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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
Cite this issue as:
2019 FP April
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Age Discrimination (2 cases)
Arbitration Procedures
Defamation
First Amendment Related
Handicap/Abilities Discrimination: Accommodation in General
Moonlighting (Secondary Employment)
Pregnancy Discrimination
Racial Harassment
Taxation
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AELE Seminars:
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 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
Age Discrimination
A lieutenant in the Massachusetts State police brought a lawsuit under state law claiming that he suffered discrimination when he was denied a transfer to a different troop station on the basis of his age, Asian race, or Chinese national origin. Others granted transfers to the unit he sought were younger than him. The trial court granted summary judgment in favor of the state police, ruling that he that did not meet his burden of showing that the denial of his request for a lateral transfer was an “adverse employment action.” The highest court in Massachusetts vacated that judgment, holding that, under certain circumstances, “where there are material differences between two positions in the opportunity to earn compensation, or in the terms, conditions, or privileges of employment,” the failure to grant a lateral transfer to a preferred position may constitute an adverse employment action. Because the plaintiff met his burden of showing a prima facie case of discrimination— that he “would have greater opportunities to earn overtime and obtain paid details in the troop to which he seeks transfer” --the case was remanded to decide the issue of whether the denial of this request for a lateral transfer was motivated by discriminatory animus. Yee v. Massachusetts State Police, #SJC-12485, 481 Mass. 290, 2019 Mass. Lexis 20, 2019 WL 347521.
The 2011 Virgin Islands Economic Stability Act (VIESA) attempted to reduce government spending by reducing payroll while continuing to provide necessary public services. It offered some of the government’s most expensive employees (with at least 30 years of credited service) $10,000 to choose to retire within three months. Those declining to retire were required to contribute an additional 3% of their salary to the Government Employees Retirement System starting at the end of those three months. Two members of the system with over 30 years of credited service who decided not to retire claimed that the 3% charge violated federal and territorial laws protecting workers over the age of 40 from discrimination based on their age.
A federal appeals court ruled that the provision was valid because it did not target employees on the basis of their age under the Supreme Court’s 1993 decision in Hazen Paper Co. v. Biggin, #91-1600, 507 U.S. 604 (1993). Its focus on credited years of service entitled the government to the Age Discrimination in Employment Act of 1967 (ADEA)’s “reasonable-factor-other-than-age” defense. The appeals court further held that the Virgin Islands Supreme Court would find the provision consistent with existing territorial anti-discrimination statutes. Bryan v. Government of the Virgin Islands, #18-1941, 2019 U.S. App. Lexis 4816, 2019 WL 661822 (3d Cir.).
A police officer was involved in an off-duty domestic incident. The department’s Office of Professional Responsibility investigated and recommended that he be fired. The Disciplinary Review Board agreed that he should be punished but recommended only a 45-day unpaid suspension. The police chief decided to terminate him. After 30 days passed without intervention by the Capitol Police Board, the chief’s decision was deemed approved and he was terminated. Under a collective bargaining agreement, the chief’s termination decisions are subject to binding arbitration, and the union requested arbitration.
The department refused to select an arbitrator, arguing that it “would be in violation of a determination of the Capitol Police Board and its distinct statutory authority by consenting to the jurisdiction of any arbitrator.” The union protested to the General Counsel for the Office of Compliance (OOC) that the department violated section 220(c)(2) of the Congressional Accountability Act of 1995, 2 U.S.C. 1301–1438, by refusing to arbitrate an unresolved grievance and therefore committed an unfair labor practice. A hearing officer granted OOC judgment. The Board of Directors of the Congressional Accountability Office of Compliance reasoned that the department was obligated to arbitrate disputes arising under its CBA unless it could cite clearly-established law that removed the dispute in question from arbitration, and that the department’s legal arguments fell short. A federal appeals court rejected an appeal by the department and granted the OOC’s petition for an order of enforcement granting arbitration. U.S. Capitol Police v. Office of Compliance, #18-1293,2019 U.S. App. Lexis 4985, 2019 WL 758011 (Fed. Cir.).
Defamation
A man sued the city and its mayor after the mayor chose not to nominate him for police chief. He claimed that the city violated his rights under Massachusetts state law by deciding not to hire him because of his failure to disclose a criminal case against him of which he was later acquitted and that the mayor defamed him through statements she made to the media about him explaining her decision. The state law in question made it unlawful for the employer to “exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding . . . an arrest, detention, or disposition regarding any violation of law in which no conviction resulted.” A jury found for plaintiff on both claims and awarded $750,000 in compensatory damages for defamation, and $750,000 in punitive damages for the claim against the city.
A federal appeals court ruled that the trial court erred in denying the defendant’s motion for judgment as a matter of law and for a new trial on the defamation claim because the statement at issue was not false as required for defamation. It also found that the evidence was sufficient with respect to the state law claim against the city as the decision appeared to be based on his nondisclosure of the criminal charges, rather than on the basis of the information itself, obtained from a third party, but that there was insufficient evidence to support the punitive damages award. The plaintiff did not make the required showing that the mayor knew her conduct was unlawful, and the jury’s finding of no actual harm was an argument against the imposition of punitive damages. Heagney v. Wong, #17-2033, 2019 U.S. App. Lexis 4059 (1st Cir.).
A police captain sued the city, its police chief and mayor, a fellow police officer, and other defendants, claiming that his First Amendment rights were violated after the defendants improperly targeted him for “speaking out and participating in a government investigation” about alleged misconduct by other officers, including his reporting an incident in which another officer pointed a gun at him. The trial court dismissed these claims and a federal appeals court affirmed, ruling that the First Amendment claim was properly dismissed because the speech at issue was made within the scope of the captain’s official duties rather than as a citizen, and thus were not constitutionally protected. Gilbert v. City of Chicopee, #17-2206, 2019 U.S. App. Lexis 3990 (1st Cir.).
Handicap/Abilities Discrimination – Accommodation in General
The plaintiff suffered from a
flesh-eating bacteria. The disease almost killed him. He had three life-saving
surgeries and five months of hospitalization, but still could not return to work.
When he was finally well enough to return, he was informed that his city job
had been eliminated, so he sued for disability discrimination under federal and
Minnesota state law. A federal appeals court upheld summary judgment in favor
of the city. Ruling that the
plaintiff was not entitled to return to his senior accountant position because
he did not return to work prior to the expiration of his Family Medical Leave
Act (FMLA) leave. There was also no medical reason why he needed to be
reinstated to his former position; and therefore he failed to show that
returning to his original position was a reasonable accommodation.
The court also held that the plaintiff’s request that
he be allowed to work from home was not a reasonable accommodation in light of
his testimony that he could work at city hall but that it “would have been
easier” to work from home. He failed to make a facial showing that he could
perform the essential functions of the job remotely and failed to show that the
city eliminated his position because of his disability or that the city
terminated him because of his disability. Brunckhorst
v. City of Oak Park Heights, #17-3238, 2019
U.S. App. Lexis 3426 (8th Cir. 2019).
Moonlighting (Secondary Employment)
A company offered private security and traffic control services, with most of its employees being sworn law enforcement officers also employed by law enforcement entities. Non-sworn employees may have no law enforcement background. The company offered assignments to workers who meet the qualifications specified by the customer. They can choose to reject a job but might not receive future assignments if they decline. The company sometimes provides employees with equipment, but they pay for other equipment and must own police-style vehicles. The cost of the non-sworn workers’ investments is roughly $3,000-$5,000. On the job, workers follow the customer’s instructions, comply with the company’s standard policies, and occasionally submit to the supervision of other employees. Sworn police officers wear their official police uniforms, while non-sworn workers wear uniforms with company-branded patches. Employees send the company an invoice to be paid an hourly wage, and all sign “independent contractor agreements,” including non-compete clauses. The company has never paid overtime wages.
The U.S. Department of Labor sued under the Fair Labor Standards Act, 29 U.S.C. 207(a)(1). The trial court concluded that the company’s non-sworn workers were employees entitled to overtime wages but that sworn officers were independent contractors because they “simply were not economically dependent” on the company.” A federal appeals court reversed in part, ruling that all of the workers were employees. The court noted the length and consistency of the relationship between the company and its workers, the fact that all of the workers earned set wages to perform low-skilled jobs for fixed periods, and that the officers were an integral part of the company’s business. Acosta v. Off Duty Police Services, Inc., #17-6071, 2019 U.S. App. Lexis 4190, 2019 Fed. App. 0019P (6th Cir.).
Pregnancy Discrimination
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After a sheriff’s department decided not to reinstate a female deputy, she sued, claiming pregnancy and disability discrimination, as well as sex discrimination and unlawful retaliation. She had been accused of acquiring a controlled substance through fraud, and was charged with a felony, but she pled not guilty. She was then put on administrative leave and terminated one month later. A state court found her not guilty and she applied for reinstatement when a position opened up. The position was filled by a male candidate. A federal appeals court affirmed the trial court’s dismissal of her claims and held that her Title VII claim failed because she did not plead any facts showing that another candidate was similarly situated or went through a reinstatement process. Because her state claim mirrored her Title VII claim, it likewise failed. Jones v. Douglas County Sheriff’s Department, #17-3196, 2019 U.S. App. Lexis 3650,2019 WL 452782 (8th Cir.). |
Racial Harassment
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An African-American city employee complained that his supervisor addressed him with the “N‐word” twice, and once threatened to write up his “black ass.” The trial court granted the employer summary judgment on his claim for a racially hostile work environment under Title VII, finding that he faced a high bar, as the workplace that is actionable is one that is “hellish.” The court found that the supervisor’s statements were not severe or pervasive enough to rise to the level of a hostile work environment. A federal appeals court reversed in part, finding that the trial court erred in applying the “hellish” standard and failed to focus on the difference in the circuit’s prior hostile environment cases between having the plaintiff’s co‐workers show racial hostility and having the plaintiff’s supervisor show racial hostility, especially in using poisonous racial epithets. While the supervisor’s conduct was relatively infrequent and not “physically threatening” or “humiliating” in a public setting, it was severe and humiliating and a reasonable jury could find that it did interfere with the employee’s work performance, not least because it led him to take a leave from work to seek medical treatment. Gates v. Board of Education of the City of Chicago, #17-3143, 2019 U.S. App. Lexis 4920, 2019 WL 698000 (7th Cir.).
Taxation
****Editor's Case Alert****
After a man retired from the U.S. Marshals, his home state of West Virginia imposed state income taxes on his federal pension benefits, as it does on all former federal employees. Pension benefits of certain former state and local law enforcement employees, however, are exempt from state taxation under a West Virginia statute. The retired Marshal argued that the state statute violates the intergovernmental tax immunity doctrine of 4 U.S.C. 111, under which the United States consents to state taxation of the pay or compensation of federal employees, only if the state tax does not discriminate on the basis of the source of the pay or compensation. The West Virginia Supreme Court of Appeals rejected this argument, but a unanimous U.S. Supreme Court reversed.
A state violates section 111 when it treats retired state employees more favorably than retired federal employees and no significant differences between the two classes justify the differential treatment. West Virginia expressly affords state law enforcement retirees a tax benefit that federal law enforcement retirees cannot receive. The state’s interest in adopting the discriminatory tax is irrelevant, the Court stated. The Court noted that the West Virginia statute does not draw lines involving job responsibilities and that the state courts agreed that there are no “significant differences” between the retired Marshal’s former job responsibilities and those of the tax-exempt state law enforcement retirees. Dawson v. Steager, #17-419, 203 L. Ed. 2d 29, 2019 U.S. Lexis 1349, 2019 WL 691579. |
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Social Media: Focus on Social Media: Communication as a Function of Leadership, by Gail Pennybacker, FBI Law Enforcement Bulletin (March 7, 2019).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Disciplinary Punishment – See also, Arbitration Procedures
National Origin Discrimination – See also, Age Discrimination (1st case)
U.S. Supreme Court Actions – See also, Taxation
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