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AELE Seminars:

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations 

Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

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© Copyright, 2018 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes

ISSN 0164-6397

An employment law publication for law enforcement,
corrections and the fire/EMT services

Cite this issue as:
2018 FP February

Click here to view information on the editor of this publication.

Access the multiyear Employment Law Case Digest

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CONTENTS

Monthly Case Digest

Arbitration Procedures

Handicap/Abilities Discrimination: Regarded as Disabled

Political Discrimination

Retaliatory Personnel Action (2 cases)

Retirement Rights and Benefits

Union Activity

Veterans and Other Preferences Laws (2 cases)

Workers’ Compensation

Resources

Cross_References

Report non-working links here

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AELE Seminars:

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations 

Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

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MONTHLY CASE DIGEST

Some of the case digests do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration is required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus.

Arbitration Procedures

     A supervisor at the Social Security Administration proposed removing an information technology specialist because of alleged violations of the time and attendance policy. An assistant associate commissioner sustained four charges and terminated the employee. The union submitted a grievance and invoked arbitration. The employee obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other employees had committed the same or similar violations as her but none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The arbitrator sustained the employee’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. A federal appeals court vacated the ruling, finding that the employee sufficiently raised the issue of disparate treatment but the arbitrator erred in his treatment of the comparator evidence. His categorical conclusion that the eight other employees could not be comparator employees because they were under investigation was an incorrect statement of the law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar to consideration. Miskill v. Social Security Administration, #16-1598, 863 F.3d 1379 (Fed. Cir. 2017).

Handicap/Abilities Discrimination: Regarded as Disabled

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

     A female African-American police detective who had a heart condition was placed on administrative leave after she and her doctor raised concerns about her being required to be subjected to a Taser shock during training exercises. Ultimately, she was terminated.  A federal appeals court reversed summary judgment for the defendants in a lawsuit claiming that the plaintiff was unlawfully discharged from the police department based on disability and/or racial or gender discrimination.  A jury could find that the stated reason for terminating her—that she was absent without leave—was a pretext for one or more other motives. The trial court correctly concluded that the detective did not produce sufficient evidence to permit a conclusion that she was actually disabled, within the meaning of the American with Disabilities Act.  But she did produce evidence sufficient to raise a genuine issue of fact on whether she was “regarded as” disabled and that her employer regarded her heart condition as a physical impairment and took adverse action—placing her on leave—because of the impairment. A jury would be justified in concluding that receiving a Taser shock was not an essential function of the detective's job, in which case it would follow that she was a "qualified individual." Lewis v. Union City, Georgia, #15-11362, 877 F.3d 1000 (11^th Cir. 2017).

Political Discrimination

      A police officer claimed that he was terminated in violation of his First Amendment rights because of his support of a purported political opponent of the mayor. A federal appeals court held that the employee, who was accused of no wrongdoing, presented sufficient evidence to establish that he suffered an adverse employment action under the First Amendment as a result of his support of a city councilwoman because he did not learn of his firing until the moment that he received his letter of termination, and then he had a mere five minutes to agree to submit his resignation, a letter that the employer wrote, or accept his termination. Five minutes was not enough to overcome the coercive atmosphere and other circumstances that precipitated the employee's signing of the letter of resignation. The plaintiff did not voluntarily leave his employment with the city as the defendants argued, but rather was effectively terminated. A reasonable jury could conclude that his resignation was not a product of his free will. Rodriguez v. City of Doral, #15-11595, 863 F.3d 1343 (11th Cir. 2017).

Retaliatory Personnel Action

     A Hispanic firefighter alleged that after a transfer other firefighters began harassing him, calling him “spic” and “f--king Puerto Rican,” and stealing his food. He also claimed that the number of times he was assigned to work at different locations was excessive when compared to assignments given to non-Latino colleagues. His supervisor did not remedy the behavior. At one point, he called 911 about a “chest bump” incident but did not press charges because of pressure from the chief. The next day, he experienced chest pain, dizziness, and a migraine. A physician diagnosed him with a work-related chest contusion, work-related stress, and possibly post-traumatic stress disorder and ordered medical leave.

     The Medical Section Chief stated that the employer would not pay for treatment. After he had been on medical leave for six months, he obtained written authorization to return to work without restrictions, but the employer required additional documentation. Alamo filed a charge with the EEOC. The employer continued to request additional records. He sued under Title VII, and 42 U.S.C. 2000e. A federal appeals court reversed dismissal of his hostile work environment, disparate treatment, and retaliation claims. The complaint described an investigation into his fitness to work that was so onerous that it could not be completed in four months and sufficiently alleged retaliation. Alamo v. Bliss, #15-2849, 864 F.3d 541 (7th Cir.).

     The District of Columbia was entitled to summary judgment dismissing an employee’s retaliation claims because some were untimely, he did not show that certain later employment actions were materially adverse, and he did not show his that his reduction in force termination was for protected activities or that this was not the true reason he was fired. As to his hostile work environment claims, he did not show he was subjected to "severe or pervasive" conduct, and the evidence showed the employer’s actions were taken to address his deficient work performance. Durant v. D.C. Government, #13-7060, 875 F.3d 685 (D.C. Cir. 2017).

Retirement Rights and Benefits

     California enacted the Public Employee Pension Reform Act of 2013 (PEPRA) in an attempt to curb what were seen as pervasive abuses and underfunding in public pension systems, including those governed by the County Employees Retirement Law of 1937 (CERL), Gov. Code 31450. Public employees and public employee organizations in two counties challenged the constitutionality of PEPRA as applied to certain CERL plan members who were hired before PEPRA’s effective date (legacy members). An intermediate California appeals court rejected an argument that the pension boards possess the ability to include additional pay items in compensation earnable, unmoored by the language of CERL, and then remanded for a determination of the reasonableness of PEPRA’s detrimental changes when applied to the vested rights of legacy members. The court examined the statutory amendments with respect to in-service leave cash-outs; express exclusion of so-called terminal pay from compensation earnable, express exclusion or payments for additional services rendered outside of normal working hours, whether paid in a lump sum or otherwise, from compensation earnable, and exclusion from compensation earnable of “[a]ny compensation determined by the board to have been paid to enhance a member’s retirement benefit.” Alameda County Deputy Sheriff’s Association v. Alameda County Employees Retirement Association, # A141913, 2018 Cal. App. Lexis 12.

Union Activity

    A federal appeals court upheld a ruling that the U.S. Capitol Police engaged in an unfair labor practice when it issued an officer a Command Discipline Warning in

response to his protected union activity. He had expressed dissatisfaction with a departmental policy of requiring officers to work double shifts when the need arose, and

 sometimes informing an officer about the extra shift only at the last minute. The Collective Bargaining Agreement permitted the department to require officers on the

 current tour to be held over for a subsequent tour. The parties did not dispute that the officer was engaged in protected activity when he raised the issue during regularly

scheduled labor-management meetings and when he repeated  his concerns in an email to the police chief. The court rejected the employer’s argument, that the part

of his email protesting his own personal holdover did not constitute a protected activity. Substantial evidence supported findings that the officer made a prima facie

 case of discrimination and that the department’s stated justifications were pretextual. U.S. Capitol Police v. Office of Compliance, #16-2712, 2018 U.S. App. Lexis

386 (Fed. Cir.).

Veterans and Other Preferences Laws

     The plaintiff became a federal employee in 2002 and had no disciplinary record until May 2014, when his supervisor issued a reprimand based on his authorization

 of grazing on public lands, without prior approval. His  supervisor proposed a 14-day suspension, citing his management of interns, behavior toward supervisors,

and interaction with outsiders. The proposed suspension was sustained, to commence on February 15, 2015. He resigned on February 13, citing harassment and a

hostile work environment that aggravated an illness and his veteran’s disability. He claimed to have file complaints under the Uniformed Services Employment

and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335, and that the reprimands were retaliatory. Before the Merit Systems Protection

MSPB), he asserted claims for constructive discharge, discrimination on the basis of his status as a disabled veteran, and retaliation for filing a complaint. The

Administrative Judge dismissed the involuntary resignation claim under 5 U.S.C. 75, and held that he was collaterally estopped from raising in the USERRA

proceeding the evidence and issues assigned to the involuntary resignation proceeding. The AJ later dismissed the discrimination charges, stating that he failed

to make non-frivolous allegations that a reasonable person would have felt compelled to resign due to discrimination or reprisal.  The MSPB affirmed.

     A federal appeals court vacated the ruling, and found that the dismissal was based on incorrect evidentiary procedures including the inappropriate application

of collateral estoppel, and remanded the issue of constructive discharge for further proceedings.  Lentz v. Merit Systems Protection Board, #17-1285, 876 F.3d 1380 (Fed. Cir. 2017).

      Employees of the Office of Air and Marine (OAM), within the Department of Homeland Security, were members of the Air Force and Navy Reserves. They claimed

 that the agency’s actions and policies violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335.

     They then resigned, claiming that they were “forced to quit.” An administrative judge (AJ) rejected the employee’s claim contention that the OAM violated USERRA

 by failing to grant them waivers from participating in training courses that conflicted with their military service dates, creating a hostile work environment, forcing them

to surrender their badges and weapons during military leaves of 30 or more days, delaying within-grade pay increases, and requiring them to use annual, sick, or other leave

 in lieu of military leave. The AJ found “a legitimate basis for the [Agency’s] security policy,” and an “absence of any evidence that its [weapons] policy was adopted with

discriminatory intent.” Allegedly hostile incidents were either “'unavoidable’ workplace friction” or did not rise to the level of “humiliating,” “physically threatening,” or

“so frequent and pervasive” to render their work environment hostile. They later filed a second complaint, alleging constructive discharge. The AJ, the Merit Systems

 Protection Board, and a federal appeals court all agreed that the constructive discharge claims were barred by collateral estoppel as “inextricably linked” to their previous

 hostile work environment claims. The standard for establishing constructive discharge is higher than that for hostile work environment,

Bryant v. Merit Systems Protection Board, #17-1241, 2017 U.S. App. Lexis 26965 (Fed. Cir.).

Workers’ Compensation

     An in-home caretaker employed by the California Department of Social Services was struck and injured by a car while she was riding her bicycle from one private home

 where she was assigned to work to another. The state Workers’ Compensation Appeals Board concluded that the going and coming rule barred her claim for benefits. However,

the workers' compensation judge (WCJ) found that the required vehicle exception to the going and coming rule applied because the employee was impliedly required to provide

 her own transportation between patients’ homes. The appeals board then concluded that the employee’s injury arose out of and in the course of employment. In this case, her transit

was for the benefit of the employer and was impliedly requested by it. An intermediate state appeals court then annulled the appeals board's earlier decision and remanded with

directions to issue a new decision and opinion consistent with this opinion. Yu Qin Zhu v. Workers’ Compensation Appeals Board, #B278696, 12 Cal. App. 5th 1031,

219 Cal. Rptr. 3d 630, 2017 Cal. App. Lexis 564.

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RESOURCES

     Law Enforcement Leadership: The January 2018 issue of Police Chief Magazine, published by the International Association of Chiefs of Police (IAC) focuses

on leadership in several different articles.

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

First Amendment – See also, Political Discrimination

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

Training Injuries – See also, Handicap/Abilities Discrimination: Regarded as Disabled

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AELE Seminars:

The Biometric, Psychological and Legal Aspects of Lethal and

Less Lethal Force and the Management, Oversight, Monitoring,

Investigation and Adjudication of the Use of Force

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations 

Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

---

Return to the Contents menu.
Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.

© Copyright 2018 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.

Library of Employment Law Case Summaries