AELE Seminars:
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© Copyright, 2019 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:
2019 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
Disability Rights and Benefits
Firearms Related
First Amendment
Handicap/Abilities Discrimination: Accommodation in General
Political Activity (2 cases)
Racial Harassment
U.S. Supreme Court Labor and Employment Decisions
|
|
Report non-working links here
AELE Seminars:
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 - 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
After 15 years working as an undercover police detective, the plaintiff was hired by a county district attorney’s office as a detective. After performing satisfactorily for four years without incident, he was assigned to a new supervisor. At that time, and until his firing two years later, he was allegedly subject to several forms of age discrimination, including demotion, and placement in a space without a desk, working computer, or phone. Eventually, he was terminated. He sued the employer under the Age Discrimination in Employment Act, 29 U.S.C. 621 and for constitutional violations under 42 U.S.C. 1983, claiming that there was an established practice of targeting older detectives to force them out of their jobs. After appeals, his remaining claim stagnated for three years until after the death of his former supervisor, a key witness. The delay was caused by a clerical error which resulted in the docket remaining administratively closed after the U.S. Supreme Court denied review, despite the case being returned to the trial court.
A federal appeals court overturned the dismissal of the lawsuit for failure to prosecute. It found that there was no evidence that the plaintiff was personally responsible for the delay or that the delay was part of any bad-faith tactic. While prejudice to the employer bears substantial weight in favor of dismissal, the court stated, it was not dispositive of the appropriateness of imposing the harshest sanction of dismissal. Evidentiary or other sanctions may have been sufficient, the court concluded, reinstating the lawsuit. Hildebrand v. Allegheny, #18-1760, 2019 U.S. App. Lexis 12123, 2019 WL 1783540 (3d Cir.).
Arbitration Procedures
A man had been an EEOC employee for 20 years with no disciplinary problems. One day in 2016, however, while engaged in a mediation, he allegedly suddenly began using racial epithets, engaging in physical violence, and refusing to follow orders. The EEOC then fired him. The union filed a grievance, which led to arbitration. During a hearing, the EEOC called 11 witnesses; the union called only the fired employee. Although the arbitrator found that certain aspects of the EEOC’s case had not been proved, he credited the testimony of the EEOC witnesses to conclude that the employee “had a major physical and/or mental breakdown.” Because he denied taking any of the actions he was charged with, the arbitrator concluded that the employee “did not remember.”
The arbitrator found that the EEOC had not shown that the employee’s conduct had any negative effect on its reputation and had failed to consider that his behavior “was caused by his obvious medical condition,” and set aside his termination, awarding back pay. The arbitrator denied the union’s request for arbitration costs and attorney fees. A federal appeals court overturned the denial of attorneys’ fees. 5 U.S.C. 7701(g) provides that an adjudicator may require an agency to pay the employee’s reasonable attorney fees if the employee is the prevailing party and the adjudicator determines that payment by the agency “is warranted in the interest of justice.” On remand, the arbitrator must reconsider the issue and include a statement of reasons. AFGE Local 3599 v. Equal Employment Opportunity Commission, #18-1888, 2019 U.S. App. Lexis 9300 (Fed. Cir.).
|
Disability Rights and Benefits
Under the California Public Employees Retirement Law, Government Code section 21156, disability is defined as being “incapacitated physically or mentally.” Government employees lose the right to claim disability benefits if they are terminated “for cause.” Prior caselaw established exceptions under which a terminated-for-cause employee can qualify for disability retirement when the conduct which prompted the termination was the result of the disability. Further, a terminated employee may qualify for disability retirement if he or she had a “matured right” to a disability retirement before that conduct. Also, “a court, applying principles of equity,” could deem an employee’s right to a disability retirement to be matured to survive a dismissal for cause.
Because a resignation as part of a settlement of a pending “for-cause” termination effected a permanent separation from state service under Gov. Code, § 19996, and Cal. Code Regs., tit. 2, § 446, the resignation of a state employee who settled a pending termination for cause was “tantamount to a dismissal” that completely severed the employer-employee relationship and a theoretical possibility of reinstatement, and therefore did not render the employee eligible for disability retirement, absent a matured right to a disability retirement which required incapacity. The prohibition against using disability retirement as a substitute for the disciplinary process did not require an eligibility determination based on medical evidence in the context of a resignation pursuant to a settlement agreement. In this case, the employee who resigned as part of a settlement agreement to avoid “for-cause” termination was not entitled to disability retirement benefits, despite her prior arguments that she was disciplined because of her union activities and her assertion that she could no longer function as a disability evaluation analyst because of various job-related conditions. Martinez v. Public Employers’ Retirement System, #A153679, 33 Cal. App. 5th 1156, 2019 Cal. App. Lexis 311, 2019 WL 1487326.
Firearms Related
****Editor's Case Alert****
The plaintiff, a retired police officer, filed a federal civil rights lawsuit, seeking an order that she be issued the identification required under the Law Enforcement Officers Safety Act, 18 U.S.C. 926C, to allow a qualified retired law enforcement officer who is carrying such identification to carry a concealed firearm, notwithstanding most state or local restrictions. A federal appeals court upheld the dismissal of the lawsuit, ruling that no provision of the Act compelled the state to provide Act-complaint identification and thus the Act did not confer such an enforceable right. The officer’s interpretation of the statute, the court stated, would raise serious Tenth Amendment “anti-commandeering” concerns because her idea that states could be required by federal courts to issue identification sought to control how states regulated private parties. Burban v. City of Neptune Beach, #18-11347, 2019 U.S. App. Lexis 10131 (11th Cir.). |
First Amendment
****Editor's Case Alert****
A supervisor for the San Miguel County, Colorado, Road and Bridge Department claimed that his supervisors violated his First Amendment freedom of speech rights by demoting him for truthfully testifying in a state court proceeding as a character witness for his sister-in-law. The proceeding involved a domestic child custody dispute between his sister-in-law and her ex-husband, who also worked for the County’s Road and Bridge Department.
The trial court dismissed his First Amendment claim with prejudice, concluding that the testimony at the custody hearing, given as a private citizen, was not on a matter of public concern. A federal appeals court rejected the plaintiff’s argument that any truthful sworn testimony given by a government employee in court as a citizen was per se always a matter of public concern. It applied a case-by-case approach, considering whether, in this particular case, the content of the testimony, as well as its form and context, made it speech involving a matter of public concern. After applying that analysis here, it concluded that the testimony given during the child custody proceeding was not on a matter of public concern. “Although [his] testimony involved a matter of great significance to the private parties involved in the proceeding, it did not relate to any matter of political, social or other concern of the larger community.” Butler v. Board of County Commissioners, #18-012, 2019 U.S. App. Lexis 9326 (10th Cir.).
|
Handicap/Abilities Discrimination: Accommodation in General
The plaintiff alleged that he suffered a number of adverse employment actions because of his hearing disability. He claimed disability discrimination in violation of Sec. 504 of the Rehabilitation Act as well as state and city law. The trial court ruled that no reasonable jury could conclude that the plaintiff had experienced any adverse employment action “solely by reason of” his disability. A federal appeals court affirmed on different grounds, holding that a plaintiff alleging an employment discrimination claim under Section 504 of the Rehabilitation Act must show that the his or her disability was a “but‐for” cause of the employer’s action, not the sole cause. The court agreed with the trial court that the plaintiff failed to provide sufficient support for his claim that he was retaliated against for making complaints, that he was demoted in retaliation for appealing a negative performance review, and that the city Department of Investigations (DOI) subjected him to a slew of retaliatory actions. Natofsky v. City of New York, #17-2757, 2019 U.S. App. Lexis 11310 (2nd Cir.).
Political Activity
A sheriff’s deputy ran against the sheriff in a primary election and had publicly made statements about the department and how he would improve it. The incumbent sheriff won the election and then fired the plaintiff, claiming that his campaign had violated the department’s rules of conduct. The deputy sued, claiming a violation of his First Amendment rights. A federal appeals court, ruling en banc, held that the defendant was entitled to qualified immunity because he did not violate a clearly established statutory or constitutional right. As in Nord v. Walsh. County, #12-3249, 757 F.3d 734 (8th Cir. 2014), the defendant could have reasonably believed that the plaintiff’s speech was at least potentially damaging to and disruptive of the discipline and harmony of and among co-workers in the sheriff’s office, and detrimental to the close working relationships and personal loyalties needed for an effective and trusted operation. Morgan v. Robinson, #17-1002, 2019 U.S. App. Lexis 9325 (8th Cir.).
A federal appeals court ruled that a plaintiff’s claim that a sheriff’s failure to reappoint him as a deputy because of political disloyalty in supporting the sheriff’s election opponent violated his First Amendment rights of freedom of speech and association was properly dismissed. The court ruled that an exception which allows public officials to fire certain employees for their support of a political opponent when they hold a policymaking position, was applicable in this instance and that the sheriff’s decision not to reappoint the plaintiff did not violate his rights. McCaffrey v. Chapman, #17-2198, 2019 U.S. App. Lexis 10424 (4th Cir.).
|
• Report non-working links here
RESOURCES
Police Management: 5 things that should be on every police leader’s to-do list in 2019, PoliceOne (Jan. 3, 2019).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
|