January 2018 Fire, Police & Corrections Personnel Reporter

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Collective Bargaining

The highest court in New York ruled that the New York State Public Employment Relations Board erred in finding that the city engaged in an improper employment practice by adopting police disciplinary procedures other than those in its collective bargaining agreement with police officers because the more general Civil Service Law art. 14, on public employees’ collective bargaining, was superseded by the more specific Second Class Cities Law §§ 131 and 133, providing detailed police discipline procedures, so police discipline was not a collective bargaining subject. Such bargaining was now prohibited. The city's collective bargaining on police discipline did not judicially estop its different procedures because it bargained before a decision that statutory grants of local control made police discipline an improper collective bargaining subject. City of Schenectady v. N.Y. State Public Employment Relations Board, 2017 NY Slip Op 07210, 2017 N.Y. Lexis 3074.

First Amendment Related

Former workers' compensation arbitrators in Illinois filed a suit challenging a workers’ compensation reform statute. While that lawsuit was pending, the governor declined to reappoint them, ending their employment. But the arbitrators failed to show retaliation in violation of the First Amendment because the arbitrators were policymakers who could be terminated for engaging in speech on a matter of public concern in a manner that was critical of their superiors or their stated policies. Because the lawsuit sought to undercut the governor’s workers’ compensation reform initiative, it was sufficient reason for the decision not to reappoint the arbitrators because they were policymakers and not ministerial employees. Because they were gubernatorial appointees, their work was politically sensitive, and they exercised significant discretion in the performance of their duties. Hagan v. Quinn, #15-1791, 867 F.3d 816 (7th Cir. 2017).

Handicap/Abilities Discrimination

A city employee in Illinois asserted a disability discrimination claim under a state statute, the Illinois Human Rights Act. The trial court sought clarification of whether the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/1, applies to a civil action under the Human Rights Act where the plaintiff seeks damages, reasonable attorneys’ fees, and costs. If yes, a certified question asked, should the court modify, reject or overrule its prior holdings that the Tort Immunity Act applies only to tort actions and does not bar actions for constitutional violations? The Illinois Supreme Court vacated and remanded the intermediate appellate court’s response. The question is “improperly overbroad, should not have been answered, and does not warrant” review. The question ignores the breadth of the Human Rights Act, the Illinois Supreme Court said, which provides for numerous types of civil actions for unlawful conduct in a variety of contexts. Rozsavolgyi v. City of Aurora, Ill., 2017 IL 121048, 2017 IL Lexis 1077.

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

An employee of a Pennsylvania state agency asserted various forms of workplace harassment, constructive discharge, hostile work environment, and violation of her rights under both Title VII and the Americans with Disabilities Act. She sought to hold her former supervisors liable under 42 U.S.C. Sec. 1983, a general federal civil rights statute. The trial court granted summary judgment in favor of all defendants. A federal appeals court affirmed this result, holding that violations of Title VII and the ADA may not be brought through section 1983, given the comprehensive administrative scheme established by Title VII and the ADA. Those statutes require plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies prior to filing suit, and these may not be circumvented by asserting all claims under Sec. 1983. Williams v. Penn. Human Relations Commission, #16-4383, 870 F.3d 294 (3rd Cir. 2017).

National Security Issues and Security Clearances

The plaintiff's security clearance was legitimately revoked by the FBI because he admitted misconduct in accessing sensitive information for personal reasons. A federal appeals court rejected claims that his equal protection rights were violated because he received a harsher penalty for his admitted misconduct than non-Muslim agents who committed similar misconduct, or because his naturalized family members were allegedly differently than native born U.S. citizens. These claims were barred by Department of the Navy v. Egan, #86-1552, 484 U.S. 518 (1988). He had no constitutionally protected property interest in his security clearance and he received all the process that was due. Gill v. DOJ, #16-5250, 875 F.3d 677 (D.C. Cir.2017).

Race Discrimination

Three Latino police officers sued their employing city and the police chief for alleged discrimination on the basis of both race and religion. A jury awarded damages, and attorneys’ fees and costs were awarded by the court. A federal appeals court ruled that the trial court did not abuse its discretion in denying the city’s motion for a new trial on one police officer’s retaliation claim where the evidence showed that he was removed from field training officer list and received negative reviews and his first written reprimand five months after filing a discrimination complaint and that workplace policies were inconsistently applied to him. The officers’ discrimination and retaliation claims were properly brought under 42 U.S.C.S. § 1981 prohibiting race discrimination in the making and enforcement of contracts, since California law supported the idea that public employment was protected by contract rights. Interpreting California law to ban all § 1981 claims by public employees would hinder the federal interest in preventing discrimination. Flores v. City of Westminster, #14-56832, 873 F.3d 739 (9th Cir. 2017).

Race: Reverse Discrimination

A white male employee of a county court system claimed that there was intentional “reverse” race discrimination against him because a black male employee who worked in the same department and performed the same duties was paid a significantly higher salary. A federal appeals court rejected this claim. The evidence as a whole was insufficient for a reasonable jury to conclude that the employer paid the plaintiff at a lower pay grade than a co-worker on account of his race because the plaintiff presented no evidence, beyond the fact that he was Caucasian and the co-worker was African-American, to demonstrate that race contributed to disparity in their pay. When asked during his deposition whether anyone in the workplace made racial comments toward him, he answered, “nothing direct racial.” Golla v. Office of the Chief Judge of Cook County, #15-2524, 875 F.3d 404 (7th Cir. 2017).

Religious Discrimination

A city employee claimed that she was subjected to discrimination because she converted to Islam and wore a head scarf to her job, and also because she suffered from ADHD. Rejecting these claims, a federal appeals court found that the employee did not met her burden to show that she was constructively discharged and was unable to rebut the city’s legitimate, nondiscriminatory basis for its actions, including her tardiness to work, with evidence of pretext and discriminatory motive. Cherkaoui v. City of Quincy, Mass., #16-2304, 2017 U.S. App. Lexis 24423 (1st Cir.).

Retirement Rights and Benefits

The plaintiff’s job as a Naval Submarine base firefighter required a security clearance. The Navy revoked his clearance because of concerns about his personal finances. He was offered the option to retire, rather than be removed, and he chose to do so believing that his retirement benefits were at risk. In fact, he would have received those benefits regardless of whether he retired or was terminated, under 5 U.S.C. 8312-8315. After learning that his benefits were not at risk, he appealed to the Merit Systems Protection Board, claiming that his retirement was involuntary. Based on the claim that an agency manager had told him he would lose his benefits if he were terminated, the Board held that an agency is required to provide employees with adequate information to make an informed retirement decision but that, if the Navy would have removed him, he was not entitled to reinstatement or back pay. A federal appeals court dismissed his petition for lack of jurisdiction. The Board’s ruling was not a “final decision,” but required the Navy to decide whether and when he would have been terminated if he had not retired, and this had not been determined. Morrison v. Dept. of the Navy, #16-2542, 2017 U.S. App. Lexis 24082 (Fed. Cir.).

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RESOURCES

Law Enforcement Leadership: Leadership Spotlight: Have We Lost Civility? by Kenneth Kilbride, FBI Law Enforcement Bulletin (Nov. 15, 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

Civil Service – See also, Collective Bargaining

Political Discrimination – See also, First Amendment Related

Religious Discrimination – See also, Race Discrimination

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