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
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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
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2018 FP March
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Family and Medical Leave Act
First Amendment Related
Pensions
Privacy Rights
Political Discrimination
Retaliatory Personnel Action
Retirement Rights and Benefits
Sexual Harassment
Whistleblower Protection
U.S. Supreme Court Employment Decisions
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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
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
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• BNA arbitration awards can be obtained for a fee, from BNA Plus
Family and Medical Leave Act
Over the course of roughly three years, a town employee took three medical leaves, totaling nearly eight months in aggregate leave time. She was fired when she returned from her third leave. She sued under both federal and state law, claiming that she had been retaliated against for taking medical leave and discriminated against on account of a disability. The town asserted that her dismissal was based on poor job performance (including violations of department protocols, breaches of confidentiality, and repeated failures to complete work assignments).
A federal appeals court upheld the judgment of the trial court entering a take-nothing verdict in favor of the defendants following a jury trial. The plaintiff argued that the trial court erred in employing the McDonnell Douglas Corp. v. Green, #72-490, 411 U.S. 792 (1973) framework in its jury instructions. That case dealt with the burdens and nature of proof in proving an employment discrimination case and the order in which plaintiffs and defendants present proof.
That framework has the following steps:
1. The plaintiff (employee) must first establish a prima facie case of discrimination.
2. The defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates.
3. The plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant’s actions used one of the listed unlawful discriminatory parameters.
Some have criticized that framework as overly complex and difficult for jurors to understand. In this case, however, the appeals court ruled that the “employee did not show that the outcome of her discrimination and retaliation action against her employer would likely have changed had the district court rearranged the components of the jury charge inasmuch as the court provided the jury with a thoughtful, thorough, and easily understandable explanation of the relevant legal concepts involved in the McDonnell Douglas framework.”
“A trial court that wishes to use the McDonnell Douglas framework as part of its jury instructions should translate it into everyday parlance and fit it to the facts and circumstances of a particular case.” Teixeira v. Town of Coventry, #17-1049, 2017 U.S. App. Lexis 27570 (1st Cir.).
First Amendment Related
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Overturning a trial court ruling, a federal appeals court ruled that a county sheriff and an undersheriff were entitled to qualified immunity on First Amendment claims by a number of employees because the constitutional rights to protect the statements they claimed they were punished for were not clearly established.
The claims were brought by three categories of subordinates:
(1) A lieutenant whose claim arose out of her statements to the media. The sheriff and undersheriff allegedly secretly took an Internal Affairs document, planning to use it against a political opponent. At the time, the lieutenant was in charge of the Internal Affairs Unit of the sheriff's office. She knew that the document was missing but did not know who had taken it. The mystery of the missing document generated public interest. To address the matter, the sheriff allegedly ordered her to speak to the media and deliver a false narrative, saying that the Internal Affairs document had been stolen by supporters of the political opponent. She spoke to the media as requested, but she did not give the story crafted by the sheriff, instead she claimed, she “spoke truthfully.” In response, she claimed, the sheriff transferred her to the midnight shift. Her speech was not definitely protected, the appeals court ruled, as it was not clearly established that her speech fell outside of her duties as a public employee.
(2) A sergeant whose claim arose out of his political support for the candidate opposed by the defendants. Upon learning of the sergeant’s support, the sheriff allegedly retaliated by subjecting him to a “criminal investigation” into the missing Internal Affairs document, including interrogations, two lie-detector tests, and accusations that he had stolen the document and ordering a criminal investigation into the sergeant’s two children, both of whom were employees of the sheriff’s office. The appeals court held that it was not clearly established that such investigations of the sergeant and his children constituted adverse employment actions. The sergeant did not allege that his criminal investigation was made public, or that it resulted in humiliation, damage to reputation, or harm to his future employment prospects.
(3) Three commanders whose claims arose out of their filing of complaints about the sheriff and undersheriff with the Equal Employment Opportunity Commission and the El Paso County Board of County Commissioners alleging improper practices. When the commanders notified the undersheriff of these complaints, three hours later the defendants allegedly put the commanders on paid administrative leave, confiscated their telephones, tablets, weapons, badges, and vehicles, and had them escorted out of the building. They alleged humiliation from the second and third actions. And in the aftermath of the complaints, the defendants filed Internal Affairs complaints against two of the commanders, subjecting them to internal investigations. The appeals court ruled that it was not clearly established law that the investigation of the commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Lincoln v. Maketa, #16-1127, 2018 U.S. App. Lexis 1055 (10th Cir.). |
Pensions
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A complaint filed by unions representing the firefighters and police officers employed by a city claimed that legislation modifying various state-run pension plans for government employees, including a plan that covered municipal firefighters and police officers, unconstitutionally repudiated contractual obligations owed to the employees. A federal appeals court ruled that the lawsuit was properly dismissed. It found that the unions failed to allege that the legislation at issue unconstitutionally impaired any contractual rights of the union members. Further, the federal court was not the proper place to litigate the unions’ claims that the city was failing to abide by the terms of its ordinances or collective bargaining agreements, which were state law issues.
The absence of any claim that the current benefits provided by the state fell below the present value of the contributions made by the pensioners, together with the absence of the alleged contract, eliminated any basis for a claim under the Takings Clause of the U.S. Constitution, and the use of legislation that was not otherwise constitutionally infirm to reduce a non-mandatory benefit did not violate due process. Cranston Firefighters, IAFF v. Raimondo, #17-1293, 2018 U.S. App. Lexis 1472 (1st Cir.). |
Privacy Rights
****Editor's Case Alert****
A former probationary police officer fired after an internal affairs investigation into her romantic relationship with a fellow officer sued, asserting that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. Both she and the male officer she was involved with were separated from, although still married to, other individuals. A federal appeals court ruled that the plaintiff had presented sufficient evidence to survive summary judgment on her claim for violation of her constitutional rights to privacy and intimate association.
A genuine factual dispute existed as to whether the defendants fired her at least in part on the basis of her extramarital affair. These rights were clearly established at the time, the appeals court stated, so it reversed the trial court’s grant of qualified immunity on her privacy claim. But it upheld summary judgment on the plaintiff’s due process claim because any due process rights she might have had were not clearly established at the time of the challenged action, and therefore the defendants were entitled to qualified immunity on that claim. Summary judgment on a sex discrimination claim was also upheld because the evidence indicated that disapproval of her extramarital affair, rather than gender discrimination, was the cause of her firing. Perez v. City of Roseville, #15-16430, 2018 U.S. App. Lexis 3212 (9th Cir.).
Political Discrimination
****Editor's Case Alert****
A deputy sheriff ran against the incumbent sheriff in a primary election. During the campaign, he made various statements critical of the incumbent. After he was defeated, he was fired, allegedly for the statements he made. A federal appeals court ruled that the sheriff was properly denied summary judgment on his claim of qualified immunity in the deputy's federal civil rights First Amendment lawsuit because public officials were on notice that they could not punish an employee for protected speech when that speech neither impacted the employee’s official duties nor detracted from office efficiency, especially where the public employee’s speech occurred during a political campaign. The deputy’s statements were on matters of public concern and the sheriff made only a minimal showing of actual or potential office disruption from the deputy’s statements. Morgan v. Robinson, #17-1002, 2018 U.S. App. Lexis 2622 (8th Cir.).
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Retaliatory Personnel Action |
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In a complaint described as “disjointed and murky at best,” a man claimed that he worked for a county in its transportation department from 1994-2013, and in 2009, was promoted to a supervisory position. In 2013, he was questioned regarding a bidding process and refused to sign documents relating to the probe. During this interview, investigators asked him if he was carrying a weapon. He admitted that he had a knife, which he gave to his lawyer. Months later, coworkers filed a grievance complaining that he was getting extra work privileges. He was placed on emergency leave with pay pending an investigation. Days later he was placed on emergency suspension for unspecified “major causes.” An investigator produced witnesses to an alleged threat by him to “shoot up the workplace” who gave inconsistent accounts. He was charged with disorderly conduct and released on bond. He was fired for possessing a weapon and making a threat of violence. The disorderly conduct charge was dropped.
He sued, claiming violations of procedural and substantive due process and race-based retaliation under 42 U.S.C 1981 and 1983. A federal appeals court upheld dismissal of the lawsuit. The court commented that the complaint did not show how this “whirlwind of alleged unfairness” violated any federal constitutional or statutory provision. In particular, the complaint contained no factual content that even hinted at a race-based retaliation claim. He stated that he was a Caucasian male subjected to “reverse discrimination,” and had “helped” another employee with an issue of race discrimination, but gave no details. Catinella v. Cook County, #16-2278, 2018 U.S. App. Lexis 2426 (7th Cir.). |
Retirement Rights and Benefits
While both bonus pay and longevity pay separately were expressly listed in a California state statute as items of “special compensation” to be included in a calculation of retirement benefits by the California Public Employees Retirement System, a combination of bonus pay and longevity pay received together had not been expressly determined to be special compensation. Therefore, a longevity performance stipend paid to a county’s deputy sheriffs that combined bonus pay and longevity pay did not count as “special compensation” as the list was exclusive. The payments were therefore not used to calculate retirement benefits. DiCarlo v. County of Monterey, #H041400,12 Cal. App. 5th 468, 218 Cal. Rptr. 3d 829, 2017 Cal. App. Lexis 513.
Sexual Harassment
A federal appeals court upheld a judgment after a jury trial in favor of a female former lieutenant firefighter on both her gender-based hostile work environment sexual harassment/discrimination and retaliation claims. Off-duty evidence demonstrating that she was berated, spat at, and otherwise assaulted by a co-worker while a supervisor stood by was not isolated, non-work related conduct, but rather supported the magnitude of the workplace harassment; A hostile work environment was proven through evidence of repeated hostile, gender-based epithets (such as “cunt,” “bitch,” or “lesbo”), ill treatment of women as workers, sexual innuendoes, and preferential treatment for women who were more likely to sleep with the men of the fire department. The plaintiff had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team. The plaintiff was awarded emotional and front pay damages. Franchina v. Providence Fire Department, #16-2401, 2018 U.S. App. Lexis 1919 (1st Cir.).
Whistleblower Protection
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An ATF agent asserted that his supervisors retaliated against him after he reported his suspicions that another agent improperly shot at a fleeing suspect, provided an inaccurate report, and testified falsely about the incident. He filed a whistleblower complaint with the Office of Special Counsel (OSC) under the federal Whistleblower Protection Act, 5 U.S.C. 1214(a)(1)(A), 2302(b)(8). The OSC declined to investigate, stating that he had not made a disclosure protected by the Act and had failed to provide sufficient evidence to support his allegations of retaliation. The Merit Systems Protection Board (MSPB) rejected his appeal, finding that he had not satisfied the requirement that he “seek corrective action before the Special Counsel before seeking corrective action from the Board.”
A federal appeals court found that the OSC and the MSPB applied unduly stringent and arbitrary requirements. It reasoned that the plaintiff’s disclosure of suspected wrongdoing either explicitly accused another federal employee of perjury or provided sufficient evidence to justify such a suspicion worthy of consideration by his superiors. Either version would qualify as a protected disclosure. The law only requires that a complainant fairly present his claim with enough specificity to enable the agency to investigate and does not require a whistleblower to prove his allegations before the OSC. Delgado v. Merit Systems Protection Board, #16-1313, 2018 U.S. App. Lexis 2088 (7th Cir.). |
U.S. Supreme Court Employment Decisions
A District of Columbia employee sued her employer for both a Title VII federal employment discrimination claim and three related claims under D.C. law. Almost two years then remained on the statute of limitations for the D.C. claims. Over two years later, the federal trial court rejected the federal claim and then dismissed the D.C. law claims.
The plaintiff refiled her D.C. law claim in a D.C. court 59 days later. The trial court and the D.C. Court of Appeals found that her claims were now barred by the statute of limitations. The U.S. Supreme Court reversed. A federal statute provides that the “period of limitations for” refiling in state court a state claim “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” The Court rejected an argument that the section merely provides a grace period, permitting the statute of limitations to run while the claim is pending in another forum and averting the risk of a time bar by giving the plaintiff a fixed period in which to refile.
Considering the ordinary meaning of the statute, the section is a tolling provision. It suspends the statute of limitations both while the claim is pending in federal court and for 30 days post-dismissal. Artis v. District of Columbia, #16-460, 199 L. Ed. 2d 473, 2018 U.S. Lexis 762.
• Contents menu.
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Correctional Employees: Personal Property Claims, Staff, Program Statement 1120.20, Federal Bureau of Prisons (January 3, 2018).
Officer Health: Mindfulness and Officer Health, Job Performance, and Well-Being by Konstantinos Papazoglou, Peter Collins, and Brian Chopko, FBI Law Enforcement Bulletin (January 17, 2018).
Report Writing: Focus on Report Writing: Policies and Practices, FBI Law Enforcement Bulletin (January 17, 2018).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
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First Amendment Related – See also, Political Discrimination
Fraternizing with Co-workers – See also, Privacy Rights
Pensions – See also, Retirement Rights and Benefits
Retaliatory Personnel Actions – See also, First Amendment Related
Retaliatory Personnel Actions – See also, Sexual Harassment
Retirement Rights and Benefits – See also, Pensions
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