MONTHLY CASE DIGEST

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FLSA -- Overtime in General

     Joining the D.C., Second, Third, Seventh, and Ninth Circuits, the U.S. Court of Appeals for the Eleventh Circuit has ruled that employees may pursue a collective wage and overtime action against their employer under Sec. 216(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., at the same time as a class action brought based on more protective state minimum wage and overtime laws and pursuant to Federal Rule of Civil Procedure 23(b)(3) in the same proceeding. In a case brought against a county sheriff, the appeals court overturned a trial court decision that held that those two types of lawsuits were "mutually exclusive and irreconcilable." Calderone v. Scott, #15-14187, 2016 U.S. App. Lexis 17606, 26 Fla. L. Weekly Fed. C 806, 167 Lab. Cas. (CCH) P36474 (11th Cir.).

     An employee of a county surveyor's office was given permission by his supervisor to take a class during work hours, but was told that he would have to treat the time as unpaid or vacation time. He agreed to that, but when the class began, worked through lunch and came in early for a week. He was paid for that time, but fired for failing to follow his supervisor's order. He sued for violations of the Fair Labor Standards Act and an Indiana state wage claim statute. He claimed that while he would put his actual time worked on his time card, the hours were then reduced, with him being told that he could not be paid for over 37.5 hours in any one workweek. The county responded that he had been paid for all time he certified and that his recollection of his time worked was "demonstrably unreliable." Affirming summary judgment for the county, the appeals court noted that the plaintiff failed to refute the county contention that his evidence was implausible He failed to show that he worked over 40 hours in a workweek. Melton v. Tippecanoe Cnty., #14-3599, 2016 U.S. App. Lexis 17352, 167 Lab. Cas. (CCH) P36473, 26 Wage & Hour Cas. 2d (BNA) 1673 (7th Cir.).

Firearms -- Other Issues

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

     The plaintiff was issued a medical marijuana registry card under state law. Based on this, and relying on a letter issued by the federal ATF, a firearms dealer refused to sell her a firearm. She claimed that federal statutes, regulations, and guidance that prevented her from buying a gun because of her medical marijuana use violated her Second Amendment rights. Intermediate scrutiny was applied, and the court properly held that 18 U.S.C. 922(d)(3), 27 C.F.R. 478.11, and the ATF's Open Letter at issue did not place a severe burden on the plaintiff's Second Amendment rights. The degree of fit between the laws and guidance and the goal of preventing gun violence was reasonable and survived intermediate scrutiny. The appeals court also rejected First Amendment and Fifth Amendment due process claims. There was no constitutionally protected liberty interest in holding a medical marijuana registry card at the same time as buying a firearm. Wilson v. Lynch, #14-15700, 2016 U.S. App. Lexis 16108 (9th Cir.).

First Amendment Related

     A city's former police chief claimed that he was fired for suing the mayor in unlawful retaliation for exercising his First Amendment rights. Upholding summary judgment for the mayor, a federal appeals court concluded that while the plaintiff spoke as a citizen, his suit against the mayor in his personal capacity was not focused on matters of public concern and therefore was not protected First Amendment speech. While there was a mix of both public and private concerns in the lawsuit, personal concerns predominated since the plaintiff sought personal relief and the facts revolved around internal employment grievances arising from a feud between the two men. Gibson v. Kilpatrick, #15-60583, 2016 U.S. App. Lexis 17290, 41 I.E.R. Cas. (BNA) 1182 (5th Cir.).\

Handicap/Abilities Discrimination -- Accommodation in General

     A city employee claimed that his firing was disability discrimination. Upholding summary judgment for the employer, a federal appeals court found no evidence that the city's reliance on the employee's history of poor performance, failing to perform his duties, and misconduct was a pretext or even blended with discriminatory intent. Further, after he became disabled by injuring his back, the city accommodated him by finding him a more suitable job. The city could not be said to have acted in bad faith by failing to find him a second such position when he had shown no honest effort to try to succeed in the first one. Dillard v. City of Austin, #15-50779, 2016 U.S. App. Lexis 17024, 17 Accom. Disabilities Dec. (CCH) P17-086, 32 Am. Disabilities Cas. (BNA) 1765 (5th Cir.).

Race Discrimination

     Officers heard a loud bang from a vehicle with two African-American men speeding by and initiated a chase, thinking it was a gunshot. A 25 minute pursuit ensued, involving 62 police vehicles at speeds of up to 100 miles per hour. When the chase ended in a school parking lot, an officer exited his car and fired his gun when he thought he saw a car passenger reach for a gun. The car then accelerated towards him, and 13 officers fired 139 shots, killing the car occupants. Media accounts framed the incident as one in which one Hispanic officer and 12 white officers killed unarmed African-Americans. The officers were placed on restricted duty, which their lawsuit termed "demeaning." After a report on the incident was filed, but before a prosecutor completed his review of it, they were returned to "transitional" duties. No criminal charges were filed, and they then resumed full duty. Their lawsuit under Title VII claimed that they were kept on restricted duty for a longer time than African-American officers also involved in the use of deadly force. Snmmary judgment for the city was upheld, finding no racial discrimination. "While we should heed history’s lesson about protecting civil liberties in times of crisis, history alone is not evidence of civil rights violations." O'Donnell v. City of Cleveland, #15-4398, 2016 U.S. App. Lexis 17379, 2016 Fed App. 240P, 100 Empl. Prac. Dec. (CCH) P45641, 129 Fair Empl. Prac. Cas. (BNA) 957 (6th Cir.).

Retirement Benefits

    The plaintiff began working as an Immigration Inspector with the Immigration and Naturalization Service of the Department of Justice in 1987. From 1988-2000, she served as a Customs Inspector with the Customs Service of the Department of the Treasury. From 2000 forward, she was employed in various Instructor positions at the Federal Law Enforcement Training Center (FLETC) providing training to federal criminal investigators and law enforcement officers. In 2012, she requested review of her employment history so that she could obtain Customs Officer retirement credit for her past service with INS and Customs. Under federal law, certain groups, including firefighters and law enforcement officers who have served in physically rigorous jobs can receive enhanced retirement benefits including eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service. Those provisions were extended to Customs and Border Patrol Officers in 2008. Rejecting her plea that those provisions be applied to her Customs Service employment, the Merit Systems Protection Board and Federal Circuit ruled that amendments to the law did not provide for "retroactive service" credit for work performed before July of 2008. Fitzgerald v. Dep't of Homeland Sec., #15-3154, 2016 U.S. App. Lexis 17132 (Fed. Cir.).

     A retired police officer elected to pay for retiree health coverage through a group plan offered by the city which had employed him. It was administered by Blue Cross. When he turned 65, he was getting medical care for congestive heart failure and severe osteoarthritis of the spine. Blue Cross started denying his claims based on the failure to provide them with a "record of the Medicare payment." He had no Medicare coverage as he had never paid into Medicare and his employee group had not opted to obtain Medicare coverage. He never claimed to have Medicare coverage. The city did start to participate in Medicare, but that was after he retired. The State Employees' Insurance Board determined that his Blue Cross retiree health insurance was the secondary payer to Medicare, even though he had no Medicare. He sued the city, arguing that it had broken an agreement to provide him with lifetime health benefits upon retirement. The Alabama Supreme Court upheld summary judgment for the city. Even if the statements in the employee handbook created an employment agreement, nothing in the handbook could be interpreted as promising health benefits to retirees much less definite vested lifetime benefits. Boman v. City of Gadsden, #1150987, 2016 Ala. Lexis 102.

Sex Discrimination

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

     Five female paramedics with experience from other public and private emergency medical services providers sought jobs as Chicago Fire Department paramedics. They were all denied jobs after failing the city's physical-skills entrance exam, first given in 2000. They claimed that it had a disparate impact on women. In the trial court the argument that improper statistical methods were used to establish the skills test was rejected. A federal appeals court reversed. The jury should have been instructed on the plaintiffs' burden of proving that the city was motivated by anti-female bias in creating the test. Instead, they were improperly instructed on a different burden which failed to address motive. Evidence showed that the physical-skills study was neither reliable nor validated under federal law. Further, the skills that city paramedics learn on the job were different than what was tested. Even if they were the same, the court noted, the physical-skills entrance exam was significantly more difficult than the actual job workers perform. There was no evidence that the work-sample test, which the city used to validate the skills test, was a proper validation of job skills; The proper federal requirements for validity studies are in 29 C.F.R. § 1607.14(B)(4). Ernst v. City of Chicago, #15-2030, 2016 U.S. App. Lexis 17057, 129 Fair Empl. Prac. Cas. (BNA) 968 (7th Cir.).

Veterans

     A probationary patrol officer for a town police department was fired by the town manager. As he was a military veteran, he sued the town and police chief under the Uniform Services Employment and Reemployment Rights Act, claiming that his veteran status was a motivating or substantial factor in his discharge. A federal appeals court upheld judgment for the defendants. While the probative value of evidence about the number of other veterans employed by the department was low, it could not be concluded that the trial court's decision to allow the evidence was an abuse of discretion requiring a new trial. Angiuoni v. Town of Billerica, #14-2121, 2016 U.S. App. Lexis 17419, 100 Empl. Prac. Dec. (CCH) P45642, 207 L.R.R.M. (BNA) 3303 (1st Cir.).

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       Employment Discrimination: Advancing Diversity in Law Enforcement, U.S. Department of Justice, EEOC, (October 2016).

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