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Age Discrimination - Termination / Mandatory Retirement

     After Congress in 1996 permitted age caps for police and fire personnel, Chicago restored its mandatory retirement age of 63 for firefighters. Having lost on their ADEA claim, they asserted that their forced retirements violated due process. The appellate panel held that an involuntary retirement is not a discharge and the bargaining agreement did not give firefighters a protected property interest in continued employment regardless of their age. Minch v. City of Chicago, #05-2702, 2007 U.S. App. Lexis 11260, 181 LRRM (BNA) 3089 (7th Cir.).

Applicant Rejections

     Withdrawal of a job offer is not a due process violation, Williams v. Doyle, #06-C-686-C, 2007 U.S. Dist. Lexis 40119 (W.D. Wis.).

Arbitration Punishment Awards - Right of Courts to Interfere

     Appellate court affirms an arbitration decision to change a termination to an eight-month suspension, for a firefighter that downloaded personnel data onto a personal computer at home. The conduct was isolated and not egregious, and the employer failed to prove that the reinstatement award was contrary to public policy. Brantley v. City of New Haven, #AC 27255, 100 Conn.App. 853, 920 A.2d 331, 2007 Conn. App. Lexis 194.

Attorneys' Fees and Legal Defense Rights

     When a consent decree establishes mechanisms for ensuring proper treatment of class members, additional attorney fees should be awarded for reasonable efforts to ensure that those mechanisms are properly functioning. Johnson v. City of Tulsa, #5-5064, 2007 U.S. App. Lexis 13915 (10th Cir. 2007).

Back Pay Claims and Awards

     Arbitrator orders management to pay six percent interest on a back pay award. County of Tehama and IUOE L-39, 123 LA (BNA) 993 (Reeves, 2007).

Collective Bargaining - In General

     Missouri Supreme Court overrules a 1947 case that held that public employees do not have right to bargain collectively; the decision conflicts with the plain language of the state constitution, which gives all employees, public or private, the right to bargain. Independence-NEA v. School Dist., #SC87980, 181 LRRM (BNA) 3224, 2007 Mo. Lexis 83 (2007).

Collective Bargaining - Duty to Bargain

     Illinois appellate court concludes, 2-to-1, that issues relating to the promotion of firefighters to the next highest rank, although outside the bargaining unit, is a mandatory subject of bargaining. City of Bloomington v. Ill. Lab. Rel. Bd., #4-06-0774, 2007 WL 1343807, 181 LRRM (BNA) 3121 (Ill. App. 4th Dist.).

     Massachusetts Labor Relations Commission rejects a union complaint that management failed to bargain over a change in promotional procedures. Although in the past the person with the highest exam score was promoted, the chief interviewed the candidates before making a selection. It was not an unfair labor practice to select a candidate with more experience. Town of Brookline and Brookline Police Assn., #MUP-04-4069 (2007).

Disability Rights and Benefits - Ordinary Disability/ Reinstatement

     Disabled officer that recovered did not have to submit to a "physical examination, a psychological examination, a physical ability examination, and a background investigation," or complete a "re-training course" before being reinstated. The chief was ordered to reinstate the officer and pay the officer's attorney fees. State ex rel. Woods v. Navarre, (Toledo Police), #L-06-1292, 2007 Ohio App. Lexis 2622 (6th Dist.).

Disciplinary Procedures - Delays & Time Limits

     The time set to file an appeal is not excused simply because the employee's attorney was negligent, unless the employee acts promptly to correct the failure to file an appeal. Helmstetter v. Dept. of Homeland Security, #PH-0752-04-0067-I-2, 2007 MSPB 147 (MSPB 2007).

Disciplinary Punishment - In General

     Management had just cause to discipline a deputy for dishonesty about his failure to receive K-9 certification, but the grievant's conduct was not serious enough to warrant discharge for first offense; penalty reduced to a one-day suspension. Union County Sheriff and Ohio FOP, 123 LA (BNA) 1101, FMCS Case #07/00069-8 (Sellman, 2007).

Discovery, Publicity and Media Rights

     First Circuit holds that the FBI has a qualified privilege to protect sensitive law enforcement techniques and procedures from disclosure to another jurisdiction. Comm. of Puerto Rico v. U.S., #06-2449, 2007 U.S. App. Lexis 14030 (1st Cir.).

Handicap Laws / Abilities Discrimination - Constitutionality

     A disability discrimination suit against a state agency is barred under the 11th Amendment. Patterson v. Penna. Inspector General, #06-4233, 2007 U.S. App. Lexis 14101 (Unpub. 3rd Cir.).

Injury to Employees

     A California correctional officer that was injured while quelling a fight between rival prison gangs, was not deprived of his liberty interests under the federal due process clause, even if his superiors orchestrated the fight as he alleged, because he was equipped with pepper spray and a baton that he used to subdue the inmates and quell the fight. O'Dea v. Bunnell, #C052673, 2007 Cal.App. Lexis 837 (3rd Dist.).

Military Leave

     Federal court holds that the Uniformed Services Employment and Reemployment Rights Act's preemption provision does not bar arbitration, and an employee who uses an internal grievance system to complain that a city failed to properly credit his military service toward his retirement benefits is bound by an arbitration award favoring the city. Klein v. City of Lansing, #5:06-CV-142, 2007 U.S. Dist. Lexis 36825 (W.D. Mich.).

National Security Issues and Security Clearances

     Appeals court upholds MSPB's decision to sustain the termination of a sergeant after revocation of her security clearance; because all Secret Service positions require a security clearance, removal was the only option. Jwanouskos v. Dept. of Treasury, #2007-3123, 2007 U.S. App. Lexis 13793 (Fed. Cir.).

     Egyptian born Muslim could not judicially challenge the loss of his security clearance; classification decisions are non reviewable. Makky v. Chertoff, #06-4329, 2007 U.S. Dist. Lexis 39468 (D.N.J. 2007); affirming #PH-0752-06-0023-I-1, 2006 MSPB Lexis 1479 (Unpub. MSPB 2006).

Pay Disputes - Overtime Claims

     Arbitrator rules that where a bargaining agreement does not contain any language requiring that overtime be assigned exclusively to a specific bargaining unit, management has a right to assign overtime to qualified individuals, including sergeants, that are covered by a separate agreement. City of Roseville and Law Enf. Labor Serv., 123 LA (BNA) 979 (Daly, 2007).

Picketing

     Antiwar activists did not have a right to protest inside the gates of West Point Military Academy during the Vice President's address to the graduating class. Sussman v. Crawford, #07-2171, 2007 U.S. App. Lexis 12192 (2nd Cir.).

Polygraph Exams

     Arbitrator rejects polygraph evidence in a termination case. "Polygraphs are not admissible in court because of their inherent unreliability. ... There is no logical reason to rely on the accuracy of the polygraph for one issue but not for the other." City of Austin and Combined Law Enforcement Assn. of Texas, 123 LA (BNA) 1042 (Guttshall, 2007).

     Illinois county could not suspend a corrections officer for refusing to undergo polygraph examination during an investigation, in light of a state statute and a state supreme court decision barring mandatory polygraphs on "peace officers." Kelley v. Sheriff's Merit Cmsn., #2-06-0624, 2007 Ill. App. Lexis 386, 226 IER Cases (BNA) 177.

Psychological Exams and Standards - Use of, or Disclosure of the Results & Privacy

     Confidential records and testimony relating to communications between a plaintiff and his psychotherapist are privileged and not discoverable. Koch v. Cox, #06-5134, 2007 U.S. App. Lexis 14019 (D.C. Cir.).

Race Discrimination - In General

     In a disparate treatment claim in a Title VII action challenging Highway Patrol promotions, the Ninth Circuit affirmed a holding that the plaintiff's statistical expert's data was of questionable validity. Paige v. St. of Calif., #05-56061, 2007 U.S. App. Lexis 12050 (Unpub. 9th Cir.).

     Federal court rejects bias claims brought by African-American firefighters that scored poorly on promotional exams. There was overwhelming evidence that the captain examination was job-related and consistent with business necessity. Stewart v. City of St. Louis, #4:04CV00885, 2007 U.S. Dist. Lexis 38421 and 38473 (E.D. Mo. 2007)

Residency Requirements

     Arbitrator finds that absent a valid state law prohibiting employee residency requirements, management had just cause to terminate a police officer for living outside of city. City of Youngstown and Youngstown PBA, Case #07-50545, 123 LA (BNA) 986 (Skulina, 2007).

Retaliatory Personnel Action

     Male NYPD sergeant wins $300,000 after he had his firearms removed from his home and was transferred to manage a filthy storage room in retaliation for complaining about sexual harassment by a woman lieutenant. Marchisotto v. City of New York, #05Civ.2699, 2007 U.S. Dist. Lexis 27046, 100 FEP Cases (BNA) 1114 (S.D.N.Y. 2007).

     Seventh Circuit rejects a retaliation claim in a First Amendment action, where a gangs task force police officer alleged that he was denied promotions because he complained to superiors that some officers might be tipping off suspects. His speech was not made outside of his capacity as an investigator and a task force member, so he was not speaking as a citizen for First Amendment purposes. Sigsworth v. City of Aurora, # 05-4143, 2007 U.S. App. Lexis 12204 (7th Cir.).

     Ninth Circuit concludes that the appellant failed to show that management's legitimate, nondiscriminatory reasons for his termination were pretextual. The legitimate, nondiscriminatory reasons for the appellant's termination included insubordination, use of profanity, falsification of time sheets, improperly charging tires to the state, an attempted cover up, and breaching confidentiality with a witness in the employer's investigation of his actions. Willie v. Nevada Dept. Public Safety, #05-15903, 2007 U.S. App. Lexis 12064 (9th Cir.).

Sex Discrimination - Equal Pay & Opportunity Claims

     In a 5-to-4 ruling, the Supreme Court limits an employee's right to sue pay discrimination that results from decisions made more than 6 months earlier. The plaintiff claimed that for 19 years she was making $6,000 a year less than the lowest-paid male doing the same work. Justice Ginsburg argued in her dissent that "Any annual pay decision not contested ... within 180 days ... becomes grandfathered ..." and an employer could pay a woman less than her male counterparts for her entire career, and admit that the reason for doing so is because she is female, as long as the decision to set the discriminatory wage happened at least six months earlier. Ledbetter v. Goodyear Tire & Rubber Co., #05-1074, 2007 U.S. Lexis 6295.

Sexual Harassment - Retaliation

     After a Customs and Border Patrol Officer filed an EEOC complaint of sexual harassment, management allegedly began an investigation pertaining to her use of FMLA leave. She resigned and claimed constructive discharge; a MSPB Administrative Law Judge found that working conditions were not so severe that a reasonable person in her position would have felt compelled to resign. However, the EEOC issued a contrary decision, which concluded that a senior supervisor's conduct and the agency's complicity were so offensive that it altered the employee's conditions of employment. A federal appeals panel said, because the EEOC's decision was inconsistent with the Administrative Law Judge's determination, the MSPB should have considered the EEOC's decision and resolved the inconsistencies. Davis v. Dept. Homeland Security, #2006-3061, 2007 U.S. App. Lexis 12593 (Fed. Cir.).

Suspensions and Administrative Leave

     When criminal charges against a suspended employee are dismissed, the agency must either reinstate the employee with back pay or initiate disciplinary charges. Welch v. Dept. of Justice, #CH-0752-06-0015-X-1, 2007 MSPB 149 (MSPB 2007).

Uniforms, Clothing and Equipment

     Federal court upholds Philadelphia police rule that prohibits the wearing of a religious scarf while in uniform. "Prohibiting religious symbols and attire helps to prevent any divisiveness on the basis of religion both within the force itself and when it encounters the diverse population of Philadelphia." Webb v. City of Philadelphia, #05-5238, 2007 U.S. Dist. Lexis 42727 (E.D. Pa. 2007).

Wrongful Discharge/Discipline: Damages & Settlements

     Two suburban Chicago police officers that were allegedly fired for speaking out about a fellow officer's purported use of cocaine, are awarded $1.75 million in compensatory damages, $120,000 in liquidated damages, and $245,000 in punitive damages. Sims v. Schultz, #03C381, Pacer Doc. 229; Wiseman v. Schultz, #03C382, Pacer Doc. 100 (N.D. Ill. 2007).

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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