AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© 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 June
Click here to view information on the editor of this publication.
Access the multiyear Employment Law Case Digest
Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™
can be used to view contents.
Age Discrimination
Arbitration Procedures
Bill of Rights Laws (2 cases)
Family and Medical Leave
First Amendment
Retaliatory Personnel Actions (2 cases)
Sex Discrimination
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
Jan. 14-17, 2019 -
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
Age Discrimination
A man claimed that he was improperly rejected for a job as a Criminal Investigator with the U.S. Postal System in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. A federal appeals court, overturning the trial court’s dismissal of the ADEA claim, found that the plaintiff had adequately alleged a prima facie case of discrimination where he demonstrated that he had the educational and professional experience required for the position and was in the protected category (over 40). McPherson v. Brennan, #17-2098, 2018 U.S. App. Lexis 10959 (8th Cir.).
Arbitration Procedures
The Supreme Court of Texas ruled that deputy county constables were “police officers” entitled to enter into a collective bargaining agreement (CBA) with their employers under state law. It further held that an arbitrator did not exceed his authority in awarding relief to the deputy constables. The county argued that the arbitrator exceeded his authority in concluding that the county violated the CBA by eliminating several deputy constable positions without regard to seniority and ordering the county to reinstate the deputies in order of seniority. The Supreme Court affirmed, holding that deputy constables are “police officers” under the CBA, that the CBA was valid and enforceable, and that the arbitrator did not exceed his authority in ordering the deputies’ reinstatement on a seniority basis. Jefferson County v. Jefferson County Constables Assn., #16-0498, 2018 Tex. Lexis 314.
Bill of Rights Laws
A terminated county employee sought to set aside a decision denying the administrative appeal of his dismissal from employment as a supervising juvenile correctional officer. An intermediate appeals court held that the materials delivered prior to the plaintiff’s hearing satisfied the requirements of due process applicable before disciplinary action was imposed. However, the county did violate the plaintiff’s rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) to receive any reports or complaints made by investigators or other persons. The court interpreted the term "any reports" to include the incident reports and interview transcripts attached to a 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against the plaintiff. The court held that the record did not compel it to reinstate the plaintiff with backpay and noted that there existed a wide range of remedies. The court reversed and remanded for the trial court to decide the appropriate remedy in the first instance for the POBRA violations. Davis v. County of Fresno, #F07315, 2018 Cal. App. Lexis 398.
A man terminated from his job as a county deputy sheriff claimed that he had suffered a violation of the California Public Safety Officers Procedural Bill of Rights Act (Gov. Code 3300) by failure to complete an administrative investigation of his alleged misconduct (sexual advances toward a woman younger than 18) and to notify him of the proposed disciplinary action within one year of the public agency’s discovery by a person authorized to initiate said investigation. He argued that a sergeant initiated an investigation of his alleged misconduct on March 25, 2013, and an internal affairs investigator notified him of the proposed termination on August 11, 2014. An intermediate appeals court ruled that although the sergeant could not initiate an internal affairs investigation, he was “a person authorized to initiate an investigation” of the allegation within the meaning of the statute, so the one-year limitations period commenced March 25, 2013. The Sheriff’s Office acted in a timely manner because the first criminal investigation sufficiently tolled the limitations period. The statute requires the tolling of the one-year statute of limitations while a criminal investigation is pending if the misconduct is the subject of that investigation. Ochoa v. County of Kern, #F073163, 2018 Cal. App. Lexis 325.
Family and Medical Leave
|
A man had worked as a village police officer for five years before a female sergeant made what he thought were inappropriate and unwelcome sexual advances toward him. According to him, he was not the only person subjected to the sergeant’s sexual harassment. After rebuffing her invitations, he alleged, she escalated a pattern of harassment and hypercriticism of his performance. After an incident prompted him to report the misconduct, he began experiencing migraine headaches and other medical conditions that he attributed to stress related to the harassment.
As he began taking time off, tensions rose between him and the employer. His lawsuit asserted that as a result of his medical condition and use of leave time, the village retaliated against him in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA), and the Americans with Disabilities Act (ADA), 42 U.S.C. 12101. A federal appeals court upheld summary judgment in favor of the village. The acts that he identified as retaliation, the court stated, would not discourage a reasonable employee from exercising his rights under the statutes. In fact, he was allowed to take all the unpaid leave he wanted or needed. His claims asserted that doing exactly what the FMLA allows—placing an employee on unpaid leave—violated the anti-retaliation provisions of the FMLA and ADA. Freelain v. Village of Oak Park, #16-4074, 2018 U.S. App. Lexis 10975 (7th Cir.). |
First Amendment
****Editor's Case Alert****
In Chicago, an Independent Police Review Authority (IPRA) investigates complaints against police, including domestic violence, excessive force, and death in custody, and makes disciplinary recommendations. Accusations can be “sustained,” “not sustained,” “exonerated,” or “unfounded.” Investigators interview witnesses and procure evidence to draft reports. The IPRA’s Administrator retained final responsibility for making recommendations and establishing “rules, regulations and procedures for the conduct of investigations.” The plaintiff became an IPRA investigator and claims that in 2014-2015, his supervisors ordered him to change “sustained” findings and make his reports more favorable to the accused officers. He refused and was allegedly threatened with termination. He further claims that they requested Word versions of his reports to alter them to look like he had made the changes.
The administrator then implemented a policy requiring his approval for all “sustained” findings. If an investigator refused to make a recommended change, he would be disciplined for insubordination. The plaintiff once again refused to change “sustained” findings and was fired. A federal appeals court upheld the dismissal of his First Amendment claims. That an employee may have good reasons to refuse an order, does “not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.” Because the IPRA required the plaintiff to draft and revise reports, his refusal to revise those reports was speech “pursuant to [his] official duties.” He spoke as a public employee, therefore, and not as a private citizen. The First Amendment did not protect this speech. Davis v. City of Chicago, #16-1430, 2018 U.S. App. Lexis 11985 (7th Cir.).
Retaliatory Personnel Actions
A firefighter applicant passed the written examination, an oral interview, and a Certified Physical Agility Test and was placed on a ranked list for hiring consideration. The Department hired two academy classes from that ranked list, but the plaintiff was not selected. His father had filed a qui tam suit under the False Claims Act, 31 U.S.C. 3730(h)(1), asserting that the Department had made false statements of material fact to the federal government in order to receive federal grant funds. The father was a backup investigator in the Department’s arson unit. The plaintiff joined his father’s suit, and claimed that the Department retaliated against him for his father’s complaint.
A federal appeals court upheld summary judgment on the plaintiff’s retaliation claim. The district court granted the Department summary judgment on Quinn’s retaliation claim. He was ranked, at best, five spots too low to receive an automatic selection and every discretionary pick in both classes had more markers than he did, consistent with the Department’s policy for discretionary selections. There was no evidence, the court concluded, from which a reasonable jury could conclude that the father’s suit was even a motivating factor in the decision not to hire the son. Even assuming that the meaning of “employee” under section 3730(h) could encompass job applicants; there were no facts from which a jury could conclude that the plaintiff was retaliated against because of his father’s suit. Heath v. Indianapolis Fire Dept., #17-2564, 2018 U.S. App. Lexis 12181 (7th Cir.).
A former police officer failed to show that a town and its police department improperly retaliated against him because of his protected union and other First Amendment expressive activity in filing reports with the state Attorney General that raised questions about the town’s alleged quota ticketing policies. There was no evidence that the defendants even knew that the reports had been filed with the Attorney General during the time when some of the allegedly retaliatory actions took place. The alleged retaliation for his union activity consisted of a critical email sent to him, which the court characterized as “mild,” and which did not appear to deprive him of any rights. Delaney v. Town of Abington, #16-2308, 2018 U.S. App. Lexis 11720 (1st Cir.).
Sex Discrimination
The question before a federal appeals court was “could an employer justify a wage differential between male and female employees by relying on prior salary?” Relying on the text, history, and purpose of the Equal Pay Act, the court determined that the answer was clearly "no." Prior to the court's decision, the law was unclear whether an employer could consider prior salary, either alone or in combination with other factors, when setting its employees’ salaries. The Ninth Circuit federal appeals court took this case en banc in order to clarify the law, and held that prior salary alone or in combination with other factors could not justify a wage differential. "To hold otherwise - to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum - would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands." The defendant county department of education did not dispute that it paid the female plaintiff less than comparable male employees for the same work. The county was not entitled to summary judgment on an equal pay claim. Rizo v. Yovino, #16-15372, 2018 U.S. App. Lexis 8882 (9th Cir.).
• Contents menu
• Report non-working links here
Police Discipline: Police Disciplinary Appeals, by Stephen Rushin, 167 Univ. of Pennsylvania Law Review ____ (2018, forthcoming). (Rough Draft).
Sexual Orientation Discrimination: A Fresh Look at Title VII: Sexual Orientation Discrimination as Sex Discrimination, by Anthony Michael Kreis, 35 Illinois Public Employee Relations Report No. 1 (2018).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Report non-working links here
Collective Bargaining – See also, Arbitration Procedures
Sexual Harassment – See also, Family and Medical Leave
AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
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