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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 February
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Collective Bargaining
Defenses: Statute of Limitations
Drug Testing
First Amendment Related
Privacy Rights
Racial Harassment
Retaliatory Personnel Actions
Workers’ Compensation
Wrongful Discharge – In General
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AELE Seminars:
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
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Collective Bargaining
****Editor's Case Alert****
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In April 2016, a Chicago Police Accountability Task Force report stated that the Chicago Police Department’s “response to violence is not sufficiently imbued with Constitutional policing tactics.” Then in January 2017, the U.S. Department of Justice released a report concluding that the Chicago Police Department was engaged in a pattern or practice of the unconstitutional use of force. In August 2017, the state of Illinois sued the city of Chicago, asserting that the Chicago Police Department’s policies and practices on the use-of-force violated both the federal constitution and Illinois state law.
Two days after the lawsuit was filed, the parties moved to stay the proceedings while they negotiated a consent decree. Almost immediately, the Fraternal Order of Police, Lodge 7, representing Chicago police officers, publicly opposed any consent decree, expressing fears that the decree might impair its collective bargaining rights. For months, the union monitored the ongoing negotiations and met informally with the state’s representatives. But the union waited until June 2018 to file a motion in court to intervene in the suit. The trial court denied the motion to intervene as untimely. A federal appeals court upheld this result, finding that the union knew right from the beginning that a consent decree might impact its interests but delayed its motion for nearly a year. Illinois v. Chicago, #18-2805, 2019 U.S. App. Lexis 10 (7th Cir.). |
Defenses: Statute of Limitations
An employee of the Maryland Department of Public Safety and Correctional Services (DPSCS) learned that a pediatrician had molested her daughter, which caused her to develop PTSD and severe anxiety. She took medical leave and transferred to a different location. She claimed that one of her co-workers harassed her about her daughter and her mental health for a year and that the employer ignored the harassment. Her job performance deteriorated and she was allegedly forced to resign. While still employed, she filed an EEOC discrimination charge, which proceeded slowly. The agency subsequently found reasonable cause for her claims and referred them to the Department of Justice, which issued a right to sue notice, after which the ex-employee sued, asserting claims under the Americans with Disabilities Act and Rehabilitation Act.
A federal appeals court upheld the dismissal of her Rehabilitation Act claims as untimely. The Rehabilitation Act does not contain a limitations period, so courts borrow the time limit from the most similar state law claim and have previously applied Maryland’s three-year general civil case statute of limitations. After the appeals last addressed the issue, Maryland amended its Fair Employment Practices Act (MFEPA) to align more closely with the Rehabilitation Act so that the MFEPA qualifies as the most similar Maryland law. The MFEPA’s two-year statute of limitations therefore applies and barred the plaintiff’s claims. The appeals court further found that the plaintiff did not meet the exacting standard for invoking the doctrine of equitable tolling to extend the statute of limitations. Ott v. Maryland Department of Public Safety, #17-2047, 2018 U.S. App. Lexis 33366 (4th Cir.).
Drug Testing
After a positive drug test showing marijuana usage, the Department of Homeland Security (DHS) removed an employee from a job as an information technology specialist for U.S. Customs and Border Protection. The employee had previously submitted a letter to the agency, after failing the test, in which he asserted that he had “unknowingly” eaten pot brownies brought by a friend-of-a-friend’s neighbor, a stranger to him, to a barbeque. The Merit Systems Protection Board upheld the dismissal. In his appeal, the employee argued that the Board improperly gave him the burden of proving that he inadvertently ingested marijuana, that it erred in finding his position was subject to random drug testing, and that even if it was subject to testing, he lacked required notice of that fact. A federal appeals court rejected these arguments, finding that intent was not an element of the charged conduct and that the Board properly required him to introduce rebuttal evidence to counter the government’s showing of nexus and choice of penalty. Substantial evidence also supported the finding that the position was designated for random drug testing. Hansen v. Department of Homeland Security, #17-2584, 2018 U.S. App. Lexis 36644 (Fed. Cir.).
First Amendment Related
An employee of a Michigan state insurance regulatory agency claimed that he was improperly terminated in violation of his First Amendment rights, specifically because he spoke out and worked to end the inclusion of intra-family exclusion clauses (IFEs) in insurance policies, which he believed were not in the public interest. A federal appeals court upheld summary judgment in favor of the employer.
The plaintiff had argued that he was acting as a “virtual private citizen” because his duties as an insurance examiner required him to speak in the public interest. In making this argument, however, he essentially acknowledged that he was acting pursuant to his official duties when he sought to end the use of IFEs through his examinations, the very activity that he claims was the basis for his termination. “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” the court stated. His purpose was to further his official work to end what he believed to be an unfair insurer practice. Since his conduct was part of the performance of his job, it was proper to conclude that he was not speaking as a private citizen, so his speech was not constitutionally protected. Haddad v. Gregg, #18-1660, 2018 U.S. App. Lexis 33857 (6th Cir.).
Privacy Rights
The highest court in New York ruled that police officer personnel records are exempt from disclosure under the state’s Freedom of Information law. The NYPD could not be ordered to disclose even as redacted versions of the records, as the N.Y. Pub. Off. Law 87(2)(a) and N.Y. Civ. Rights Law 50-a mandate confidentiality of those records and supply no authority to compel redacted disclosure, N.Y. Civil Liberties Union v. New York City Police Department, 2018 NY Slip Op 08423, 2018 N.Y. Lexis3479.
Racial Harassment
****Editor's Case Alert****
An African-American police sergeant sued the chief of police for alleged deliberate indifference to a racially hostile work environment that allegedly undermined his ability to work. A federal appeals court denied the defendant chief qualified immunity. The plaintiff claimed that he was subjected to a campaign of isolation, harassment, and ridicule because of his race over a three-year period, and the report of an official department investigation confirmed this situation, but the chief of police did not stop the harassment, but allowed it to continue and transferred the sergeant to one of the worst shifts.
The appeals court also affirmed the denial of qualified immunity on 42 U.S.C. 1981 claims (racial discrimination in contracts) where the plaintiff's allegations of a retaliatory shift change supported a claim of unlawful retaliation that a reasonable officer would know was unlawful. However, the court reversed as to the plaintiff's 42 U.S.C. 1983 First Amendment retaliation claim where the defendant was entitled to qualified immunity, because it was not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one's own rights, qualified as speech made as a private citizen rather than as an employee. Johnson v. Halstead, #17-10223, 2018 U.S. App. Lexis 35631(5th Cir.).
Retaliatory Personnel Actions
A former U.S. Postal System employee failed to show that she was discriminated against on the basis of her Chinese race or national origin, but did show that the defendant’s decision to terminate her employment rather than impose lesser discipline was in unlawful retaliation for her protected conduct in earlier having filed several EEOC complaints. A federal appeals court further held that the proper remedy, back pay of $223,164 rather than reinstatement or front pay, was properly awarded. Anderson v. Brennan, #17-2162, 2018 U.S. App. Lexis 5213 (1st Cir.).
Workers’ Compensation
A California police officer suffered blows to the head during training, and later suffered severe headaches lasting between several hours and two days. A month later, he suddenly lost most of the vision in his left eye. Two treating physicians did not believe the vision loss was related to the blows. A neuro-ophthalmologist, the Qualified Medical Examiner (QME), agreed with the other physicians, that the “blood circulation to his left eye was defective.” He agreed that even had the officer not suffered the blows, he could have lost his vision due to this underlying condition. It was “unlikely” that he would have suffered a vision loss if he had not had the underlying “vascular spasticity,” a rare condition. His professional opinion was that: 85% of the permanent disability was due to his old condition and 15% was due to the work injury.
An administrative law judge (ALJ) rejected that analysis and found that the officer had 40 percent permanent disability without apportionment between his underlying condition and the work-related injury. The Workers’ Compensation Appeals Board affirmed, ruling that the preexisting conditions were mere risk factors for an injury entirely caused by industrial factors. The QME had “confused causation of injury with causation of disability.” An intermediate appeals court ordered an apportioned award. The QME’s opinion was consistent with the other physicians' opinions, that it was unlikely the trauma caused the loss of vision. Whether an asymptomatic preexisting condition that contributed to the disability would, alone, have inevitably resulted in disability was immaterial. City of Petaluma v. Workers’ Compensation Appeals Board, #A153811, 29 Cal. App. 5th 1175, 2018 Cal. App. Lexis 1137, 2018 WL 6444963.
Wrongful Discharge – In General
The plaintiff claimed that town officials conspired against him and violated a Massachusetts state civil rights statute by depriving him of his protected property right of continued employment with the town’s police department. A federal appeals court, however, ruled that summary judgment was properly awarded to the defendants. The town manager hired someone to investigate allegations of misconduct by the then-police chief. During the investigation, he uncovered evidence of alleged wrongdoing by the plaintiff, an officer at the time. After a follow-up investigation, the plaintiff was fired. An arbitrator later reversed that decision. The plaintiff retired soon after and filed a lawsuit against the town manager and the investigator. The federal appeals court found that the plaintiff offered little evidence beyond “bald speculation” for the existence of a conspiracy and failed to show that his constitutional rights were interfered with by “threats, intimidation, or coercion,” as required by the state civil rights statute. Thomas v. Town of Salisbury, #18-1102, 2018 U.S. App. Lexis 33381 (1st Cir.).
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Employee Wellness: Perspective -- Meeting Individual and Organizational Wellness Needs by William W. Beersdorf, FBI Law Enforcement Bulletin (Dec. 14, 2018).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Handicap/Abilities Discrimination – See also, Defenses: Statute of Limitations
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