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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 July
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Firearms Related
First Amendment
Family and Medical Leave
F.L.S.A.: Executive Exemption
Handicap/Abilities Discrimination: Regarded as Disabled
Pensions
Race Discrimination
Union Activity
U.S. Supreme Court Labor and Employment Decisions
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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
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Firearms Related
Three former correctional officers who had separated from service in good standing filed a federal civil rights lawsuit against the District of Columbia asserting claims under the Law Enforcement Officers Safety Act (LEOSA). They sought declaratory and injunctive relief requiring D.C. to recognize them as "qualified retired law enforcement officers" for purposes of the Act so that they could be able to carry concealed firearms. A federal appeals court previously ruled that the Act’s plain text, purpose, and context show that Congress intended to create a concrete, individual right to benefit individuals like the plaintiffs and that is judicially enforceable. Subsequently, on remand, a federal trial court granted summary judgment for the plaintiffs, finding that each of them met the three requirements of the Act--that in their prior position, they possessed “statutory powers of arrest,” served as a “law enforcement officer” for an aggregate of at least 10 years, and was separated from service in good standing.
The appeals court upheld this result on appeal. The Act creates an individual right to carry that is enforceable under section 1983, and there was no merit to the District’s argument that the plaintiffs were not entitled to conceal carry rights because they had not previously obtained the proper identification documents to do so. DuBerry v. District of Columbia, #18-7102, 2019 U.S. App. Lexis 14961, 2019 WL 2180337 (D.C. Cir.).
First Amendment
****Editor's Case Alert****
A former police chief sued his city’s former city manager, claiming that his First Amendment rights were violated by subjecting him to adverse employment actions in retaliation for him engaging in constitutionally protected speech. The plaintiff suspected that there were improper city accounting and budgeting practices by the city manager and expressed his concerns to a number of city council members and others. A jury verdict in favor of the plaintiff awarded him $1,117,488 in economic damages and $3,000,000 in non-economic damages. A federal appeals court upheld this result. He provided sufficient detail about his speech to establish that it substantially involved a matter of public concern. The plaintiff spoke as a private citizen rather than a public employee, and the trial court properly concluded that his retaliation claim could be based in part on the defendant's own speech acts, in the form of defamatory communications to the media about him. The defendant waived his argument that his actions were supported by an adequate justification. Sufficient evidence supported the conclusion that the defendant's retaliatory actions proximately caused the plaintiff’s termination and the defendant was not entitled to qualified immunity Greisen v. Hanken, #17-35472, 2019 U.S. App. Lexis 16202, 2019 WL 2312566 (9th Cir.).
Family and Medical Leave
****Editor's Case Alert****
The highest court in Massachusetts upheld an award of damages of $1,332,271 against the Massachusetts Water Resources Authority for retaliatory termination of an employee. The jury found that the MWRA fired the plaintiff in retaliation for his taking leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. 2615 to recover from foot surgery, and expressing his intention to take FMLA leave in the future. The jury awarded back pay damages for lost wages, made an advisory award of damages for the future loss of his pension benefits, and awarded damages for emotional distress and punitive damages. The trial judge additionally awarded liquidated damages and attorney's fees and costs. The Massachusetts Supreme Judicial Court affirmed, rejecting the defendant’s challenge to the jury instructions and to the calculating and award of damages. The jury was properly instructed that they had to find that “but for” the plaintiff exercising their rights under the Family and Medical Leave Act, they would not have been terminated. DaPrato v. Massachusetts Water Resources Authority, #SJC-12651, 482 Mass. 375, 2019 Mass. Lexis 299, 2019 WL 2364353 (Mass.).
F.L.S.A.: Executive Exemption
Battalion chiefs in a fire department had responsibility for many administrative tasks. They lacked authority to make direct hiring and firing decisions but conduct performance evaluations and approved vacations. Their suggestions and recommendations on hiring, firing, advancement, or promotion were given “particular weight” They were also required from time to time to serve on “standby” duty and be “on call” from 5:00 p.m. until 8:00 a.m. the following morning for seven days.
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They sued, asserting claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, seeking overtime. The plaintiffs received 1.5 hours of pay for each day of standby duty, plus overtime pay for hours worked if they were called back to active duty while on standby. The person on standby duty was required to monitor a pager and a radio, answer phone calls, and help handle problems. They were sometimes required to respond to the scene of a fire while on standby duty. A federal appeals court upheld a determination that the plaintiffs were exempt from the FLSA’s overtime pay requirement under the “executive exemption.” There was “ample” evidence that their primary duty was managerial. Holt v. Battle Creek, #18-1981, 2019 U.S. App. Lexis 16561, 2019 Fed. App. 0114P (6th Cir.).
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Handicap/Abilities Discrimination: Regarded as Disabled
An employee claimed that her manager told her that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Based on this statement, she was tested for dyslexia. She submitted an evaluation that concluded that she had symptoms consistent with dyslexia and requested reasonable accommodations for that condition. She was told that any diagnosis would not excuse her from performing her work in a satisfactory matter. She was further advised to focus on improving her performance. Weeks later, she was fired, and sued for disability discrimination under the Americans with Disabilities Act (ADA).
The plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on a theory that she was perceived or regarded as dyslexic by her employer and therefore was entitled to a reasonable accommodation under the ADA. A federal appeals court upheld judgment of $22,501 in favor of the plaintiff on her reasonable accommodation claim. It ruled that the employer had waived its argument under the 2008 ADA amendments. The Act now provides that employers “need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in” 42 U.S.C. 12102(1)(C), which includes individuals who are “regarded as having” a physical or mental impairment. Despite the amendment, both parties proceeded under the “regarded as” case theory throughout the lawsuit. An error in advising the jury of a $50,000 cap on damages was harmless, as the jury awarded damages well below the cap. The case involved a private employer, but the reasoning of the case would also apply to public employers. Robinson v. First State Community Action Agency, #17-3141, 920 F.3d 182 (3d Cir. 2019).
Pensions
The California Public Employment Relations Board (PERB) found that the City of San Diego violated a California statute, the Meyers-Milias-Brown Act, when the mayor made a policy decision to advance a citizens’ pension reform initiative to amend the city charter without meeting and conferring with the affected employees’ unions. The California Supreme Court upheld the finding that the mayor’s actions violated the city’s meet and confer obligations, and then ordered an intermediate state appeals court to “address the appropriate judicial remedy for the violation.” The appeals court rejected the unions’ request to invalidate the Initiative as a judicial remedy, concluding that the Initiative’s validity was more appropriately addressed in a separate “quo warranto” proceeding available under Calif. Code Civ. Proc., §§ 803-811. [“Quo warranto” is a legal action requiring a person or entity to show what authority they have for exercising some right, power, or franchise they claim to hold]. Additionally, the appeals court concluded it needed to modify the PERB's compensatory and cease-and-desist remedies to prevent the remedies from impermissibly encroaching upon constitutional law, statutory law, and policy matters involving initiatives, elections, and the doctrine of preemption unrelated to the Act. Boling v. Public Employment Relations Bd., #D069626A, 33 Cal. App. 5th 376, 2019 Cal. App. Lexis 242.
Race Discrimination
An employee of the Rhode Island Department of Labor claimed that the employer’s promotion practices had a disparate impact on minority employees in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e-2. She worked as a low level employee in the Department’s call center, and wished to be promoted to a management position. She asserted that the Department declined to promote her because she is black. The trial court granted summary judgment in favor of the defendant employer. Upholding this result, a federal appeals court found that the plaintiff failed to show a disparate impact on minority employees in the absence of statistical and statistically significant evidence, She failed to show the composition of the pool of employees eligible for the promotion in question. She failed to present enough evidence for a reasonable jury to find that the employer’s stated reason for failing to promote her (disruptive workplace conduct, an altercation with a co-worker, returning back late from work breaks, refusing to collaborate with her coworkers, and posting signs in her cubicle to provoke management) was pretextual. Luceus v. State, #18-1377, 2019 U.S. App. Lexis 13775 (1st Cir.).
An employee sued the U.S. State Department, asserting that one aspect of the Department's promotion process had a disparate impact on Hispanic and Latino candidates who applied for the position he sought, and that the Secretary of Defense in 2008 denied him a promotion because of his Hispanic ethnicity. The trial court granted summary judgment in favor of the Secretary. A federal appeals court affirmed in part and held that plaintiff’s disparate impact claim lacked merit because there were no genuine issues of material fact and the plaintiff failed to establish causation as a matter of law.
However, the appeals court held that the trial judge misapplied the second step of the three-part McDonnell Douglas Corp. v. Green, #72-490, 411 U.S. 792, 802-05 (1973) framework as to the disparate treatment claim by accepting the Department’s “vague reason” for the denial of the promotion. The test lays out the steps an employee must go through to make out a case of employment discrimination through circumstantial evidence. Most caselaw has focused on either the first or third step, but this case focused on the second. At the second prong of the McDonnell Douglas framework, an employer must proffer admissible evidence showing a legitimate, nondiscriminatory, clear, and reasonably specific explanation for its actions. In this case, none of the presented evidence shed light on how the selection boards applied the core precepts to defendant’s case. Therefore, the court reversed in part, vacated the denial of the plaintiff’s cross-motion in part, and ordered further proceedings. Figueroa v. Pompeo, #18-5064, 2019 U.S. App. Lexis 14010 (D.C. Cir.).
Union Activity
Massachusetts state employees filed challenges under the First Amendment to the exclusive representation and the mandatory agency fee provisions of the state collective bargaining statute, Mass. Gen. Laws ch. 150. While their lawsuit was on appeal, the United States Supreme Court held, in Janus v. American Federation of State, County & Municipal Employees, Council 31, #16-1466, 138 S. Ct. 2448 2018 U.S. Lexis 4028, 2018 WL 3129785 (2018) that all state agency fee laws violate the First Amendment by compelling nonmembers of public sector unions to support their unions’ speech. The Supreme Judicial Court of Massachusetts held that because the state employee unions voluntarily stopped collecting agency fees to comply with Janus, the employees’ agency fee provision challenge was moot; and because the U.S. Supreme Court has deemed exclusive representation to be constitutional, their challenge to the exclusive representation provisions of the state statute were without merit. Branch v. Commonwealth Employment Relations Board, SJC-12603, 481 Mass. 810, 120 N.E.3d 1163, 2019 Mass. Lexis 181, 2019 WL 1522991.
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U.S. Supreme Court Labor and Employment Decisions
A county employee filed an EEOC Title VII charge against her employer, asserting sexual harassment and retaliation for reporting the harassment. While the charge was pending, the county fired her because she failed to come to work on a Sunday, going to a church event instead. She then attempted to supplement her EEOC charge by handwriting “religion” on an intake questionnaire, but did not amend the formal charge document. Upon receiving a right-to-sue letter from the EEOC, she filed suit, alleging discrimination on account of religion and retaliation for reporting sexual harassment.
After years of litigation, only the religion-based discrimination claim remained. The county then asserted for the first time that the court lacked jurisdiction because the EEOC charge did not state a religion-based discrimination claim. A federal appeals court reversed dismissal of the suit. The U.S. Supreme Court affirmed, holding that Title VII’s charge-filing requirement is “not jurisdictional.” A claim-processing rule requiring parties to take certain procedural steps during or before litigation may be mandatory so that a court must enforce the rule if timely raised. A mandatory rule of that sort, unlike a prescription limiting the kinds of cases a court may adjudicate, is ordinarily forfeited if not timely asserted. The Court found that Title VII’s charge-filing requirement is discrete from the statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions. The plaintiff, therefore, could proceed with her religious discrimination claim despite not having listed it on her original charge form. Fort Bend County v. Davis, #18-525, 2019 U.S. Lexis 3891 |
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RESOURCES
Training: Discussion as a Strategy for Educating Law Enforcement Officers, by Cynthia L. Lewis, FBI Law Enforcement Bulletin (June 6, 2019).
Wellness: Focus on Officer Wellness: Safety Concerns and Guidelines for Hostage and Crisis Negotiators, by James I. Greenstone, Police Chief Magazine (June 2019).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
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