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Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
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© Copyright, 2019 by A.E.L.E., Inc.
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ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
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2019 FP January
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Arbitration Procedures
Family and Medical Leave
First Amendment Related
Handicap/Abilities Discrimination
Political Discrimination
Retaliatory Personnel Actions (2 cases)
Retirement Rights and Benefits (2 cases)
Whistleblower Protection
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AELE Seminars:
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
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
The Customs and Border Patrol (CBP) Discipline Review Board sent an employee a proposed 30-day suspension based on disciplinary infraction charges: failure to follow a policy related to overtime sheets, failure to follow supervisory instructions, and conduct unbecoming a U.S. Border Patrol Agent. The deciding official interviewed witnesses and received arguments from the agency and the employee and sent a decision letter, concluding that the agent should be disciplined on all three charges, but reducing the suspension to 15 days. The agent requested arbitration.
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During the arbitration hearing, the deciding official admitted that he had considered three documents that had not been provided to the agent or his union. The documents were agency policies regarding administratively uncontrollable overtime pay. The arbitrator agreed that the agency violated the contractual due process provision, and vacated discipline on Charge One. The parties agreed that the undisclosed documents solely related to Charge One. The arbitrator analyzed Charges Two and Three on their merits, apparently concluding that he need not address the agent’s contractual and constitutional due process arguments, concluded that the agency carried its burden of proof, and reduced the discipline to a 10-day suspension. A federal appeals court upheld this result, ruling that the arbitrator properly treated the three charges separately and independently. Boss v. Dept. of Homeland Security, #17-2231, 2018 U.S. App. Lexis 32072 (Fed. Cir.). |
Family and Medical Leave
A city housing authority employee suffered from seizures, anxiety disorder, post-traumatic stress disorder, bipolar disorder, and depression, which required her to take leaves of absence. After eight years of employment, she was fired. She claimed that the employer improperly denied her requests for medical leave and retaliated against her for these requests by disciplining and terminating her, in violation of the Family and Medical Leave Act, 29 U.S.C. 2601 (FMLA). She also contended that the employer failed to make reasonable accommodations and discriminated and retaliated against her in violation of the Americans with Disabilities Act, 42 U.S.C. 12101, and that she was subjected to retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e and the Fair Housing Act, 42 U.S.C. 3617 (FHA).
A federal appeals court upheld summary judgment in favor of the employer. It noted that five months elapsed between the end of the employee’s FMLA leave and a written warning. Although she had requested leave for medical appointments and was told that her leave had been exhausted, she was nonetheless allowed time off for her appointments. She also claimed that she had been terminated because of her disability, but, in her EEOC complaint, she omitted any allegation that the employer had denied her a reasonable accommodation. Finally, rejecting the employee’s retaliation and FHA claims, the court noted that there is no evidence that she called HUD to report a discriminatory housing practice. Riley v. City of Kokomo, Indiana Housing Authority, #17-1701, 2018 U.S. App. Lexis 32844 (7th Cir.).
First Amendment Related
A city police officer also held positions with the city’s parks and electric departments. While running for a position on the city council, he improperly appeared in police uniform at a campaign event and represented on his time sheet that he was on duty during that event. A subsequent state police investigation resulted in criminal charges against him for official misconduct and “ghost employment.” He was elected to the city council and signed a deferred prosecution agreement in which he both admitted to the criminal charges and agreed to resign from the city council.
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The very next day, he distributed a letter accusing the Board of Public Works and Safety and city officials of corruption and criminal wrongdoing. The Board notified him of its intent to terminate his employment. The Board then fired him, crediting a prosecutor’s testimony that he would not accept case-related information from a police officer, like this one, who had admitted a crime of dishonesty, and rejected his argument that the Board members were biased and that the termination proceedings were a response to his letter accusing Board members of wrongdoing. He filed a First Amendment retaliation claim under 42 U.S.C. 1983, with state law defamation and whistleblower claims. A federal appeals court upheld summary judgment in the city’s favor. Federal courts, it stated, must give state administrative fact-finding the same preclusive effect to which it would be entitled in state courts, if the agency acted in a judicial capacity and resolved issues that the parties had an adequate opportunity to litigate. The Board acted in a judicial capacity and the employee had a fair opportunity to litigate the issues, the appeals court concluded. Taylor v. City of Lawrenceburg, #17-2803, 2018 U.S. App. Lexis 32845 (7th Cir.). |
Handicap/Abilities Discrimination
After an on-duty knee injury, a veteran city police officer sued for disability discrimination under both federal and state law. The trial court granted the city summary judgment on all claims, concluding that the officer had failed to establish that he was disabled within the meaning of the Americans with Disabilities Act and also failed to show a disability as to his state-law claims. A federal appeals court upheld this result. Mancini v. City of Providence, #18-1011, 2018 U.S. App. Lexis 32962 (1st Cir.).
Political Discrimination
A county financial resources directory was a Democrat. When a Republican assumed control of the county board, she was fired. She brought claims under the First Amendment and Equal Protection Clause, claiming that Vermilion County and its chairman violated her right of political affiliation and engaged in political retaliation. The trial court dismissed the equal protection claim as duplicative of the First Amendment claim, and, after finding that the substantial fiscal and budgetary responsibilities of the plaintiff’s position fit within the exception to political patronage dismissals, granted the defendants summary judgment.
A federal appeals court upheld this result, relying on U.S. Supreme Court precedents that, while public employers cannot condition employment on an individual’s political affiliation, an employee’s First Amendment right of political association leaves room for employers to dismiss employees in positions where political loyalty is a valid job qualification. Determining whether a particular job fits within the exception requires “focus on the inherent powers of the office as presented in the official job description,” while also looking at “how the description was created and when, and how often, it was updated.” The plaintiff held a senior position requiring the trust and confidence of the elected Board members, including the county chairman, and entailing substantial policymaking authority. Bogart v. Vermilion County, #18-1719, 2018 U.S. App. Lexis 33137 (7th Cir.).
Retaliatory Personnel Actions
A sheriff was entitled to summary judgment on an employee’s claim that the unauthorized review and disclosure of the plaintiff employee’s confidential personnel files to support her racial and religious discrimination claims constituted protected activity under Title VII. The appeals court held that unauthorized disclosures of confidential information to third parties are generally unreasonable. In this case, the plaintiff's unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity. The court also held that section 704(a) of Title VII of the Civil Rights Act does not protect a violation of a valid state law that poses no conflict with Title VII. The court explained that she failed to meet her burden of proving that the sheriff terminated her employment because she engaged in protected activity. Netter v. Barnes, #18-1039, 2018 U.S. App. Lexis 32358 (4th Cir.).
A Department of Veterans Affairs (VA) employee worked as a cook in the Nutrition and Food Service Department in 2008-2009 and again from December 2013 until April 2015. The four‐year gap in employment occurred because he was fired and then, after a successful Equal Employment Opportunity (EEO) complaint was reinstated to his former position. He sued, claiming that upon reinstatement he faced retaliation from the VA and two supervisors for his EEO activity.
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The trial court granted the VA summary judgment, finding that none of the alleged retaliatory actions constituted a materially adverse action. The federal appeals court affirmed, noting that some of the actions constituted isolated administrative errors that were subsequently corrected, representing the kind of minor workplace grievances which Title VII does not protect against. Other incidents may have resulted in “annoyance and frustration,” but they did not cause the kind of harm that would dissuade a reasonable employee from engaging in protected activity. Unfulfilled threats that do not produce harm do not qualify as adverse actions. The employee also failed to demonstrate a causal link between his protected activity and nearly all of the alleged retaliatory actions; failed to identify any similarly‐situated employee, and failed to demonstrate that the VA’s legitimate, non‐discriminatory explanations were pretextual. Lewis v. Wilkie, #18-1702, 2018 U.S. App. Lexis 33439 (7th Cir.).
Retirement Rights and Benefits
In a prior decision, an intermediate California appeals court decided a case that involved the legitimacy of certain retirement benefits regularly paid by the Oakland Police and Fire Retirement Board to members and beneficiaries of the Oakland Police and Fire Retirement System (PFRS). The Retired Oakland Police Officers Association and individual PFRS pensioners then sought attorney fees under California’s private attorney general statute, Code of Civil Procedure section 1021.5 and the federal Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. 1988. The trial court ruled that such fees were not warranted under either law. The court of appeals found, however, that an award of attorneys’ fees under section 1021.5 was proper. The plaintiff Association was a prevailing party and several facts, including the relative poverty of the Association and its members, were all valid considerations in a section 1021.5 fee analysis and tipped the scales decisively in favor of a fee award, especially when considered alongside the more modest estimated monetary value of the case. In successfully litigating to protect both procedural and substantive public pension rights on these facts, the Association was vindicating important rights affecting the public interest. The Association’s actions protected the pensions of the 590 living pensioners and their families, which provided a clear economic benefit. City of Oakland v. Oakland Police and Fire Retirement System, # A144653, 2018 Cal. App. Lexis 1097. |
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The plaintiff was an employee of a fire protection district for decades. He was a member of the retirement program, administered by the Contra Costa County Employees’ Retirement Association (CCERA). In 2012, he decided to retire. His final day on the job was December 12, and he applied for a service retirement to CCERA the following day. On January 1, 2013, the California Public Employees’ Pension Reform Act took effect, mandating the complete or partial forfeiture of pension benefits/payments if a public employee was convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.” (Gov. Code 7522.72(b)(1).)
In February 2013, he was indicted, and in April 2013, the CCERA approved his retirement application, fixing his actual retirement as December 13, 2012. He began receiving pension checks. In December 2015, he pled guilty to embezzling county funds for 12 years, ending in December 2012. CCERA reduced his monthly check in accordance with the forfeiture provision. An intermediate state appeals court held that the forfeiture provision applied and declined to address whether it would amount to an unconstitutional impairment of his employment contract or an ex post facto law for someone in a different situation. Finishing the last day of work, the court stated, does not automatically make a public employee a “retired” former employee. Wilmot v. Contra Costa County Employees’ Retirement Association, #A152100, 2018 Cal. App. Lexis 1097. |
Whistleblower Protection
An EPA Special Agent conducted criminal investigations for almost 20 years He also operated a personal business, selling military collectibles, but failed to report that business, as required, He also allegedly used his government computer for personal business, and tried to intimidate a contractor with whom he dealt in conducting that business. That contractor filed a complaint. The employer then placed him on leave. The Office of the Inspector General cleared him of criminal charges.
After his supervisor told him things “looked good” for an eventual return to full duty, he became involved in an investigation into another supervisor, expressing fear of retaliation but stating that that supervisor had been sleeping at his desk and had smelled of alcohol. Others confirmed this, and that supervisor retired. The plaintiff was then investigated for conduct unbecoming an investigator, improperly using his government computer, and failing to report his outside business. Then 11 months shy of retirement eligibility, he was terminated. He argued that his removal was not reasonable and that his statements regarding the second supervisor constituted protected whistleblowing that caused retaliation. In discovery, the EPA produced draft notices of proposed sanctions against him, which identified a different decision-maker than previously identified. The plaintiff sought the emails to which these drafts had been attached, and the EPA sought to “claw back the drafts, “claiming attorney-client privilege. But the EPA produced no privilege log.
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The Merit Systems Protection Board found the drafts privileged and found that the employee would have been removed even without his protected disclosures. A federal appeals court overturned that result, ruling that the EPA did not prove that the allegedly protected communication was made in confidence to its attorney. The Board “may not simply guess what might happen absent whistleblowing.” Siler v. Environmental Protection Agency, #17-2446, 2018 U.S. App. Lexis 32075 (Fed. Cir.). |
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Police Management: Mentoring Your Replacement by Michael Card, FBI Law Enforcement Bulletin (Nov. 13, 2018).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Attorneys’ Fees – See also, Retirement Rights and Benefits
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Handicap/Abilities Discrimination – See also, Family and Medical Leave |
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