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© Copyright, 2020 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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2020 FP May
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Age Discrimination
First Amendment
FLSA – Administrative & Executive Exemptions
Handicap/Abilities Discrimination – Reasonable Accommodation
Pregnancy Discrimination
Religious Discrimination
Union Activity
Veterans and Other Preference Laws
Whistleblower Protection
Workers’ Compensation
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AELE Seminars:
Public Safety Discipline and Internal Investigations
Sept. 28-Oct. 1, 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.
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Age Discrimination
****Editor's Case Alert****
A pharmacist who works for the Veterans’ Administration (VA) filed a lawsuit under the Age Discrimination in Employment Act, 29 U.S.C. 633a(a). The VA took away her “advanced scope” designation, which had made her eligible for promotion on the Federal Government’s General Scale from a GS–12 to a GS–13.1. She was also denied training opportunities and was passed over for positions in the hospital’s anticoagulation clinic, and then she was placed in a new position, and while her grade was raised to GS–13, her holiday pay was reduced. All these actions, she maintained, involved age discrimination, and in support of her claims, she alleges, among other things, that supervisors made a variety of age-related comments. The trial court and a federal appeals court granted the VA summary judgment, finding that the plaintiff had established a prima facie case but that the VA had set forth legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual excuses for age discrimination.
The U.S. Supreme Court disagreed Section 633a (a) of the ADEA demands that federal personnel actions be untainted by “any consideration” of age. The ADEA does not require proof that a federal employment decision would have turned out differently if age had not been taken into account. If age is shown to be a factor in an employment decision, the law has been violated. It is not unusual to hold the federal government to a stricter standard than private employers or state and local governments. But-for causation of the employment decision, the Court held however, is important in determining the appropriate remedy. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may still be appropriate, such as injunctive relief. Babb v. Wilke, #18-882, 206 L. Ed. 2d 432, 2020 U.S. Lexis 2184.
First Amendment
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Two Mississippi state employees of the Department of Public Safety’s Office of Highway Safety claimed that they were fired in retaliation for reporting an internal investigation into patrol officers' issuing non-existent traffic violations. They asserted that this violated their First Amendment free speech rights. They learned from a highway patrolman that the Office of the Mississippi Highway Patrol was conducting an Internal Affairs investigation into whether state troopers were writing "ghost tickets" in order to receive overtime pay under a National Highway Traffic Safety Administration (NHTSA) grant. They voiced their concerns to their agency’s officials, and were subsequently allegedly fired for doing so. The NHTSA allegedly ceased all grant funding to the state agency when it heard about the investigation.
A federal appeals court ruled that Eleventh Amendment sovereign immunity barred the plaintiffs’ claims against the state agency and state officials in their official capacities. The appeals court also held that the trial court correctly dismissed the plaintiffs' section 1983 claim for retaliation in violation of First Amendment rights against state officials in their individual capacity for failure to allege sufficient facts that they spoke as a private citizen on a matter of public concern. Indeed, their reporting of the investigation was part of their job functions and they reported up the chain of command of their own agency. Corn v. Mississippi Dept. of Public Safety, #19-60247, 954 F.3d 268 (5th Cir. 2020). |
FLSA—Administrative & Executive Exemptions
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The plaintiffs were lieutenants in the Travis County Sheriff’s Office, with the main responsibility to manage the operation of units of sergeants and deputies. They sued for alleged unpaid overtime. The county claimed that they were executive employees and therefore exempt from the Fair Labor Standards Act (FLSA) overtime requirement. After a jury awarded the plaintiffs each damages for unpaid overtime under the Act, the jury further determined that the county had not shown that the plaintiffs' recommendations as to other employees were given “particular weight” or that their primary duties were management. A federal appeals court, upholding the jury award, found that the evidence was sufficient for a rational juror to conclude that the county had not met its burden of demonstrating that the plaintiffs’ recommendations were given particular weight, so much so that the jury acted irrationally in concluding otherwise. Miller v. Travis County, #19-50360, 953 F.3d 817 (5th Cir. 2020). |
Handicap/Abilities Discrimination – Reasonable Accommodation
The plaintiff in a disability discrimination lawsuit asserting claims under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts discrimination law claimed that the city unlawfully forced him to retire as a police officer when it learned that he had basically no vision in one eye. In granting summary judgment to the city, the trial court ruled in part that no reasonable jury could find that the plaintiff could perform high-speed pursuit driving, which it concluded was an essential function of his job. A federal appeals court disagreed, ruling that the plaintiff raised a triable issue of fact as to whether his monocular vision rendered him unqualified to perform the essential job functions of an incumbent officer in the city's police department. The appeals court found that the record contained conflicting competent medical evidence on the questions of whether the employee’s vision rendered him unable to engage in pursuit driving and also on whether his occasional marijuana use to relieve pain from a prior injury rendered him unfit for duty. There was also a factual issue as to whether pursuit driving was an essential function of every one of the city’s police jobs. Melo v. City of Somerville, #19-1337, 953 F.3d 165 (1st Cir. 2020).
Pregnancy Discrimination
A pregnant EMT asked her employer for a temporary light-duty or dispatcher job for the rest of her pregnancy after her doctor told her not to lift more than 50 pounds while pregnant. The employer rejected the request for an accommodation. The EMT then sued for discrimination under the Pregnancy Discrimination Act (PDA). Overturning summary judgment for the employer, a federal appeals court ruled that the trial court erroneously factored into the “similar in their ability or inability to work” evaluation the distinct, post-prima-facie-case consideration of the employer’s supposed legitimate, non-discriminatory reasons for treating the plaintiff and the non-pregnant employees differently. The employer had provided these same accommodations (light-duty or dispatcher jobs) to other EMTs who had suffered injuries on the job and were restricted to lifting no more than 10 or 20 pounds as a result. On the other hand, the employer had a policy of not granting such accommodations to employees who had been injured off the job. Neither a non-pregnant EMT who is limited to lifting 10 or 20 pounds nor a pregnant EMT who is restricted to lifting 50 pounds or less can lift the required 100 pounds to serve as an EMT. Therefore, neither can meet the lifting requirement and are thus the same in their “inability to work” as an EMT. The appeals court found that the plaintiff’s prima facie requirement to establish that she was similarly situated to other employees in their ability or inability to work was satisfied. While the employer in this instance was a private entity, the reasoning would apply equally to public employers employing EMTs. Durham v. Rural/Metro Corp., #18-14687, 2020 U.S. App. Lexis 12323 (11th Cir.).
Religious Discrimination
A man employed as a city firefighter for five years claimed that he was subjected to harassment because he is an atheist. He allegedly was forced to participate in Bible studies; his co-workers and supervisors “badgered him” regarding his sexuality, and regularly disparaged minorities. At one point, he complained to his supervisor, who allegedly “responded in hostility.” The supervisor later told him that he had discussed the matter with the fire chief and they both believed that he “needed to get employment somewhere else.” The firefighter “apologized,” but his employment conditions did not improve. He was allegedly intentionally tripped while retrieving his gear and was regularly subject to disparaging remarks. Stress and anxiety caused him to take a leave of absence. While on leave, he received many phone calls from his supervisors asking why he was absent. He resigned his job and filed a lawsuit under the Kentucky Civil Rights Act, alleging a hostile work environment based on religion and gender, constructive discharge, retaliation, and violations of the Family and Medical Leave Act. The trial court denied the defendants summary judgment on hostile work environment based on religion and gender and the FMLA claims. A federal appeals court upheld the denial of qualified immunity to the city on the claims for hostile work environment based on religion and for retaliation and denial of qualified immunity to the supervisor for the retaliation claim. The court found that a reasonable jury might find that the supervisor’s threats went far enough to violate the employee’s clearly established right to complain about harassment. Queen v. City of Bowling Green, #18-5840, 2020 U.S. App. Lexis 12926 2020 Fed. App. 0123P (6th Cir.). Union Activity
A federal appeals court upheld the dismissal of two plaintiff Connecticut state employees’ lawsuit alleging First and Fourteenth Amendment claims brought pursuant to 42 U.S.C. 1983 to obtain repayment of fair-share union fees paid as non-union members. The appeals court held that, because the defendants collected such fair share fees in reliance on then directly controlling U.S. Supreme Court precedent and then-valid state statutes, their reliance was objectively reasonable, and they were entitled to a good-faith defense as a matter of law, despite the subsequent overruling of the precedent allowing for the collection of such fees from public-sector employees violated the First Amendment because they “forced [non-members] to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities,” thereby “compelling them to subsidize private speech on matters of substantial public concern.” Wholean v. CSEA SEIU Local 2001, #19-1563, 2020 U.S. App. Lexis 11864 (2nd Cir.).
Veterans and Other Preference Laws
A city police patrolman who was also an Air National Guard reservist, applied to become a bomb squad technician. Membership on the squad did not constitute a promotion or immediately affect an officer’s pay but could lead to additional work and specialty pay. He was not among the three officers selected. He subsequently testified that the director of human resources said that he was the most qualified candidate but was not selected because of his pending seven-month military deployment. He filed complaints with the EEOC and the U.S. Department of Labor. The city then offered him a bomb squad position. Other squad members were informed that one would have to give up his position for him. He claims he was never allowed to complete the training. Around the same time, he applied for a promotion. He was deployed when applicants were scheduled to be interviewed. The department moved his interview but he was unable to timely submit his work sample.
He filed a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301. A federal appeals court upheld summary judgment in favor of the city, rejecting a new hostile work environment claim as forfeited. The plaintiff failed to challenge findings that his exclusion from the bomb squad did not constitute a materially adverse employment action and that no reasonable jury could find that the promotion process was tainted by any impermissible motive. Hackett v. City of South Bend, #19-2574, 2020 U.S. App. Lexis 12085 (7th Cir.).
A man started working at a Memphis VA Medical Center (VAMC) in 2007. Throughout his employment, he reported unlawful activity ranging from the misuse of agency letterhead to improper disposal of biohazardous material. He had a history of conflict with his supervisors and coworkers. In 2016, a psychologist diagnosed him as meeting the criteria for chronic post-traumatic stress disorder (PTSD), concluding that he “cannot work, even with restrictions, and this is permanent.” In March 2017, the employer suspended him for using profanity with his supervisor. It was “the third incident of a similar type.” Because of his whistleblower status and PTSD, he was offered a suspension without loss of pay. In June 2017, the employer removed him based on charges of disruptive behavior and the use of profane language during three incidents. The facility’s Chief of Police considered his statements a valid threat and recommended that the Director wear a bulletproof vest and receive a police escort to and from his car. The Director successfully filed a workers’ compensation claim for PTSD.
An Administrative Judge (AJ) determined that removal was “within the range of reasonableness” and promoted “the efficiency of the service.” The employee had established a prima facie whistleblower retaliation defense but the agency would have removed him even absent his protected whistleblowing activity. A federal appeals court upheld this result, rejecting arguments that the Board improperly discounted evidence of the employee’s PTSD and that the AJ abused his discretion by excluding testimony relevant to an alleged institutional motive to retaliate. Higgins v. Department of Veterans Affairs, #18-2352, 2020 U.S. App. Lexis 12238 (Fed. Cir.).
Workers’ Compensation
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In a workers’ compensation case arising out of the death of a deputy sheriff who died in a vehicular accident while driving his assigned patrol car, the Supreme Court of Texas ruled for the deputy’s widow, and found that, at the time of the accident, the deputy was engaged in law enforcement activity within the course and scope of his employment. The Supreme Court overturned an intermediate appeals court that held that because the accident occurred during the deputy’s travel home from an extra-duty assignment with a private employer the deputy was not in the course and scope of his employment. The Supreme Court noted that the deputy was operating the marked patrol car with the county’s permission and under its authority at the time of his death, and therefore, summary judgment was properly granted in the widow’s favor by the trial court. Orozco v. County of El Paso, Tex., #17-0381, 2020 Tex. Lexis 235.
• Report non-working links here RESOURCES COVID-19: AELE has published a web page containing links to resources on responding to the COVID-19 virus. It can be accessed at: http://www.aele.org/law/virus2020/
COVID-19: The federal EEOC has published an updated and revised COVID-19 Technical Assistance Publication (April 23, 2020). It has also provided a resource page on the virus on its website.
Police Wellness: Police Compassion Fatigue, by Konstantinos Papazoglou, Steven Marans. Tracie Keesee, and Brian Chopko, FBI Law Enforcement Bulletin (April 9, 2020).
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