August 2017 Fire, Police & Corrections Personnel Reporter

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Age Discrimination

Employees of a fire district that was a subdivision of Arizona asserted claims for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621-34. The two plaintiffs, both full time firefighters, were the two oldest firefighters when they were both terminated at ages 46 and 54 respectively. A federal trial court granted the employer’s motion for summary judgment, ruling that the fire district was not an employer within the meaning of the ADEA. A federal appeals court disagreed, reinstating the plaintiffs’ claims, and holding that the requirement that an employer have a minimum of 20 employees did not apply to employers that are political subdivisions of a state. Guido v. Mount Lemmon Fire District, #15-15030, 2017 U.S. App. Lexis 10764, 130 Fair Empl. Prac. Cas. (BNA) 336 (9th Cir.).

Bill of Rights Laws

Based on their conduct during the execution of a search warrant at a marijuana dispensary, two police officers became the subjects of an internal affairs investigation that was initiated after video recordings of the raid were released to the media. The recordings were made by the dispensary owners using hidden cameras they had secretly installed. The Santa Ana, California Police Department initiated the investigation after video recordings of the officers were released to the media. The Santa Ana Police Officers Association and the officers sued the city, its police department, and its police chief. They claimed that the police department violated the California Invasion of Privacy Act by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation. They also asserted that the defendants violated Government Code section 3303(g), part of the Public Safety Officers Bill of Rights Act, by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time.

An intermediate California appeals court rejected the claim for violation of the California Invasion of Privacy Act because the officers had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded. The plaintiffs did, however, state a valid cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), the defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before the officers could be interrogated a second time. Santa Ana Police Off. Assn. v. City of Santa Ana, #GO53126, 2017 Cal. App. Unpub. Lexis 4087.

A non-probationary police officer in San Francisco had an interaction with a citizen which resulted in a complaint being filed against him with the department’s Office of Citizen Complaints (OCC). After an investigation by the OCC, and based on its findings and recommendations, as well as an internal affairs investigation, the police chief filed a disciplinary complaint against the officer before the Police Commission. The officer and his lawyer participated in the Commission hearing, after which he was terminated. An intermediate California appeals court ruled that the city’s procedure for disciplining officers violated a state Police Officer’s Bill of Rights law which provides that “[n]o punitive action . . . shall be undertaken by any public agency against any public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal.” The city admittedly did not provide the officer with any kind of administrative appeal from the Police Commission’s decision. Morgado v. City and County of San Francisco, #A141681, 2017 Cal. App. Lexis 585.

Defamation

After the Massachusetts governor removed the chair of the state Sex Offender Registry Board (SORB), he made statements to the media concerning his reasons for doing so, including allegations that she had interfered with the independence of a SORB hearing officer. She sued the state for wrongful termination and the governor for defamation. The highest court in the state ruled that the defamation claims should be dismissed, since the plaintiff did not allege facts that were sufficient to establish that the governor made false statements about her with “actual malice,” the required legal standard in a defamation claim against a public official. Regardless of the governor's alleged spiteful, negative feelings toward the plaintiff, she was still required to allege specific facts to prove that the governor made his statements to the media with actual malice, knowledge of their falsity, or with reckless disregard of their truth or falsity. Edwards v. Commonwealth, #SJC-12175, 477 Mass. 254, 2017 Mass. Lexis 374.

Disciplinary Punishment

The VA proposed the removal of the chief of police at one of its veterans hospitals based on allegations of six specifications of abuse of authority, two specifications of lack of candor, and one specification of misuse of government property.

The Merit System Protection Board (MSPB) upheld the police chief’s removal based solely on the charge that he improperly used a government-owned vehicle for personal business, but a federal appeals court found that substantial evidence did not support the MSPB’s factual finding as to the length of his federal government service.

While the MSPB found that he had served the VA for four years, he actually had a total of 14 years with the VA and another five years of military service. That erroneous finding infected the MSPB's analysis of the appropriate penalty. The court remanded for the MSPB to consider the correct facts and determine some penalty less than removal because, in these circumstances, removal would be unreasonable and disproportionate to the relatively minor offense, his 19 years of combined military and civil service, and the fact that he had not previously been charged with misconduct. Tartaglia v. Dept. of Veterans Affairs, #16-2226, 858 F.3d 1405 (Fed. Cir. 2017).

Family and Medical Leave Act

An administrative assistant in the Illinois courts was suspended on the day she returned to work from a leave taken under the Family and Medical Leave Act, 29 U.S.C. 2601. She chose not to attend a disciplinary meeting and was then fired. Her judge supervisor sent a letter citing several instances of alleged misconduct, including insubordination.

The terminated employee sued the Administrative Office of the Illinois Courts, asserting that it employed her and that she was fired in retaliation for taking FMLA leave. The trial court granted summary judgment for the agency, reasoning that it never employed her and thus could not have discharged her, and that additionally, there was no evidence of retaliation.

A federal appeals court found it unnecessary to resolve whether the Administrative Office was the plaintiff’s employer, but upheld summary judgment for the defendant, given that the plaintiff failed to show any evidence from which a jury could reasonably find that any of her supervisors had retaliatory animus against her. Her mere disagreement about the reasons given for her termination did not show that they were a pretext, particularly when she declined even to participate in the disciplinary process. Tibbs v. Administrative Office of the Illinois Courts, #16-1671, 2017 U.S. App. Lexis 10789 (7th Cir.).

Handicap/Abilities Discrimination: In General

A litigation attorney in a state Attorney General’s office experienced difficulty in maintaining her employment duties while coping with a serious illness, complications from a kidney transplant. She sued her employer for alleged failure to accommodate her disability, harassment, and illegal retaliation for her asserting her rights under federal and state disability discrimination laws. Upholding summary judgment for the defendant employer, a federal appeals court found that there was no general issue of material fact as to whether the plaintiff had made a prima facie case on any of her claims. Indeed, she failed to show that she was a qualified individual who could perform the essential functions of her job unaided or with the assistance of a reasonable accommodation. As to the failure to accommodate claim, the interactive aspects of the employee's job were litigation-specific and she could not identify any other litigation attorneys that the employer permitted to work from home on a long-term basis. Credeur v. Louisiana, #16-30658, 2017 U.S. App. Lexis 11269 (5th Cir.).

Sex Discrimination – In General

A woman was employed as a police officer since 1991, and became an asset forfeiture investigator in 2003. Five years later, she was engaged in a serious dispute with a fellow officer who she accused of using the department’s equipment to put her under surveillance. An investigation resulted in the other officer being suspended for 20 days. The plaintiff then filed an EEOC charge of discrimination which was settled.

A new Rotation Policy, implemented in 2012, required that all specialty assignments, including the asset forfeiture investigator position, were subject to three-year rotations. The plaintiff sought reappointment. According to the panel that conducted her interview, she “[i]nterviewed very poorly, seemed angry [and] controlling.” She began her interview by refusing to answer any questions until she read aloud a nine-page manifesto. Another officer was chosen for the position, and the plaintiff was reassigned as a patrol officer. She asserted claims for sex discrimination and unlawful retaliation.

A federal appeals court found that the record lacked any evidence to contradict the employer’s position that another applicant was chosen over plaintiff officer for the officer's former job because of his better interview performance. Since there was no admissible evidence that suggested that this explanation was a pretext for sex discrimination, the defendants were entitled to summary judgment on this claim. There was also no evidence that the selection committee chose the other applicant over the plaintiff because she had made prior discrimination claims. Rather, the record demonstrated that her poor interview caused her reassignment; Nicholson v. City of Peoria, #16-41612, 2017 U.S. App. Lexis 10809, 130 Fair Empl. Prac. Cas. (BNA) 328 (7th Cir.).

Shift Rotation and Work Schedules

Current and former U.S. Secret Service employees claimed that, as a result of new practices, their employer denied them the two consecutive days off from work which they argued they were entitled to under 5 U.S.C. 6101(a)(3)(B). The U.S. Court of Claims ruled that it lacked jurisdiction over the claim because the statute only involved work scheduling practices and did not address the employees’ entitlement to pay. A federal appeals court upheld the dismissal of the case.

“At most,” the appeals court stated, the statute entitles the plaintiffs to have their basic 40-hour workweek scheduled in a particular fashion; whether their basic 40- hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, but does not, itself, affect employees’ statutory entitlement to pay. Because the statute does not “'command payment of money to the employee,’” nor is it “reasonably amenable to the reading that it mandates a right to money damages,” violations of the subsection do not implicate the remedies prescribed in the Back Pay Act. Adams v. United States, #16-2361, 2017 U.S. App. Lexis 11578 (Fed Cir.).

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RESOURCES

Federal Prison Employment: Employee and Labor Management Relations, Federal Bureau of Prisons Program Statement 3711.01 (June 28, 2017).

Federal Prison Employment: Physical and Medical Standards for Newly Hired Correctional Employees, Federal Bureau of Prisons Program Statement 3906.24 (Feb. 24, 2017).

Reference:

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CROSS REFERENCES

Disciplinary Procedures – See also Bill of Rights Laws (both cases)

Privacy – See also Bill of Rights Laws (1st case)

Retaliatory Personnel Actions – See also, Sex Discrimination – In General

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