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An employment law publication for law enforcement, corrections and the fire/EMT services,
ISSN 0164-6397 - Cite this issue as: 2007 FP Jan (web edit.)
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MONTHLY CASE DIGEST
Some of the case digests do not have a link to the full opinion.
Arbitration Punishment Awards - Right of Courts to Interfere
Ohio appellate court declines to set aside an arbitration award that reduced the punishment of a corrections officer that temporarily left his post. Cuyahoga County Sheriff's Dept. vs. Ohio P.B.A., #87620, 2006 Ohio App. Lexis 5735 (8th App. Dist. 2006).
Back Pay Claims and Awards
Arbitrator awards back pay, but not front pay, to terminated private security officers that viewed a pornographic video feed while assigned to a federal building. Wackenhut Corp. and United Govt. Security Ofcrs. L-36, 122 LA (BNA) 1623, FMCS Case #06/50898 (Landau, 2006).
Certification Rights, Standards and Procedures
Even though his rank was not reduced, a Tennessee police officer is allowed to sue because he was decommissioned after settling an equal employment opportunity complaint against his employer. "Decommissioning resulted ... in ... a reassignment ... and a loss of shift differential pay." Scales v. Metro. Govt. of Nashville & Davidson Co., #3:05-0553 (M.D. Tenn. 2006).
Collective Bargaining - Duty to Bargain
Massachusetts labor authority could require a city to adopt the firefighter union's proposal to switch to 24-hour shifts; the matter was within the scope of collective bargaining and thus subject to arbitration. Intl. Assn. of Fire Fighters L-2071 v. Bellingham, #05-P-516 67 Mass. App. Ct, 502, 854 N.E.2d 1005, 2006 Mass. App. Lexis 1013 (2006).
Federal appeals court rejects a federal, line of duty, death benefits claim for a volunteer member of a sheriff's posse that was fatally thrown from her horse, because: (1) there was no evidence that the deceased had authority to enforce criminal law; (2) the rounding up of wild horses is not an activity involving enforcement of the criminal law under the Public Safety Officers' Benefits Act, 42 U.S. Code §§ 3796; (3) the deceased was not authorized to carry firearms or to exercise police power, and (4) she had received no formal police training. Hawkins v. U.S., #06-5013, 2006 U.S. App. Lexis 28469 (Fed. Cir. 2006). Defamation
Police chief's defamation claim against the mayor is dismissed, even if the mayor acted with malice, a defamation action against a city official for disciplining the plaintiff was barred by absolute immunity. Schultea vs. City of Patton Village, #H-06-0666, 2006 U.S. Dist. Lexis 78381 (S.D. Tex. 2006).
Appellate court rejects the claims of a police chief that he was defamed in a mayoral report. Jackson v. City of Columbus, #05AP-1035, 2006 Ohio App. Lexis 5166 (10th App. Dist. 2006).
Disability Rights and Benefits - Benefit disputes
Arbitrator upholds management's decision to exclude sick leave, vacation pay, and holiday pay from a police officer's severance pay during the period she received workers' comp. benefits. There was a long-standing past practice to deny those benefits while officer is on disability leave. City of White Bear Lake and Law Enf. Labor Serv., BMS Case #05-PA-643, 122 LA (BNA) 1589 (Daly, 2006).
Because it is part of a police officer's normal duties to chase suspects in the process of arresting them, a N.Y. appellate court has held that the incident emanated from a risk inherent in the police officer's regular job duties. The officer did not qualify for accidental disability retirement benefits. Pappalardo v. Hevesi, #500823, 2006 NY Slip Op 08312, 2006 N.Y. App. Div. Lexis 13607 (3rd Dept. 2006).
Terminated police officer did not have standing to challenge whether a disciplinary procedure ordinance had been properly adopted, because he was not a resident of the town. Gizzo v. Town of Mamaroneck, #2004-11097, 2006 NY Slip Op 08130, 2006 N.Y. App. Div. Lexis 13350 (2d Dept. 2006).
Disciplinary Evidence - Admissibility/In General
An attack on Breathalyzer evidence was not relevant at a disciplinary hearing because there was independent evidence that the employee had consumed alcohol while on duty. Compton v. Dept. of Justice, #06-3113, 2006 U.S. App. Lexis 25487 (Fed. Cir. 2006).
Disciplinary Offenses - In General
Appellate court sustains the removal of a Customs and Border Protection Officer for possession of illegal drugs. It was not necessary for him to be convicted of a criminal offense for the termination to be sustained. Wilson v. Dept. of Homeland Security, #2006-3276, 2006 U.S. App. Lexis 28463 (Fed. Cir. 2006); 2006 MSPB Lexis 2191 affirmed.
Disciplinary Punishment - In General
Arbitrator sustains the termination of a state college worker that falsified his work time. Cincinnati St. T&C College and IUOE L-20, 122 LA (BNA) 1473 (Murphy, 2006).
FLSA - 7K Exemption
Cross-trained firefighter/paramedics were entitled to overtime pay under the Fair Labor Standards Act. The paramedics were not responsible for fire suppression and did not qualify for the overtime exemption under 29 U.S. Code § 207(k). Weaver v. C&C of San Francisco, #C03-1589, 2006 U.S. Dist. Lexis 62650 (N.D. Cal. 2006), on remand from 158 Fed. Appx. 921, 2005 U.S. App. Lexis 28239 (9th Cir. 2005).
Eleventh Circuit finds that a terminated sheriff's employee who challenged policies and internal decisions spoke in his professional capacity rather than as a concerned citizen and thus his First Amendment claim failed. Eggleston v. Bieluch, #05-16256, 2006 U.S. App. Lexis 24799 (11th Cir. 2006) prior case at 107 Fed. Appx. 182.
Funding Disputes & Reimbursement for Services
City agrees to cease and desist from future violations of the federal Securities Act after it was accused of failing to disclose its pension and retiree health care obligations before floating municipal bonds. In re City of San Diego, Admin. Proc. File #3-12478 (SEC 2006).
Homosexual & Transgendered Employee Rights
Massachusetts appellate court affirms a $623,600 damages award to a homosexual corrections officer who claimed that he was discriminated against and forced out of his job because of his sexual orientation. The court also should be awarded interest on his backpay and emotional distress damages. Salvi v. Suffolk Co. Sheriff's Dept., #05-P-1047, 67 Mass. App. Ct. 596,855 N.E.2d 777, 2006 Mass. App. Lexis 1073 (2006).
Political Activity/Patronage Employment
Federal court refuses to dismiss a First amendment claim brought by furloughed city workers who claimed that the mayor retaliated against them for their political activities by not rehiring them. Cochran v. City of Huntington, #1:05-CV-249, 2006 U.S. Dist. Lexis 71873, prior ruling at 2006 U.S. Dist. Lexis 39516 (N.D. Ind., 2006).
Federal court rules against applicants who were rejected by the FBI and Secret Service because they failed a polygraph examination; those agencies legitimately can inquire about an applicant's financial status, drug use, health, and criminal history. Croddy v. FBI, #00-651, 2006 U.S. Dist. Lexis 71823, 25 IER Cases (BNA) 272 (D.D.C. 2006).
Race Discrimination - In General
Federal court rejects discrimination claim. The plaintiff was not similarly situated to the person selected as deputy chief of police. The successful candidate had higher education qualifications and the plaintiff had received disciplinary action in the past. Diaz v. City of Inkster, 2006 U.S. Dist. Lexis 83733 and 53456 (E.D. Mich. 2006).
Los Angeles Mayor Antonio Villaraigosa vetoes a city council approved settlement of $2.7 million for a black firefighter who was served dog food in his spaghetti dinner by white firefighters at the fire station. Pierce v. City of Los Angeles, #BC 345845, 180 Labor Rel. Rptr. (BNA) 373, 44 (2182) G.E.R.R. (BNA) 1224 (L.A. Super. 2006); City Claim #C05-47L4, City Council Agenda #06-1305. Veto message: Remarks regarding LAFD hazing settlement (11/20/2006).
Federal court rejects an employer's view that discriminatory conduct by coworkers was not severe or pervasive and did not create a hostile environment. Campbell v. Avis, #05-74472, 2006 U.S. Dist. Lexis 72509 (E.D. Mich. 2006).
Retaliatory Personnel Action
Former Homeland Security officer wins $220,000 in back pay, $780,000 in front pay, and $1.5 million for mental anguish after he was transferred and later terminated in retaliation for filing a disability and race discrimination lawsuit. Hudson v. Chertoff, #05-cv-60985, 44 (2182) G.E.R.R. (BNA) 1220 (S.D. Fla. 2006); prior ruling at 2006 U.S. Dist 69044.
Retirement Rights and Benefits
Merit Board holds that a claimant was not entitled to enhanced retirement benefits; although the maintenance of firefighting equipment may be indirectly connected to firefighting, it does not meet the definition of "firefighter" under 5 U.S. Code §8401(14). Weatherby v. Dept. of the Interior, #06-3121, MSPB #SF-0842-05-0195-I-2, 2006 U.S. App. Lexis 26641 (Fed. Cir. 2006).
Sexual Harassment - In General
A single request for a date is not a request for sex. Stone-Clark v. Blackhawk, #04-0373, 2006 U.S. Dist. Lexis 79353 (D.D.C. 2006).
Simple teasing and isolated incidents, unless extremely serious, do not constitute a hostile work environment. Benny v. Penn. Dept. of Corr., #05-5499, 2006 U.S. App. Lexis 28596 (3rd Cir. 2006); 400 F.Supp.2d 831 affirmed (W.D. Pa.).
Federal court dismisses a sexual harassment suit filed by a woman firefighter who failed to file a written complaint against her superior. Hogan v. City of El Dorado, #04-CV-1084, 2006 U.S. Dist. Lexis 71218 (W.D. Ark. 2006).
Sexual Harassment - By Inmates in Correctional Facilities
Federal appeals court affirms judgment for a woman corrections employee that was raped by an inmate janitor. The plaintiff previously complained about the inmate's behavior, but no remedial action was taken. Erickson v. Wis. Dept. of Corr., #05-4516, 2006 U.S. App. Lexis 28125 (7th Cir. 2006); 2005 U.S. Dist. Lexis 19529 affirmed (W.D. Wis.).
Sexual Harassment - Verdicts, Settlements & Indemnity
Woman Illinois State Police sergeant, who alleged that she was sexually harassed by her supervisor and then received negative performance ratings and inferior work assignments after she complained, wins a jury verdict of $146,000. Storey v. Ill. State Police, #05CV-4011, verdict (S.D. Ill. 2006); prior rulings at 2006 U.S. Dist. Lexis 8127 and 57970.
Sick Leave and Abuse
New San Francisco voter initiative requires employers to provide one hour of paid sick leave for every 30 hours worked by any employee (full-time, part-time or temporary). Organizations with 10 or fewer employees must offer a maximum of 5 days per year per worker, and larger employers max out at 9 days per year. The time can be also can be used to care for a sick child or partner. Employees are allowed to accrue up to 40 hours of paid sick leave if they work for a small employer and up to 72 hours for organizations with 10 or more workers. Proposition F, enacted 11-07-2006.
Workers' Compensation - Claim Validity
Applying the last injurious exposure rule, the Nevada Supreme Court puts responsibility for a firefighter's disability compensation on the last of his two employers. Employers Ins. Co. of Nevada v. Daniels, #44575, 2006 Nev. Lexis 120, 122 Nev. Adv. Opin. 88 (2006).
Workers' Compensation - Exclusive Remedy
Federal court concludes that unpaid volunteer firefighters in Louisiana are not covered by workers' compensation. Dillon v. Washington Parish Fire Dist., #04-1639, 2006 U.S. Dist. s 63583 (E.D. La. 2006).
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Airborne infections: OSHA issues "Guidance for Protecting Employees Against Avian Flu"
Whistleblower Protection: Online book, "Whistleblowing: When It Works--And Why."
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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First Amendment Related - see: Political Activity
Past Practices Clauses - see: Disability Benefits
Privacy Rights - see: Polygraph Exams
Retaliatory Personnel Action - see: Sexual Harassment - Verdicts
Public Safety Discipline and Internal Investigations
San Francisco – April 23-25, 2007
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