Employment & Labor Law for Public Safety Agencies

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Veterans and Other Preference Laws

     The plaintiff became a federal employee in 2002 and had no disciplinary record until May 2014, when his supervisor issued a reprimand based on

his authorization of grazing on public lands, without prior approval.  His  supervisor proposed a 14-day suspension, citing his management of interns,

behavior toward supervisors, and interaction with outsiders.   The proposed suspension was sustained, to commence on February 15, 2015. He resigned

on February 13, citing harassment and a hostile work environment that aggravated an illness and his veterans disability. He claimed to have filed

complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335,

and that the reprimands were retaliatory. Before the Merit Systems Protection Board (MSPB), he asserted claims for constructive discharge, discrimination

on the basis of his status as a disabled veteran, and retaliation for filing a complaint. The Administrative Judge dismissed the involuntary

resignation claim under 5 U.S.C. 75, and held that he was collaterally estopped from raising in the USERRA proceeding the evidence and

 issues assigned to the involuntary resignation proceeding. The AJ later dismissed the discrimination charges, stating that he failed to make

non-frivolous allegations that a reasonable person would have felt compelled to resign due to discrimination or reprisal.  The MSPB affirmed.

A federal appeals court vacated the ruling, and found that the dismissal was based on incorrect evidentiary procedures including the inappropriate

application of collateral estoppel, and remanded the issue of constructive discharge for further proceedings. . Lentz v. Merit Systems Protection Board,

#17-1285, 876 F.3d 1380 (Fed. Cir. 2017).

     Employees of the Office of Air and Marine (OAM), within the Department of Homeland Security, were members of the Air Force and Navy Reserves.

They claimed  that the agency’s actions and policies violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301–4335.

     They then resigned, claiming that they were “forced to quit.” An administrative judge (AJ) rejected the employee’s claim contention that the OAM violated

USERRA by failing to grant them waivers from participating in training courses that conflicted with their military service dates, creating a hostile work

environment, forcing them to surrender their badges and weapons during military leaves of 30 or more days, delaying within-grade pay increases,

and requiring them to use annual, sick, or other leave in lieu of military leave. The AJ found “a legitimate basis for the [Agency’s] security policy,” and an

“absence of any evidence that its [weapons] policy was adopted with discriminatory intent.” Allegedly hostile incidents were either “'unavoidable’ workplace

friction” or did not rise to the level of “humiliating,” “physically threatening,” or “so frequent and pervasive” to render their work environment hostile.

They later filed a second complaint, alleging constructive discharge. The AJ, the Merit Systems Protection Board, and a federal appeals court all agreed

that the constructive discharge claims were barred by collateral estoppel as “inextricably linked” to their previous hostile work environment claims.

The standard for establishing constructive discharge is higher than that for hostile work environment, Bryant v. Merit Systems Protection Board,

#17-1241, 2017 U.S. App. Lexis 26965 (Fed. Cir.).

      A correctional officers’ association brought a grievance on behalf of one of its members claiming a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The grievance was rejected at the first three stages of the grievance procedure set forth in a memorandum of understanding (MOU) between the Association and the California Department of Corrections and Rehabilitation (Corrections). At the fourth step, a hearing before the Department of Personnel Administration (Department), the Department granted the grievance. But Corrections refused to comply with that decision. An intermediate California appeals court rejected the Department of Corrections argument that the State Personnel Board had exclusive jurisdiction over appointments and the employment status of civil service employees. Further, because the Department of Correction went along with the grievance procedure used, it forfeited any right to assert that it was the wrong procedure. Calif. Correctional Peace Officers Assn. v. Dept of Corrections, #C078723, 15 Cal. App. 5th 97, 2017 Cal. App. Lexis 780.

    A man was hired by the Delaware River Port Authority in 1989 as a police officer. From 1989-2009, he served six years as a Navy corpsman and 10 years in the Pennsylvania National Guard. When not on active military duty, he maintained his Port Authority employment. He was deployed to Iraq in 2009, where he sustained injuries leading to cervical spondylosis, degenerative disk disease, bilateral torn rotator cuffs, brain injury, and high-frequency hearing loss. He was in rehabilitation until his 2013 honorable discharge. He had not worked for the Port Authority since his deployment. In 2010 and 2012, while on active duty but in rehabilitation, he unsuccessfully applied for a promotion to sergeant. He sued under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301, alleging discrimination based on military service. The trial court certified an interlocutory appeal on the question of whether he was required to plead and prove that he was objectively qualified for promotion to sergeant in order to sustain his discrimination suit. The federal appeals court ruled that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA.  Instead, employers may raise a plaintiff’s lack of qualifications as a nondiscriminatory justification for declining to promote the plaintiff, notwithstanding military service. Carroll v. Delaware River Port Authority, #16-2492, 843 F.3d 129 (3rd Cir. 2016).
      The plaintiff was a civilian Resource Analyst at the Nuclear Propulsion Directorate at the Naval Sea Systems Command, which required a Department of Energy security clearance. His security clearance was revoked because he knowingly brought a personal firearm onto a Navy facility in violation of regulations; armed himself with a personal weapon while acting as a Metropolitan Police Department reserve officer, contrary to regulations; and made false statements and false time and attendance entries to his civilian employer, the Naval Reserve Unit, and the police department. He argued that he brought his firearm to the facility in response to the 2013 Washington Navy Yard shooting, in perceived compliance with his duty as a Navy Reservist, and requested reinstatement under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301. The Navy removed Wilson from federal service. The Merit Systems Protection Board properly found that it lacked the authority to review adverse security clearance determinations because neither the court nor the Board had authority to review the charge that discrimination was the reason for revocation of the security clearance, the USERRA made no mention of security clearances, explicitly or otherwise, the core of the former employee's allegation was that his security clearance revocation was initiated based on false complaints and accusations, and the Department of Energy evaluated the trustworthiness of those statements as part of its determination, and found them reliable; Wilson v. Department of the Navy, #15-3225, 2016 U.S. App. Lexis 21747 (Fed. Cir.).
    A probationary patrol officer for a town police department was fired by the town manager. As he was a military veteran, he sued the town and police chief under the Uniform Services Employment and Reemployment Rights Act, claiming that his veteran status was a motivating or substantial factor in his discharge. A federal appeals court upheld judgment for the defendants. While the probative value of evidence about the number of other veterans employed by the department was low, it could not be concluded that the trial court's decision to allow the evidence was an abuse of discretion requiring a new trial. Angiuoni v. Town of Billerica, #14-2121, 2016 U.S. App. Lexis 17419, 100 Empl. Prac. Dec. (CCH) P45642, 207 L.R.R.M. (BNA) 3303 (1st Cir.).
     A man served on active duty in the military for four years and had a VA disability rating of 60 percent. He subsequently was employed as an FDIC economic analyst, being hired at the GS-9 level and rising to the GS-12 level. Four years later, he was one of three finalists for a posted vacancy for a higher level job. All of the candidates, however, received some "inadequate" ratings during the evaluation process, none of them were selected, and the vacancy was cancelled. The plaintiff filed a complaint, asserting that the cancellation was in bad faith for the purpose of avoiding hiring a veteran. A federal appeals court upheld a determination by the Merit Systems Protection Board rejecting a claim under the Veterans Employment Opportunities Act, finding that there was substantial evidence that the cancellation was based on a lack of appropriately qualified candidates. The employer had “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” Miller v. Fed. Deposit Ins. Corp., #14-3146, 2016 U.S. App. Lexis 6406 (Fed. Cir.),
     A member of the New Mexico Army National Guard was employed by a state child welfare agency. He was ordered to federal active duty and deployed to Iraq. When he returned to New Mexico, his employment was terminated. He sued, claiming a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). A jury found in favor of the plaintiff and awarded $36,000 in damages for lost wages. An intermediate state appeals court reversed, finding that the agency, as an arm of the state, was immune to a USERRA claim. The New Mexico Supreme Court disagreed, finding that a state statute specifically extended the rights, benefits, and protections of USERRA to persons in the New Mexico National Guard when they were ordered to either federal or state active duty for thirty or more consecutive days. In enacting that statute, the legislature had consented to USERRA lawsuits brought against state employers. Ramirez v. CYFD, #34,613, 2016 N.M. Lexis 87.
     Under 5 U.S. Code §2108(2), anyone who is receiving compensation for a service-connected disability is a "disabled veteran" for eligibility preferences. Vann v. Merit Systems Prot. Bd., #04-3046, 2004 U.S. App. Lexis 25944 (Fed. Cir. 2004). {N/R}
     Although more men are military veterans and thus are entitled to preferential hiring in Pennsylvania, points for prior military service is a nondiscriminatory selection criteria and is an available option for women. Quirin v. City of Pittsburgh, 64 FEP Cases (BNA) 1521 (W.D.Pa. 1994). {N/R}
     PA appellate court allows officers to buy in to police pension system for periods spent in the armed service; those already retired could not participate. Pohlit v. Johnstown Police, 612 A.2d 549 (Pa.Cmwlth. 1992). {N/R}
     Federal appeals court orders constructive seniority for returning veteran. Schilz v. City of Taylor, 825 F.2d 944 (6th Cir. 1987).
     Supreme Court upholds preference laws, but they cannot be restricted to veterans who were in-state residents at the time. Attorney General of N.Y. v. Soto-Lopez, 106 S.Ct. 2317 (1986).
     Appellate court affirms $75,000 damage award for failure to give police office his veteran's points on promotional selection; $30,000 in legal fees disallowed -- no due process violation. City of Lake Worth v. Walton, 462 So.2d 1137 (Fla. App. 1984).
     Statutory preference for residents applies to third-place only in "rule of three" community. Non-resident could be hired although he was not in first place. Gallagher v. Mayor and Council of Irvington, 190 N.J. Super. 394, 463 A.2d 969 (1983).
     Appellate court rejects service in national guard duty unless statute so provides. Gaines v. City of Rockford Fire & Police Cmsn., 389 N.E.2d 3 (Ill.App. 1979).
     Pretrial suspension of officer accused of felony was a violation of veteran's protection laws. Kurtz v. City of Apple Valley, 290 N.W.2d 171 (Minn. 1980).
     U.S. military or naval service does not include national guard duty unless statute so provides. Gaines v. City of Rockford Fire & Police Cmsn., 389 N.E.2d 3 (Ill.App. 1979).
     Veterans' promotional points to be taken within 15 years after discharge meant discharge from active duty; time not extended by continued service in reserve unit. Davis v. Civil Serv. Bd. of Portland, on intervention of Tyner, 593 P.2d 12019 (Ore. App. 1979).
     Supreme Court upholds Massachusetts veterans' preference law, despite fact that female plaintiff consistently rejected. Personnel Administrator of Massachusetts v. Feeney, 99 S.Ct. 2282 (1979).
     Massachusetts veterans' preference law upheld by Supreme Court; law did not deprive females of more desirable jobs. Anthony v. Comm. of Mass., 415 F.Supp. 485 (D. Mass. 1976) reversed, sub nom Personnel Admr. of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282 (1979). See also Ballou v. State Dept. of Civil Serv., 75 N.J. 365, 382 A.2d 1118 (N.J. 1978).
     Discrimination against conscientious objectors not permitted. Reynolds v. Dukakis, 441 F.Supp. 646 (D. Mass. 1977).

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