September 2017 Fire, Police & Corrections Personnel Reporter

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Arbitration Punishment Awards: Right of the Courts to Intervene

A city fired a police officer for using a choke hold while arresting an unarmed suspect for disorderly conduct as well as making false statements in a departmental investigation. An arbitrator determined that there was no underlying misconduct on the part of the officer and decided that the city lacked just cause to terminate the officer, ordering his reinstatement. The city sought to vacate the arbitrator’s award. The highest court in Massachusetts upheld the dismissal of the city’s action, ruling that it was not appropriate to vacate the arbitration award where the award neither exceeded the arbitrator’s authority nor violated public policy and where no underlying misconduct was found. City of Boston v. Boston Police Patrolmen’s Association, #SJC-12077, 477 Mass. 434, 2017 Mass. Lexis 500, 209 L.R.R.M. (BNA) 3309.

Attorneys’ Fees

A Chicago police officer claimed that he was harassed based on his national origin, German, and religion, Jewish. He also claimed that his complaints led to retaliation. After a decade of litigation, a jury awarded him $30,000, rejecting his retaliation claim. His lawyer requested $1.5 million in attorney’s fees, which the district court reduced to $430,000. The attorney claimed to have worked 3,742 hours at an hourly rate of $395, while the trial judge reduced the hours to 2,878 and the rate to $300, which yielded a lodestar of $863,000. The trial judge then took into account the modest degree of success the plaintiff had achieved and halved the lodestar.

A federal appeals court affirmed this result, including the trial court’s decisions to grant partial summary judgment for the city by confining the discrimination counts to the question whether a fellow officer’s statements had created a hostile work environment; eliminating two counts for lack of any evidence that would permit a finding that the plaintiff’s injury resulted from an express policy, a widespread practice, or a policymaker’s final action, and restricting the retaliation claim period. Challenges to the trial court’s reduction of the requested attorneys’ fees were “unpersuasive.” Sommerfield v. City of Chicago, #13-1265, 2017 U.S. App. Lexis 12443 (7th Cir.).

Drug Abuse: Prescriptive Drugs

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

The highest court in Massachusetts has ruled that an employee who qualifies for the use of medical marijuana under state law but who is fired from her job because of testing positive for marijuana as a result of such lawful use may sue her employer for damages under the state’s handicap discrimination law. The court rejected, however, the argument that there was also an implied private cause of action under the medical marijuana act and for wrongful termination in violation of public policy, holding that there is no implied statutory private cause of action under the medical marijuana statute and that the plaintiff failed to state a claim for wrongful termination in violation of public policy. Barbuto v. Advantage Sales & Marketing, LLC, #SJC-12226, 477 Mass. 456, 78 N.E.3d 37(2017).

Fair Labor Standards Act: Off-Duty Work

Current and former members of the Chicago Police Department’s Bureau of Organized Crime sued the city, arguing that they were not paid for work they did while off-duty on their mobile BlackBerry electronic devices. The trial court judge concluded that the Bureau did not prevent the plaintiffs from requesting payment for non-scheduled overtime work and did not know that plaintiffs were not being paid for it.

A federal appeals court affirmed. The Fair Labor Standards Act, 29 U.S.C. 201, mandates that employers pay covered employees at one-and-a-half times their usual pay rate if they are employed for longer than a certain hourly threshold. They must pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work. That strict rule “stops short of requiring the employer to pay for work it did not know about and had no reason to know about.” The plaintiffs did not establish the existence of an unwritten policy not to compensate them for off-duty work performed on their BlackBerrys. No one ever told them not to submit timeslips for that work, and no one was ever reprimanded or disciplined for submitting such timeslips. Allen v. City of Chicago, #16-1029, 2017 U.S. App. Lexis 14230 (7th Cir.).

Handicap/Abilities Discrimination: In General

A man was fired from his job in a town’s Department of Public Works for alleged unjustifiable absences from work as well as failure to submit adequate documentation concerning his use of sick leave. He asserted that he suffers from sleep apnea and that the town violated the Americans with Disabilities Act (ADA) by discriminating against him on the basis of that disability, failing to reasonably accommodate his condition, and refusing to engage in an interactive dialogue as required under the law. Upholding a jury verdict for the employer, a federal appeals court found no fault with the jury instructions and ruled that the employer did not need to offer a leave of absence as a possible reasonable accommodation. McDonald v. Town of Brookline, Massachusetts, #17-1016, 2017 U.S. App. Lexis 12461 (1st Cir.).

An employee of a city’s water services department suffered a traumatic brain injury at home. He was placed on temporary leave of absence to recover and rehabilitate. He returned to work when medically cleared to do so, but suffered some minor mishaps, including driving through an intersection while looking down and going to the wrong address. After a few weeks, he was placed on administrative leave and then terminated.

He sued for violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. A jury found the city liable and awarded $225,000 in damages. The trial judge also concluded that he was entitled to back pay plus interest from the date he was fired until the time of judgment.

A federal appeals court upheld the awards, rejecting arguments that the plaintiff was not a qualified person under the ADA because he was unable to perform the essential functions of his job; that even if he was qualified, he posed a direct threat to himself and to others, which is a statutory defense to liability; and that the judge incorrectly calculated the back pay award. Stragapede v. City of Evanston, #16-1344, (7th Cir.).

Race Discrimination

A sheriff hired the county’s first black police officer in 2013 and he was fired nine months later, filing a Title VII race discrimination lawsuit. Overturning summary judgment for the employer, a federal appeals court commented that viewing the extensive evidence in the light most favorable to the plaintiff, it added up to a strong case of race discrimination. The sheriff “has offered an ever-growing list of rationales for firing” the officer “that fall apart in the face of his evidence.” The sheriff’s termination letter provided three reasons for the firing. Four days later, the Board of Commissioners sent the fired officer another letter that added two more reasons. After the lawsuit was filed, the defense added three more reasons.

The fired officer produced evidence that he was treated differently than his similarly situated colleagues who are not black. He also presented substantial evidence that the many rationales offered for firing him were baseless and pretextual, the court summarized. The trial court erroneously disregarded most of the plaintiff’s evidence, improperly discounting his testimony as “self-serving.” McKinney v. Sheriff’s Office of Whitey County, #16-4131, 2017 U.S. App. Lexis 14546 (7th Cir.).

Retirement Rights and Benefits

A county offered retirement incentives to employees age 65 or older. Under one package, retirees were entitled to five years of supplemental health insurance (secondary to Medicare coverage) through a private insurer and could return to work, part-time, as at-will employees. The private health insurer later informed the county that if retirees working as part-time employees remained on the plan, the plan would no longer qualify for special exemptions under federal law and the county’s costs would skyrocket. The county notified all rehired retirees who were covered by the supplement insurance that their employment would end. The county was entitled to summary judgment on terminated employees’ age discrimination claims under the Age Discrimination in Employment Act and the equal protection clause. The key criterion that distinguished the terminated employees from all other county employees was not their age but rather their participation in the health insurance plan at issue. The county's action was rationally related to preserving supplemental insurance coverage for its retirees while avoiding further financial hardship, and there was no evidence that the county engaged in any prohibited stereotyping. Carson v. Lake County, #16-3665, 2017 U.S. App. Lexis 13494 (7th Cir.).

Sexual Assault

A female employee of the Idaho Department of Corrections (IDOC) was raped by a co-worker. She sued the Department and other defendants. A federal appeals court vacated summary judgment in favor of defendants on her Title VII hostile work environment claim based on actions taken after the rapes. As the rapes did not occur in the workplace, it rejected the argument that the rapes themselves caused the hostile work environment. The court noted that if the jury found that the IDOC supervisors created a hostile work environment, the IDOC would also be liable. A reasonable juror could have concluded, the court found, that a correctional facility effectively condoned a coworker's rapes of the plaintiff, a probation and parole officer, because there was evidence that she was forced to return to work before she had recovered from the rapes to a workplace run by supervisors who showed public support for her rapist, eagerly anticipated his return, and continued to pay him while denying her paid leave. Fuller v. Idaho Department of Corrections, #14-36110 2017 U.S. App. Lexis 13862 (Unpub. 9th Cir.).

U.S. Supreme Court Employment Decisions

Under the Civil Service Reform Act (CSRA), the Merit Systems Protection Board (MSPB) has the power to review certain personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. If the employee invokes only federal antidiscrimination law, the proper forum is federal district court.

An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. In this case, an employee received notice that he would be terminated from his Census Bureau employment for spotty attendance. He agreed to early retirement. The settlement required him to dismiss discrimination claims he had filed separately with the EEOC. After retiring, he appealed to the MSPB, alleging discrimination based on race, age, and disability, and retaliation for his discrimination complaints. He claimed the settlement had been coerced.

Presuming the retirement to be voluntary, an administrative law judge dismissed his case for lack of jurisdiction. The MSPB affirmed, stating that the plaintiff could seek review in the Federal Circuit. He instead sought review in the D.C. Circuit, which transferred the case to the Federal Circuit. The U.S. Supreme Court reversed, ruling that the proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is the district court. Perry v. Merit Systems Protection Board, #16-399, 137 S. Ct. 1975, 198 L. Ed. 2d 527, 2017 U.S. Lexis 4044• Contents menu.

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RESOURCES

Mentoring: Promotional Test Preparation: An Opportunity for Mentorship, by Douglas Newman, FBI Law Enforcement Bulletin (July 2017).

Personnel Records: Personnel Records and Files, Program Statement 3923.01, Federal Bureau of Prisons (July 25, 2017).

Reference:

Abbreviations of laws, law reports and agencies used in our publications.
AELE’s list of employment law resources

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CROSS REFERENCES

Age Discrimination – See also, Retirement Rights and Benefits

Handicap/Abilities Discrimination – See also, Drug Abuse: Prescriptive Drugs

Religious Discrimination – See also, Attorneys’ Fees

Retaliatory Personnel Action – See also, Attorneys’ Fees

Sexual Harassment – See also, Sexual Assault

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