November 2017 Fire, Police & Corrections Personnel Reporter

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Bill of Rights Laws

A former jail administrator who was terminated sued, asserting due process claims as well as claims under Minnesota’s Peace Officer Discipline Procedures Act (PODPA). A federal appeals court held that the termination process satisfied due process because he received a pre-termination notice, repeated opportunities for the administrator to tell his side of the story, and there was the availability of Minnesota's post-termination certiorari-based review procedure. Additionally, the plaintiff was not entitled to protection under PODPA because of his actual duties as an assistant jail administrator. He was not a “peace officer” as defined in the statute, given the fact that the county neither charged him with general law enforcement duties nor used his services for those purposes. Pena v. Kindler, #16-2756, 863 F.3d 994 (8th Cir.).

F.L.S.A. – Overtime in General

The plaintiffs were a class of employees each of whom worked in two separate part-time capacities for the county. The county tracked and paid them for each of their individual jobs but in 2011 became aware that it had failed to aggregate the hours from both jobs, thus failing to pay overtime for hours beyond 40 each pay period. The county conceded owing overtime for such hours, but the plaintiffs claimed a “willful” violation which, if proven, would expand the limitations period for claims, allowing the plaintiffs to receive larger awards. A federal appeals court upheld a determination that there was inadequate evidence of a willful violation. There was no evidence that the county was subjectively aware of the overtime problem at the time of the violations. SourYavong v. County of Lackawanna, #15-3895, 2017 U.S. App. Lexis 18173, 27 Wage & Hour Cas. 2d (BNA) 793 (3rd Cir).

Disability Discrimination

An employee of a state department of transportation had nighttime duties cleaning up human remains after traffic accidents, and he saw a co-worker die after a work related accident. He had served in combat in the Gulf war and his sister, who lived with him, died of cancer. He informed his supervisor that he was “burned out,” experiencing stress, unable to sleep, and wanted to be transferred to the day shift. He was told that no such position was available. Later, after his subordinates complained about him to his supervisor, he informed the supervisor that he had been diagnosed with Post Traumatic Stress Disorder. Despite “exceeds expectations” work reviews, he was fired for creating a hostile and intimidating work environment. He sued, arguing that his termination was because of his mental disability in violation of the Rehabilitation Act and Americans with Disabilities Act. Upholding summary judgment for the defendants, a federal appeals court found no real evidence that the reasons given for his discharge were a pretext. He also failed to show that other non-disabled employees who were similarly situated were treated differently. Monroe v. Indiana Dept. of Transportation, #16-1959, 2017 U.S. App. Lexis 17977 (7th Cir.).

When he read a daily report out loud to his colleagues, an employee skipped over sections, gave briefing points out of order, and mixed up the order of numbers and words. He had a reading disorder but was unaware of it. Part of his job duties involved him giving transportation information to nuclear convoys so this disorder posed a possible threat to national safety. After being diagnosed, he lost his safety and security clearance. He requested “accommodations” for his disability, but was instead fired. He sued his ex-employer for all due process violations as well as disability discrimination claim under the Rehabilitation Act. A federal appeals court held that the trial court erred in dismissing the failure to accommodate claim. The plaintiff had indicated that he was willing to take “any” available job his employer had and there were 29 positions that did not require a security clearance. Sanchez v. Moniz, #16-2056, 2017 U.S. App. Lexis 17475 (10th Cir.).

Family and Medical Leave

While a city manager was off work recovering from surgery, the city council voted to fire her for causing strife in the community. She had previously declined to fill out the city’s Family and Medical Leave Act (FMLA) paperwork to request leave. She sued claiming a FMLA violation. Upholding summary judgment for the defendants, the federal appeals noted that there was no evidence that she was fired in a way that interfered with her FMLA rights, even though she was then out because of the surgery. It seemed apparent the dismissal would have occurred regardless and she had even stated that she would not seek medical leave. The defendants stated a non-discriminatory reason for firing her. Mullendore v. City of Belding, #16-2198, 2017 U.S. App. Lexis 16310, 2017 Fed. App. 491N (6th Cir.).

Race Discrimination – In General

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

Two Hispanic police officers claimed that they were kept out of the field by the city after they were involved in a fatal shooting of an unarmed autistic African-American man because of their race and the race of their victim. Overturning a jury verdict for the officers on a disparate impact claim, a federal appeals court found that this theory did not support their claim. In deciding whether to return the officers to the field, the city could assess the “political implications” of doing so without violating employment discrimination laws. It could assess the “risk management implications” of returning officers of any race to the streets of Los Angeles who had been involved in a fatal shooting of this type. Diego v. City of Los Angeles, #B268266, 2017 Cal. App. Lexis 797.

An African-American employee of the Department of Homeland Security adequately exhausted his administrative remedies on claims of race discrimination, retaliation, and hostile work environment. The attachments to his administrative complaint adequately provided notice of these claims, particularly his enclosure of his performance reviews, one of which was a “zero,” provided enough information for the agency to investigate whether there was a racially discriminatory targeted effort to make him fail. The trial court’s dismissal of claims related to his performance review and a suspension were therefore reversed. Crawford v. Duke, #16-5063, 867 F.3d 103 (D.C. Cir.).

Retaliatory Personnel Action

A correctional officer did not prove his claim of unlawful retaliation in denying his request for a new assignment because he had testified on his wife’s behalf in her claim challenging alleged government “patronage” employment. There was no evidence that the sheriff even knew about this protected speech or that it was the motivation for the denial. Another defendant employee also denied such knowledge and a third defendant employee was in no position to either grant or deny the request. Consolino v. Towne, #16-3681, 2017 U.S. App. Lexis 18950 (7th Cir.).

A city employee prevailed in her earlier lawsuit claiming First Amendment retaliation and state law whistleblower retaliation, and then filed a second lawsuit claiming that her application for City Finance Director was rejected in retaliation for her success in her first lawsuit. She failed to show this motivation. The city’s repeated attempts to convince the replacement employee to apply for the job and its rejection of other experienced candidates demonstrated that it would have hired who they did regardless of the plaintiff’s earlier lawsuit. Howard v. City of Coos Bay, #14-35506, 2017 U.S. App. Lexis 18522 (9th Cir.).

Veterans and Other Preference Laws

A correctional officers’ association brought a grievance on behalf of one of its members claiming a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The grievance was rejected at the first three stages of the grievance procedure set forth in a memorandum of understanding (MOU) between the Association and the California Department of Corrections and Rehabilitation (Corrections). At the fourth step, a hearing before the Department of Personnel Administration (Department), the Department granted the grievance. But Corrections refused to comply with that decision. An intermediate California appeals court rejected the Department of Corrections argument that the State Personnel Board had exclusive jurisdiction over appointments and the employment status of civil service employees. Further, because the Department of Correction went along with the grievance procedure used, it forfeited any right to assert that it was the wrong procedure. Calif. Correctional Peace Officers Assn. v. Dept of Corrections, #C078723, 15 Cal. App. 5th 97, 2017 Cal. App. Lexis 780.

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RESOURCES

F.B.I.: New website for the F.B.I. Law Enforcement Bulletin (Oct. 2017).

Transgender Employees: Memo of Attorney General Jeff Sessions to U.S. Attorneys and Heads of Components of the U.S. Department of Justice taking the position that Title VII does not protect transgender employees against workplace discrimination (Oct. 4, 2017).

Reference:

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CROSS REFERENCES

First Amendment – See also Retaliatory Personnel Action (both cases)

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