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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 Feb (web edit.)
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CONTENTS

Monthly Law Journal Article
(PDF format)
Grooming and Appearance Rules for Public Safety Workers
Part Two - Tattoos, Piercings, Jewelry, Dental Ornamentation,
Cosmetics and Religious Headwear

Digest Topics
Bill of Rights Laws
Certification Procedures
Civil Service
Collective Barg. - Duty to Bargain (3 cases)
Death Benefits
Disability Rights and Benefits
Emotional Distress
Free Speech
Handicap Discrimination - Specific Disabilities
Military Leave (2 cases)
National Origin Discrimination
Past Practices
Pregnancy Discrimination
Privacy Rights (4 cases)
Race Discrimination (2 cases)
Reductions in Force
Retaliatory Personnel Action
Retirement Rights and Benefits
Sexual Harassment (3 cases)
Unfair Labor Practices
Union and Associational Activity
Wrongful Discharge (2 cases)

Resources

Cross_References

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MONTHLY CASE DIGEST

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

Bill of Rights Laws

     California appellate court orders that a written reprimand be removed from a LAPD sergeant's personnel file. Management failed to give him notice of any proposed disciplinary action within one year of the discovery of the alleged misconduct, as required by the Public Safety Officers Procedural Bill of Rights Act. Mays v. City of Los Angeles, #B188527, 2006 Cal. App. Lexis 1942 (2d Dist. 2006).

Certification Rights, Standards and Procedures

     Florida appellate court rules that an officer cannot, in a direct appeal, attack the competency of his legal counsel at a POST decertification hearing. "No Sixth Amendment right to counsel exists in the context of administrative proceedings involving the revocation of state-issued licenses." Mullins v. FDLE, #5D06-834, 2006 Fla. App. Lexis 20052 (5th Dist. 2006).

Civil Service

     President G. W. Bush delegates the authority to adopt special pay rates for federal employees that remedy recruitment and retention problems and, to designate as critical, certain categories of positions within an agency, that are eligible for higher pay. Executive Order 13415, signed Dec. 1, 2006, FR Doc. 06-9561, 71 (233) Federal Register 70639-70641 (12/5/06).

Collective Bargaining - Duty to Bargain

     Arbitrator rules that management committed an unfair labor practice by failing to bargain over a union request for union stewards to travel while on duty to attend a national labor convention. Internal Rev. Serv. and NTUE, 122 LA (BNA) 1673 (Abrams. 2006).

     New York appellate court rejects management's argument that it was not required to arbitrate a decision to stop reimbursement of Medicare premiums to retired firefighters. Although retired employees cannot initiate arbitration the union can act in their behalf, because the Medicare payments were recognized in the bargaining agreement. City of Elmira and IAFF L-709, #500650, 2006 NY Slip Op 08694, 2006 N.Y. App. Div. Lexis 13782 (2006).

     Pennsylvania appellate court holds that a county violated the state's Public Employee Relations Act by failing to engage interest arbitration with the union before contracting with a private firm to provide food services at the prison. Snyder Co. Prison Bd. v. Penn. Labor Rel. Bd., #118 C.D. 2006, 2006 Pa. Commw. Lexis 631 (Pa. Commw. Ct. 2006), affirming #PERA-C-04-450-E (PERB 2005).

Death Benefits

     A part-time special school zone police officer was not a "law enforcement officer" as defined in the federal public safety officer death benefits act. Cassella v. U.S., #06-5035, 2006 U.S. App. Lexis 29508 (Fed Cir. 2006) affirming 68 Fed. Cl. 189 (2005).

Disability Rights and Benefits - Line of duty related/ disputed

     Appellate court confirms a decision to deny a line of duty pension to a depressed firefighter/EMT; the underlying causes of the mental impairment were independent of his duties as a firefighter paramedic. Hammond v. Firefighters Pension Fund of Naperville, #2-06-0133, 2006 Ill. App. Lexis 1105 (2d App. Dist. 2006).

Emotional Distress

     A sheriff's failure to re-employ an officer after criminal charges against her were withdrawn is not so outrageous in character, or so extreme in degree as would support a claim for intentional infliction of emotional distress. Benard v. Washington Co., #06-527, 2006 U.S. Dist. Lexis 80188 (W.D. Pa.).

Free Speech

     Federal court holds that a firefighter, who was demoted after filing grievances relating to unsafe training conditions, spoke on a matter of public concern and the fire chief was not entitled to qualified immunity. Eudy v. Ridgeland, #3:06cv50, 2006 U.S. Dist. Lexis 84958 (S.D. Miss. 2006).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Deaf employee was not qualified for a transfer to the security detail that apprehends shoplifters. Barnhart v. Wal-Mart Stores, #06-12024, 2006 U.S. App. Lexis 27245, 2006 WL 3147301, 18 AD Cases (BNA) 1201 (11th Cir. 2006).

Military Leave

     Municipal employees can recover liquidated damages under the Veterans' Reemployment Rights Act of 1974, 38 U.S. Code §2021 and 4301-33. Maher v. City of Chicago, #03C3421, 2006 U.S. Dist. Lexis 87508 (N.D. Ill. 2006); prior decis. at 406 F. Supp. 2d 1006.

     Ninth Circuit upholds a jury verdict for a former police sergeant who was constructively discharged due, in part, to his military service. Wallace v. City of San Diego, #03-56552, 460 F.3d 1181, 2006 U.S. App. Lexis 21693, 180 LRRM (BNA) 2357 (9th Cir.).

National Origin Discrimination

     Tenth Circuit finds that a male Hispanic city employee failed to prove that the promotion of a white female was gender or national origin discrimination, due to her superior qualifications. Vigil v. City of Albuquerque, #05-2301, 2006 U.S. App. Lexis 29458 (Unpub 10th Cir. 2006).

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that management violated the bargaining agreement when it ended a 15-year practice that detectives could use city vehicles to and from work. City of Auburn Hills, Mich. and Police Officers Labor Council, FMCS Case #05/56241-8, 122 LA (BNA) 1761 (Sugerman, 2006).

Pregnancy Policies and Discrimination

     Pregnant police officer that was denied a light duty assignment was unable to show that males were treated more favorably. Tysinger v. Police Dept. of Zanesville, #05-3785, 463 F.3d 569, 2006 U.S. App. Lexis 24144, 98 FEP Cases (BNA) 1705 (6th Cir. 2006).

Privacy Rights

     Applicants who were rejected by the FBI and Secret Service after they failed polygraph examinations lacked a legal right to privacy about their drug use or medical, psychological, criminal, and sexual histories. Croddy v. FBI, #00-651, 2006 U.S. Dist. Lexis 71823, 25 IER Cases (BNA) 272 (D.D.C. 2006).

     Employees who discovered a hidden video camera installed in their office may pursue claim for invasion of privacy without proving that the video stream was recorded or viewed. The employer's suspicion that someone was using computers to view pornography at night hours did not justify invasion of their privacy. Hernandez v. Hillsides, #B183713, 142 Cal.App.4th 1377, 48 Cal.Rptr.3d 780, 25 IER Cases (BNA) 174 (Cal. App. 2d Dist. 2006).

     Ninth Circuit rules against a DEA forensic chemist who sued under the privacy act because the U.S. Attorney disclosed information to a criminal defendant that the chemist had lied in another proceeding. The disclosures qualify for the "routine use" exception to the Privacy Act, 5 U.S. Code §552a(b)(3) and there was no evidence of retaliation against the employee. Burnett v. DoJ, #04-56814, 2006 U.S. App. Lexis 30203 (Unpub. 9th Cir.),

     N.Y. appellate court holds that the NYPD could withhold personnel records from a prospective police employer, absent a waiver from an applicant. In re 35 New York City Police Officers v. City of New York, #101679/06, #9381N, 2006 NY Slip Op 08889, 2006 N.Y. App. Div. Lexis 14123 (1st App. Dept. 2006); also see 819 N.Y.S.2d 852, 2006 N.Y. Misc. Lexis 1038.

Race Discrimination - In General

     Federal appeals court rejects a suit filed by black police officers that complained that a sergeant's exam had a disparate impact; they failed to prove that a job performance-based system was less discriminatory than the test that was used. Adams v. City of Chicago, #05-4145, 2006 U.S. App. Lexis 28348 (7th Cir. 2006).

     Eighth Circuit rejects the discrimination complaints made by a black sergeant who alleged that he was denied promotions, training, and equal pay because of his race. Isolated comments about his hairstyle did not constitute specific, tangible evidence of discrimination. The successful white candidates scored higher than he did. Gammon v. Flowers, #06-1829, 2006 U.S. App. Lexis 29087 (8th Cir. 2006); 2006 U.S. Dist. Lexis 13947, affirmed (E.D. Ark.).

Reductions in Force

     Federal court holds that if a Pennsylvania Borough dissolved its police force in bad faith, affected officers would be entitled to a termination hearing. Baker v. Bor. of Port Royal, #1:CV-06-0932, 2006 U.S. Dist. Lexis 77198 (M.D. Pa. 2006).

Retaliatory Personnel Action

     Federal court allows a police officer to take to trial a claim that he was decommissioned after filing and settling an EEO complaint against his city. Scales v. Metrop. Govt. of Nashville & Davidson Co., #3:05-0553, 2006 U.S. Dist. Lexis 51282, 98 FEP Cases (BNA) 1114 (M.D. Tenn. 2006).

Retirement Rights and Benefits

     Because a sheriff's benefits plan resulted in younger workers who were disabled to receive higher benefits than older workers would receive, the EEOC established a prima facie violation of the ADEA, because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA) 180, 2006 FED App. 0405P (6th Cir.).

Sexual Harassment - In General

    U.S. Supreme Court declines to review an appellate decision that the FBI was not liable for the sexual harassment of a computer specialist that was "forced" to submit to her superior's sexual demands. The FBI had adequate procedures in place to address harassment and promptly took remedial action once she reported the problem. Lutkewitte v. Gonzalez, U.S., #00cv02484, 436 F.3d 248, 97 FEP Cases (BNA) 649 (D.C. Cir. 2006); cert den., #06-28, 2006 U.S. Lexis 9556, 75 U.S.L.W. 3312.

     A routine police uniform inspection regime is not a sexually hostile activity, even if a supervisor commented about her tight fitting clothes. Sword-Frakes v. City of N. Las Vegas, #2:04-CV-01718, 2006 U.S. Dist. Lexis 69524 (D. Nev.).

     Simple teasing and sporadic sexual remarks do not cause a hostile work environment, absent more severe and pervasive conduct. Benny v. Pennsylvania Dept. of Corrections, #05-5499, 2006 U.S. App. Lexis 28596 (3rd Cir. 2006).

Unfair Labor Practices - In General

     National Labor Relations Board affirms an ALJ's finding that the employer violated 8(a)(1) of the Act by initiating a drive to decertify a union and then coercing its employees to support the decertification drive. Corrections Corp. of Amer. and Int. Union, Security, Police, and Fire Prof. of Amer., #21-CA-36223, 2006 NLRB Lexis 297, 347 NLRB No. 62 (2006).

Union and Associational Activity

     Federal jury rejects claims by the former AFGE president who alleged that the union and its officers retaliated against him for making controversial statements. He was ordered to pay more than $25,000 in costs. Commer v. McEntee, #00Civ.7913, 44 (2186) G.E.R.R. (BNA) 1326; facts and prior ruling at 2006 U.S. Dist. Lexis 82395, 180 LRRM (BNA) 3105 (S.D.N.Y. 2006).

Wrongful Discharge - In General

     Former Chief of Police could sue for wrongful termination because the city charter created a constitutionally-protected property interest. Bolton v. City of Dallas, Texas, # 05-11141, 2006 U.S. App. Lexis 30083 (5th Cir. 2006).

     Private employee wins federal lawsuit for wrongful termination after sending her boss a written complaint that her retirement plan was not being properly funded. The letter was a protected activity under ERISA. Simons v. Midwest Telephone, #05-1120, 2006 U.S. Dist. Lexis 82424; prior ruling at 433 F. Supp. 2d 1007 (D. Minn. 2006).

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RESOURCES

     Counterinsurgency, intelligence and surveillance manual: U.S. Army Field Manual 3-24 on Counterinsurgency (202 pp., Dec. 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
Grievances - see: Free Speech
Hearing Impairment- see: Handicap Discrimination
Polygraph Examinations- see: Privacy Rights


AELE Seminars:
Public Safety Discipline and Internal Investigations
San Francisco April 23-25, 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
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© Copyright 2007 by A.E.L.E., Inc.
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but may not be republished for commercial purposes.


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