International Assn. of Chiefs of Police
Legal Officers Section & Police Psychological Services Section
2001 Conference materials

Employment Law Update

Cripe v. City of San Jose, 261 F.3d 877 (9^th Cir. 2001) A San Jose policy limited eligibility for specialized assignments to patrol officers who have been performing full duties in patrol for the past year.  The Court held that whether officers unable to make forcible arrests were qualified for each specialized position was a question of fact for the jury.  If not, then a policy that screens out any applicant for a specialized position who could not make a forcible arrest would violate the ADA.

Giordano v. City of New York, 2001 WL 204202 (S.D.N.Y. 2001) A community affairs officer who was taking anticoagulant medication sued under the ADA alleging discrimination by the department.  The court granted the employer summary judgment finding that the fact that an employer views the employee as incapable of performing as a police officer does not mean that the employer regards him as disabled (incapable of performing a broad range of jobs).

Pernice v. City of Chicago, 237 F.3d 783 (7^th Cir. 2001) Aviation department employee terminated for drug possession alleged ADA violation based on his drug addiction.  Court held that an employee can be terminated for violations of valid work rules that apply to all employees, even if the employees violations occurred under the influence of a disability.

Smith v. Davis, 248 F.3d 249 (3d Cir. 2001) Alcoholic probation officer sued over his termination, alleging it violated the ADA.  Although the employer alleged that the officer was fired for absenteeism, the record was far from clear, as the supervisors documentation showed only that he was fired for violation of the employers drug and alcohol policy.  Court reversed grant of summary judgment to the county.

Szedlock v. Tenet, 139 F.Supp.2d 725 (E.D.Va. 2001) CIA found to have violated the rehabilitation act by failing to provide adequate interpreters for meetings attended as part of the job of a deaf systems engineer.

Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5^th Cir. 2001) Disability based harassment is a cause of action under the ADA. See also, Fox v. General Motors Corporation, 247 F.3d 169 (4^th Cir. 2001).

Echazabal v. Chevron USA, Inc., 226 F.3d 1063 (9^th Cir. 2000) Under the ADA, an employer may impose, as a qualification standard, that the employee not constitute a direct threat to the health or safety of others in the workplace.  The EEOC regulations have interpreted this caveat to apply to threats to the health or safety of the employee (or applicant).  The Court of Appeals disagreed and held that a direct threat to the health or safety of the applicant is not an affirmative defense to the failure to hire and individual with a disability.

Willis v. Pacific Maritime Association, 236 F.3d 1160 (9^th Cir. 2001) Employer is not required to accommodate a worker with a disability if the accommodation would violate provisions of a collective bargaining agreement.  Ninth circuit joined the majority of circuits in finding an accommodation which conflicts with the union contract per se unreasonable.

Pending Before the U.S. Supreme Court

US Airways, Inc. v. Barnett, 228 F.3d 1105 (9^th Cir. 2000) Ninth Circuit held that an employers unilaterally imposed seniority system did not bar reassigning a disabled employee as a reasonable accommodation.  The issue is whether the ADA requires preferential treatment in reassignment.

Equal Employment Opportunity Commission v. Waffle House, Inc., 193 F.3d 805 (4^th Cir. 1999). Fourth Circuit held that an employees agreement to arbitrate discrimination claims does not prevent suit by the EEOC for injunctive relief, but does preclude remedies such as back pay, reinstatement and damages.

Toyota Motor Manufacturing v. Williams, 224 F.3d 840 (6^th Cir. 2000) Sixth Circuit held that carpal tunnel syndrome, which precluded the worker from performing only a limited number of tasks associated with a specific job, constituted a substantial limitation on the major life activity of performing manual tasks and was therefore covered by the ADA.

Memorial Hospitals Association v. Humphrey, 239 F.3d 1128 (9^th Cir.2001) Petition for Certiorari pending.  The Ninth Circuit held that the employer had not gone far enough to accommodate a medical transcriptionist whose OCD prevented her from meeting attendance requirements.  The Court asked for a brief from the Solicitor General on the issues involved in the case.

Clark County School District v. Breeden, 121 S.Ct. 1508 (2001) Employee reported single sexual comment by a supervisor and later complained of retaliation.  The Supreme Court, in ruling against the Plaintiff in a per curiam decision, reaffirmed that in order to be actionable, harassment must be severe and pervasive.

Brooks v. City of San Mateo, 214 F.3d 1082 (9^th Cir. 2000) A single incident wherein a police dispatcher was fondled by a co-worker, and following which the City took prompt remedial action, is not sufficiently severe or pervasive to constitute sexual harassment or to be sufficient grounds for a constructive discharge claim.

Griffin v. City of Opa-Locka, 261  F.3d 1295 (11^th Cir. 2001) The Court upheld a jury verdict finding the City liable under s. 1983 for the City Managers sexual harassment of a female employee.  The Court found that in hiring the manager, the City displayed a deliberate indifference to a known and obvious risk.

Davis v. Town of Lake Park, Florida, 245 F.3d 1232 (11^th Cir. 2001) In race discrimination case brought by African-American police officer, the court held that neither job performance memoranda nor removal from officer in charge (acting shift supervisor) designation constituted adverse employment actions necessary for Title VII relief.

Russell v. Principi, 257 F.3d 815 (D.C. Cir. 2001) A lower performance rating (excellent versus outstanding) which has an impact on the level of bonus an employee receives can constitute an adverse employment action under Title VII.

Ross v. Douglas County,  234  F.3d  391 (8^th Cir. 2000) Based on language in Oncale, the court held that members of the same minority group can violate Title VII by uttering racial epithets creating a hostile work environment.

Denney v. City of Albany, 247 F.3d 1172 (11^th Cir. 2001) Court upheld summary judgment granted to the employer holding that the white firefighters challenging promotions awarded to black firefighters failed to prove that the promotions were discriminatory.  The promotional candidates were given an objective test, with all candidates who scored at least 70% placed on an eligibility list from which the Chief could select anyone.  Some of the minorities promoted scored lower on the test than some of the plaintiffs who were not promoted.  With respect to plaintiffs assertion that they were more qualified, the court required a strong showing of a disparity in qualifications in order for an inference of discrimination to arise.   The court also held that without evidence that subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a hiring or promotion decision on purely subjective criteria will rarely, if ever prove pretext under Title VII or other federal discrimination statutes.

Guerrero v. Ashcroft, 253 F.3d 309 (7^th Cir. 2001) Upheld promotional decision of FBI against challenge by Hispanic agent that the FBI had unfairly weighted operational over administrative experience in making a supervisory level appointment.  The Court found the FBIs proffered reasons for its promotional decision to be legitimate and found in favor of the FBI.

Oden v. Oktibbeha County, 246 F.3d 458 (5^th Cir. 2001) Court upheld jury decision that Sheriffs failure to promote African American plaintiff to the position of chief deputy violated Title VII.  The Sheriff was unable to sufficiently justify his decision to promote a white deputy to the position instead of the plaintiff.

Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649 (7^th Cir. 2001) Court upheld banding of scores (treating scores falling within same band as identical) on promotional exam for firefighters, finding that banding is universal and normally unquestioned method of simplifying scoring by eliminating meaningless gradations and there was no showing that it was adopted to improve the scores of minorities.

Lanning v. Southeastern Pennsylvania Transportation Authority, 181 F.3d 478 (3d Cir. 1999); cert. den., 528 U.S. 1131 (2000) (see, on remand 2000 WL 1790125) Female transit police officer candidates sued over a 1.5 mile run in 12 minute requirement for applicants, which had a disparate effect on females.  Court held that a discriminatory cutoff score on employment screening examination is impermissible unless shown to measure the minimum qualifications necessary for successful performance of the job in question.  See also, Pietras v. Farmingville Fire District, 180 F.3d 468 (1999) (firefighter PAT).

Bew v. City of Chicago, 252 F.3d 891 (7^th Cir. 2001) Court upheld cut-off score of 66% on police certification exam as business necessity and also upheld three-strike rule for probationary officers against a racial discrimination challenge.  The court opined that we do not hold cut-off scores to standards so strict that they must select all good job performers and reject all bad.

Bass v. Board of County Commissioners, 242 F.3d 996 (11^th Cir. 2001) In reverse discrimination case, 11^th circuit reversed summary judgment entered for County, holding that existence of an Affirmative Action Plan plus other evidence of discrimination created an issue of material fact.

Brock v. City of Cincinnati, 236 F.3d 793 (6^th Cir. 2001) Under an agreement with the Union, K-9 handlers received an extra 2 hours pay per week (17 minutes per day) for their dog handling responsibilities.  The officers later sued for back pay, proving in court that they spent a minimum average of one hour per day in these responsibilities.  The District Court found the department liable for back pay, rejecting the exception that allows the parties to reach a reasonable agreement on compensation for work done at home.  The Court of Appeals reversed, finding the agreement reasonable.

Block v. City of Los Angeles, 253 F.3d 410 (9^th Cir. 2001) Suspensions less than a full work week as well as those in excess of a full work week for infractions other than major safety violations fail to meet the salary definition under the FLSA

Nolan v. City of Chicago, 125 F.Supp.2d 324 (N.D.Ill. 2000) Amounts paid to officers under collective bargaining agreement providing premium pay for holidays and overtime rates in excess of those required by the FLSA can be used to offset amounts due under the FLSA during the same pay period.

Franklin v. City of Kettering, Ohio, 246 F.3d 531 (6^th Cir. 2001) City can adopt a 28-day work period for the purpose of calculating overtime pay due under the FLSA even if that period does not coincide with the officers normal duty cycles or the work period under the collective bargaining agreement.

Johnson v. Unified Government of Wyandotte County/Kansas City, Kansas, 127 F.Supp.2d 1181 (D.Kan. 2000) Court denied summary judgment on whether off-duty work for the Citys Housing Authority must be combined with hours worked for the primary employer in determining overtime pay, finding that questions of fact remained concerning who controlled off duty employment activities and whether the off-duty work supplanted the services ordinarily provided by the primary employer.  Distinguishes Cahill v. City of New Brunswick, 99 F.Supp.2d 464 (D.N.J. 2000).

Miller v. AT&T Corp., 250 F.3d. 820 (4^th Cir. 2001) The Court held that flu, in this instance where the employee missed three days of work and visited the doctor twice, constituted a serious health condition under the FMLA.

Pending U.S. Supreme Court Case

Ragsdale v. Wolverine Worldwide, Inc. The Eighth Circuit held invalid a DOL regulation that provides that FMLA leave did not count toward the 12 week requirement until the employer notifies the employee.

Hasty v. City of Gladstone, Missouri, 247 F.3d 723 (8^th Cir. 2001) Sergeant in the public safety department demoted following casual comment to Citys personnel director about drinking by police captain.  Speech held not to involve matter of public concern.

Weeks v. Bayer, 246 F.3d 1231 (9^th Cir. 2001) Plaintiff, Assistant Director of Nevada Department of Prisons was terminated after responding to another agency that certain inmate substance abuse and rehabilitation programs were at risk of discontinuation due to his boss delays in insuring and allocating funds for the programs.  Speech held not to be matter of public concern and therefore not protected by the First Amendment.

Altman v. Minnesota Department of Corrections, 2001 WL 569102  (8^th Cir. 2001) Quiet reading of bible by state correctional employees during mandatory training on Gays and Lesbians in the Workplace constituted speech on matter of public concern.

Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001) An investigator in the prosecutors offices official investigation into allegations of wrongdoing by two fellow investigators is speech on a matter of public concern protected by the First Amendment.

Walton v. Safir, 122 F. Supp.2d 466 (S.D.N.Y. 2000) Plaintiff, a police officer was terminated following two press conferences in which she appeared, in disguise, and criticized a unit of the NYPD to which she was previously assigned for racist practices.  The department alleged that her termination was as a result of absenteeism.  The court found in favor of the plaintiff, finding as a matter of fact that the termination was in retaliation for protected speech.

Dooley v. City of Philadelphia, 153 F. Supp. 2d 628 (E.D. Pa. 2001) Police Captains subpoenaed testimony in a federal criminal case against a former subordinate is protected speech.

Oladeinde v. City of Birmingham, 230 F.3d 1275 (11^th Cir. 2000) An officer and sergeant in the narcotics unit contacted their captain with a request to bring information about potential wrongdoing by fellow officers to the State Attorney.  The captain requested details of the incident and both officers refused his request.  The captain then instructed the officers to take their information to Internal Affairs and not to the State Attorney.  The officers were later transferred out of the specialized unit to patrol and the sergeant failed to receive a subsequent promotion to lieutenant she applied for.  The officers sued the City alleging the transfer and failure to promote resulted from their protected speech in alleging wrongdoing by fellow officers.  The court of appeals held that while this speech was on a matter of public concern, the departments interest in efficient operation and adherence to chain of command requests outweighed the public interests at issue in this case, citing Busby.  The speech was held therefore to be outside the protection of the First Amendment.

Pappas v. Giuliani, 118 F. Supp.2d 433 (S.D.N.Y. 2000) Plaintiff, an NYPD police officer, on approximately 200 occasions mailed racist materials to various charities soliciting money from him.  He was terminated for violation of a departmental policy prohibiting the dissemination of defamatory materials through the mail.  He filed suit alleging his termination violated his first amendment free speech rights. The court found that the racist mailings were not speech on a matter of public concern but merely plaintiffs private hobby or interest.  Further the court found that the departments interest in prohibiting conduct potentially disruptive to the organization, including undermining the publics respect for the department outweighed any interest plaintiff had in the speech.

Daniels v. City of Arlington, Texas, 246 F.3d 500 (5^th Cir. 2001) Police department policy prohibiting pins on uniforms, unless approved by the Chief, did not violate First Amendment rights of officer terminated because he wore cross pin on his uniform.  The Court held that the wearing of the pin was not speech on a matter of public concern and in any event was outweighed by the departments interest in conveying neutrality of police officers.

Mansoor v. County of Albemarle, 124 F. Supp. 2d 367 (W.D.Va. 2000) Order given a police officer, that he at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee held to violate the employees free speech rights.

Bauer v. Sampson, ___F.3d____ (2001 WL 1218295) (9^th Cir. 2001) Regulation that prohibits conduct with violent behavior overtones found to be overbroad.

Serna v. City of San Antonio, 244 F.3d 479 (5^th Cir. 2001) Transfer of police officer from downtown foot and bike patrol unit to regular patrol unit, allegedly in retaliation for whistleblowing did not constitute adverse employment action (which must include serious, objective and tangible harm) sufficient to implicate the First Amendment speech protections.

Cannon v. City of West Palm Beach, 250 F.3d 1299 (11^th Cir. 2001) Placing of stigmatizing information in employees personnel file plus being passed over for promotion does not give employee a protected liberty interest.

Adams v. Battle Creek, Michigan, 250 F.3d 980 (6^th Cir. 2001) Using a clone pager, without first obtaining a warrant, to investigate an officers use of his departmental pager may subject the police department to civil liability under the federal wiretap law.