Arbitrator overturns a termination of a deputy who engaged in repeated instances of horseplay with a loaded firearm. He was not disciplined for prior deportments, and should have been progressively disciplined.

A sheriff's deputy in Minnesota grieved his termination. He admitted his misconduct, but said these were practical jokes. The arbitrator found that the grievant had:

1. Pointed both his duty firearm and a small handgun at another officer.

2. Put his duty firearm in direct physical contact with the back of another officer's head on a multiple occasions.

3. Put his duty firearm against another officer's chest.

4. Often engaged in quick draws and in spinning his firearm in an "old west" manner while on duty. The repeated instances of gun horseplay violated the Firearms Policy which provides that a "handgun shall never be displayed or removed from its holster other in the performance of duty, in the course of routine maintenance, or during training."

The arbitrator did not lighten the seriousness of these events, because:

1. "Gun horseplay of this type and magnitude poses a significant safety risk due to the possibility of an accidental discharge; and

2. "The treatment of a firearm as a toy tarnishes the reputation of the Sheriff's Office and denigrates the public safety mission with which it is charged."

     The arbitrator noted that progressive discipline is not necessary when the severity of misconduct or other circumstances demonstrate that lesser forms of discipline would be futile in terms of working a correction in behavior.

     Here, however, "no such showing has been made in this instance. Unlike acts of theft or violence, horseplay without an intent to cause harm is not usually thought to be so severe as to obviate the possibility of a change of behavior and warrant immediate discharge."

     The grievant cooperated with the internal investigation and his demeanor at the hearing indicates that he no longer is likely to engage in the type of activities at issue in this proceeding. Moreover, his unblemished work record for the past decade also suggests that an immediate discharge was not warranted.

     Co. of Washington and Law Enf. Labor Services, BMS #05-PA-599, 122 LA (BNA) 725 (Befort, 20060.

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Court in New Hampshire finds that gay and lesbian partners are unconstitutionally deprived of fringe benefits available to married employees. Because they cannot marry, the exclusion violates the state's law banning sexual orientation discrimination.

     N.H. state law provides that a person shall not be discriminated against in employment compensation or terms of employment based on sexual orientation, RSA 354-A:7.

     In reaching her decision, the judge relied on two holdings in similar cases: Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 78 (Alaska 2005), and Levin v. Yeshiva University, 96 N.Y.2d 484 (2001).

     The court emphasized that the State could adopt "reasonable administrative rules to establish criteria by which to determine whether a same-sex couple is in the type of committed relationship intended to qualify for the employment benefits," as sought by the plaintiffs.

     Bedford v. N.H. Comm. Coll. Sys., #04-E-229 & -230, 98 FEP Cases (BNA) 663 (N.H. Super. 2006),

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Labor Dept. holds that an agency is not required, under the Fair Labor Standards Act, to compensate police officers for time spent in training on the use of a firearm that they carry voluntarily during their off-duty hours.

     The issue arose because officers can choose to wear a personal firearm other than the one issued to them.

     The DoL relied on 29 C.F.R. §553.226(b)(1)-(2), which states that

"attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction ... does not constitute compensable hours of work."

     Wage and Hour Opinion Letter, FLSA2006-19.

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Officer, with Attention Deficit Hyperactivity Disorder, is not disabled within the meaning of the ADA or state law. His inability to correctly report his time worked is not a substantial impairment, and he was lawfully fired after repeatedly turning in false time sheets. The fact he was president of the union did not prove his termination was retaliatory.

     A Michigan officer, whose work was exemplary and who served as president of the union, was terminated after he had claimed hours he did not work on his payroll sheet for the third time. A week later, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), bipolar II disorder, and depression.

     The court granted summary judgment to the defendants on his federal claims and dismissed the state law claims. The officer had not shown that he was disabled under the ADA; he had a moderate impairment in being unable to fill out payroll sheets correctly. There was no evidence that the chief knew of his disability before terminating him.

     The judge wrote:

"It is tempting to dismiss [the plaintiff's] claimed substantial impairment, essentially inability to accurately complete payroll sheets, as straining credulity to its breaking point. But, incredulity aside, at best, [the plaintiff] has shown only that his ADHD has caused a moderate impairment in the performance of a major life activity.

"Such a moderate impairment does not establish a disability under the ADA. The record reveals that [the plaintiff's] impairment affected him in a single, narrow aspect of his job, filling out payroll sheets. In all other aspects of his job he was a highly capable police officer. ...

"[The plaintiff] earned an associates degree from a local community college in criminal justice. While attending school he was on the Dean's list and, following successful completion of the program, served as a tutor. This is another strong indication that his ADHD is a moderate impairment."

     Finally, his union activities did not support a First Amendment claim of retaliation. Van Compernolle v. City of Zeeland, #1:05-CV-133, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).

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Federal appeals court rejects a damage suit filed by a jail officer and his wife, claiming that his superiors were indifferent to the control of inmate diseases, resulting in their infection.

     A county corrections officer and his wife sued the county and several superiors, claiming that they contracted Methicillin Resistant Staphylococcus aureus infections (MRSA) as a result of the defendants' "conscience-shocking behavior" in creating unsanitary and dangerous conditions at the jail. They alleged that the defendants failed to prevent MRSA from spreading through the jail, took insufficient action to protect the jail's corrections officers from contracting an infection, and failed to warn and educate corrections officers in infection prevention techniques.

     The U.S. District Court granted defendants' motion for summary judgment; the Third Circuit affirmed. They wrote that the Due Process Clause does not guarantee certain minimal levels of workplace safety and security, nor does it impose federal duties analogous to those imposed by state tort law.

     The panel said that the defendants' conduct did not exhibit deliberate indifference to a serious risk of infections. Moreover, there was no evidence that at the time defendants made their decisions as to conditions at the jail, they were aware, or should have been aware, that their remedial and preventative measures were inadequate to protect corrections officers from infections. They added:

"Because only two of 170 corrections officers tested positive for colonization in 2002, we think defendants could reasonably believe the corrections officers did not face a great risk of infection. And we think no reasonable jury could conclude defendants knew, or should have known, the corrections officers faced a substantial risk."

"... the Due Process Clause does not guarantee municipal employees a workplace that is free of unreasonable risks of harm ..."

     Kaucher v. Co. of Bucks, #05-1598, 2006 U.S. App. Lexis 19427 (3rd Cir. 2006).

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Arbitrator holds that a police officer, who exhausted his extended sick leave after being accused of rape, abandoned his job when he failed to return to work and was not entitled to reinstatement. His stress defense failed because he voluntarily canceled therapy visits.

     The arbitrator found that the officer, though suffering from the stress of an unfounded allegation, was allowed to take sick leave, was offered counseling, and was repeatedly warned that he must return to duty.

     He rejected the union's arguments (1) that stress was a valid defense, and the city should have helped the grievant instead of terminating him, and (2) progressive discipline should have been imposed.

     As for the latter, he ruled that a refusal to work is not a minor offense warranting progressive disciplinary action. Secondly, while unexpected events or illness can be a defense in some cases, in this case "the grievant knowingly and willfully disobeyed lawful orders" to return to work. He chose to stop seeing a therapist and discontinued medication.

     Moreover, a "person under investigation cannot dictate the pace of the investigation." He could have returned to work and filed a grievance; he chose, instead, to disobey the order to return to work. The city was justified in terminating his employment. City of Newark and FOP Ohio, FMCS #050809-05133-8 (Byrne, 2006).

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FBI settles a class action filed by women employees who claimed that unneeded requirements for higher paying jobs had a disparate impact.

     The Federal Bureau of Investigation has settled a class action filed in 1998 by 1,200 women employees in the Washington area. They claimed that the Bureau classified certain higher-level positions as available only to special agents which had a disparate impact on women.

     The settlement does not include damages caps (other than those provided in Title VII) --plus attorney's fees for representation on their claims. It provides for a neutral expert to review positions that are designated as available only to special agents. Class members are permitted to notify the expert of positions they believe are incorrectly classified.

     Hereafter, positions may be classified as special agent-only if they meet the criteria in 5 C.F.R. §842.802, the law enforcement officer retirement regulation. Boord v. Gonzales, #100-A1-7101X, 44 (2166) G.E.R.R. (BNA) 772 (EEOC 2006).

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Federal court declines to dismiss an ADA suit brought by a former police officer who had a severe allergy to tobacco smoke. City made no effort to implement a no-smoking policy with the police union.

     A former police officer sued the City of Scranton, Pennsylvania, for failing to accommodate her allergy to tobacco smoke by implementing a non-smoking policy in areas where she performed her duties.

     Scranton responded by claiming that the plaintiff is not disabled as defined by the ADA, it accommodated her by providing a non-smoking room outside police headquarters and that a collective bargaining agreement between the city and the police labor union made implementation of a non-smoking policy unreasonable.

     The District Judge refused to dismiss the suit, writing:

"Though Plaintiff's evidence is far from conclusive and certainly does not compel a conclusion that [she] is disabled within the intent of the ADA, the evidence is sufficient to allow a jury to decide that she is substantially limited in her ability to breath due to her allergy to tobacco smoke.

"First, the nature and severity of [her] impairment indicates that she is significantly restricted in her ability to breath compared to the average person in the general population. ...

"Second, the duration of the impairment can be lengthy. [The plaintiff] stated that her adverse reactions could continue from one to five days after exposure to tobacco smoke. ... Third, [her] impairment is permanent."

     The judge then addressed the argument that Scranton could not implement a non-smoking policy throughout the police department because it would violate its collective bargaining agreement.

     The bargaining agreement does not address smoking, but implementation of a non-smoking policy would require management to bargain collectively with the police union on matters that impact the conditions of employment.

     Under Pennsylvania law, a court must balance the interest of the employee against the probable effect of the issue on the system as a whole. In Crawford County v. Penn. Labor Rel. Bd., 659 A.2d 1078 (Pa. Commw. Ct. 1995), the court was confronted with a similar smoking ban in a county jail.

     The appellate panel deferred to the Labor Relations Board's decision that the county should have negotiated the non-smoking policy with the union of the prison employees.

     However, Scranton did not present any evidence that it had attempted to negotiate a nonsmoking policy with the union. The judge said, "there is no evidence that negotiating a nonsmoking policy with the police union would impose an undue hardship on the city."

Additionally, Scranton negotiated no-smoking agreements with other unions in the city hall building. Thursby v. City of Scranton, #3:CV-02-2355, 2006 U.S. Dist. Lexis 33475, 18 AD Cases (BNA) 21 (M.D. Penn. 2006).

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Arbitration Procedures

     Federal district court declines to vacate an arbitration award even though the arbitrator refused to grant a continuance when the union's main witness became unavailable due to surgery. Healthcare Workers L-250 v. American Medical Response, #CV-F-05-1333, 2006 U.S. Dist. Lexis 42134, 179 LRRM (BNA) 3159 (E.D. Cal. 2006).

Collective Bargaining - Duty to Bargain

     D.C. Circuit holds that the Dept. of Homeland Security cannot implement the labor relations portions of its personnel system [70 Fed. Reg. 5272, dated Feb. 1, 2005] because of the restriction on collective bargaining. N.T.E.U. v. Chertoff, #05-5436, 452 F.3d 839, 2006 U.S. App. Lexis 16083, 179 LRRM (BNA) 3073 (D.C. Cir. 2006).

Disciplinary Offenses - In General

     Tenth Circuit upholds the termination of the fire chief's secretary after she obtained the billing records for the chief's city-issued mobile phone from clerk's office to learn whether he was having an extramarital affair. She worked in a job that required a high degree of loyalty, used a false pretense to obtain the records, and was acting on a personal motive to obtain the records. Spencer v. City of Midwest City, #04-6281, 2006 U.S. App. Lexis 14674, 24 IER Cases (BNA) 1153 (10th Cir. 2006).

     Arbitrator annuls discipline of a firefighter who used a bicycle to commute to work, contrary to orders, because of vagueness in his superior's directions. City of Lorain, Ohio and I.A.F.F. L-267, 122 LA (BNA) 865, FMCS Case #06/503998 (Skulina, 2006).

Disciplinary Offenses/Punishment - Sexual Misconduct

     North Carolina court strikes down an anti-cohabitation law challenged by a sheriff's dispatcher who was fired for living with her boyfriend. Hobbs v. Pender County, (N.C. Super. 2006).

Employee Harassment - Nonsexual

     Third Circuit reinstates a claim that the ex-mayor engaged in harassment, defamation and retaliation that deprived an employee of his job and damaged his reputation. Hill v. Borough of Kutztown, #05-1356, 2006 U.S. App. Lexis 18708 (3rd Cir. 2006).

Employee Harassment - Sexual Orientation

     Sixth Circuit affirms dismissal of a same-sex harassment lawsuit brought by a hospital police officer against his employer. The coworker harassment was not because of his gender or for sexual purposes. Title VII does not protect sexual orientation or persons perceived to be gay. Vickers v. Fairfield Med. Ctr., #04-3776, 2006 U.S. App. Lexis 18060, 98 FEP Cases (BNA) 673 (6th Cir 2006).

FLSA - 7K Exemption

     Dual-function firefighters who primarily serve as paramedics but also respond to fire calls qualify for the partial overtime exemption for firefighters under a Labor Dept. ruling. Wage & Hour Div. Opinion Letter, FLSA2006-21.

FLSA - Overtime - in General

     Inmates performing work in or for a prison are not "employees" under the Fair Labor Standards Act and are not entitled to the federal minimum wage. Loving v. Johnson, #05-10679, 2006 U.S. App. Lexis 16968, 11 WH Cases2d (BNA) 1025 (5th Cir. 2006).

     Corrections workers were not entitled to 24-hours a day overtime compensation for time they spent when they remained at prison for their own safety while Hurricane Georges passed over Puerto Rico. The applicable Office of Personnel Management regulation permits the deduction of sleep time during a 24-hour shift from employee's payment without any implied or express agreement between employer and employees, and is a valid construction of the FLSA. Time spent sleeping is not work time. Blanco v. United States, #00-2208, 2006 U.S. Dist. Lexis 32237, 11 WH Cases2d 1064 (D. P.R. 2006).

Free Speech

     Federal court overturns a $200,000 jury verdict for an officer who was transferred from his position after criticizing the police chief during a media interview. The judge acted in light of the Supreme Court's ruling in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006) which held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Moore v. City of Detroit, #04-60004, E.D. Mich. 2006).

Grievance Procedures

Pennsylvania Supreme Court declines to review an arbitration award holding that a grievant is not required to file a second grievance, contesting the filing of additional grounds supporting his termination. McCandless v. McCandless P.O.A., #14 WAP 2005, 2006 Pa. Lexis 1282, 18 LRRM (BNA) 2113 (Penna. 2006).

Handicap Laws / Abilities Discrimination - In General

     U.S. Office of Personnel Management issues final regulations regarding the appointment of persons with mental retardation, severe physical disabilities, and psychiatric disabilities. Appointment of Persons With Disabilities and Career and Career-Conditional Employment, 71 (143) Fed. Reg. 42241-46 (7/26/06).

Pensions

     City of San Diego agrees to settle a pension underfunding lawsuit for $173 million; funds to come, in part, from a tobacco settlement. McGuigan v. City of San Diego, #GIC 849883, 44 (2162) G.E.R.R. (BNA) 657, 33 Pension & Benef. Rep. (BNA) 1446 (Cal. Super. Ct 2006).

Privacy Rights

     Federal court holds that an employee had a reasonable expectation of privacy that management would not reconstruct and access e-mails sent to and received from her attorney on her employer-provided laptop. Attorney-client privilege overrides the employer's policy allowing search and retrieval of documents from computers provided to employees. Curto v. Medical World Comm., #03CV6327, (E.D.N.Y. 2006), affirming 388 F.Supp.2d 101.

Race Discrimination - In General

     DHS did not discriminate against an acting assistant director because of her race and age when management selected a younger, white woman for the position. The agency proffered a non-discriminatory reason for its decision. Barnette v. Chertoff, # 04-5443, 2006 U.S. App. Lexis 16948, 98 FEP Cases (BNA) 609 (D.C. Cir. 2006).

Racial Harassment

     Sixth Circuit affirms a jury award of $175,000 in compensatory damages for a black firefighter that was subjected to racial and retaliatory harassment. The plaintiff was assigned to a firehouse that had a "Wall of Hate" with derogatory comments directed at black firefighters. Jordan v. City of Cleveland, #04-3389, 2006 U.S. App. Lexis 16821, 2006 FED App. 0226P, 98 FEP Cases (BNA) 682 (6th Cir. 2006).

Religious Discrimination

     DC Circuit finds that certain Navy chaplains were entitled to injunctive relief, in a suit claiming that the Navy unconstitutionally maintained a religious quota system for the promotion, assignment, and retention of clergy that was prejudicial to chaplains of non-liturgical Protestant faiths. Chaplaincy of Full Gospel Churches v. England, #05-5143, 2006 U.S. App. Lexis 16952, 98 FEP Cases (BNA) 603 (D.C. Cir. 2006).

Retaliatory Personnel Action

     Eleventh Circuit finds that a captain failed to prove his demotion to lieutenant was in retaliation for FMLA activity. A three-month interval between his FMLA complaints and the demotion is not evidence of causal link between the events, and there was evidence that the sheriff considered demoting him before he made the complaints. Drago v. Jenne, #05-11276, 2006 U.S. App. Lexis 16094, 11 WH Cases2d (BNA) 980, 98 FEP Cases (BNA) 555 (11th Cir.).

     Appellate panel reinstates an action brought by a demoted highway patrol officer claiming that his First Amendment rights were violated by retaliating against him for opposing proposed changes in patrol policy. Hughes v. Stottlemyre, #05-2774, 2006 U.S. App. Lexis 18063 (8th Cir. 2006).

     Seventh Circuit affirms the dismissal of a "blacklisting" retaliation lawsuit. The plaintiff failed to prove that city officials provided false information about his work as a city engineer. Tomanovich v. City of Indianapolis, #05-1653, 2006 U.S. App. Lexis 20247 (7th Cir. 2006), affirming 2002 U.S. Dist. Lexis 14885.

Retirement Rights and Benefits

     Illinois appellate court denies retirement benefits to a former Inspector General of the Secretary of State's office because of his guilty plea for obstruction of justice, even though he was already retired at the time that he attempted to persuade a former secretary to withhold sensitive" documents from a grand jury subpoena. Bauer v. State Employees' Retir. Sys., #1-03-1589, 2006 Ill. App. Lexis 564 (2006).

Transfers - Disciplinary or Punitive

     Police officers lacked a prima facie entitlement to summary judgment on a claim that their reassignment from a narcotics task force to the patrol division was "disciplinary action" within the meaning of the bargaining agreement, which contained a grievance and arbitration procedure. Police Officers v. City of Farmington, #24,972, 2006-NMCA-077, 2006 N.M. App. Lexis 51, 179 LRRM (BNA) 3352 (NM App. 2006).

Transfers - Non Disciplinary/Punitive

     Seventh Circuit concludes that managerial officials were entitled to qualified immunity; the plaintiff, a state investigator, failed to show that an employee who is reassigned to lesser but meaningful duties pending an investigation of alleged wrongdoing, suffered a harm. The investigator retained both his pay and his job classification status. "While some might consider themselves lucky to be able to perform easier work for the same amount of pay, [the plaintiff] did not." Atterberry v. Sherman, #04-4115, 2006 U.S. App. Lexis 16962 (7th Cir. 2006).

     Seventh Circuit affirms a summary judgment for the State of Illinois in a discrimination and retaliation suit. The employee failed to present evidence that his internal complaint led to his transfer. Treadwell v. Illinois Sec'y of State, #05-1524, 2006 U.S. App. Lexis 18789 (7th Cir. 2006).

Wrongful Discharge - In General

     A disabled county nurse was not dismissed within the meaning of California Government Code 31725 when management informed her there were no positions available that would accommodate her work restrictions, offered her vocational rehabilitation, and then placed her on unpaid injury leave. Kelly v. County of Los Angeles, #B176552, 2006 Cal. App. Lexis 1151 (2d Dist. 2006).

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     Discrimination and retaliation: Office of Personnel Management issues final regulations to carry out the notification and training requirements of the Notification and Federal Employees Antidiscrimination and Retaliation (No FEAR) Act of 2002. 71 (139) Fed. Reg. 41095-99.

     Workplace security: DHS has created downloadable posters to provide guidance on physical and cyber security and how to report suspicious behavior, activity, and cyber incidents.

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance

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