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Law Digest
ISSN 0164-6397
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2017 FP May
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Disability Retirement
Disciplinary Procedures
FLSA: Overtime Standby Pay
First Amendment Related (2 cases)
Handicap/Abilities Discrimination
Homosexual & Transgender Employee Rights (2 cases)
Whistleblower Protection
Workers’ Compensation
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Disability Retirement
A former county employee filed an application for a service-related disability retirement and allowance. Two years later, the application for service-related disability retirement benefits was granted, effective as of the date of his initial application. He challenged that effective date, arguing that benefits were due for eight years earlier, and prejudgment interest from the date of disability. He was entitled to the benefits from the date of his last day of work for the county, eight years before his application was filed.
Disability retirement benefits under the California County Employees Retirement Law of 1937, an intermediate appeals court ruled, were not due before the county retirement board received his application and made a determination of his eligibility, and the employee experienced a wrongful withholding of his benefits when the board erroneously denied his application for a retroactive disability retirement allowance. The employee's entitlement to prejudgment interest commenced on the date of wrongful denial, and not before. Flethez v. San Bernardino County Employees Retirement Ass’n, #S226779, 2 Cal. 5th 630, 389 P.3d 1232, 2017 Cal. Lexis 1608.
Disciplinary Procedures
Under Texas state law, certain procedural requirements must be met before a covered peace officer can be disciplined based on a complaint of misconduct. When a deputy sheriff was terminated, he appealed to the sheriff, complaining of procedural irregularities in the process leading to his discharge. The sheriff summarily upheld the termination. The employee then sued the sheriff and the county, alleging that the sheriff’s department violated Government Code sections 614.022 and 614.023 by terminating his employment without giving him a copy of a signed complaint and without allowing him an opportunity to respond to the allegations before he was disciplined.
The trial court granted partial summary judgment for the employer. The court of appeals reversed, concluding that employer violated Chapter 614. The Supreme Court reversed, holding that, assuming that Chapter 614, Subchapter B applied under these circumstances, the employer complied with the statute. A signed disciplinary notice provided to the deputy contemporaneously with his suspension, was sufficient to meet Tex. Gov't Code Ann. ch. 614B's notice requirements and allowed him ample opportunity to defend himself to the final decision maker. Tex. Gov't Code Ann. ch. 614B did not alter the employment at-will relationship, but prescribes procedures that apply when the employer elects to terminate employment based on a complaint of misconduct. The statutory phrase "the person making the complaint" was not limited to the "victim" of the alleged misconduct, such as a civilian citizen complainant, and the county attorney and a police lieutenant were "persons" who could make and sign the written "complaint" against the deputy sheriff for purposes of Tex. Gov't Code Ann. ch. 614B. Colorado County, Texas v. Staff, #15-0912, 2017 Tex. Lexis 124, 60 Tex. Sup. Ct. J. 397.
FLSA: Overtime Standby Pay
Army emergency medical technicians and paramedics (EMTs) serving at a military facility in Georgia were usually scheduled, before October 2012, for 24 hours on-duty, followed by 48 hours off. After that date, their schedule was changed to two 48-hour workweeks. As they remained at work for more than 40 hours in one week, they were entitled to overtime under the Fair Labor Standards Act (FLSA). In a typical biweekly pay period, the government compensated them with basic pay under the Federal Employees Pay Act (Title 5); annual standby duty premium pay under Title 5; and FLSA overtime pay for regularly scheduled overtime.
Current and former EMTs filed suit, alleging that the government underpaid them by using an incorrect formula to calculate FLSA overtime. A federal appeals court upheld summary judgment in favor of the government. The EMTs received “the straight time rate of pay times all overtime hours worked” when the government paid them annual premium standby pay in addition to basic pay. They were are not entitled to a windfall of also receiving overtime for standby duty as well as their annual premium standby pay, since the very nature of standby work meant that they not actively working all hours for which they received pay. Alamo v. United States, #15-5149, 850 F.3d 1349 (Fed. Cir. 2017).
First Amendment Related
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A fire department did not unconstitutionally terminate a battalion chief in retaliation for protected speech on Facebook social media since his speech on matters of public concern regarding gun control and the department’s social media policy were outweighed by the department's interests in limiting dissension and discord, avoiding the appearance of racial bias, promoting community trust in enforcing department policies, and discouraging disrespect and insubordination.
The employee's facial challenge to the department's social media and conduct policies was moot after the department repealed the policies and instituted new policies which eliminated the challenged provisions, and there was no indication that the department would readopt the allegedly offending provisions. Buker v. Howard County, #15-2066, 2017 U.S. App. Lexis 4920 (4th Cir.).
A former deputy claimed that the sheriff fired him in violation of his First Amendment right to freedom of association, based on his affiliation with an opposing candidate for the office of sheriff. Claims against the sheriff in his official capacity were properly dismissed because he was not, under Arkansas law and county policies, the final policymaker for employment decisions in the sheriff’s office because those decisions were subject to review by a quorum court. The sheriff was not, however, entitled to qualified immunity in his individual capacity.
A federal appeals court noted that for “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns, #74-1520, 427 U.S. 347 (1976), and Branti v. Finkel, #78-1654, 445 U.S. 507 (1980). When a case involves the dismissal of an employee because of his or her political affiliations or support for certain candidates, a “dismissal solely on account of an employee's political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” This is different from the “balancing” test utilized in another line of First Amendment cases, such as Pickering v. Board of Education, #510, 391 U.S. 563 (1968), and Connick v. Myers, #81-1251, 461 U.S. 138 (1983) involving overt expressive conduct, which provides for a flexible weighing of the case-specific facts to balance the interests of the government with those of the employee. The federal appeals court ruled that the trial court should have applied the Elrod-Branti analysis rather than the Pickering-Connick analysis to determine whether the sheriff’s actions in his individual capacity violated the plaintiff’s First Amendment rights. Because the wrong analysis was applied, further proceedings were required. Thompson v. Shock, #16-1643, 2017 U.S. App. Lexis 5361 (9th Cir.). |
Handicap/Abilities Discrimination
A former deputy constable was fired while he was on leave recovering from back surgery. His disability discrimination and failure-to-accommodate claims under Title I of the Americans with Disabilities Act (ADA) were properly dismissed because he did not provide evidence showing that he was qualified for his job at the time of his termination. He was then medically incapable of performing his duties, planned to retire when his leave ended, and there was no evidence that he was capable of performing a light duty position or that one was available.
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An ADA retaliation claim also failed because there was not a material issue of fact as to whether he was qualified for his job; A First Amendment retaliation claim also failed because, to the extent that the deputy was not speaking as an employee, he did not show that he was terminated because of his protected political discussions in opposition to the constable’s election. Moss v. Harris County Constable Precinct One, #16-20113, 2017 U.S. App. Lexis 4601 (5th Cir.).
Homosexual & Transgender Employee Rights ****Editor's Case Alert**** A federal appeals court has ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation. The case involved an openly lesbian part-time adjunct professor who claimed that she had been discriminated against on the basis of sexual orientation, having been blocked from full-time employment “without just cause.” The federal appeals court initially affirmed the dismissal of the lawsuit, holding that Title VII did not apply to claims of sexual orientation discrimination. On rehearing en banc, the court reversed, interpreting the Act’s prohibition on discrimination on the basis of sex as including sexual orientation; “the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex” been different. The court noted “the backdrop of the Supreme Court’s decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation,” including the decisions upholding a right to same-sex marriage. Hively v. Ivy Tech Community College of Indiana, #15-1720, 2017 U.S. App. Lexis 5839 (7th Cir. en banc).
A hospital security officer employee filed a federal civil rights lawsuit against her employer, claiming that she was discriminated against because of her sexual orientation and “gender non-conformity.” A federal appeals court ruled that discrimination based on failure to conform to a gender stereotype was sex-based discrimination. In this case, a gender non-conformity claim was not “just another way to claim discrimination based on sexual orientation,” but instead constituted a separate, distinct avenue for relief under Title VII. She argued that she was targeted for termination for failing to carry herself in a “traditional woman[ly] manner.” Although she is a gay woman, she did not broadcast her sexuality. However, it was “evident” that she identified with the male gender, because of how she presented herself—“(male uniform, low male haircut, shoes, etc.”).
On the sexual orientation claim, however, the court concluded that prior binding precedent, Blum v. Gulf Oil Corp., #3536, 597 F.2d 936 (5th Cir. 1979), foreclosed plaintiff's argument that she had stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. The Blum court ruled that discharge for homosexuality was not prohibited by Title VII. This decision was rendered by the 5th Circuit before the 11th Circuit was split off from it, and has never been overruled, thus constituting binding prior precedent. Therefore, the court affirmed the portion of the trial court’s order dismissing the plaintiff’s sexual orientation claim. Evans v. Georgia Regional Hospital, #15-15234, 850 F.3d 1248 (11th Cir.).
Editor’s Note: The conflict between the 7th Circuit and 11th Circuit decisions reported above could possibly set the stage for a U.S. Supreme Court decision to resolve the conflict and settle the issue. Whistleblower Protection A narcotics officer reported two other officers for allegedly filing false reports, and subsequently testified against them at a hearing that resulted in their firing. Following this, his fellow officers would not work with him. He retired six years later, and then sued the city, alleging retaliation based on his protected whistleblower activity by failing to assign or promote him to several positions. He sought discovery of the records of the officers selected for the positions to which he had applied, arguing that the documents were necessary to show the city’s stated business reason for its promotions—that the successful candidates were more qualified than him—was a pretext for retaliation. The city argued that the officers’ personnel records were not subject to discovery because they were innocent third parties who had not witnessed or caused Riske’s injury. An intermediate California appeals court ruled that the city should produce the reports for an in camera inspection and then production of all discoverable information should be ordered. It held that the statutory scheme governing the discovery of peace officer personnel records was not limited to cases involving officers who either witnessed or committed misconduct. Riske v. Superior Court, #B270043, 6 Cal. App. 5th 647, 211 Cal. Rptr. 3d 477, 2016 Cal. App. Lexis 1076 Workers’ Compensation
• Contents menu. • Report non-working links here Collective Bargaining: Police Union Contracts, by Stephen Rushin, 66 Duke Law Journal No. 6, pgs 1191-1266 (March 2017). Reference:
Report non-working links here Retaliatory Personnel Action – See also, First Amendment Related (2nd case) Sex Discrimination – See also, Homosexual & Transgender Employee Rights (both cases) AELE Seminars: Public Safety Discipline and Internal Investigations Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues Jan. 22-25, 2018 - Orleans Hotel, Las Vegas Click here for more information about all AELE Seminars
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