Legal Officers Section

2005 IACP Conference

Miami Beach, Florida

September, 2005

 

Employment Law Update

Recent Cases

 

By Jody M. Litchford

Deputy City Attorney

Orlando, Florida


 

FAMILY AND MEDICAL LEAVE ACT

 

Throneberry v. McGehee Desha County Hospital, 403 F.3d 972 (8th Cir. 2005) – Plaintiff, a hospital nurse, was granted medical leave.  During the leave period, she returned to the worksite and was disruptive.  In addition, performance problems were discovered during her leave.  She was ultimately asked to resign.  She then sued the hospital under the FMLA.  The Court held that “the FMLA does not shield an employee on FMLA leave from …lawful discharge.”

 

Callison v. City of Philadelphia, 128 Fed. App. 897 (3d Cir. 2005) – Plaintiff, because of his prior history of sick leave usage, was required to remain at home while on sick leave and must notify an appropriate supervisor upon leaving from and returning to home for legitimate purposes.  Plaintiff failed to meet this requirement while on FMLA leave and was disciplined (suspension).  He sued the City, arguing that the discipline violated the FMLA, which he alleged required his employer to “leave him alone” during the protected leave.  The Court found the City’s call in requirement to be lawful under the FMLA.

 

 

AMERICANS WITH DISABILITIES ACT

 

Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005) – The MMPI, a test that measures personality traits and can be used to diagnose certain psychiatric disorders, is a medical examination under the ADA and cannot be used in situations where medical exams could not be used.

 

Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005) – Flight attendant candidates were given conditional offers of employment, subject to completion of background checks and medical exams.  The medical exam revealed  previously undisclosed HIV conditions and the candidates were denied jobs.  The 9th Circuit held that the medical exams were improper and the conditional offer was not “real” because it was subject to both medical and non-medical post offer conditions.

 

Rossback v. Miami, 374 F.3d 1161 (11th Cir. 2004) – Plaintiff police officers filed suit alleging that a departmental policy denying the right to engage in off-duty work to officers on light or limited duty violated the ADA.  The Court ruled in favor of the City, finding that the officers were not protected by the ADA because they could not establish an impairment that interfered with major life activities.  The Court specifically held that the inability to perform the duties of a police officer did not constitute inability to work, and therefore did not alone constitute interference with a major life activity.

 

Jackson v. Chicago, 414 F.3d 806 (7th Cir. 2005) – Plaintiff, a police officer developed fibromyalgia and was unable to ambulate normally or to carry a firearm.  The Court held that the ability to safely handle a weapon to be an essential function of the police officer position.  Because Ms. Jackson had refused to engage in the interactive process of providing information necessary to a job search within the City, but outside the police department, insisting on reinstatement, the City had fulfilled it’s ADA obligation, and summary judgment was granted in its favor.

 

Jacques v. DiMarzio, 386 F.3d 192 (2d Cir. 2004) – After reviewing the various circuit courts’ decisions in this area, the Court held that “a plaintiff is ‘substantially limited’ in ‘interacting with others’ when the mental or physical impairment severely limits the fundamental ability to communicate with others. This standard is satisfied when the impairment severely limits the plaintiff's ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people-at the most basic level of these activities. The standard is not satisfied by a plaintiff whose basic ability to communicate with others is not substantially limited but whose communication is inappropriate, ineffective, or unsuccessful.” The Court distinguished the inability to get along with others from the inability to interact with others.

 

 

FAIR LABOR STANDARDS ACT

 

Acton v. City of Columbia, 2004 WL 2152297 (W.D. Mo. 2004 ) – Payments made to employees under a sick leave buy back program must be included in the regular hourly rate for the purpose of calculation of overtime.

 

Beck v. Cleveland, 390 F.3d 912 (6th Cir. 2004), cert. den. 125 S.Ct. 2930 (2005) – Use of accrued compensatory time cannot be denied simply for cost related reasons.  The DOL regulations allow denial of such time off only when the use will “unduly disrupt” operations.

 

Nickell v. City of Lawrence, 352 F.Supp.2d 1147 (D. Kan. 2004) – Under old DOL regulations, sergeants were exempt from the FLSA under the executive exemption from overtime requirements.  The Court concluded that managerial duties constituted the sergeants’ “primary task.”

 

Adams v. United States, 65 Fed. Cl. 195 (2005) – Partial summary judgment decision in consolidated case involving thousands of federal law enforcement personnel.  This decision dealt with the application of the “primary duty” definition to several employees, including a USCS Senior Special Agent in SID, a USSS Criminal Investigator serving as program manager on the Counter Assault Team, a DEA training coordinator and A BATF PIO.

 

Adams v. United States, 65 Fed. Cl. 217 (2005) – Time spent by federal law enforcement employees in commuting to and from work in employer-provided vehicles not compensable as hours worked under the FLSA, applicable to regular commuting and commuting with assigned canine (part of a class action filed by 14,000 officers).

 

Bull v. United States, 65 Fed. Cl. 407 (2005) – In a case involving overtime claims of 60 DHS canine officers, the Court ruled that collective bargaining contract language forbidding work outside of regular hours without specific authorization or order did not preclude overtime pay for hours “suffered or permitted” to be worked.  The Court went on to state that “substantive rights afforded employees under the FLSA are not prospectively waivable” through collective bargaining.

 

DOL Letter Ruling, (May 31, 2005) – Within the period covered by a mandatory training reimbursement agreement, an officer resigned to take work at another agency.  The DOL opined that no reimbursement can be required if it reduces the amount earned by the officer “free and clear” below the minimum wage.

 

**News of Note:  Nearly 1,100 San Diego police officers filed suit in the summer of 2005, claiming back wages due for job-related duties allegedly performed outside of their regular shift, such as getting ready for court and preparing investigative reports “at home.”  They are seeking more than $120 million in compensation.

 

 

TITLE VII

 

Isabel v. Memphis, 404 F.3d 404 (6th Cir. 2005) – Cutoff score for promotion to lieutenant, which was not validated by any acceptable method,  held to have disparate impact on black and Hispanic candidates even though final selection rate met four-fifths test.

 

Johnson v. Memphis, 355 F. Supp. 2d 911 (W.D. TN 2005) – Despite action by the City to set the cut off score at a point that conformed with the EEOC’s four-fifths rule, the Court held that the tests used in 2000 and 2003 for promotions to police sergeant had an adverse impact on black applicants.

 

Blise v. Antaramian, 409 F.3d 861 (7th Cir. 2005) – Court upheld Kenosha, Wisconsin City’s decision to hire another candidate to position of Operations Coordinator.  The Court reiterated the principle that courts do not sit as “superpersonnel departments” and are entitled to make erroneous decisions.  In response to Plaintiff’s allegation that the interviews were “subjective” as opposed to “objective,” the Court opined that there is “no legal requirement that an interviewer ask all job applicants the exact same questions.”  Nor, said the Court, must job interviews be scored according to some sort of objective criteria.  “A subjective analysis of the varying traits [such as common sense, good judgment, originality, ambition, loyalty, and tact] of each applicant is entirely appropriate.”

 

Benefield v. Fulton County, 130 Fed. Appx. 308, 2005 WL 1006847 (11th Cir. 2005) – County prevailed over female firefighter alleging sexual harassment when it relied on Faragher/Ellerth defense.  The County had a clear policy and Plaintiff’s report of harassment to a Captain in internal affairs (although asking him “not to repeat” the allegations) was not in compliance with the reporting requirements of the policy.  Despite the County’s “constructive knowledge” of the harassment, the employee’s failure to utilize the grievance process gave the County a complete defense to her charges.  Plaintiff’s claim of subsequent retaliation, citing discontinuance of her take home car privileges, a transfer, loss of pager, some reimbursement denials or delay, did not sufficiently allege ultimate employment actions or loss or pay, position and benefits sufficient to meet the Title VII threshold.

 

Duncan v. Manager, Denver Dep’t. of Public Safety, 397 F.3d 1300 (10th Cir. 2005) – Court dismissed former police officers complaint involving various acts of harassment over her 19 year career.  After finding that “Title VII is not intended to allow employees to dredge up old grievances,” the Court found that the department’s response to the more recent complaints, including a 60 day suspension for a sergeant and retraining for a lieutenant was effective and precluded liability.

 

Silverman v. Johnson, 2004 WL 2044182 (N.D. Ill. 2004) – Despite written sexual harassment policy in Fire Department, female former firefighter’s Title VII constructive discharge claim allowed to proceed on showing that incidents of name calling and unwelcome comments went unaddressed by superiors following her complaints.

 

O’Neal v. Chicago, 392 F. 3d 909 (7th Cir. 2004) – Sergeant in narcotics unit filed suit alleging her transfer to patrol sergeant was discriminatory based on her race and gender.  The Department claimed it made the transfer as a security precaution because of the pending release from prison of a former police officer, whom Plaintiff had dated, who had been convicted of drug offenses.  The Court dismissed Plaintiff’s claims holding that a lateral transfer, even if it involved a less flexible schedule and other minor changes in work conditions, does not constitute an adverse employment action sufficient for Title VII liability.

 

Washington v. Illinois Department of Revenue, 2005 WL 2000986 (7th Cir. 2005) – A reassignment to a similar position, but with different hours may constitute retaliation, depending on individual circumstances.  Here, Plaintiff’s complaint that these actions of her employers were designed in retaliation for a previous EEOC complaint and made in order to hinder her ability to deal with her Downs Syndrome child were allowed to proceed.

 

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) – Court upheld jury award of $320,000 plus $553,000 in attorneys fees and costs to transsexual police officer demoted during probationary period after promotion to sergeant.  Plaintiff proved that no other probationary sergeant had ever failed probation, at least one other sergeant whose performance ratings were lower passed probation and several supervisors made comments about lack of masculinity or “command presence.”

 

Kaplan v. Chicago, 2004 WL 2496462 (N.D. Ill. 2004) – Partial summary judgment granted to the City, finding that Plaintiff’s complaints of discrimination because of her Jewish faith, primarily with respect to treatment of her on-duty injury claims were not supported by sufficient evidence of different treatment of similarly situated officers to go forward.  The Court also ruled against Plaintiff on her hostile work environment case, finding the allegations of offensive comments to be isolated, as opposed to severe or pervasive.  Plaintiff was allowed to proceed on her claim involving the reasonableness of the accommodation offered to her in lieu of taking promotional exams scheduled on her Sabbath (having two employees follow her all day, including into her place of worship to preclude her receiving any test information prior to a delayed administration).

 

 

FIRST AMENDMENT FREEDOM OF SPEECH

 

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) – Plaintiff, a newspaper reporter, filed a complaint against a police officer and then reported on the filing and the Florida Department of Law Enforcement’s response in assigning it to the Key West police chief for investigation.  Believing this action to violate a Florida Statute making it a misdemeanor for a participant in an internal investigation to disclose information before the investigation is concluded, the Chief arrested the reporter.  The Court held the confidentiality statute unconstitutional, found the Chief to be a policy-maker for the municipality, hence finding potential municipal liability under s. 1983, but granted the Chief qualified immunity since the statute had not been declared unconstitutional at the time of the arrest.

 

Alexander v. Eeds, 392 F.3d 138 (5th Cir. 2004) – In a case with multiple plaintiffs, speech regarding the Texas Department of Public Safety’s promotional process, policies on wearing balaclavas during SWAT raids, and normal internal affairs investigations held not to be protected speech.  One officer’s speech regarding departmental compliance with a state law on vehicle use, however, was held to be protected and that part of the complaint allowed to proceed.

 

Anderer v. Jones, 385 F.3d 1043 (7th Cir. 2004) – A police officer was accused of brutality in the arrest of a juvenile suspect and arrested.  The charges were ultimately dropped by the D.A.  The Union made supportive statements and the officer filed suit against the department.  Following an I.A. investigation, the officer was terminated.  The Court found that his suit against the agency and comments related to that suit were personal in nature, not expressions on matters of public concern and therefore did not constitute protected speech.

 

Schad v. Jones, 415 F.3d 671 (7th Cir. 2005) – Police officer filed suit alleging that his transfer out of a specialize unit, which resulted from his disclosure of anonymous tip to another officer outside his unit constituted retaliation for exercising his 1st Amendment rights.  The Court held that this disclosure was not “speech on a matter of public concern” and therefore was not protected speech.

 

Baron v. Suffolk County Sheriff’s Department, 402 F.3d 225 (1st Cir. 2005) – Plaintiff alleged that following his report of misconduct by a fellow corrections officer, he was subject to continuing harassment and retaliation unabated by management despite his complaints.  He ultimately resigned and claimed constructive discharge.  The Court upheld the jury award for $500,000, finding that while some speech on internal matters within the department would not be protected, speech concerning retaliatory action against officers who break the “code of silence” to be of inherent public interest.

 

Kirby v. City of Elizabeth City, 388 F.3d 440 (4th Cir. 2004) – Police sergeant testified against the department in an internal personnel board’s action against another officer for negligently maintaining his vehicle fluid levels.   He was disciplined for this testimony.  He contested the discipline and was ultimately demoted for alleged work performance issues.  He filed suit alleging both disciplines violated the 1st Amendment.  The Court found the first testimony not to involve a matter of public concern.  The contest of allegedly retaliatory conduct, however, the Court did find to be protected speech.  Ultimately, the Court ruled for the defendants on qualified immunity and final policy-maker grounds.

 

City of San Diego v. Roe, 125 S.Ct. 521 (2004), reversing, 356 F.3d 1108 (9th Cir. 2004) – Roe, a San Diego police officer, videotaped himself stripping off a generic police uniform and engaging in acts of masturbation.  He offered these videos for sale on an adults-only section of an on-line auction site.  The Department discovered this off-duty enterprise and terminated Roe’s employment.  The Ninth Circuit, using a rationale different from any other circuit, held that the First Amendment protects speech as being a matter of public concern if it is 1) off-duty; 2) not about private personnel matters; 3) directed to a segment of the general public; and 4) not motivated by an employment-related grievance.  The Supreme Court reversed, finding no “speech on a matter of public concern” therefore no 1st Amendment protection.

 

Garcetti v. Ceballos, 361 F.3d 1168 (9th Cir. 2004), cert. granted 2/28/05 – Plaintiff, a Deputy D.A., was advised by a defense attorney that he believed deputy sheriffs may have lied in a search warrant affidavit.  Plaintiff investigated, determined the affidavit contained facts that were at least “grossly misrepresented” and wrote a memo on the matter to his boss.  Ultimately a meeting was held with Sheriff’s representatives and a decision was made to proceed with the prosecution.  Plaintiff then reported back to the defense counsel and was subpoenaed to testify at the suppression hearing.  Plaintiff then claims he was retaliated against by being demoted, being treated rudely at work, reassigned from a major case, and denied a promotion.  The Court held that Plaintiff’s speech was protected by the 1st Amendment as speech on a matter of public concern.  The Supreme Court granted cert. review on the question of whether a public employee’s purely job-related speech is protected by the 1st Amendment or must the speech be made not as an employee, but “as a citizen” in order to be protected?

 

 

MISCELLANEOUS EMPLOYMENT DECISIONS

 

Smith v. City of Jackson, Mississippi, 125 S. Ct. 1536 (2005) – In order to improve its salaries with respect to neighboring jurisdictions, the City of Jackson implemented a tiered increase system, with the lower paid officers receiving higher percentage increases than that given more senior (and, generally, older) officers.  A group of officers sued, alleging age discrimination on a disparate impact theory.  The Supreme Court held that disparate impact can be a basis for liability in an ADEA case, the employer only need have a reasonable basis for the underlying action (as it did here), to avoid liability.

 

Feldman v. Nassau County, 349 F. Supp.2d 528 (E.D.N.Y. 2004) – Refusal to process the application of a 51 year old candidate for the police department based on a state requirement that police applicants be under thirty five years of age held legitimately within the ADEA’s exception for law enforcement employment.

 

Graham v. Philadelphia, 402 F. 3d 139 (3d Cir. 2005) – Plaintiff, a probationary police officer, was terminated from employment following his arrest on charges of statutory rape involving a thirteen year old girl.  He was ultimately acquitted after trial and unsuccessfully sought reinstatement.  He sued, alleging the termination without administrative hearing denied him due process under the liberty interest clause of the 14th Amendment.  The Court held that assuming he had a protected liberty interest under these facts, the trial itself served the purpose of a name-clearing hearing.

 

McKinley v. City of Mansfield, 404 F. 3d 418 (6th Cir. 2005) – Plaintiff was given the standard Garrity warnings and interviewed by internal affairs regarding alleged improper use of his police scanner.  Because his statements differed from other officers interviewed, a second interview was conducted, again preceded by Garrity warnings.  Plaintiff changed his story in the second interview and was ultimately prosecuted (with subsequent conviction reversed) for giving false statements in the first interview.  In Plaintiff’s s. 1983 action, the Court allowed the case to proceed, finding that if by the second interview, the department was also investigating untruthfulness, then Garrity (and hence the 5th Amendment) were violated by the use of the second compelled statement in the subsequent prosecution.

 

Bizzarro v. Miranda, 394 F.3d 82 (2d Cir. 2005) – Corrections officers, who had discipline initiated against them for refusing to assist internal investigators in uncovering evidence of contraband smuggling sued alleging violations of equal protection and the 14th Amendment.  The Court dismissed the complaint, finding among other things, that “encouraging cooperation with internal investigations is a legitimate interest of the DOC.”

 

Greenawalt v. Indiana Department of Corrections, 397 F.3d 587 (7th Cir. 2005) – Court held that compelling employee to undergo psychological testing does not constitute a search under the Fourth Amendment, dismissing Plaintiff’s s.1983 complaint.

 

Babineaux v. Foster, 2005 WL 711604 (E.D. La. 2005) – Former assistant city attorney, now in private practice, not disqualified under state bar ethics rules from representing plaintiff suing the municipality he formerly represented, so long as he had not previously worked on this particular matter (and even though he had worked on the City’s behalf on a previous similar grievance involving the same party).