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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 May
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Drug Screening
First Amendment (2 cases)
Handicap/Abilities Discrimination – Accommodation in General
National Origin Discrimination
Pensions
Political Activity
Retaliatory Personnel Actions
Security Clearances
Veterans and Other Preference Laws
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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
Drug Screening
A man resigned from his job with a city housing authority after he failed a drug test (testing positive for opiates/morphine) and his employer sought documentation of the prescription medications he was using, as well as a clearance letter from his healthcare professionals addressing the issue. He sued the employer and his supervisor, claiming violation of constitutional rights, disability discrimination, and retaliation. A federal appeals court upheld summary judgment for the defendants. It ruled that by not including in his EEOC charge the adverse acts which he argued forced him to resign, the plaintiff failed to administratively exhaust his constructive discharge allegation.
He was also found to have failed to establish a prima facie case of disability discrimination. He failed to show that he suffered an adverse employment action because he was suspended before his employer had any reason to suspect that he might be disabled. The fact that the supervisor knew the employee was taking hydrocodone by itself was not enough evidence to infer that the supervisor regarded the employee as disabled as that term was defined in the Amer4icans with Disabilities Act (ADA). The plaintiff also failed to show that he possessed a property interest in his employment under Arkansas law in order to prevail on his procedural due process claim. Voss v. Housing Authority of the City of Magnolia, #17-1650, 2019 U.S. App. Lexis 5409 (8th Cir.).
First Amendment
A doctor, who for 15 years under a contract was responsible for determining whether county firefighter applicants were medically qualified, claimed that she was terminated in retaliation for First Amendment protected speech when she aired concerns to her colleagues and county officers that the medical clearance process for a particular applicant was mishandled. A federal appeals court ruled that the claim failed because she did not engage in First Amendment protected speech as she spoke as an employee, and not as a private citizen. Further, he doctor never spoke publicly about this matter, but, rather, her speech was made solely to persons in her work chain of command. King v. Board of County Commissioners, #18-10631, 2019 U.S. App. Lexis 6387 (11th Cir.).
A federal appeals court overturned the denial of summary judgment to the acting county sheriff and the county in a lawsuit brought by a woman allegedly terminated as an employee because of her marriage to her husband, who had been terminated as sheriff shortly before she was fired. She claimed that this violated her First Amendment right to intimate association. The appeals court ruled that the sheriff’s termination of the plaintiff as a jailer and dispatcher did not amount to a constitutional violation, because the fact that the marriage was a motivating factor in the decision to terminate her did not mean that the sheriff “directly and substantially interfered” with their marriage. In this case, the husband was terminated as sheriff for sexually harassing other employees. The plaintiff was then placed on administrative leave before the new acting sheriff determined that her return would create a hostile work environment due to her loyalty to her husband. The court also ruled that, because the sheriff did not commit an unconstitutional act, no municipal liability attached to the county. Muir v. Decatur County, Iowa, #18-1057, 2019 U.S. App. Lexis 6958 (8th Cir.).
Handicap/Abilities Discrimination – Accommodation in General
A long-time postal employee was diagnosed with multiple sclerosis, and eight years later needed to use a wheelchair. He parked in a reserved space near the loading docks, where there was room to deploy his wheelchair ramp. Subsequently, the postal station manager asked him to stop parking there, citing safety concerns and offering him a handicapped spot in front of the building or a reserved space in the back. Neither of these provided sufficient space to deploy his wheelchair ramp, and spots in the back would require him to travel along a busy truck route in the dark.
With permission from his supervisor, he continued to park in his usual place, while seeking help from the chair of the Reasonable Accommodation Committee. The manager then threatened to have his van towed. The employee panicked, experienced chest pain, and left work. His doctor recommended that he stay home until the situation was rectified and prescribed medication. The Reasonable Accommodation Committee chair asked him to provide medical information about his “condition and the specific limitations.” That letter increased the employee’s frustration, as all parties involved knew that he was confined to a wheelchair.
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He did not provide the information, but claimed that the stress had rendered him unable to return to work. He was granted disability retirement, and then sued under the Rehabilitation Act, 29 U.S.C. 791 for constructive discharge and failure to accommodate. Summary judgment was granted to the employer on the constructive discharge claim, but he was awarded $300,000 in compensatory damages for failure to accommodate as well as $828,774 in front and back pay. A federal appeals court vacated in part, upholding a jury instruction about an employee’s obligation to cooperate with his employer in identifying a reasonable accommodation, but finding that an instruction about how the jury should evaluate the employer’s expert witness (on the issue of compensatory damages) “wrong and prejudicial.” As a result, a new trial was ordered limited to the issue of compensatory damages. Sansone v. Brennan, #17-3534, 2019 U.S. App. Lexis 6753 (7th Cir.). |
National Origin Discrimination
****Editor's Case Alert****
A Brazilian citizen who identifies himself as Latino, worked as a correctional sergeant for the Wisconsin Department of Corrections (DOC). His use of force on an inmate triggered an internal review process and led to his termination. The individual defendants, the warden, the human resources director, and a corrections unit supervisor played roles in that review process. The fired employee filed national origin and race discrimination claims against the DOC under Title VII, and against the individual defendants and the DOC under 42 U.S.C. 1983, alleging a violation of the Equal Protection Clause.
A federal appeals court overturned the award of summary judgment to the DOC on the Title VII claim and to the warden on the plaintiff’s equal protection claim, but otherwise affirmed summary judgment for the defendants. A reasonable jury could conclude that the plaintiff and another correctional officer (who was white and a U.S. citizen) engaged in comparably serious conduct but that the plaintiff was discharged while the other officer was suspended for just one day. .A reasonable jury could also conclude that the warden’s evolving explanations for the discrepancy supported an inference of pretext. Qualified immunity did not shield the warden from liability. The Eleventh Amendment, however, barred the equal protection claim against the DOC as a state agency. Silva v. State of Wisconsin, Department of Corrections, #18-2561, 2019 U.S. App. Lexis 5210 (7th Cir.).
Pensions
The Texas Supreme Court held that the Dallas Police and Fire Pension System did not violate Tex. Const. art. XVI, 66 by amending its pension plan to reduce the interest rate paid on Deferred Retirement Option Plan (DROP) accounts. The plaintiff plan participants had elected DROP before the amendment in this case and argued that the change in interest rate reduced or impaired their service retirement benefits granted or accrued in violation of section 66. The pension plan amendments did not violate section 66 because the DROP account interest rate change was only prospective and will not impact funds deposited before the amendments became effective. Eddington v. Dallas Police & Fire Pension System, #17-0058, 2019 Tex. Lexis 243, 60 Tex. Sup. Ct. J. 560.
Political Activity
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An intermediate California appeals court denied a petition seeking a judicial order compelling county officials to put the plaintiff on the primary election ballot for county sheriff. It ruled that Calif. Government Code section 24004.3, which requires persons to be elected county sheriff to meet certain law enforcement experience and education, is constitutional. The plaintiff did not meet those qualifications, having no prior law enforcement experience.
The court found that there were good reasons why the legislature imposed an experience requirement because, in order to have a true understanding of law enforcement, you must learn about it in the field doing it. The state Constitution empowers the legislature to provide for the election of county sheriffs and to set minimum qualifications for sheriff candidates. The court rejected the argument that section 24004.3 conflicts with or was preempted by the California Constitution. The court also held that there was no merit to the argument that the legislature exceeded its authority pursuant to the California Constitution in enacting section 24004.3 or that the statute violates the First Amendment rights of would-be candidates or of the voters. Boyer v. Ventura County, #B289919, 2019 Cal. App. Lexis 218, 2019 WL 1236050.
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Retaliatory Personnel Actions
An employee of OSHA filed more than 60 Equal Employment Opportunity (EEO) complaints over a 5-year period. She claimed that in retaliation for those and other EEO complaints filed a decade earlier, her employer created a hostile work environment in that her supervisors: denied her the ability to work regularly from home, shifted her job duties to include more clerical work, reassigned her, and failed to promote her to Assistant Regional Administrator, instead selecting an attorney who improperly disciplined her in retaliation for making additional discrimination claims.
In 2008, she received notice of OSHA’s decision to terminate her. She left OSHA and filed another EEO complaint, claiming constructive discharge. She sued under Title VII of the Civil Rights Act for retaliation and retaliatory hostile work environment. A federal appeals court upheld judgments in favor of the agency. The court acknowledged that federal employees may bring retaliation claims under Title VII, but declined to consider whether the same standard governs federal- and private- sector retaliation claims, and what standard applies to a federal retaliatory hostile work environment claim. It found that, based on the evidence, the plaintiff employee could not prevail under “any” potentially applicable standard, whether she needed to show a retaliatory hostile work environment that was “materially adverse” or “severe and pervasive,” so any alleged error in the jury instructions was harmless. The plaintiff failed to rebut the agency’s offered non-retaliatory reasons for the changes in her work assignments. Komis v. Secretary U.S. Dept. of Labor, #14-3813, 2019 U.S. App. Lexis 7282, 2019 WL 1121383 (3rd Cir.).
Security Clearances
A man worked at a naval shipyard housing nuclear-powered vessels and every position required a security clearance. He attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From his rehabilitation discharge letter, the Navy learned that he had used marijuana during his employment. The shipyard commander notified him that his security clearance was suspended and that the Navy proposed to indefinitely suspend his employment. He filed a reply, and the deciding official engaged in communications with the shipyard’s Human Resources staff, primarily concerning positions that would not require a security clearance.
The HR department drafted a “Decision on Proposed Indefinite Suspension,” which was approved by the naval shipyard commander, and the Merit Systems and Protection Board ALJ affirmed, rejecting due process arguments that the reply process was an empty formality because the supervisor did not have the ability to take or recommend alternative agency action and the supervisor and the HR staff engaged in an improper ex parte communication. A federal appeals court upheld this ruling. The plaintiff received the procedural protections of 5 U.S.C. 7513(b); he received notice, had an opportunity to respond and to be represented, and was provided with a written decision with reasons. Hornseth v. Dept. of the Navy, #18-1188, 2019 U.S. App. Lexis 5842 (Fed. Cir.).
Veterans and Other Preference Laws
A DEA employee since 1995, the plaintiff, until 2008, was also a Navy reservist. While at the DEA, he was deployed by the Navy three times, twice for six months. As of 2015, he had applied for 14 GS-14 positions since 2012. Since 2009, he has been supervised by the same supervisor, who is responsible for recommending agents for promotion. Because he scored 91 out of 100 on his examination, the plaintiff was on the Best Qualified List for every GS-14 position for which he applied, but he was only selected by his supervisor three times and never as his first-ranked agent. The Career Board often selected the supervisor’s first-ranked agent, absent an agent requiring a lateral transfer from abroad or for hardship.
In 2015, the plaintiff requested corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), asserting that his non-selection was motivated by his military status and that his supervisor was hostile towards reservists. Six other current and former reservists working as agents in San Diego also filed USERRA claims. Before the Merit Systems Protection Board (MSPB), the plaintiff unsuccessfully sought to introduce an email sent to one of these other agents by a person who reported directly to his supervisor. At the hearing, the plaintiff was not allowed to question his supervisor about the email.
A federal appeals court vacated the MSPB’s denial of corrective action. Evidence of the email and of the supervisor’s response to it was relevant to the supervisor’s potential hostility towards employees’ military or USERRA activity. Sharpe v. Dept. of Justice, #17-2356, 2019 U.S. App. Lexis 6279 (Fed. Cir.).
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Public Employee Labor Relations: The Illinois Public Employee Relations Report (published quarterly by IIT Chicago-Kent Law School and University of Illinois Champaign-Urbana). Available online, to subscribe for free click here.
Social Media: A Guide to the Pitfalls and Perils of Social Media in the Workplace, by Maja M. Obradovic and Jemi Goulian Lucey, New Jersey Law Journal (February 01, 2019).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
First Amendment – See also, Political Activity
Racial Discrimination – See also, National Origin Discrimination
Retirement Rights and Benefits – See also, Pensions
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