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Fire and Police Personnel Reporter
An employment law publication for law enforcement, corrections and the fire/EMT services,
ISSN 0164-6397 - Cite this issue as: 2007 FP Apr (web edit.)
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CONTENTS

Monthly Law Journal Article
(PDF format)
Associating With Known Criminals

Digest Topics

Applicant Rejections
Bargaining Unit Determinations (2 cases)
Certification Rights
Collective Bargaining - Duty to Bargain
Criminal Liability
Demotions
Disciplinary Appeals
Disciplinary Hearings - Proof
Disciplinary Interviews - Garrity
Disciplinary Procedures - Delays & Time Limits
Disciplinary Searches (2 cases)
Disciplinary Surveillance
Domestic Partner Rights
Drug Screening and Specimen Testing
Free Speech
Hearing (Audio) Impairment
Job Classification Rights
Political Activity
Race Discrimination - General (3 cases)
Race: Reverse Discrimination
Resignations
Retaliatory Personnel Action (3 cases)
Retirement Rights and Benefits
Sex Discrimination
Sexual Harassment (2 cases)
Union and Associational Activity
Workers' Compensation

Resources

Cross_References

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AELE Seminars:
Public Safety Discipline and Internal Investigations
San Francisco April 23-25, 2007

Lethal and Less Lethal Force
Las Vegas -- November 12-14, 2007

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

     Some of the case digests do not have a link to the full opinion.

Applicant Rejections

     Federal court rejects a breach of contract claim against a town and the fire chief for not hiring the plaintiff as a fulltime firefighter, because the chief lacked hiring authority. However, it is another question if the fire chief made a promise to recommend the plaintiff for hiring, breached that promise, and the plaintiff reasonably relied on it. Mailloux v. Town of Littleton, #05-10762, 2007 U.S. Dist. Lexis 3750 (D. Mass. 2007).

Bargaining Unit Determinations

     In a union certification appeal, "part-time" volunteer firefighters were properly excluded from the bargaining unit because they did not meet the definition of "public employee" under Florida Statutes §447.203(3). City of Marathon v. Prof. F/F L-4396, #3D06-364, 2006 Fla. App. Lexis 21562 (3rd App. Dist. 2006).

     Ninth Circuit declines to overturn an appeal by federal Agricultural Inspectors that were excluded from the same bargaining unit as Customs Inspectors. NAAE v. FLRA, #06-71671, 2007 U.S. App. Lexis 444 (9th Cir. 2007).

Certification Rights, Standards and Procedures

     There was sufficient admissible evidence to decertify an officer that was accused of having sex with a child under the age of sixteen, and making a false statement about doing so. Dieguez v. FDLE, #3D04-1894, 2007 Fla. App. Lexis 50 (3rd App. Dist. 2007).

Collective Bargaining - Duty to Bargain

     A city's decision to hire retirees to overcome an acute shortage of police officers, which could not be remedied by the ordinary processes of recruitment and hiring, is a fundamental managerial policy decision and promotes public safety. Management has no duty to meet and confer with the affected bargaining units. Sacramento P.O.A. v. City of Sacramento, #C042493, Cal. App. Lexis 122 (3d App. Dist. 2007).

Criminal Liability

     Police officer was lawfully convicted under the federal Hobbs Act (18 U.S. Code §1951) for extorting payments from bar owners in return for not frequenting their establishments and intimidating the patrons. The Hobbs Act requires only de minimis proof of an effect on interstate commerce. U.S. v. Davis, #05-6882, 2007 U.S. App. Lexis 906 (6th Cir. 2007).

Demotions

     Arbitrator confirms a demotion from sergeant to patrol officer after the grievant failed to report that he struck a curb with his cruiser. His recent disciplinary record consisted of one suspension and five written reprimands, which was more than the entire police force combined. Instead of competently supervising others, the grievant was in need of close supervision. City of Richmond Heights and FOP L-57, 123 LA (BNA) 232 (Lalka, 2006).

Disciplinary Appeals & Challenges - In General

     Administrative Law Judge should not have dismissed an appeal that was 1-day late. The appellant attempted to appeal his demotion electronically but repeatedly received "timed out" messages and his several attempts to log on again were unsuccessful. Other users reported having problems using e-appeal software during this time period. The U.S. Merit Systems Protection Board found that the appellant had demonstrated good cause for the untimely filing of his appeal. Boykin v. U.S. Postal Service, #SF-0752-06-0593-I-1, 2007 MSPB 5 (MSPB 2007).

Disciplinary Hearings - Proof Required

     Merit Board, in a case where a federal firefighter was demoted for "allowing" false time cards to be processed, ruled that the agency was required to show (1) that the time cards were false, not merely incorrect, and (2) that the firefighter intentionally allowed the false time cards to be processed. George v. Dept of the Army, Docket #SF-0752-06-0316-I-1, 2007 MSPB 31 (MSPB 2007).

Disciplinary Interviews & Compelled Reports

***Editor's Case Alert***

     California appellate court rules that a public employee facing an internal disciplinary interview cannot be compelled to waive the Fifth Amendment right against self-incrimination by means of a "Garrity" assurance that his or her answers are inadmissible in a criminal case. The employee must be given formal immunity from use of the statement or its fruits in any future prosecution, before being ordered to answer a question. (The justices disregarded the California Supreme Court's 1985 decision in Lybarger v. City of Los Angeles, 40 Cal. 3d 822, 710 P.2d 329, 221 Cal.Rptr. 529, which elaborated on the rights enunciated in the U.S. Supreme Court's 1967 decision in Garrity v. New Jersey, 385 U.S. 493). Spielbauer v. County of Santa Clara, #H029345, 146 Cal. App. 4th 914, 53 Cal. Rptr. 3d 357, 2007 Cal. App. Lexis 40 (6th Dist.).

Disciplinary Procedures - Delays & Time Limits

     Appellate court orders dismissal of disciplinary charges against San Francisco police officers because (1) the statute of limitations bars the proceeding and (2) the SFPD failed to conduct a timely review of the charges in conformity with its own internal regulations. Bettencourt v. C&C of San Francisco, # A112880, 2007 Cal. App. Lexis 50 (1st App. Dist. 2007).

Disciplinary Searches

     Seizure of a federal government employee's work computer by internal investigators was lawful because she was accused of having divulged official information to her husband, and had nothing to do with her race or national origin. Plasai v. Mineta, #05-10716, 2006 U.S. App. Lexis 31976 (Unpub. 5th Cir. 2006).

     Although a person has a legitimate expectation of privacy in his workplace office, the employer retained the ability to consent to a search of his office and his computer by law enforcement officers. U.S. v. Ziegler, #05-30177, 2007 U.S. App. Lexis 1952 (9th Cir. 2007).

Disciplinary Surveillance

     A partially paralyzed employee was not terminated because of her disability. She was observed on a security camera making obscene gestures with her middle finger and covering up an on-premises security camera. Oates v. Chattanooga Pub. Co., 205 S.W.3d 418, 2006 Tenn. App. Lexis 190, 17 AD Cases (BNA) 1702; appeal denied, 2006 Tenn. Lexis 865.

Domestic Partner Rights

     Michigan appellate court holds that a voter-adopted constitutional amendment invalidated the recognition of unions similar to marriage "for any purpose," and that employers may not recognize partnership agreements for the purpose of providing health benefits to the domestic partners of employees (whether heterosexual or the same gender). The panel rejected the result reached in Alaska C.L.U. v St. of Alaska, 122 P.3d 781 (2005), because the Alaska marriage amendment did not contain the "for any purpose" or "similar union" language found in Michigan's marriage amendment. National Pride at Work v. Gov. of Michigan, #265870, 2007 Mich. App. Lexis 240 (2007).

Drug Screening and Specimen Testing

     A technical break in the chain of custody of a urine sample is not sufficient grounds to overturn a termination; the appellant must show that the sample was tampered with. Williams v. Roche, #00-1288, 2007 U.S. Dist. Lexis 1470 (E.D. La. 2007).

Free Speech

     Supreme Court's decision in Garcetti bars a police officer's First Amendment claim of retaliation for his speaking out about a canine training reduction. Officer was reassigned and ordered to take a fitness-for-duty psychological test. Haynes v. City of Circleville, #06-3070, 2007 U.S. App. Lexis 1617 (6th Cir. 2007).

Hearing (Audio) Impairment

     Firefighter applicant with an audio impairment was not entitled to wear a hearing aid during his preemployment physical Carleton v. Commonwealth, #9564, 447 Mass. 791, 858 N.E. 258, 2006 Mass. Lexis 690.

Job Classification Rights

     N.Y. court determines that the act of reclassifying all other fire captains as deputy chiefs except the plaintiff, a disabled captain, was actually an unlawful demotion. Gresis v. Fairview Fire Dist., #06-22250, 2007 NY Slip Op 27018, 2007 N.Y. Misc. Lexis 122 (Sup. Westchester Co. 2007).

Political Activity/Patronage Employment

     Pennsylvania law banning political endorsements by state workers did not apply to officers of a corrections union who were on official leave for association purposes, even if their state salaries continued while on leave. Pinto v. Civil Serv. Cmsn., #70 MAP 2005, 2006 Pa. Lexis 2519 (Pa. 2006).

Race Discrimination - In General

     In an action challenging a fire dept. promotional exam, disproportionate rankings, standing alone, do not support an equal protection claim. Bolton v. City of Bridgeport, #3:04cv670, 2006 U.S. Dist. Lexis 93863 (D. Conn.).

     Statistical evidence of a racial disparity in state police hiring practices did not establish a prima facie disparate impact case under Title VII. There was no proof that a policy of automatically disqualifying applicants with a criminal record caused the disparity. Foxworth v. Penn. St. Police, #05-5571, 2007 U.S. App. Lexis 2230 (Non-Precedential,. 3rd Cir.).

     DEA did not discriminate against a rejected minority applicant when it declined to hire him because a background check revealed immaturity and he received a marginal rating on a psychological evaluation. The DEA had legitimate, nondiscriminatory reasons for not hiring the applicant. Hunt v. Gonzales, #06-10375, 2007 U.S. App. Lexis 1962 (Unpub. 11th Cir. 2007).

Race: Reverse Discrimination

     Seventh Circuit overturns the damages portion of a multi-million dollar award to 17 white police lieutenants that were passed over for captain when the city chose to promote minority candidates instead. The punitive damages awarded against each Police Commissioner was the same, even though some Commissioners sat on the Board over a significantly smaller number of promotions than others. The suit was remanded for a recalculation of damages by a new jury. Alexander v. City of Milwaukee, #06-1505, 2007 U.S. App. Lexis 1011 (7th Cir. 2007).

     Note: See our original article in the June, 2005 issue.

Resignations

     After a Sheriff's Dept. employee was denied a transfer, he quit and sued for constructive discharge. There was no proof that the conditions of his work environment were so intolerable that the conditions compelled resignation, and the action was dismissed. Dixon v. Bradshaw, #06-10332, 2007 U.S. App. Lexis 5 (Unpub. 11th Cir.).

Retaliatory Personnel Action

     Although the appellant deputy sheriff engaged in protected activity by filing discrimination complaints and internal grievances for more than 20 years, management passed her over for promotion because she had scored the lowest on the sergeant's exam, and there was no proof the exam was discriminatory. Gary v. Hales, #06-12545, 2007 U.S. App. Lexis 7 (Unpub. 11th Cir.).

     Although the appellant alleged that management terminated him in retaliation for testifying against fellow corrections officers about the mistreatment of inmates, the county offered proof that he was fired for abandoning his job. Espinosa v. Co. of Union, #05-4278, 2007 U.S. App. Lexis 391 (3rd Cir. 2007).

     Standing: In a retaliation claim, the fact that a friend of the employee filed a discrimination complaint did not mean that the employee had engaged in a protected activity, unless the employee actually participated in that charge. Ramirez v. Gonzales, #06-40751, 2007 U.S. App. Lexis 2041 (5th Cir. 2007).

Retirement Rights and Benefits

     A police officer who was a member of the bargaining unit is bound by the pension terms of a bargaining agreement (CBA), even if he did not agree to the contents. Norcini v. City of Coatesville, #660 C.D. 2006, 2007 Pa. Commw. Lexis 21 (2007).

Sex Discrimination - In General

     Even if an employee is reinstated (with full back pay, salary, and benefits) to her former position only eight day, a reverse termination is an adverse employment action. Ford-Fugate v. FedEx Freight, #1:04-cv-1514, 2007 U.S. Dist. Lexis 950 (S.D. Ind.).

Sexual Harassment - In General

     Occasional incidents of sexually "inappropriate" language by co-workers were not severe and pervasive enough to show that female correctional employee faced a hostile work environment constituting sexual harassment in violation of federal law. The complained of remarks were "isolated" incidents, offhand comments, and simple "teasing." Benny v. Penn. Dept. of Corrections, #05-5499, 2006 U.S. App. Lexis 28596 (3rd Cir.).

     Seventh Circuit finds no liability in a sexual harassment suit against a Wisconsin county. Management took reasonable care to prevent and correct any harassing behavior and the plaintiffs failed to take advantage of any preventive or corrective opportunities that the county provided. There was no evidence that the plaintiffs suffered an adverse employment action and management demoted the supervisor. Jackson v. County of Racine, # 05-4070, 99 FEP Cases (BNA) 1025, 2007 U.S. App. Lexis 1635 (7th Cir.).

Union and Associational Activity

     Federal appeals court rules that a security guard firm could enforce an anti-fraternization rule regarding workplace romances, but it could not prevent employees from discussing working conditions with each other or with representatives of the client organization where they are assigned. A chain-of-command rule or a no-fraternization rule cannot interfere with, restrain, or coerce employees" in the exercise of their right to collective action. Guardsmark v. NLRB, #05-1216, 2007 U.S. App. Lexis 2263 (D.C. Cir.).

Workers' Compensation - Claim Validity

     A physician's opinion for purposes of responding to an employee's disability pension form does not determine the outcome of a workers' compensation claim. State ex rel. City of Lancaster, v. Industrial Cmsn. of Ohio, #05AP-1269, 2006 Ohio 6946, 2006 Ohio App. Lexis 6864 (10th App. Dist.).

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RESOURCES

     DoJ COPS labor-management publications:

     Outsourcing: Privatization and the Federal Government: An Introduction, Congressional Research Service #RL33777 (Dec. 28, 2006).

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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CROSS REFERENCES
Criminal Liability - see: Disciplinary Searches
Demotions - see: Job Classification Rights
Disciplinary Punishment - see: Demotions
Internet/Legal Issues - see: Disciplinary Searches
Handicap Discrimination - see: Disciplinary Surveillance
Psychological Exams - see: Free Speech
Unfair Labor Practice - see: Union and Associational Activity


AELE Seminars:
Public Safety Discipline and Internal Investigations
San Francisco April 23-25, 2007

Lethal and Less Lethal Force
Las Vegas -- November 12-14, 2007

Click here for more information about all AELE Seminars



Return to the Contents menu.
Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.

© Copyright 2007 by A.E.L.E., Inc.
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