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 April
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Disability Rights and Benefits -- Line of Duty
Family and Medical Leave
First Amendment
Handicap/Abilities Discrimination
Homosexual & Transgender Employee Rights
Privacy Rights
Retaliatory Personnel Action
Whistleblower Protection
Workers’ Compensation: Claim Validity (2 cases)
Report non-working links here
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
required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus
Disability Rights and Benefits -- Line of Duty
Two New York first responders did not establish that that they were entitled to accidental disability retirement benefits by demonstrating that they were incapacitated as the natural and proximate result of an accident sustained in service. The highest court in New York held that substantial evidence supported the determinations that neither petitioner was injured as the result of an “accident” because there were no precipitating accidental events that were not a risk of the work performed. Kelly v. DiNapoli, #2, 3, 2018 NY Slip Op 01016, 2018 N.Y. Lexis 181.
Family and Medical Leave
The plaintiff was a county 911 dispatcher for 11 years, during the last three of which the county had a third-party vendor manage disability, Family Medical Leave Act (FMLA), and unpaid leave requests. Employees did not need approval from a supervisor. The plaintiff was diagnosed with sleep apnea and subsequently had gastric bypass surgery. She received five warnings concerning her use of vacation time or casual time, three warnings for failure to timely complete mandatory proficiency tests, and a warning for failure to report to work on a date that she mistakenly believed that she was not scheduled to work. She was disciplined for being late to work four times. On February 9, 2013, she failed to report and was given a three-day suspension and warned that if she was late again she could be fired. She attributed her tardiness to sleeping through her alarms and did not mention sleep apnea. There was no evidence that her supervisors were aware of that diagnosis. On March 8, she was again tardy.
Her psychiatrist wrote a note stating that she “most probably” had sleep apnea, and needed to be retested. She was fired. A federal appeals court affirmed summary judgment rejecting her suit under the FMLA, 29 U.S.C. 2601, the Americans with Disabilities Act, 42 U.S.C. 12112, and the Rehabilitation Act, 29 U.S.C. 794. There was no evidence that she requested FMLA leave before her termination. Guzman v. Brown County, #16-3599, 2018 U.S. App. Lexis 5722 (7th Cir.).
First Amendment
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A former city planning director sued the city mayor under 42 U.S.C. Sec. 1983, claiming that the mayor did not reappoint him to his position because he had sent an email to the city attorney raising concerns about impropriety relating to a city project. He claimed that this constituted illegal retaliation against him for exercising his First Amendment rights.
A federal appeals court overturned a denial of qualified immunity to the mayor, who argued that a reasonable person in his position would not have understood the plaintiff to have spoken outside of his official duties, and that a “reasonable official: would have believed the email at issue here exceeded the scope” of his official duties. A split appeals panel concluded that the plaintiff failed to show a violation of clearly established federal law on an essential element of his claim, and therefore reversed the trial court’s denial of qualified immunity to the mayor. The key question was whether the mayor reasonably could have believed, at the time he fired the employee, that a government employer could fire an employee on account of speech stemming from almost 30 years of high-level involvement with an ongoing project. The employee had not shown that such a belief was unreasonable based on then-existing law. Knopf v. Williams, #17-8025, 2018 U.S. App. Lexis 5554 (10th Cir.). |
Handicap/Abilities Discrimination
An employee of the city and county of San Francisco sued his employer, claiming workplace retaliation, disability discrimination (disparate treatment, failure to accommodate, failure to engage in the interactive process), defamation, violation of the Confidentiality of Medical Information Act (Civ. Code 56), hostile work environment harassment, and failure to prevent harassment, discrimination, or retaliation, and against his supervisor, alleging defamation and hostile work environment harassment. After the defendants moved for summary judgment, negotiations led to a settlement ($250,000). A week later, after the plaintiff fired his attorney, the defendant ex parte sought to set aside the settlement despite the plaintiff twice assuring the defendants’ counsel that he was not backing out of the settlement. The trial court denied the plaintiff’s request for time to oppose the motion and granted the defendants’ motion as unopposed. An intermediate California appeals court reversed, finding that the trial court abused its discretion. To the extent the trial court implied that the plaintiff was not diligent, the implication was not supported by the record. Denton v. City and County of San Francisco, #A147384, 16 Cal. App. 5th 779, 224 Cal. Rptr. 3d 610, 2017 Cal. App. Lexis 942. |
Homosexual & Transgender Employee Rights
****Editor's Case Alert****
A federal appeals court has ruled en banc that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII of the Civil Rights Act. While the case involved an employee of a private company (a skydiving instructor allegedly terminated because of his sexual orientation), the reasoning would also apply to Title VII claims of public employers in that federal circuit. The court overturned Simonton v. Runyon, #99-6180, 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble, #03-7180, 398 F.3d 211 (2d Cir. 2005), to the extent they held otherwise. Zarda v. Altitude Express, Inc., #15-3775, 2018 U.S. App. Lexis 4608 (2d Cir.).
Privacy Rights
Employees of a county jail filed a lawsuit claiming violations of their right to privacy in health information under the Fourteenth Amendment and the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030. The trial court dismissed all CFAA claims and granted summary judgment to the defendants on the Fourteenth Amendment claims. A federal appeals court upheld the dismissal of the CFAA claims, because the plaintiffs failed to plead damages from the alleged breach. The appeals court overturned the trial court's grant of summary judgment on the right to privacy in medical records claims, holding that even individuals with non-stigmatizing medical conditions have a right to privacy in their medical records, even if their interest in privacy might be less. Hancock v. County of Rensselaer, #16-2888, 882 F.3d 58 (2d Cir. 2018).
Retaliatory Personnel Action
A federal appeals court upheld the trial court’s dismissal of plaintiff’s complaint that alleged retaliatory termination from the police department. The court held that the plaintiff’s retaliation claim, on its face, was outside the bounds of the Title VII statute. Nothing in the complaint or his deposition testimony indicated that he was pursuing a Title VII claim encompassing race-based discrimination and thus he could not submit a claim that his termination was in retaliation for that via an affidavit at the summary judgment stage. Winfrey v. Forrest City, Arkansas, #17-1604, 2018 U.S. App. Lexis 3639 (8th Cir.).
Whistleblower Protection
A Whistleblower Protection Act lawsuit against the Department of Defense claimed that it took several adverse personnel actions against an employee in retaliation for his protected disclosures about alleged misconduct at the Defense Contract Audit Agency (DCAA). A federal appeals court held that substantial evidence supported a determination that the agency proved, by clear and convincing evidence, that it would have taken the same disciplinary action against the plaintiff in the absence of his whistleblowing activities, rejecting his whistleblower claim. Duggan v. Department of Defense, #16-73640, 2018 U.S. App. Lexis 4622
(9th Cir.).
Workers’ Compensation: Claim Validity
The plain language of a California state statute, Labor Code section 4656(c)(2)1, barred the Workers’ Compensation Appeals Board from awarding a county employee temporary disability payments for periods of disability occurring more than five years after the date of the underlying injury that he suffered while working for the county. Accordingly, the appeals court annulled a Board order affirming a workers’ compensation administrative law judge’s order that awarded temporary disability benefits for periods of disability occurring more than five years after the injury. County of San Diego v. Workers’ Comp. Appeals Bd., #D072648, 2018 Cal. App. Lexis 184.
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A man worked successively as a firefighter for two different employers. He developed nasopharyngeal cancer, and California Labor Code section 3212.11 establishes a presumption that cancer manifesting during and for a specified period following employment in certain public safety positions, including firefighters, arose out of and in the course of that employment. Section 5500.5(a) limits employer liability for a cumulative injury to the employer who employed the applicant during the one year preceding the earliest of the date of injury or the last date of injurious exposure to the hazards that caused the injury, so either employer would be potentially responsible for compensation for the entire injury.
The first employer settled the firefighter’s workers’ compensation claim and sought contribution from the second. An arbitrator denied the petition, ruling that evidence of the latency period for the employee’s cancer showed that the injurious exposure occurred during his earlier employment. The Workers’ Compensation Appeals Board adopted the order. CSSF argued the Board erroneously utilized a more lenient preponderance evidentiary standard in applying section 5500.5(a), rather than the more stringent cancer presumption rebuttal standard of section 3212.1. An intermediate court of appeal affirmed, finding that the evidence supported the award, and that worker protection policies embodied in section 3212.1 are not implicated in the allocation of liability between employers. City of South San Francisco v. Workers’ Compensation Appeals Board, #A151857, 2018 Cal. App. Lexis 151. |
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Police Management: Sentiment Analysis: The Missing Link in Police Performance Management Systems by Cameron S. McLay, Police Chief Magazine.
Reference:
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Retaliatory Personnel Action – See also, First Amendment
Handicap/Abilities Discrimination – See also, Family and Medical Leave
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