AELE Seminars:
The Biometric, Psychological and
Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© Copyright, 2017 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes
Search the Case Law Digest
ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
Cite this issue as:
2017 FP March
Click here to view information on the editor of this publication.
Access the multiyear Employment Law Case Digest
Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™
can be used to view contents.
Arbitration Procedures
Family and Medical Leave
First Amendment Related
Hairstyle and Appearance Regulations & Discrimination
Pension Rights and Benefits
Political Discrimination
Retaliatory Personnel Action
Veterans and Other Preference Laws
Whistleblower Protection
Workers’ Compensation
Report non-working links here
AELE Seminars:
The Biometric, Psychological and
Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Some of the case digests
do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration is
required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus
Arbitration Procedures
A police department’s union contract included a grievance procedure. The union was empowered to refer a grievance to arbitration if it was not resolved within the three-step procedure. The police chief signed a complaint for termination of an officer for allegedly violating departmental procedures during a traffic stop. A hearing before the village’s board of fire and police commissioners ordered termination. The Illinois Supreme Court ruled that an order for the parties to proceed to arbitration was improper because the grievance was barred pursuant both to principles of waiver as well as the doctrine res judicata and therefore, the village was entitled to summary judgment in its favor on its complaint for declaratory judgment and for stay of arbitration. The union's and officer's actions in participating in the board hearing prior to filing their grievance waived any potential right to statutory arbitration of that grievance; Because the officer's and union's claims concerning the standards for discipline or termination of officers in the labor contract existed at the time the board decision was made, the officer and union were barred from relitigating those claims. The Village of Bartonville v. Lopez, #120643, 2017 IL 120643, 2017 Ill. Lexis 4.
Family and Medical Leave
A postal employee sued his employer and supervisor claiming that he was terminated in retaliation for taking Family Medical Leave Act (FMLA) leave. A federal appeals court affirmed summary judgment for the defendants, holding that the trial court properly found that the supervisor lacked the requisite knowledge necessary to hold him liable for retaliation in violation of the FMLA, as he thought the employee was out on paid workers’ compensation medical leave following an injury, rather than FMLA leave. Chase v. United States Postal Service, #16-1351, 843 F.3d 553 (1st Cir. 2016).
First Amendment Related
****Editor's Case Alert****
A city’s police chief issued a revised policy on officers’ use of social media. It stated, in part, that “Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment … Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.” The policy also “strongly discourages employees from posting information regarding off-duty activities.” While off-duty, two officers posted messages on Facebook stating the “rookie cops” were being assigned duties without adequate training, and referring to an unnamed supervisor who had not earned respect.
Both officers received oral reprimands and six months’ of probation. Shortly thereafter, the chief issued another policy, which barred officers on probation from participating in the promotion process. Both officers were therefore ineligible to sit for a promotion exam. They stated that they planned to challenge the disciplinary actions. They were then subjected to several complaints and investigations and the chief decided to fire one of them. They filed a federal civil rights lawsuit. The trial court granted the chief qualified immunity, stating that the policy at issue fell within a “grey area” and that the internal investigations were not retaliatory. A federal appeals court reversed in part, acknowledging need for discipline, but stating that the blanket policy on critical speech on social media and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment could not tolerate. Liverman v. City of Petersburg, #15-2207, 844 F.3d 400 (4th Cir. 2016).
Hairstyle and Appearance Regulations & Discrimination
A D.C. fireman had a beard, and was required to shave it by Department policy. He claimed to have a medical condition rendering him unable to shave without discomfort and infection. His employer refused to accommodate that condition. He sued, claiming disability discrimination under the Americans With Disabilities Act (ADA), among other claims. The trial court dismissed the ADA claims, finding that his condition did not meet the ADA definition of a disability. The plaintiff appealed that order on an interlocutory basis under 28 U.S.C. 1292(b) which allows such an appeal “if application is made to it within ten days after the entry of the order.” He filed a notice of the appeal in the trial court two days after the court denied reconsideration, but waited several weeks before filing his application in the appeals court. The appeals court dismissed, rejecting his contention that the notice of appeal and the order denying reconsideration, both of which were transmitted to it within the statutory period, served the same purpose as an application. Kennedy v. Bowser, #15-7143, 843 F.3d 529 (D.C. Cir. 2016).
Pension Rights and Benefits
Prior to 2013, the surviving spouse of a member of the Chattanooga Fire and Police Pension Fund could receive benefits after the member died without incurring a proportional reduction in the member’s lifetime benefits. In 2012, the city removed this “default death benefit” for members not eligible to retire as of January 1, 2013. A former police chief was not eligible to retire on that date and opted for a five-percent reduction in current, lifetime benefits so that his wife could receive an additional benefit upon his death. He then sued, asserting claims that the change violated the Contract Clause of the U.S. Constitution, constitutional due process, the Takings Clause of the U.S. Constitution, and the Law of the Land Clause of the Tennessee state Constitution. He also asserted that the 2013 amendment was not enacted in a valid manner under local law. A federal appeals court upheld the rejection of all of these claims. The plaintiff did not have either a contract or property right to the default death benefit. His other claims were also meritless. Dodd v. City of Chattanooga, #16-5470, 846 F.3d 180 (6th Cir. 2017).
Political Discrimination
A former deputy sheriff was allegedly not rehired by the Broward County, Florida Sheriff, allegedly because of his political loyalties and in violation of his First Amendment rights. The county had designated the sheriff as its chief correctional officer (CCO). The trial court, on this basis, held that the sheriff, acting as the CCO in the hiring and firing of his deputies, was an arm of the state and therefore entitled to the benefit of its Eleventh Amendment immunity from suit in federal court. A federal appeals court rejected this analysis and therefore overturned summary judgment for the sheriff. The definition of sheriffs as county officers in the Florida Constitution weighed toward county status, and a county could, but need not, designate its sheriff as its CCO under a state statute. The state's imposition of minimum hiring qualifications for deputies, a strong indicia of state control, was counterbalanced by the county's unilateral ability to designate its CCO and the county's involvement in the removal of deputies. The fact that the sheriff's budget was funded entirely by the county, even when acting as CCO, was a strong indicator of county control, and the factor of county (not state) responsibility for adverse judgments weighed against immunity. Stanley v. Broward County Sheriff, #15-13961, 843 F.3d 920 (11th Cir. 2016).
Retaliatory Personnel Action
A city’s former building commissioner claimed that she was fired by the city administrator because she criticized changes to the city's building code, requested an advisory opinion on the bidding process for purchasing computer equipment, and asked for an audit of the city's procurement department, as well as criticizing the city's handling of an aquatic-center project. She claimed that her firing was in retaliation for protected speech, and that the city was liable for damages as her firing was caused by an official municipal policy or an unofficial municipal custom. Rejecting this claim, a federal appeals court ruled that the city could not be held liable for the administrator’s actions solely because it employed the administrator. The plaintiff failed to show anything more than unsubstantiated suspicion o a continuing, widespread, and persistent pattern of unconstitutional misconduct leading to her termination. The city’s mayor, not its administrator, was its official policymaker. Bolderson v. City of Wentzville, #15-3846, 840 F.3d 982 (8th Cir.).
Veterans and Other Preference Laws
A man was hired by the Delaware River Port Authority in 1989 as a police officer. From 1989-2009, he served six years as a Navy corpsman and 10 years in the Pennsylvania National Guard. When not on active military duty, he maintained his Port Authority employment. He was deployed to Iraq in 2009, where he sustained injuries leading to cervical spondylosis, degenerative disk disease, bilateral torn rotator cuffs, brain injury, and high-frequency hearing loss. He was in rehabilitation until his 2013 honorable discharge. He had not worked for the Port Authority since his deployment. In 2010 and 2012, while on active duty but in rehabilitation, he unsuccessfully applied for a promotion to sergeant.
He sued under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, alleging discrimination based on military service. The trial court certified an interlocutory appeal on the question of whether he was required to plead and prove that he was objectively qualified for promotion to sergeant in order to sustain his discrimination suit. The federal appeals court ruled that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA. Instead, employers may raise a plaintiff’s lack of qualifications as a nondiscriminatory justification for declining to promote the plaintiff, notwithstanding military service. Carroll v. Delaware River Port Authority, #16-2492, 843 F.3d 129 (3rd Cir. 2016).
Whistleblower Protection
A purchasing agent for the federal Forest Service submitted a report to his supervisor that stated that he believed that another employee had violated the Federal Acquisition Regulation (FAR). The supervisor took no action, but rather instructed him to delete portions of the report. He followed those instructions but later sent an email to the U.S. Department of Agriculture’s Office of Inspector General again reporting the suspected misconduct, as well as stating that his supervisor had instructed him to cover it up. He was then terminated while still in his probationary period.
A federal appeals court ruled that the Merit Systems Protection Board (MSPB) lacked jurisdiction to consider his claim that he was terminated during his probationary period because he notified his supervisor of employee misconduct because he did not raise that claim in a complaint he filed with the Office of Special Counsel (OSC). While he did file a complaint with the OSC which alleged that he was fired because he sent an email to the Department of Agriculture's Office of Inspector General, and that claim was rejected by the MSPB, this was not the same claim and the MSPB did not have jurisdiction to decide that claim until it was submitted to the OSC. Acha v. Dept. of Agriculture, #15-9581, 841 F.3d 878 (10th Cir. 2016).
Workers’ Compensation
A deputy sheriff who suffered a job-related injury applied for an industrial disability retirement. She also sought and eventually received advance disability pension payments while her retirement application was processed. She further sought penalties for an alleged unreasonable delay in receiving the advance payments. The workers’ compensation judge ruled that such penalties were available for the unreasonable delay in payment of advance disability pension payments, but deferred the decision on whether the delay in this case was unreasonable. The California Workers' Compensation Appeals Board ruled that it had no jurisdiction to award such penalties for unreasonable delay. An intermediate California appeals court held that the board did have jurisdiction to impose penalties for the unreasonable delay or denial of advance disability pension payments to local peace officers who are disabled on the job. Further proceedings were therefore ordered. Gage v. WCAB, #C081618, 6 Cal. App. 5th 1128, 2016 Cal. App. Lexis 1120.
• Contents menu.
• Report non-working links here
Wellness Programs: Police Officer Wellness Training: The Road to Mental Readiness, by Irene Barath, FBI Law Enforcement Bulletin (January 2017).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Report non-working links here
First Amendment – See also, Political Discrimination
First Amendment – See also, Retaliatory Personnel Action
Handicap/Abilities Discrimination: Accommodation – See also, Hairstyle and Appearance Regulations
Retaliatory Personnel Action – See also, Family and Medical Leave
AELE Seminars:
The
Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of
the Use of Force
April 3-6, 2017 - Orleans Hotel, Las
Vegas
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Return to the Contents menu.
Return to the monthly
publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.
© Copyright 2017 by A.E.L.E.,
Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.
Library of Employment Law Case
Summaries