MONTHLY CASE DIGEST

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Disciplinary Interviews & Compelled Reports - Weingarten Rights

     A union representing government employees at an Air Force base appealed a Federal Labor Relations Authority (FLRA) decision rejecting its claim that the base committed an unfair labor practice by denying the request of an employee to have a union representative present during questioning by the Air Force Office of Special Investigations (AFOSI) about alleged misuse of a work computer. The union's claim was based on a provision of 5 U.S.C. sec. 7101 et seq., which provided federal employees who belonged to a union with the right to the presence of a union representative when questioned about things that could lead to discipline. The FLRA relied on President Carter’s Executive Order 12,171, which exempted AFOSI from coverage under the Labor-Management Statute. A federal appeals court ruled against the union, finding that section 7103(b)(1) and Executive Order 12,171 extinguished any right to have a union representative present during a proper AFOSI interrogation. American Fed. of Gov. Employees v. FLRA, #15-9542, 2016 U.S. App. Lexis 16418, 207 L.R.R.M. (BNA) 3197 (10th Cir.).

FLSA: Overtime - In General

     Employees at a private manufacturing plant were required to be onsite before and after their work shifts to "don and doff" uniforms as well as protective gear. They were also required to help with "shift relief," in which employees from an outgoing shift shared information about the status of the work with incoming shift workers. The time that donning, doffing, and shift relief took varied from 30 to 60 minutes a day. The company paid employees for 30 minute meal breaks and two other 30 minute breaks during their 12-hour shifts, even though not legally required to do so. The paid break time was always in excess of the time spent on donning and doffing and shift relief. A class action lawsuit sought overtime under both the Fair Labor Standards Act and a Pennsylvania state statute for the time spent donning and doffing and providing shift relief. While the trial court granted summary judgment to the employer, a federal appeals court reversed, finding that the court's prior precedent limited offsetting to "extra compensation" not included in the regular rate, which was therefore inapplicable to the paid break time regularly paid. Smiley v. EI DuPont de Nemours & Co., #14-4583, 2016 U.S. App. Lexis 18242 (3rd Cir.).

First Amendment Related

     A former police officer claimed that she was improperly terminated for First Amendment protected speech when she spoke to local leaders about what ahe saw as a "scam" in the department, unnecessary overtime for supervisors. Police officials were not entitled to qualified immunity on this claim. The officer's right to free speech was clearly established, and the speech was not made pursuant to the officer's official duties. The court also found that the officer's probationary status was irrelevant. Ricciuti v. Gyzenis, #12-432, 2016 U.S. App. Lexis 15556 (2nd Cir.).

     City officials (including the mayor, and a councilwoman) were accused of violating a city manager's rights after he made reports to law enforcement and other agencies about their alleged misconduct in violating state campaign finance and disclosure laws. A federal appeals court held that the plaintiff asserted a plausible First Amendment claim that he spoke as a private citizen and not as part of his job duties concerning violations of state campaign finance laws, but not as to his statements concerning financial disclosure laws or disclosures made at city council meetings. Carollo v. Boria, #15-11512, 2016 U.S. App. Lexis 15072, 26 Fla. L. Weekly Fed. C 646, 41 I.E.R. Cas. (BNA) 993 (11th Cir.).

Handicap/Abilities Discrimination

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

     A state employee of a motor vehicles customer service facility administered road tests, performed clerical duties, and collected fees. Although suffering from mental health disabilities, including PTSD, major depressive disorder, anxiety, obsessive-compulsive disorder, and phobia, she took prescribed medication and attended counseling to address these problems. She was described as "punctual, reliable, friendly with customers, and patient with new drivers.” She excelled in administering road tests, but did not meet expectations in financial accountability. A 2011 rule change precluded an overall rating of satisfactory if the employee did not meet employer expectations in specified areas, including financial accountability. She was therefore placed on probation and given a final performance improvement plan under threat of termination. She began to experience panic attacks, including one involving hysterical screaming and self-harm, causing a co-worker to call 911. An independe nt medical examination resulted in a finding that she was at increased risk "for potentially violent behavior toward self and others within the workplace," resulting in her firing. A federal appeals court rejected a Rehabilitator Act disability discrimination claim, finding that she had been fired not solely on account of her disabilities, but rather because of workplace behavior showing that she was a safety risk both to herself and to other people. Felix v. Wis. Dep't of Transp., #15-2047, 2016 U.S. App. Lexis 12462, 32 Am. Disabilities Cas. (BNA) 1576 (7th Cir.).

     A man worked for a city park district for years, followed by years as a truck driver for the city's streets and sanitation department. He developed cervical radiculopathy, which was determined to be a work-related injury. He entered into an accommodation agreement with the city and was reassigned to the job of chief timekeeper. He never performed the functions of that job, but instead did various other tasks assigned by his supervisor. After a number of years, a new supervisor gave him job duties that required the use of his injured arm. He had difficulty doing those duies and his position was ultimately eliminated as part of a city-wide reduction in forces. He sued, claiming that he had been targeted for elimination for having exercised his rights under workers' compensation and the Americans with Disabilities Act, (ADA), 42 U.S.C. 12101. A jury found in his favor on the workers' comp retaliation claim and awarded damages, but the trial judge rejected his ADA claim. A federal appeals court ruled in favor of the city on both claims, finding that neither should have been tried. The plaintiff failed to show causation. There was simply no evidence that the reduction in forces decision-makers even knew about his workers' comp or ADA claims or terminated him in retaliation for them. Hillmann v. City of Chicago, #14-3438, 2016 U.S. App. Lexis 15439 (7th Cir.).

Pay Disputes - In General

     A retired employee of a California state agency sued on behalf of similarly situated resigned and retired employees, claiming that they were not paid their final wages within a statutory deadline. The statute requires prompt payment to employees who are discharged or who resign. The plaintiff, who had retired from her job, stated a claim to statutory penalties for late payment of final wages as the statute applies to those who "quit to retire." McLean v. State, #S221554, 1 Cal. 5th 615, 2016 Cal. Lexis 6787, 167 Lab. Cas. (CCH) P61734.

Political Activity/Patronage Employment

CASE UPDATE:

     A U.S. Supreme Court case involved a police detective who 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. 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, 136 S. Ct. 1412, 194 L. Ed. 2d 508, 2016 U.S. Lexis 2924.

     In a further development in the case, in remanding for trial, the federal appeals court said that, if, when the detective was disciplined, the city had in effect (whether written or unwritten) a neutral policy prohibiting officers assigned to the Office of the Chief of Police from overt involvement in political campaigns, such a policy meets constitutional standards. The trial court must then determine whether he was aware or reasonably should have been aware of such a policy and whether he was disciplined for what reasonably appeared to be a violation. Heffernan v. City of Paterson, #14-1610, 2016 U.S. App. Lexis 15695 (3rd Cir.).

Race Discrimination - In General

     A federal trial court entered a consent decree in 1982 requiring a Florida city to hire in the fire department “an equal number of blacks and whites until the ratio of black fire fighters to white fire fighters reflects the ratio of black citizens to white citizens in the City of Jacksonville.” The city stopped complying with that requirement in 1992, and the current lawsuit was filed 15-years later in 2007 asking that the city be required to show cause why the court should not hold it in contempt. A federal appeals court upheld the denial of the motion on the basis of laches as well as the dissolving of the consent decree. The 15 year delay by the plaintiffs in filing the lawsuit prejudiced the city's ability to defend itself. Further, as a new lawsuit had "taken up" the issue of fighting current day alleged racial discrimination in the fire department, and the law on the subject had changed, the trial court's actions had not been an abuse of discretion. Coffey v. Braddy, #15-11112, 2016 U.S. App. Lexis 15413, 26 Fla. L. Weekly Fed. C 656, 100 Empl. Prac. Dec. (CCH) P45620 (11th Cir.).

Sex Discrimination

     A retired male criminal investigator with the judicial circuit's District Attorney's Office sued the county for sex discrimination after discovering that a less experienced female in the office earned a "substantially higher" salary for the same job. A federal appeals court upheld summary judgment for the county, which was a legally separate entity that was not in control of the District Attorney's Office's employment relationship with its criminal investigators. The fact that the county provided paymaster, administrative, and budgetary functions for the District Attorney's Office did not alter the result. Additionally, the county could not be aggregated with his actual employer to support a federal anti-discrimination case under a joint-employer theory; Peppers v. Cobb County, #15-10866, 2016 U.S. App. Lexis 15691, 26 Fla. L. Weekly Fed. C 703, 129 Fair Empl. Prac. Cas. (BNA) 849 (11th Cir.).

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     Officer Health: Building Community Trust Requires Supporting Healthy Officers, by John Marx, FBI Law Enforcement Bulletin (October 2016).

     Police Management: Commander’s Intent: A Framework for Success, by W. Michael Phibbs, FBI Law Enforcement Bulletin (October 2016).

Reference:

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