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Alcohol Abuse & Testing & Rehabilitation

     In order for a transit authority former employee to establish a regarded as disabled disability discrimination claim, he was not required to show that his alcoholism substantially limited a major life activity. Further, given the legal standard in the 2008 amendments to the Rehabilitation Act, the plaintiff presented enough evidence on his actual disability or record-of-impairment claims to permit a reasonable jury to find that his alcoholism substantially limited major life activities compared to most people in the general population. Summary judgment for the employer was reversed. Alexander v. WMATA, #15-7039, 2016 U.S. App. Lexis 11558 (D.C. Cir.).

Collective Bargaining - Duty to Bargain

     An arbitrator agreed with the police union that management violated the collective bargaining agreement when it unilaterally implemented a body-worn camera program without bargaining over the issue. Oklahoma City and FOP L-123, FMCS #16-50120-6 (Lumbley, Jun. 14, 2016).

Firearms Related

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

     In 18 U.S.C. Sec. 922(g)(9), Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of misdemeanant crimes of domestic violence under federal, state, or tribal law, committed against a domestic relation that necessarily involves the use of "physical force." In a previous decision, the U.S. Supreme Court held that a knowing or intentional assault qualifies under Sec. 922(g)(9), but failed to address reckless assaults. Two individuals pled guilty under a Maine law making it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. The U.S. Supreme Court held that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence, barring them from owning or possessing firearms. Reckless conduct, which requires the conscious disregard of a known risk, the Court stated, is not an accident: It involves a deliberate decision to endanger another. Voisine v. United States, #14-10154, 2016 U.S. Lexis 4061, 84 U.S.L.W. 4525.

Handicap/Abilities Discrimination -- In General

      An employee of a federal agency claimed that she was illegally denied a promotion by her employer because of her disability of legal blindness and her African-American race. A federal appeals court ruled that when a manager regularly requests and receives upgraded vacancies earmarked for his subordinates, his decision not to engage in the process because of an employee's disability or race can be an adverse employment action. Despite that, in this case, the plaintiff failed to present evidence from which a reasonable jury could find that her supervisor contributed to the agency's inaction in creating a GS-11 vacancy for her. Rather, there was evidence, unrefuted, that the supervisor made the request for the desired position for the plaintiff. The Deputy Assistant Secretary's denial could not have been based on discrimination, as the plaintiff recognized that he was not aware that the requested position was intended to facilitate her promotion. Chambers v. Burwell, #14-5047, 2016 U.S. App. Lexis 9769, 32 Am. Disabilities Cas. (BNA) 1401 (D.C. Cir.).

     A woman who worked as an educator for a correctional agency claimed that her contract was not renewed because of her eye disease and resulting vision disability. Upholding summary judgment for the employer, a federal appeals court noted that the denial of a request for alleged reasonable accommodations did not necessarily constitute an actual discharge. In this case, the employee did not seek to return to work, did not resign, and was, like all contractors, notified of the contract renewal procedures via an intranet email. Her contract was not renewed for a legitimate, non-discriminatory reason, that she never submitted the required paperwork. Velez-Ramirez v. Commonwealth of P.R., #15-1607, 2016 U.S. App. Lexis 11729 (1st Cir.).

Political Activity/Patronage Employment

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

     A previous sheriff had approved the plaintiff deputy's request to work as the part-time police chief of a nearby municipality. After the new sheriff took office, the plaintiff was injured while working as a deputy and received disability benefits for a time. The sheriff told him that his secondary employment was suspended until he could return to work as a deputy. After that, the deputy openly discussed at a party the possibility of running for sheriff in the next election. The sheriff conducted an investigation that concluded that the plaintiff continued to work at his secondary job after he was told it was suspended. The plaintiff was then terminated for cause, and he sued. A federal appeals court held that the plaintiff adequately alleged a political discrimination claim, presenting evidence from which it could be found that the charged violation of department rules was a pretext for political discrimination, as there was evidence that the sheriff rejected lesser sanctions that were available and suggested because of the plaintiff's expressed desire to run against him. The plaintiff's due process claim was rejected, however, because he waived a termination hearing in favor of an arbitration of a grievance concerning rule violations. The grievance was not addressed to the termination which had then occurred, so due process was available, but not pursued by the plaintiff. Yahnke v. County of Kane, #15-2162, 2016 U.S. App. Lexis 9517, 41 I.E.R. Cas. (BNA) 656 (7th Cir.).

Race Discrimination

     A white woman employed by the federal EPA claimed that she suffered reverse race discrimination when she was suspended without pay for seven days. Summary judgment dismissing her discriminatory suspension claim was erroneous because, under a "cat's-paw" theory, a supervisor's recommendation was intended to cause the suspension, and a jury could find that an insubordination charge was motivated by discriminatory animus given the supervisor's bias against white employee's and the employer's "weak" explanation for the action taken. Morris v. McCarthy, #14-5074, 2016 U.S. App. Lexis 10714, 129 Fair Empl. Prac. Cas. (BNA) 395 (D.C. Cir.).

     An African-American man with diabetes employed by a city as an electrician claimed that he was subject to race discrimination and retaliation against him for pursuing discrimination claims. Upholding summary judgment for the employer, a federal appeals court found that the exhaustion of the plaintiff's medical leave was not an adverse employment action or amount to constructive discharge. Rating his performance as unsuccessful was not based on race, as he failed to show that two white co-workers were similarly situated. He therefore failed to make a prima facie case of race discrimination. Jones v. City of St. Louis, Missouri, #15-2283, 2016 U.S. App. Lexis 10419, 129 Fair Empl. Prac. Cas. (BNA) 313 (8th Cir.).

     A correctional officer claimed that he was discriminated against as an African-American when he was terminated for allegedly making false statements and improperly allowing an inmate into a courtroom. Upholding summary judgment for the defendant warden, deputy warden, and major, a federal appeals court found that the stated reasons for the termination were legitimate and non-discriminatory. The plaintiff failed to create a genuine issue of material fact as to whether they were a pretext for race discrimination. There was evidence that a similarly situated white employee was subject to the same treatment. Henry v. Hobbs, #15-1472, (8th Cir.).

Residency - Continuing Requirements

     The City of Milwaukee has imposed a residency requirement on city employees since 1938. In 2013, the Wisconsin state legislature passed a law banning such requirements. The city continued to enforce the residency rule, claiming it could do so under the home rule provisions of the state Constitution. A police union sued, claiming that the statute trumped the home rule provisions. The Wisconsin Supreme Court agreed, finding that the statute barred the city from enforcing its residency requirement. Black v. City of Milwaukee, #2014-AP-000400, 2016 WI 47, 2016 Wisc. Lexis 155.

Sex Discrimination

     A county deputy applied for a job with a state regional drug investigation agency. She remained in her deputy job while a background check was performed. An agent for the prospective employer recommended that she not be hired because she had recently filed for bankruptcy and was in a relationship with a man who belonged to a biker gang associated with criminal activity. The plaintiff claimed that she was denied the job on the basis of gender, as the prospective employer had previously hired a man who had financial difficulties and some criminal associates. A federal appeals court upheld summary judgment for the defendant on the hiring claim, as the background check findings constituted sex-neutral reasons for not hiring her, and employers were entitled to learn from their past errors. McCurdy v. Fitts, #15-1212, 2016 U.S. App. Lexis 10672 (7th Cir.).

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     Assaults on Officers: Understanding Firearms Assaults against Law Enforcement Officers in the United States, by Joseph B. Kuhns, Diana Dolliver, Emily Bent, and Edward R. Maguire, COPS (March 14, 2016).

     Statistics: Sheriffs' Office Personnel, 1993–2013, by Andrea M. Burch, Bureau of Justice Statistics (June 16, 2016 NCJ 249757).

Reference:

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