Annual Employment Law Update |
October, 2003
IACP Legal Officers Section
Chief Assistant City Attorney
First Amendment
Title VII
ADA
FLSA
Bennett v. City of Holyoke, 230 F.Supp.2d 207 (D. Mass. 2002) Plaintiff police officer, quoted in a local newspaper alleging departmental abuses in overtime, grant appropriation, treatment of minority workers and theft, disciplined for violating departmental rule prohibiting public criticism of department. Plaintiffs subsequent submission of a notice to retire was accepted, he was not allowed to withdraw it on reconsideration and subsequently he sued. Plaintiffs statements on corruption and discrimination found to be public speech and claim allowed to proceed. See also, Wagner v. City of Holyoke, 241 F. Supp.2d 78 (D.Mass. 2003).
Herts v. Smith, 2003 WL 22283371, 345 F.3d 581, 2003 U.S. App. Lexis 20339 (8th Cir. 2003) Subpoenaed testimony in desegregation case by school system Director of Equity (whose contract was subsequently not renewed) about effect of proposed reorganization on her position was protected speech under the First Amendment.
Skaarup v. North Las Vegas, 320 F.3d 1040 (9th Cir. 2003) Court upheld suspension and subsequent demotion of Fire Marshal, disciplined for making comments in his office to two employees to the effect that the Union has sold another employee down the river and further commenting on the deputy city managers antipathy toward women. The Court held on balance, these comments were more private than public and in any event, the employers desire for good working relationships with the Union and interest in protecting the good name and reputation of the deputy city manager and the City itself outweighed any public interest in bureaucratic infighting.
Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003) African American Assistant Chief was terminated after making a comment in the media questioning the guilt of a defendant convicted of killing a police officer. The Court dismissed his First Amendment claim, finding on balance that any protected interest the speech had was outweighed by the police departments need to maintain appropriate order and discipline.
Meaney v. Dever, 326 F.3d 283 (1st Cir. 2003) Police officers two day suspension for disturbing the peace and insubordination, following an incident in which the officer, while off-duty, disrupted the Mayors inaugural address by driving a large truck around City Hall and repeatedly blowing its air horn during the speech, held not to violate the First Amendment.
Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) Off-duty sheriffs deputies, on election day, purchased 1379 copies of local community newspaper critical of Sheriff who was up for reelection. The off-duty deputies used money contributed by the Sheriff and others. The Court held there to be state action and allowed s. 1983 suit to proceed.
Abrams v. Walker, 307 F.3d 650 (7th Cir. 2002) Lawyer stopped for traffic violation had no constitutionally protected right to dilatory and disobedient conduct.
Eddings v. City of Hot Springs, 323 F.3d 596 (8th Cir. 2003) Exotic dancer, married to a police officer, sued claiming that her husbands co-workers visits to the night club where she danced, which had a chilling effect on her earnings, and her husbands ultimate termination based on gambling charges violated her first amendment rights. The Court dismissed her case finding no evidence of injury or causation.
Dixon v. Coburg Dairy, 330 F.3d 250 (4th Cir. 2003) Employee fired after refusing to remove two confederate flags from toolbox after an African-American co-worker complained. Employer first offered to buy him a new toolbox and suggested he express his flag related views during non-work hours. Court granted summary judgment to employer and stated that a state employer need not go farther than a private employer, however, and provide its employees with an unrestrained forum for political discourse in the work environment.
Title VII
Race
Cotter v. City of Boston, 193 F.Supp.2d 323 (D. Mass. 2002), affd in part, revd in part, 323 F.3d 160 (1st Cir. 2003) Court upheld race-based selection criteria in promotional process for rank of sergeant. Applying a strict scrutiny analysis, the Court held that a desire for diversity to assist in operational objectives did not constitute a compelling interest, but that in this case, the department was able to justify its promotional decisions based on a compelling interest in remedying past discrimination.
Cotter v. City of Boston, 322 F.3d 160 (1st Cir. 2003) Upheld promotion of three African American police officers to sergeant based on the compelling state interests of remedying past discrimination.
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) Upheld the affirmative-action promotions of black and female officers to the ranks of lieutenant and captain based on remedying past discrimination. Also upheld the affirmative-action promotion of one Hispanic officer based on nonremedial operational justifications.
Petit v. City of Chicago, 239 F.Supp.2d 761 (N.D. Ill. 2002) Court upheld police departments affirmative action promotions of African-American and Hispanic officers to sergeant on the basis of the departments operational need for diversity.
Cloud v. Chicago, 2002 WL 1160930, 2002 U.S. Dist. Lexis 9817 (N.D. Ill. 2002) - $2.3 million award to nine white firefighters passed over for promotion because of Citys race norming by using a formula to boost the scores of minority test takers. Previous jury award of $2.2 million to ten white firefighters with similar complaints.
PBA of New York v. New York City, 310 F.3d 43 (2d Cir. 2002) Court held that race-based transfers of police officers into the precinct where Abner Louima was assaulted violated the Equal Protection Clause of the Constitution, although suggesting that operational necessity may in some cases constitute a compelling state interest.
Grutter v. Bollinger, 123 S.Ct. 2325 (2003) The Supreme Court upheld the University of Michigan Law Schools narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.
Gratz v. Bollinger, 123 S.Ct. 2411 (2003) The Supreme Court held that the University of Michigan undergraduate admissions policy, which gave every underrepresented minority applicant 20 points, or 1/5 of the points necessary to guarantee admission, not to be sufficiently narrowly tailored to withstand constitutional strict scrutiny.
Altizer v. Roanoke, 2003 WL 1456514, 2003 U.S. Dist. Lexis 4303, 91 FEP Cases (BNA) 660 (W.D. Va. 2003) Three white officers case asserting discrimination based on the promotion of lower ranking black candidate fails based on evidence that they had previously been passed over for promotion in favor of lower-ranking white candidates.
Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 2003 U.S. App. Lexis 16678, 92 FEP Cases (BNA) 914 (11th Cir. 2003) The Court held that a decision not to create new positions, based solely upon the race and gender of the next eligible candidates for promotion, in the absence of a valid affirmative action plan, violates the Equal Protection Clause.
Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003) Police Chief, upon receiving complaints of racial discrimination against blacks within the department, ordered two high ranking officers to interview all 68 black officers to determine the existence of any discrimination. Sued by two of the black officers interviewed, the Court ultimately reversed the lower courts denial of summary judgment for the Chief.
Bell v. Clackamas County, 341 F.3d 858, 2003 U.S. App. Lexis 17041, 92 FEP Cases (BNA) 879 (9th Cir. 2003) Black officer, terminated during field training sued for racial discrimination and retaliation. Proving that his scores decreased after he complained of discrimination, he prevailed before jury, which awarded over $1,000,000. A remittitur ordered by the District Court was reversed by the Court of Appeals.
Mandell v. County of Suffolk, 316 F.2d 368 (2003) Plaintiff allowed to proceed on his claim that he was denied promotion based on the police chiefs pro-Christian and anti-Semitic bias.
Endres v. Indiana State Police, 334 F.3d 618 (7th Cir. 2003) States enjoy 11th Amendment immunity from suit in federal court for religious discrimination claims, the court held in two consolidated cases. In one case, involving a police officer whose religion prohibited gambling, the court held that the officers request to avoid having to work in any casinos unreasonable on its face.
Sex
Durkin v. City of Chicago, 199 F.Supp.2d 836 (N.D.Ill. 2002), affd, 341 F.3d 606 (7th Cir. 2003) Despite egregious conduct toward female trainee, her failure to utilize the Citys complaint procedure doomed her claim against her former employer.
Johnson v. Rice, 237 F.Supp.2d 1330 (M.D. Fla. 2002) Court granted summary judgment to Sheriff in sexual harassment case, finding first that the jokes forming the basis of the complaint did not create an abusive working environment and secondly that the Sheriff had in place a comprehensive anti-harassment program constituting a defense under Faragher.
Rogers v. Chicago, 320 F.3d 748 (7th Cir. 2003) Female police officer failed to show her work environment was objectively offensive, the court held, stating that occasional vulgar banter, tinged with sexual innuendo, of course or boorish workers not sufficiently egregious to actionable.
Mercer v. City of Cedar Rapids, 308 F.3d 840 (2002) Court upheld termination of female probationary police officer for engaging in an adulterous relationship with a permanent police captain, who was not terminated.
Americans with Disabilities Act
Doner v. City of Rockford, No. 03-1643, 2003 U.S. App. Lexis 20761, 2003 WL 262514 (N.D. Ill. 2003) Police detective, who used a wheel chair for transportation after becoming afflicted with multiple sclerosis, denied ADA protection. The Court held that the fact that the officer may not need to engage in physical altercations in his day to day duties did not diminish the need to possess the ability to do so in the event of an emergency, and found this ability an essential function of the job of a police officer.
Shannon v. Sheahan, 2003 WL 366584, 2003 U.S. Dist. Lexis 2468 (N.D. Ill. 2003) Courtroom deputy who was unable to walk because of arthritis and a debilitated knee cannot perform the essential functions of her position and was therefore not a qualified individual under the ADA.
Brown v. City of Tucson, 336 F.3d 1181 (9th Cir 2003) Police detective excused from night time call-out duty as an accommodation for her depression. Supervisors alleged threat that she stop taking medications and perform night time call-out or face demotion or forced retirement would, if proven, violate ADA.
Fountain v. New York State Dept. of Correctional Services, 333 F.3d 88 (2d Cir. 2003) Sick leave policy that allows supervisors to require medical documentation, including a diagnosis for certain absences must be justified by business necessity or it violates the ADA.
Note: The EEOC has stated in an advisory letter dated 4/15/03 that an employer does not violate the ADA by requiring a doctors clearance for all employees absent because of illness for three or more consecutive days.
Hernandez v. Hughes Missile Systems Company, 292 F.3d 1038, amended, 298 F.3d 1030 (9th Cir. 2002), cert. granted, 123 S.Ct. 1255 (2003) Employers unwritten policy against rehiring former employees terminated for misconduct violates the ADA as applied to rehabilitated drug addicts terminated based on a positive drug screen while employed.
Dent v. City of Chicago, 2003 WL 21801163, 2003 U.S. Dist. Lexis 13417 (N.D.Ill. 2003) Probationary police officer, who became ill and almost fainted at the firing range, explaining his illness was a result of his allergy to pregnant women, was terminated. Plaintiffs 27 count pro-se complaint dismissed on summary judgment motion, the Court holding that Plaintiff had not shown that being allergic to pregnant women significantly restricted a major life activity.
Family and Medical Leave Act
Nevada Department of Human Resources v. Hibbs, 123 S.Ct.1972 (May 27, 2003) State may be liable for money damages for violation of FMLA.
Cavin v. Honda of America Manufacturing, Inc., 2003 WL 22316812, 2003 U.S. App. Lexis 20722, 2003 FED App. 0366P (6th Cir. 2003) Denial of FMLA for failure to comply with internal leave policies provided the employee gave timely notice violates the FMLA (conflict with the 7th and 10th Circuits).
Fair Labor Standards Act
Raper v. State of Iowa, 115 F.3d 623 (1997) Federal court held that FLSA action against the state barred by the 11th Amendment. State court upheld FLSA exempt status for highway patrol sergeants and lieutenants, but held improper disciplinary deductions from wages compromised that exempt status during the period it was improperly applied. Total liability for state for all FLSA violations may exceed $5 million.
Houston Police Officers Union v. Houston, 330 F.3d 298 (2003) The Court held that the FLSA does not require a public employer to authorize comp. time usage as specifically requested by the employee, but does require permission within a reasonable time, upholding a departmental system limiting the number of officers who could be off at any one time.
Lee v. City of New Orleans, 2003 WL21243567, 2003 U.S. Dist. Lexis 8985 (E.D. La. 2003) - Officer assigned to K-9 unit, which received one hour off each day for canine care, brought action before the Civil Service Commission for extra compensation. Three days later, he was transferred to the Tactical Unit. Court held that the one hour of compensation was inadequate for K-9 care, ordered one extra half hour per day of compensation, but held that transfer from one specialized unit to another was not an adverse employment action.
Sehie v. City of Aurora, 2003 WL 21730120, 2003 U.S. Dist. Lexis 13051, 8 WH Cases 2d (BNA) 1663 (N.D. Ill. 2003) Time spent by a police dispatcher is attending counseling session with a psychologist required as a condition of retaining her job treated as compensable (summary judgment denied).
Whitten v. City of Easley, 62 Fed. Appx. 477, 2003 U.S. App. Lexis 6739, 2003 WL 1826672 (4th Cir. 2003) Firefighters on-call policy not so restrictive as to require payment under the FLSA as hours worked. Firefighters carried pagers, were encouraged to respond to 80% of the call outs, received an average of 6 calls per month and were free during their on-call time to engage in personal pursuits, including dining, shopping, imbibing, and working part-time jobs.
Harris v. City of Boston, 253 F.Supp.2d 136 (D. Mass. 2003) Half hour meal break provided to detectives not included as hours worked for purposes of the FLSA. Court applied primary benefit test and concluded that although detectives were on call during their lunch breaks, they were rarely called out during that time (and, if so, were compensated or allowed to reschedule the lunch). Note that the 9th and 11th Circuits apply the completely relieved from duty standard, which may produce different results.