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An employment law publication for
law enforcement, Click here to view information on the editor
of this publication. Access the multiyear Employment
Law Case Digest Return to the monthly publications menu Age Discrimination Civil Service Emotional Distress Pregnancy Discrimination Residency: Continuing Requirements Retaliatory Personnel Actions Retirement Rights and Benefits (2 cases) Whistleblower Protection Wrongful Discharge Report non-working
links here AELE Seminars: Public
Safety Discipline and Internal Investigations Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas Jail and Prisoner Legal Issues Click here for
more information about all AELE Seminars Some of
the case digests do not have a link to the full opinion. Age
Discrimination A
new county fire chief terminated a 58-year-old division chief who was the
oldest of the district’s six division chiefs. The terminated employee sued the
employer for age discrimination under California law. A jury issued a special
verdict finding that the plaintiff’s age was a substantial motivating reason
for the termination of his employment and awarding damages for lost earnings.
The plaintiff was awarded $597,629 in damages, $853,443 in attorney fees, and $40,733
in costs
On appeal, the employer argued that the trial court erroneously
refused its request to instruct the jury pursuant to a provision in the
Firefighters' Procedural Bill of Rights (section 3254 (c)). That provision
states that “The removal of a fire chief by a public agency or appointing
authority, for the purpose of implementing the goals or policies, or both, of
the public agency or appointing authority, or for reasons including, but not
limited to, incompatibility of management styles or as a result of a change in
administration, shall be sufficient to constitute reason or reasons.” An
intermediate appeals court interpreted section 3254 (c) and concluded the trial
court did not err in refusing to instruct the jury pursuant to this provision because it pertains only to a jurisdiction's “fire
chief,” and it was undisputed that the division chief was never the district’s
fire chief. Corley
v. San Bernardino County Fire Protection Dist., #D072852, 21 Cal. App. 5th 390, 2018 Cal. App. Lexis 206. Civil Service
A Commissioner of Corrections who resigned under pressure during an
investigation of his oversight of a state hospital had no right under
Massachusetts state law to revert to a tenured civil service correction officer
position he last held in 1992. He sought judicial review of the Civil Service
Commission’s decision concluding that the right to revert to a civil service position
applies only to involuntary terminations, not voluntary resignations, and
because he voluntarily resigned, no “termination of his service” had occurred
within the meaning of the law. The highest court in Massachusetts affirmed,
holding the Commission’s interpretation of this ambiguous statutory language
was reasonable, and that the Commission correctly concluded that the
plaintiff’s resignation was voluntary. Spencer
v. Civil Service Commission,
#SJC-12326, 479 Mass. 210, 2018 Mass. Lexis 166. An
employee of the California Department of Parks and Recreation (DPR) sued her
employer for sexual orientation discrimination, sex discrimination, sexual
harassment, retaliation, and failure to prevent discrimination, harassment, and
retaliation, all in violation of the state Fair Employment and Housing Act
(FEHA), and a cause of action for violation of the Information Practices Act
(IPA), as well as causes of action against her supervisor only for intentional
infliction of emotional distress (IIED) and negligent infliction of emotional
distress (NIED). The supervisor allegedly discussed confidential information
from the plaintiff’s personnel file with others, violating her right to privacy
and causing emotional distress.
Following a trial, the jury returned verdicts in favor of the defendants on the
FEHA causes of action, against the defendants on the IPA cause of action, and
against the supervisor on the IIED and NIED causes of action. The jury
awarded the plaintiff $19,200 for past economic losses and $19,200 for past
noneconomic losses against both defendants, and $28,800 in punitive damages
against the supervisor only. An intermediate California appeals court upheld
the judgment, except for the award of economic damages against the
employer. Hurley v. Calif. Dept. of Parks and Recreation,
#D070098, 20 Cal. App. 5th 634, 2018 Cal. App. Lexis 134. Pregnancy
Discrimination
The standard for
determining whether punitive damages may be awarded for pregnancy
discrimination under the New
York City Human Rights Law, as
certified by the highest court in New York to a federal appeals court, is not
the same as the federal standard for awarding such damages (which requires
intentional discrimination done with malice or with reckless disregard of the
employee’s rights), but rather whether the wrongdoer has engaged in
discrimination with willful or wanton negligence, or recklessness, or a
conscious disregard of the rights of others or conduct so reckless as to amount
to such disregard. Chauca
v. Abraham,
#15-1777, 2018 U.S. App. Lexis 6543 (2nd Cir.). Residency:
Continuing Requirements ****Editor's
Case Alert****
A man had served as a Melrose Park, Illinois firefighter for 16 years before he
was terminated for violation of the municipality’s residency ordinance. He and
his family lived in Melrose Park until 2008 when they bought a home in Orland
Park while retaining ownership of their Melrose Park home. During the week, his
wife and children lived in Orland Park, while he lived in Melrose Park,
spending weekends together in one of the homes. In 2013, he rented the Melrose
Park home out, reserving part of the basement for his exclusive use. He kept
belongings in the home, paid utilities and taxes, and received all of his mail
at the Melrose Park address, but slept in Orland Park between June 2013 and
June 2016.
In May 2016, the employer requested an interview to inquire about his
residency. The Board of Fire and Police Commissioners issued a written
Statement of Charges, seeking to terminate his employment. After the hearing,
he was fired. A federal appeals court upheld the dismissal of his equal
protection and due process claims. An Illinois statute Fire Protection District
Act states that “[N]o officer or member of the fire department of any
protection district who has held that position for one year shall be removed or
discharged except for just cause, upon written charges specifying the
complainant and the basis for the charges, and after a hearing on those charges
before the board of fire commissioners, affording the officer or member an
opportunity to be heard in his own defense.” The court found that this statute
did not provide full protection from termination, and that the employer gave
the plaintiff what the statute requires: written charges, a hearing, and the
opportunity to present evidence. Cannici
v. Village of Melrose Park, #17-1424, 2018 U.S. App. Lexis 6461
(7th Cir.). Retaliatory
Personnel Actions ****Editor's
Case Alert****
After a trial, a jury
found that the Michigan Department of State Police had retaliated against a
former desk sergeant by transferring her from her longtime post to a post in
another city. Department officials initiated the process that culminated in her
transfer shortly after she had filed the second of two complaints alleging
sexual assault and sexual harassment by a male coworker. She was awarded
$350,000 in compensatory damages. A federal appeals court upheld this result,
rejecting the employer’s claim that the trial record contained no evidence from
which a reasonable jury could have found in the plaintiff’s favor or upon which
the jury’s award could be justified.
The employer conceded that the long distance of the new post from the employee’s
home made her transfer there an adverse employment action. Her supervisor
initiated the transfer process with explicit reference to her complaints,
explaining to both his superior and the Human Resources Department that the
transfer was necessary for one reason and one reason only: her
sexual-harassment complaints. An “unbroken chain” connected her supervisor
to her transfer. Mys
v. Michigan Dept. of State Police, #17-1445, 2018 U.S. App. Lexis 7735, 2018 Fed. App.
63p (6th Cir.). Retirement
Rights and Benefits The
plaintiff worked at various federal jobs from 1968-1991, In 2014, he applied for
deferred retirement benefits under the Civil Service Retirement System (CSRS)
and requested to make a post-employment deposit into the Civil Service
Retirement and Disability Fund (CSRDF). The Office of Personnel Management
denied the requests. The Merit Systems Protection Board affirmed, stating that
all of his appointments, including his final position, were either
not-to-exceed appointments or indefinite appointments in the excepted
service.
While he had shown that he had sufficient creditable federal service, he failed
to show that any of that service was performed in a position covered under the
Act. A federal appeals court agreed. Under 5 U.S.C. 8333(a)–(b), to qualify for
a CSRS retirement annuity, an employee must have performed at least five years
of creditable civilian service, and must have served at least one of his last
two years of federal service in a covered position, subject to the Act.
Temporary, intermittent, term, and excepted indefinite appointments are not
covered positions. Substantial evidence supported the conclusion that the
plaintiff’s service was excluded from CSRDF coverage. Lledo
v. Office of Personnel Management,
#17-1717, 2018 U.S. App. Lexis 7817 (Fed. Cir.).
The highest court in Massachusetts upheld a ruling by the state Contributory
Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement
workers’ compensation payments, are not “regular compensation” as defined in
a state statute for purposes of calculating public employee retirement pay. Public
Employee Retirement Administrative Commission v. Contributory Retirement
Appeal Board, #SJC-12331, 2018 Mass. Lexis 85, 168 Lab.
Cas. (CCH) P61844, 90 N.E.3d 744 (Mass. 2018). Whistleblower
Protection A
staff attorney for a state agency sued her supervisor for unlawful First
Amendment retaliation. A federal appeals court ruled that it lacked
jurisdiction to hear an interlocutory appeal
from the denial of qualified immunity to the supervisor because existence of
qualified immunity depended on resolution of factual disputes as to whether the
employee was told to make false statements as to the meaning of Connecticut
statutes and whether the employee’s complaints fell outside the scope of her
job responsibilities. The plaintiff began making complaints that the
program she was assigned to was being improperly administered. She was
responsible for providing legal services to the Comptroller and Connecticut
State Employees Retirement Commission, and prepared written materials for the
Commission explaining that an incorrect standard was being applied. She claimed
that the Comptroller and others subsequently retaliated against her by
systematically stripping her of job responsibilities. She filed a whistleblower
complaint with the Auditors under Connecticut General Statutes in December 2013
and by December 2014, her position in the Division was eliminated. Although she
then transferred to another state agency, she lost two credited years of service
for the purpose of eligibility for compensation and benefits. Brown
v. Halpin, #16-3615, 2018 U.S.
App. Lexis 6387 (2nd Cir.). Wrongful
Discharge A
county employee claimed that she was among those selected to be laid off in
retaliation for exercising her rights as an employee, to
interfere “with her holding an elected office as a Retirement Board Trustee,” to
attempt to coerce “and influence” her “political activity as a Retirement Board
Trustee” and retaliating against her because of her “complaints about
violations of her activity directed to labor organizing County workers.”
Because she did not exhaust her available internal administrative
remedies before filing a civil action against her employer, summary judgment
against her was upheld. A Labor Code section, which does not require a litigant
to exhaust administrative remedies before bringing a civil action, applies only
to claims before the Labor Commissioner, the court held and did not modify the
requirement to exhaust administrative remedies before filing suit. Terris
v. County of Santa Barbara, #B268849, 20
Cal. App. 5th 551, 229 Cal. Rptr. 3d 407, 2018 Cal. App. Lexis 128. • Contents
menu. • Report non-working links here
Correctional Employment: Staff Uniforms and Uniform Allowances, Program Statement 001-2018, Federal
Bureau of Prisons (March 26, 2018). Reference: Report
non-working links here Bill of Rights Laws – See also, Age
Discrimination First Amendment – See also, Whistleblower
Protection Retaliatory Personnel Actions – See also,
Whistleblower Protection Retaliatory Personnel Actions – See also,
Wrongful Discharge
AELE Seminars: Public Safety
Discipline and Internal Investigations Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas Jail and Prisoner Legal Issues Click here for
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corrections and the fire/EMT services
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Leadership Skills: Leadership Spotlight:
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Melquist, FBI Law Enforcement Bulletin (March 13,
2018).
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