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First Amendment Related

     An employee of a state agency was a political appointee of the elected Republican Land Commissioner. The Commissioner's decision not to seek reelection put her job at risk. Allegedly to see that she remained employed by the state, the outgoing Commissioner appointed her to a senior civil service job where she'd be protected by state law against being removed for political reasons. A newly elected Democratic Commissioner dismissed her, and she sued, arguing that she was a protected civil service employee and that the new Commissioner had unlawfully retaliated against her for exercising her right to free political association in violation of the First Amendment. A federal appeals court upheld the denial of qualified immunity to the new Commissioner, as there was evidence that the plaintiff's political affiliation was a motivating or substantial factor in her dismissal. The First Amendment rights allegedly involved were clearly established at the time of the dismissal. Walton v. NM State Land Office, #14-2166, 2016 U.S. App. Lexis 7030 (10th Cir.).

Handicap/Abilities Discrimination -- In General

    A former NASA employee claimed that he was the subject of adverse actions because of his disability or perceived disability, based on his depression, anxiety, and back pain. A federal appeals court rejected a disability discrimination claim under the Rehabilitation Act because the plaintiff did not show that he was "substantially limited" in working or that the employer regarded him as unable to perform a broad range of jobs. Nurriddin v. Bolden, #14-5156, 2016 U.S. App. Lexis 6174 (D.C. Cir.).

Handicap/Abilities Discrimination -- Medical Tests

     Two firefighter applicants who passed a background investigation, physical abilities test, and drug screen were notified that they needed to pass a medical screening, and received offers of employment conditioned on that screening. Neither of them were hired--one allegedly because of  bronchitis and the second because of his asthma and past problems with a hernia and kidney stones. A federal appeals court held that the plaintiffs failed to state a claim for disability discrimination under the Americans with Disabilities Act when they alleged that they were not hired due to the extensive medical requests that were a consequence of their disabilities which delayed their processing in the first come first served hiring process rather than because of the disabilities themselves. The plaintiffs failed to allege that the city discriminated against disabled applicants generally. The court also found that the plaintiffs failed to show that the city's testing process caused a relevant and statistically significant disparity between disabled and non-disabled applicants. Roberts v. City of Chicago, #15-1963, 2016 U.S. App. Lexis 5867 (7th Cir.).

Political Activity/Patronage Employment

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

     A police detective was a friend of the former police chief, who was running against the incumbent mayor. He was not, however, involved in his campaign, and could not even vote for him based on his city of residence. He did, however, at the request of his mother, who was bedridden, pick up one of the candidate's campaign signs to replace one that had been stolen from her lawn. An officer assigned to the mayor's security staff saw this, and the next day, the detective was demoted to a walking post as a result of his "overt involvement in a political election." He sued, claiming that this was unlawful retaliation for protected First Amendment activity. A federal appeals court rejected his free speech claim, as he did not intend to convey a political message when he picked up the sign. He did not show retaliation for an exercise of the right to freedom of association as he had no affiliation with the campaign. Prior precedent barred a claim of unlawful retaliation based solely on a "perceived," as opposed to actual, exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610, 777 F. 3d 147 (3rd Cir. 2015). The U.S. Supreme Court reversed. It held that the officer was entitled to seek relief for his demotion based on the city's mistaken belief that he was engaged in political speech, since the city allegedly acted upon a constitutionally harmful policy regardless of whether or not the officer did in fact engage in political activity. The harm— discouraging employees from engaging in protected speech or association in violation of the First Amendment—is the same, regardless of factual mistake. Heffernan v. City of Paterson, #14-1280, 2016 U.S. Lexis 2924.

Retirement Rights and Benefits

     A Massachusetts police officer was convicted of 21 counts of unauthorized access to a computer system. On the same day, he filed an application for voluntary retirement. The computer belonged to the state human resources division. Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors for a promotion to the position of captain in the police department. In order to view the examination scores of these other officers, he created a distinct user account for each officer, using the Social Security numbers and birth dates of the officers. A public employment retirement commission found that the criminal convictions related to his office or position and that, therefore, he was not entitled to receive a retirement allowance under the terms of a state statute. A trial court ruled that forfeiture of the plaintiff's lifetime retirement allowance was excessive and violated the excessive fines prohibition of the Eighth Amendment. The highest court in Massachusetts agreed, finding that the mandatory forfeiture of a public employee's retirement allowance upon conviction of a crime “involving violation of the laws applicable to his office or position” constituted a fine for purposes of the Eighth Amendment, and was not proportional to the gravity of the offenses the plaintiff was convicted of. Pub. Employee Ret. Admin. Comm’n v. Bettencourt, #SJC-11906, 474 Mass. 60, 47 N.E.3d 667 (2016).

Sex Discrimination -- In General

     A female deputy sheriff was in uniform while off-duty visiting the home of a person who owed money to her boyfriend, in an attempt to collect a debt. She admitted these facts and that she violated rules against conduct unbecoming an officer and the improper wearing of a uniform. A Merit Commission determined that her misconduct was serious enough to support discharge. A federal appeals court upheld summary judgment for the employer on a sex discrimination claim, as the plaintiff failed to identify any similarly situated male employee who was given more favorable treatment for similar misconduct. Kuttner v. Zaruba, #14-3812, 2016 U.S. App. Lexis 6765 (7th Cir.).

Sexual Harassment -- In General

     A female corrections officer employed at a facility operated by a private corporation claimed that she had been subjected to sex discrimination, harassment, and unlawful retaliation in violation of federal and state laws. The EEOC filed a class action lawsuit on behalf of female employees at the facility. A federal appeals court ruled that the trial court's dismissal of the class action for failure to conciliate was unwarranted. The EEOC had satisfied conciliation requirements before suing by sending a reasonable cause letter to the employer inviting it to conciliate and proposing a settlement. Further, even if the EEOC were found not to have conciliated prior to filing suit, the appropriate remedy would have been merely a stay of the lawsuit to permit conciliation, rather than dismissal. Arizona ex rel. Horne v. The Geo Group, #13-16081, 2016 U.S. App. Lexis 4646 (9th Cir.).

Veterans and Other Preference Laws

     A man served on active duty in the military for four years and had a VA disability rating of 60 percent. He subsequently was employed as an FDIC economic analyst, being hired at the GS-9 level and rising to the GS-12 level. Four years later, he was one of three finalists for a posted vacancy for a higher level job. All of the candidates, however, received some "inadequate" ratings during the evaluation process, none of them were selected, and the vacancy was cancelled. The plaintiff filed a complaint, asserting that the cancellation was in bad faith for the purpose of avoiding hiring a veteran. A federal appeals court upheld a determination by the Merit Systems Protection Board rejecting a claim under the Veterans Employment Opportunities Act, finding that there was substantial evidence that the cancellation was based on a lack of appropriately qualified candidates. The employer had “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” Miller v. Fed. Deposit Ins. Corp., #14-3146, 2016 U.S. App. Lexis 6406 (Fed. Cir.),

     A member of the New Mexico Army National Guard was employed by a state child welfare agency. He was ordered to federal active duty and deployed to Iraq. When he returned to New Mexico, his employment was terminated. He sued, claiming a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). A jury found in favor of the plaintiff and awarded $36,000 in damages for lost wages. An intermediate state appeals court reversed, finding that the agency, as an arm of the state, was immune to a USERRA claim. The New Mexico Supreme Court disagreed, finding that a state statute specifically extended the rights, benefits, and protections of USERRA to persons in the New Mexico National Guard when they were ordered to either federal or state active duty for thirty or more consecutive days. In enacting that statute, the legislature had consented to USERRA lawsuits brought against state employers. Ramirez v. CYFD, #34,613, 2016 N.M. Lexis 87.

Whistleblower Protection

     Employees of the West Virginia Department of Health and Human Resources claimed that they were fired for uncovering and alerting others to irregularities with the procurement process used by the department. Summary judgment in favor of the employer was erroneous, because the Request for Proposal process was governed by a state statute and involved the expenditure of public funds. The plaintiffs raised a genuine issue of material fact as to whether their actions were protected whistle blowing under a state statute. There was also an issue as to whether their activities were improperly motivated, giving rise to a legitimate reason for discharge. Complex issues of intent and motivation were involved that could only be decided by a trier of fact. Taylor v. W. Va. Dept. of Health & Human Res., #14-0679, 2016 W. Va. Lexis 276.

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     Statistics: National Sources of Law Enforcement Employment Data, by Duren Banks, Joshua Hendrix, Matthew Hickman, Tracey Kyckelhahn, Bureau of Justice Statistics (April 26, 2016 NCJ 249681).

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