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Alcohol Abuse and Alcoholism

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

New York City police officers were referred to an internal counseling services unit for assistance with their purported alcohol abuse. It determined that each plaintiff suffered from alcoholism. The officers sued alleging that they were discriminated against by subjecting them to adverse employment actions based on the mistakenly perceived disability of alcoholism. The parties now agree that they were not actually alcoholics. The highest court in New York, in answer to a question certified to it by the United States Court of Appeals for the Second Circuit, ruled that Sections 8-102(16) (c) and 8-107(1)(a) of the New York City Administrative Code precluded the plaintiffs from bringing a disability discrimination claim under state law based solely on a perception of untreated alcoholism. Makinen v. City of New York, 2017 N.Y. Lexis 3075, 2017 NY Slip Op 07208.

First Amendment Related

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

A federal appeals court held that a sweeping policy restriction on speech imposed by a defendant major’s email regarding the Nevada Highway Patrol K9 program violated the troopers’ clearly established First Amendment rights. It affirmed the trial court's denial of qualified immunity, holding that the policy covered speech outside the troopers’ official duties, whether or not some speech within those duties was also covered. The policy reached speech on matters of public concern, and the prospective speech restriction imposed by the email violated the First Amendment. A public employer generally may not subject all employee speech regarding a particular government program, whether fact or opinion, and whether liable to disrupt the workplace or not, to a blanket ban. Further, a “robust consensus” of prior cases made clear at the time the defendant issued his policy that an employer ordinarily may not prohibit its employees from all public discussion relating to a particular department or government program. Moonin v. Tice, #15-16571, 868 F.3d 853 (9th Cir. 2017).

Health Insurance

A city filed for bankruptcy. Under its existing collective bargaining agreement with a police union, the city paid the full premium cost for retirees and employees of any medical plan offered through the California Public Employees’ Retirement System (CalPERS or PERS) and paid the full premium for other city retirees, so it was subject to a state statute that establishes a minimum level of employer contribution toward medical premiums. The city sought approval from the bankruptcy court to reject its labor agreements. While this motion was pending, the union and the city reached an agreement and the city voluntarily dismissed its motion to reject the collective bargaining contract. Under the agreement, health insurance benefits were reduced. After months of negotiations toward a superseding agreement, the city declared an impasse. The union filed suit, alleging that the city was not bargaining in good faith, in violation of a state statute. An intermediate state court of appeals upheld the denial of the petition. The union did not show that its members had a vested right to a full premium. Substantial evidence supported findings that the city did not engage in surface bargaining or rush to declare an impasse. Vallejo Police Officers Association v. City of Vallejo, #A144987, 2017 Cal. App. Unpub. Lexis 5816, 2017 WL 4182785.

Pay Disputes

Two Milwaukee police officers were fired for cause by the police chief, and their pay and benefits immediately stopped. Appeals of their terminations to the Board of Fire and Police Commissioners were rejected. They claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. They alleged that they were denied constitutional due process and wages.

A federal appeals court upheld the rejection of their claims and judgment on the pleadings. Under Wisconsin state law, the former officers had no property interest in employment once they were discharged for cause by the chief. They were provided a full and adequate appeals process, and their discharges were upheld in accordance with Wisconsin law. They were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under state law, as they were not employed during that time. Milwaukee Police Association v. Flynn, #16-3743, 863 F.3d 636 (7th Cir. 2017).

Political Discrimination

An assistant state’s attorney claimed that she was fired for supporting the State’s Attorney’s political rival, in violation of her First Amendment rights. A federal appeals court upheld the trial court’s determination that the plaintiff was a policymaker exempt from the First Amendment’s protection against patronage dismissals. The court reasoned that to hold otherwise would undermine the public mandate granted to the victor of a hard-fought election and would needlessly interfere with a state official’s managerial prerogative. Borzilleri v. Mosby, #16-1751, 874 F.3d 187 (4th Cir. 2017).

Race Discrimination

An African-American employee of the Department of Homeland Security sued his employer, alleging that a decision to give a promotion for which he was qualified to a Caucasian female employee just four weeks after he complained of race and age discrimination was unlawful discrimination. A federal appeals court overturned the trial court's dismissal of his retaliation claim for failure to exhaust remedies, holding that the plaintiff expressly raised the non-promotion retaliation claim in his equal employment opportunity complaint. The record at this early procedural juncture showed that he came forth with sufficient factual allegations and inferences to require, at least, that he be afforded discovery before summary judgment proceedings. Because the record contained a number of plausible factual disputes pertaining to the plaintiff's claims of retaliation that could not be resolved on a motion for summary judgment, the appeals court remanded those claims to the trial court for further proceedings. Coleman v. Duke, #15-5258, 867 F.3d 204 (D.C. Cir. 2017).

Retaliatory Personnel Action

The plaintiff was employed as a Chicago police officer for almost 30 years. He sued, claiming that during the last four years he was harassed by fellow police officers for adhering to Departmental policy and procedure and for filing numerous internal complaints. He asserted claims for First Amendment retaliation, violation of equal protection, civil conspiracy, and procedural due process, and related state law claims against the city and individual officers. He claimed, among other things, that he was denied a Retirement Card when he retired. Without one, he could not carry a concealed firearm, obtain benefits such as health insurance, or find other employment in law enforcement.

A federal appeals court affirmed a dismissal in part. His complaints were made pursuant to his job responsibilities, and he spoke as a public employee, not a private citizen, so his speech was not entitled to First Amendment protection. The trial court also properly rejected his equal protection class-of-one claim and his conspiracy claims. Overturning the dismissal of a procedural due process claim, however, the appeals court stated that he sufficiently alleged that he had a legitimate entitlement and cognizable property interest in receiving a Retirement Card. Forgue v. City of Chicago, #16-2857, 873 F.3d 962 (7th Cir. 2017).

Whistleblower Protection

After an FBI agent made whistleblower-eligible disclosures about a leased facility, his supervisor issued him a low-performance rating, removed him as group leader, and reassigned him. Believing this to be retaliation, Parkinson contacted a U.S. Senator, who forwarded his allegations to the Department of Justice’s Office of the Investigator General (OIG), which OIG sent the FBI its report. The Merit Systems Protection Board (MSPB) upheld his subsequent termination for lack of candor under oath and obstruction of the Office of Professional Responsibility. A federal appeals court panel sustained the obstruction charge and dismissal of his affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act, but remanded the lack of candor charge. On rehearing, en banc, the court concluded that 5 U.S.C. 2303 requires all FBI employees to bring claims of whistleblower reprisal to the Attorney General and vacated that portion of its prior opinion. Parkinson v. Dept. of Justice, #15-3066, 2017 U.S. App. Lexis 21200 (Fed. Cir. en banc).

When a ten-year veteran of a town police department was passed over for promotion, he sued under both federal and state law, claiming that the town and its police chief intentionally let his application for promotion lapse and did not promote him in retaliation of him exposing the chief’s alleged professional misconduct. A federal appeals court upheld summary judgment for the town, finding that the plaintiff failed to raise a genuine dispute as to whether the town’s Board of Selectmen ratified the alleged retaliation. The court declined to exercise jurisdiction over the plaintiff’s remaining state law claim based on section 185(b)(1) of the Massachusetts Whistleblower Act. Saunders v. Town of Hull, #17-1174, 2017 U.S. App. Lexis 21404 (1st Cir.).

Workers’ Compensation

Three injured Laotian correctional officers, filed suit against the county under the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., claiming that they were allegedly subjected to racial and national origin discrimination, harassment and retaliation, while simultaneously pursuing their workers' compensation remedies for alleged psychiatric injuries arising from those claims. An intermediate state appeals court upheld summary judgment for the county on the FEHA claims. While workers' compensation was not plaintiffs’ exclusive remedy for their claims, once they elected to pursue that remedy to a final, adverse judgment instead of insisting on the primacy of their rights under the FEHA, the WCAB that decides workers’ comp claims became the exclusive forum to recover for their alleged injuries. Ly v. County of Fresno, #F072351, 2017 Cal. App. Unpub. Lexis 6321, 2017 WL 4081831.

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RESOURCES

Religious Liberty in Federal Law: Federal Law Protection for Religious Libe rty, memorandum for all executive departments and agencies by U.S. Attorney General Jeff Sessions, October 6, 2017. [Includes sections intended to guide issues of religious liberty for federal employees].

Reference:

Abbreviations of laws, law reports and agencies used in our publications.
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CROSS REFERENCES

Handicap/Abilities Discrimination: Regarded as Disabled

– See also, Alcohol Abuse and Alcoholism

Retirement Rights and Benefits – See also, Health Insurance

First Amendment – See also, Retaliatory Personnel Action

First Amendment – See also, Political Discrimination

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