, U.S. Dist. Ct. (N.D. Ill. February 16, 2016).

Sexual Harassment - In General

     Statistics showed that in 2012 one in five female military veterans and one in 100 male veterans reported experiencing sexual abuse in the military. It was also estimated that 26,000 service members "experienced some form of unwanted sexual contact." Trauma resulting from such incidents can cause severe chronic medical problems, including anxiety, depression, and Post Traumatic Stress Disorder (PTSD). Veterans with disabilities resulting from such conditions can receive disability benefits under 18 U.S.C. Sec. 1110. A veterans group filed a petition seeking rulemaking in response to what they claimed was an inadequate response by the Veterans' Administration to disability claims stemming from military sexual trauma (MST). They sought a new regulation detailing how such claims were to be adjudicated, claiming that a lower proportion of MST PTSD claims were granted than PTSD claims traceable to other causes. The Secretary of Veterans Affairs denied the petition. Upholding the denial, a federal appeals court rejected an argument that the Secretary violated equal protection by intentionally discriminating against women or discriminating against survivors of MST-based PTSD. The court found that the denial was not based on a discriminatory purpose, since both men and women can be subject to MST, and the Secretary adequately described the reasoning for the denial. Serv. Women's Action Network v. Sec'y of Veterans Affairs, #14-7115, 2016 U.S. App. Lexis 3976 (Fed. Cir.).

Whistleblowing Protection

     An FBI special agent was the leader of an operations group assigned the task of relocating a previously compromised undercover facility. A facility was leased from an owner who promised to contribute $70,000 to various facility improvements. The plaintiff both negotiated the lease and managed the tenant improvement funds. While doing this work, he made whistleblower-eligible disclosures regarding alleged misconduct by two individuals. After that, the plaintiff was given a low performance rating by his supervisor, removed as group leader, and reassigned. The plaintiff believed that these actions were retaliatory for the whistleblowing and therefore sent a letter to a U.S. Senator, who referred the matter to the Justice Department's Office of the Inspector General (OIG). The OIG investigated and issued a report. The Merit Systems Protection Board upheld the plaintiff's ultimate termination for alleged lack of candor under oath in an inquiry as to the accounting for the tenant improvement funds. A federal appeals court found that the lack of candor charges were not supported by substantial evidence, and that the Merit Systems Protection Board had erroneously barred the agent from raising an affirmative defense of whistleblower retaliation. Parkinson v. Dep't of Justice, #15-3066, 2016 U.S. App. Lexis 3614 (Fed. Cir.).

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     Police Injuries: Pattern of law-enforcement related injuries in the United States, by DC Chang, M Williams, NF Sangji. LD Britt, and SO Rogers Jr., J Trauma Acute Care Surg. 2016 Feb. 16 (abstract).

     Training: Mental Preparedness Training, by Judith P. Andersen, Konstantinos Papazoglou, Harri Gustafsberg, Peter Collins, and Bengt Arnetz, FBI Law Enforcement Bulletin (March 2016).

Reference:

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