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Las Vegas -- November 12-14, 2007

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Las Vegas Dec. 10-12, 2007

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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 Aug (web edit.)
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CONTENTS

Monthly Law Journal Article
Legal Aspects of Training Injuries -- Part One
2007 (8) AELE Mo. L. J. 201
(PDF format)

Digest Topics

Arbitration Procedures

Attorney-Client Confidentiality
Attorneys' Fees
Civil Liability
Disciplinary Discovery
Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment (2 cases)
Disciplinary Searches
English Only Rules
First Amendment Related
Free Speech (2 cases)
Fringe Benefits
Grievance Procedures
Handicap Discrimination - In General (2 cases)
Handicap Discrimination - Employee Medical Exams
Health Insurance & Benefits
Injuries to Employees
Past Practices
Pay Disputes - Overtime
Political Activity
Privacy Rights
Probationary Employment
Psychological Exams - Applicants
Race Discrimination
Resignations
Retaliatory Personnel Action
Retirement Rights and Benefits
Sexual Harassment Verdicts
Stress Related Claims and Defenses
Transfers

Resources

Cross_References

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

Public Safety Discipline and Internal Investigations
Las Vegas Dec. 10-12, 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.

Arbitration Procedures

     Appellate court concludes that nonparties to an arbitration between another union and the city lack standing, under statute or common law, to set aside the award and the police union's claims of harm were too speculative to give rise to a cognizable interest. P.B.A. v Dist. Council 37 AFSCME, #117494/04, 2007 N.Y. App. Div. Lexis 3870, 2007 NY Slip Op 02620

Attorney-Client Confidentiality & Ethics

     The fact that a Milwaukee Police liaison officer, who was president of the police union, was present when an officer conferred with his attorney does not erode the officer's claim of attorney-client privilege, because the liaison officer's presence was for the purpose of assisting the attorney. Jenkins v. Bartlett, #06-2495, 2007 U.S. App. Lexis 9228 (7th Cir.).

Attorneys' Fees and Legal Defense Rights

     Federal court approves an award of attorneys' fees of $642,874 in a Title VII gender discrimination case. The case was fiercely litigated, and the city contested every move the officers made. The plaintiff ultimately recovered $325,000 in damages. O'Sullivan v. City of Chicago, #01Cv9856, 2007 U.S. Dist. Lexis 18421 (N.D. Ill.).

Civil Liability

     Tenth Circuit reinstates a malicious prosecution damages claim in the case of a former corrections officer that was criminally charged with sexual misconduct with inmates. He alleged the sheriff and a sergeant delayed or withheld exculpatory evidence that prolonged the investigation. Robinson v. Arapahoe Co. Sheriff, #06-1170, 2007 U.S. App. Lexis 7219 (10th Cir.).

Disciplinary Discovery

     Lieutenant who faced disciplinary action initiated by two subordinate sergeants was not untitled to a disclosure of the sergeants' disciplinary records. The records had no direct bearing on any issue in the lieutenant's case other than the credibility of the sergeants. Crowe v. Kelly, #103504/05, 2007 N.Y. App. Div. Lexis 3846, 2007 NY Slip Op 2603.

Disciplinary Punishment - In General

     Arbitrator upholds a three-day suspension of an employee who called a manager a "fucking bitch." Greater Dayton Reg. Transit Auth. and ATU L-1385, AAA Case #52-390-00517-06, 123 LA (BNA) 948 (Bell, 2007).

Disciplinary Punishment - Disparate Treatment

     Eleventh Circuit rejects the claims of a terminated, probationary, port authority communications officer that failed to appear for work during a hurricane alert and took her daughter to another city. All probationary employees that did not report for work were fired, and permanent employees were suspended or demoted. The plaintiff failed to prove that other employees were treated more favorably because of their race. Catanzaro v. Lyons, #06-16225, 2007 U.S. App. Lexis 9365 (11th Cir.).

     Appellate court affirms the termination of a federal employee for misuse of a vehicle and falsification of official travel documents. He slept in his government vehicle and submitted fabricated hotel receipts. The panel rejected the defense that "everyone in the Weather Service that has traveled has included false information on their travel vouchers." Mullings v. Dept. of Commerce, #06-3284, 2007 U.S. App. Lexis 10648 (Unpub. Fed. Cir.).

Disciplinary Searches

     "Requiring a prison guard to submit to a breathalyzer is ... an administrative search that does not automatically implicate Fourth Amendment concerns" because "operation of a government office, school, or prison ... presents special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. A breathalyzer test, by its nature, does not implicate serious privacy concerns because breath tests reveal the level of alcohol in the employee's bloodstream and nothing more." Majewski v. Luzerne Co. Corr. Facility, #3:05cv2396, 2007 U.S. Dist. Lexis 26056 (M.D. Pa.), relying on Skinner v. Rwy. Lab. Exec. Assn., 489 U.S. 602 at 620 (1989).

English Only Rules

     Federal court upholds an English-only workplace rule in a taxicab dispatch office. Gonzalo v. All Island Transp., 100 FEP Cases (BNA) 591, 2007 U.S. Dist. Lexis 13069 (E.D.N.Y.).

First Amendment Related

     Nebraska trial court overturns an arbitration award that reinstated a state trooper that was fired for his active membership in the Klan. State of Nebraska v. Henderson, Lancaster Co. Nebr. Dist. Ct.; Nebr. Ct. App. #A-07-000010 (Appeal pending).

Free Speech

     Correctional officer did not have a First Amendment right to post comments on a website comparing the sheriff to Adolph Hitler. The comments did not involve matters of public concern and were so insubordinate and disruptive of morale in the sheriff's department that his termination was justified. Curran v. Cousins, #06-10562, 2007 U.S. Dist. Lexis 25930 (D. Mass.).

     Seventh Circuit reverses a $210,000 verdict awarded to a corrections officer who claims retaliatory action. "The speech at issue here is a complaint [the plaintiff] made about having been prevented by her immediate supervisor from investigating a possible security breach while she was on duty and stationed at the prison's main gate. ... [She] was speaking not as a citizen but as a correctional officer charged with the duty to ensure the prison's safety and security. Accordingly, the First Amendment does not insulate her statements from employer discipline, and the judgment in her favor must be vacated." Spiegla v. Hull, #05-3722, 2007 U.S. App. Lexis 7396, 25 IER Cases (BNA) 1508 (7th Cir.).

Fringe Benefits

     U.S. Office of Personnel Management issues final regulations for compensatory time while in travel status. 5 CFR Part 550, 72 (73) Federal Register 19093.

Grievance Procedures

     Arbitrator finds that a union violated the bargaining agreement by withholding names of employees that had complained of a supervisor's harassment and by advising witnesses not to cooperate with management's investigation of the grievance. The union wanted the grievance to advance to arbitration and did not want a settlement at a lower step. Although the complainants feared retaliation, resolution of disputes at the lowest level is encouraged. U.S. Army Medical Material Agency and AFGE L-2484, FMCS Case #06/59248-1 & 07/00663, 123 LA (BNA) 897 (Hewitt, 2007).

Handicap Laws / Abilities Discrimination - In General

     Eighth Circuit holds that a county did not violate the ADA by terminating an untenured worker, following open heart surgery, where he lacked a property interest in his continued employment and expressly agreed in a contract that his "immediate termination" would result from taking leave without pay. Zwygart v. Bd. of Co. Cmsnrs., #06-3084, 2007 U.S. App. Lexis 9351 (8th Cir.).

     A fire captain, who was involuntarily reassigned to other duties after the loss of a leg during a duty-related accident, did not suffer an adverse employment action. Although he claimed that he earned less overtime in the new assignment, he failed to take advantage of overtime opportunities that were available to him. Malais v. Los Angeles City Fire Dept., #B189575, 150 Cal.App.4th 350, 2007 Cal. App. Lexis 666 (2d Dist.).

Handicap Laws / Abilities Discrimination - Applicant/Employee Medical Exams

     Federal court grants a summary judgment for an employer in an ADA lawsuit where the worker, who claimed to have carpal tunnel syndrome, refused to be retested. Allen v. BMW Mfg. Co., #7:05-2450, 2007 U.S. Dist. Lexis 24535 (D.S.C.).

Health Insurance & Benefits

     Arbitrator holds that management violated the bargaining agreement by charging higher medical co-payments without improving the coverage. Hamilton Co. Sheriff's Dept. and FOP Ohio, FMCS Case #06/00964, 123 LA (BNA) 851 (Dissen, 2007).

Injuries to Employees

     Appellate court upholds a Medical Board's determination that a police officer's seizure disorder was not caused by a line-of-duty injury suffered in 1998. Matter of Canonico v Kelly, #100183/04, 2007 N.Y. App. Div. Lexis 3841, 2007 NY Slip Op 02611.

Past Practices, Precedents & Zipper Clauses Health

     Arbitrator rejects a grievance about how unused sick pay is calculated for buy-back purposes, where the parties have followed the same procedure for nineteen years. "...inconsistencies do not override the language of the CBA and the nineteen years of past practice in effect." City of San Antonio and POA, AAA #70-390-00210-06, 123 LA (BNA) 791 (Moore, 2007).

Pay Disputes - Overtime Claim

     Arbitrator holds that officers that were required to take random drug test after their shifts ended were not entitled to 4-hours pay for a work-related appointment "outside their standard daily work schedule," because they already were at work and the test was not a "work-related appointment." Sandia Nat'l Lab. and Security Police Assn., FMCS Case #06/58874, 123 LA (BNA) 779 (Hoose, 2006; reported 2007).

Political Activity/Patronage Employment

     Perceived slights and changed duties are not enough to demonstrate that working conditions were inferior; the plaintiff failed to show that she suffered an adverse employment action. Torres-Martinez v. Puerto Rico Dept. of Corrections, #06-1881, 2007 U.S. App. Lexis 9295 (1st Cir.).

Privacy Rights

     For procedural reasons, the Sixth Circuit dismisses an appeal brought by a Michigan city. Seven women state employees had been forced to disrobe and get hosed down by male city firefighters, because it was erroneously believed they had been exposed to anthrax powder. The jury awarded them $480,000, and the court awarded $53,000 in legal fees and costs. Allison v. City of East Lansing, #5:03-CV-156, 2005 U.S. Dist. Lexis 38443 (W.D. Mich.); appeal dismissed, #06-1173, 2007 U.S. App. Lexis 9568, 2007 Fed App. 0148P (6th Cir.).

Probationary Employment

     New York's highest court denies tenure to "provisional" public employees that were hired outside the civil service system; one had worked for the city for 19 years. A one-year tenure provision in the bargaining agreement was unenforceable because they were never legally hired. City of Long Beach v. Civil Serv. Emp. Assn., #54 (2007), 2007 N.Y. Lexis 893.

Psychological Exams and Standards - Psychological Screening of Applicants

     New York court rejects a judicial challenge brought by a police applicant. Although his personal doctor found no disabling conditions, two psychologists and a psychiatrist found that he lacked the skills necessary to carry out the functions of a police officer. The opinion of the applicant's privately retained expert was not controlling. Matter of Murray v. Co. of Nassau Civ. Serv. Cmsn., #000132/07, 2007 N.Y. Misc. Lexis 2579 (Nassau Co. Sup.).

Race Discrimination - In General

     In a Title VII race bias action, the mere fact that job assignments are discretionary does not equate to a prima facie case of discrimination. West v. Hudson Co. Corr. Center, #06-2523, 2007 U.S. App. Lexis 9672 (Unpub. 3rd Cir.).

Resignations

     Although an employee may feel compelled to resign because of employer actions that are perceived of as unfair, subjective feelings do not establish that a reasonable person would feel compelled to resign. Management's demands that an employee produce quality work and comply with agency policies are proper and would not prompt a reasonable person to resign. Shelborne v. Merit Systems Protection Board, #2007-3003, 2007 U.S. App. Lexis 11177 (Unpub. Fed. Cir.).

Retaliatory Personnel Action Race

     Federal court rejects a retaliation lawsuit filed by a police civilian worker that claimed superiors mistreated her after she reported seeing a lieutenant and a subordinate officer engaging in sex while in uniform. "Her statements depict a single event in the workplace, are devoid of any social commentary, and do not suggest an endemic problem that might impact the public or warrant its concern." Moreover, "no rational trier of fact could conclude [that she] was retaliated against for reporting an act of sexual harassment." De Los Santos v. City of N.Y., #02-Civ-8453, 2007 U.S. Dist. Lexis 2512 (S.D.N.Y.).

Retirement Rights and Benefits

     Federal court upholds a First and Eighth Amendment pension forfeiture challenge by a former police officer that was convicted of criminal civil rights violations. The ex-officer fatally shot a robbery suspect and coworker killed another. Other officers placed throw down weapons on the two deceased men and reported that the men were armed, in an effort to justify the shootings. Hames v. City of Miami, #06-22360-CIV, 2007 U.S. Dist. Lexis 25104 (S.D. Fla.). Note: The decision follows similar rulings in Kerner v. State Employees Retir. Sys., 72 Ill. 2d 507, 382 N.E.2d 243, 246 (1978) and Horsley v. Phila. Bd. of Pens. & Retir., 519 Pa. 264, 546 A.2d 1115 (1988).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Eleventh Circuit vacates a sexual harassment verdict of $400,000 and remands for an entry of judgment of $300,000. Bradshaw v. School Bd. of Broward Co., #06-13182, 2007 U.S. App. Lexis 11354 (11th Cir.).

Stress Related Claims and Defenses - Duty of Employer to Provide Treatment or Accommodation

     Illinois appellate court overturns the termination of a fire paramedic that physically and verbally abused a patient who was in physical and emotional distress. The disciplinary board failed to assess whether the paramedic's bipolar disorder and depression affected his actions. "... we conclude that it was unreasonable for the Board to have discharged plaintiff for cause without having made a specific finding as to whether plaintiff's illnesses were substantially related to his misconduct." The matter was remanded for evidentiary findings. Hermesdorf v. Wu, #2-05-0877, 25 IER Cases (BNA) 1703, 2007 Ill. App. Lexis 288 (2d App. Dist.).

Transfers - Non Disciplinary/Punitive

     Although assigned to the sheriff's aviation unit as part of a litigation settlement agreement, management was not obligated to keep the plaintiff in that assignment permanently. His transfer to other duties was neither disciplinary nor punitive. "... it was never contemplated that the agreement constituted a commitment by the Department for the remainder of [the plaintiff's] career." Benach v. Co. of Los Angeles, #B189151, 149 Cal.App.4th 836, 2007 Cal. App. Lexis 545 (2d App. Dist.).

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RESOURCES

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: Retirement Rights and Benefits
Emotional Distress - see: Privacy
First Amendment Related - see: Political Activity


AELE Seminars:

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

Public Safety Discipline and Internal Investigations
Las Vegas Dec. 10-12, 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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