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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 July (web edit.)
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CONTENTS

Monthly Law Journal Article
Relatives and Romance: Nepotism and Fraternization
2007 (7) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Age Discrimination - Retirement
Bargaining Unit Determinations
Civil Service
Death Benefits
Disciplinary Hearings - Loudermill
Disciplinary Offenses
Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment
Disciplinary Searches (2 cases)
FLSA - Overtime - Training
FLSA - Overtime - Meal Periods
Handicap Discrimination - Accommodation
Handicap Discrimination - Specific Disabilities (2 cases)
Injuries to Employees (2 cases)
Last Chance Agreements
Pay Disputes
Polygraph Exams (2 cases)
Pregnancy Discrimination
Promotional Rights
Psychological Exams
Race Discrimination
Racial Harassment
Religious Discrimination
Resignations
Retaliatory Personnel Action
Sick Leave
Stress Related Claims (2 cases)
Taxation
Unemployment Compensation

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.

Age Discrimination - Termination / Mandatory Retirement

     Federal court upholds age 57 mandatory retirement law for N.Y. state troopers, but allegations that the State Police continued to employ officers that were over the age of 57 stated an equal protection claim. Police Benev. Assn. v. Bennett, #1:06-CV-767, 2007 U.S. Dist. Lexis 21911 (N.D.N.Y.).

Bargaining Unit Determinations

     Massachusetts Labor Relations Cmsn. finds, 2-to-1, that Acton police sergeants are supervisory employees and should not be part of a bargaining unit that includes patrol officers, but that lieutenants are not managerial employees, share a community of interest with the sergeants, and should be in the same bargaining unit with sergeants. Town of Acton and Mass. C.O.P., MCR-05-5162 (MLRC 2007).

Civil Service

     The U.S. Office of Personnel Management has proposed new regulations to govern the use of a critical position pay authority that allows higher rates of pay for positions that require a very high level of expertise in a scientific, technical, professional, or administrative field and are critical to an agency's mission. Proposed Rules: Critical Position Pay Authority, 5 CFR Part 535, RIN 3206-AK87, 2 (79) Federal Register 20440-20442 (Apr. 25, 2007).

Death Benefits

     Federal appellate court reverses a court of claims decision awarding $250,000 in federal death benefits to a 14-year-old "apprentice" firefighter that was killed at an intersection collision while riding his bicycle to the fire station in response to an alarm. "The ordinary, common meaning of the term firefighter as a person who fights fires is consistent with [the Government's] interpretation of firefighter." Amber-Messick v. U.S., #2006-5087, 2007 U.S. App. Lexis 8699 (Fed. Cir.).

Disciplinary Hearings - Loudermill Rights

     Federal court finds that a probationary police employee was entitled to a name-clearing hearing, where he had been accused of dishonesty and there was publication of the allegation. Ellis v. City of Reedly, #CV-F-05-1474, 2007 U.S. Dist. Lexis 25333 (E.D. Calif.).

Disciplinary Offenses - In General

     Excessive absenteeism justified the termination of a clerical employee in the District Attorney's Office. She reported to work only 50 days during a 6-month period, which equaled an 85% absence rate. Considine v. Pirro, Docket #2005-11912, Index No. 11271/05, 2007 NY Slip Op 02555, 2007 N.Y. App. Div. Lexis 3725.

Disciplinary Punishment - In General

     Arbitrator sustains a charge of misusing government property, where a police sergeant worked on documents for his personal business while on duty; due to his long discipline-free service, a 40-hour suspension is reduced to 24-hour suspension. City of El Paso and POA, 123 LA (BNA) 691, AAA Case #70-390-00727-05 (Greer, 2006; reported, 2007).

Disciplinary Punishment - Disparate Treatment

     California appellate court rejects a disparate treatment argument raised by a demoted jail supervisor. An appellant "may not rely on errors by fellow employees to excuse her own" and absent a showing of racial or sex discrimination, "there is no requirement that charges similar in nature must result in identical penalties." Kolender v. San Diego County Civil Serv. Cmsn., #D048919, 2007 Cal. App. Lexis 501 (4th Dist.).

Disciplinary Searches

****Editor's Case Alert****

     Tenth Circuit rejects a privacy claim raised by a city employee who brought a personal computer to work. Kiddie porn was found on his computer while another worker tried to resolve a problem with the city's computer. Other employees regularly entered the workspace and the appellant did not install password protection. When a public employee voluntarily brings his personal computer to a public facility for work-related use, mere ownership is not enough to raise a reasonable expectation of privacy. U.S. v. Barrows, #06-6274, 2007 U.S. App. Lexis 7621 (10th Cir.).

     Federal appeals court upholds a management demand that a police officer, that was suspected of pilfering money from an arrested person, release his personal bank records for a two-day period. The officer falsely claimed that he had obtained money from an ATM. Because it was a noncriminal administrative investigation, the order to produce bank records was not a Fourth Amendment violation. Westbrook v. City of Omaha, #06-1935, 2007 U.S. App. Lexis 7528 (Unpub. 8th Cir.).

FLSA - Overtime - in General

     Federal court rejects a town's defense that time spent at the police academy was not compensable overtime under 29 C.F.R. §553.226(b)(2) because the training was required for certification under state law. That provision addresses training outside of normal working hours, whereas 29 C.F.R. §553.226(c) more specifically addressed training by police officers at a training facility such as a police academy. Olsen v. Town of Loudon, #06-cv-477, 2007 U.S. Dist. Lexis 24619 (D.N.H.).

FLSA - Overtime - Roll Call & Meal Periods

     In the absence of any provision in the bargaining agreement concerning meal periods, it was undisputed that officers remained on duty during meal periods and regularly were called back to service. O'Brien v. Town of Agawam, #01-30126, 2007 U.S. Dist. Lexis 24313 (D. Mass.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Where a police analyst claimed that management failed to accommodate his sleep apnea condition and constructively discharged him, the city was not required to offer an employee an accommodation that would have interfered with the seniority rights of other workers. Herr v. City of Chicago, #05C7145, 2007 U.S. Dist. Lexis 21644 (N.D. Ill.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Appellate court affirms a management refusal to assign a captain to command a fire station, after the loss of his leg during a work-related accident. Because the LAFD offered him other positions with comparable pay and promotional opportunities, he did not suffer an adverse employment action. Malais v. Los Angeles City Fire Dept., #B189575, 2007 Cal. App. Unpub. Lexis 2618 (2d Dist.).

     An employee's "violent outbursts" can be symptomatic of a bipolar disorder and a jury might find that it was employee's personality and not her work product that motivated the employer to terminate her. Gambini v. Total Renal Care, #05-35209, 2007 U.S. App. Lexis 9290 (9th Cir.).

Injuries to Employees

     New Jersey police officers and firefighters may now recover damages from property owners or occupiers for injuries they sustain while responding to an emergency because the state Legislature abolished the "firemens' rule," which prevented firefighters and law enforcement officers from recovering for injuries sustained in emergencies. An officer who sustained head injuries sued the owners of a restaurant, alleging that they were negligent in failing to provide adequate security at the bar. Ruiz v. Mero, #A-28/29-06, 2007 N.J. Lexis 198.

     Federal appeals court rejects a suit filed by search, rescue, and clean-up workers at the World Trade Center site after 9-11. The plaintiffs claimed they were given inadequate lung protection equipment. The appellate panel holds that there was no special relationship between the plaintiffs and defendants. Lombardi v. Whitman, #06-1077, 2007 U.S. App. Lexis 8961 (2nd Cir.).

Last Chance Agreements

     Arbitrator upholds the termination of a private sector worker for failing a drug test. Although the employee's last chance agreement only provided for suspicionless testing for two years, his recent absenteeism record provided cause for testing. Moreover, the last chance agreement did not expire after two years -- it only capped unannounced testing. Bowater and United Steelworkers L-9-1924, 123 LA (BNA) 673, FMCS Case #07/00094 (Kilroy, 2007).

Pay Disputes - In General

     In a case where the county claimed that the sheriff falsely certified department payrolls, resulting in key employees receiving unauthorized premium pay adjustments, the sheriff was immune from liability for negligent misrepresentations, because his erroneous decision to increase commanders pay involved policymaking. County of Kern v. Sparks, #F050440, 2007 Cal. App. Lexis 467 (5th Dist.).

Polygraph Exams

     Internal investigators are not required to administer polygraph exams when pursuing allegations of untruthfulness. The evidence showed that polygraphs were not uniformly used in internal investigations. Piercy v. Maketa, #05-1192, 2007 U.S. App. Lexis 7073 (10th Cir.).

     Illinois appellate court overturns discipline of a correctional officer for her refusal to submit to investigatory polygraph examination. Prior case law in Illinois (Kaske) prohibits employers from demanding a polygraph test. Kelley v. Sheriff's Merit Cmsn. of Kane Co., #2-06-0624, 2007 Ill. App. Lexis 386 (2nd Dist. 2007).

Pregnancy Policies and Discrimination

     Federal appeals panel holds that a denial of health care coverage for all types of contraception, for both men and women, does not discriminate against women or violate the Pregnancy Discrimination Act. In re: Union Pacific Railroad Employment Practices Litigation, #06-1706, 2007 U.S. App. Lexis 5914, 100 FEP Cases (BNA) 178 (8th Cir.).

Promotional Rights, Procedures and Performance Appraisals

     For purposes of the statute of limitations, a failure to promote is not a continuing violation. Deravin v. Kerik, #00CV7487, 2007 U.S. Dist. Lexis 24696 (S.D.N.Y. 2007).

Psychological Exams and Standards - Punishment for Refusal to Submit to Exam or Cooperate

     Eighth Circuit affirms the termination of a police employee that failed to cooperate in a Fitness For Duty Exam (FFDE). "By refusing to provide [the psychologist] the opportunity to review her medical records and to discover the root of [her] stress and anxiety, [she] created a stalemate in which KCPD had little choice but to terminate [her] rather than return her to the position from which [her] stress and anxiety originated." Thomas v. Corwin, #06-1496, 2007 U.S. App. Lexis 7601, 100 FEP Cases (BNA) 297 (8th Cir.).

Race Discrimination - In General

     In a "Less pay for equal work" lawsuit, a $38,011,066 race discrimination verdict is overturned by a California appellate court. Although 70 percent of all county security police officers are minority members and 30 percent are Caucasian, the percentages are reversed in the sheriff's dept., where officers are better paid, "That differentiation, by itself, does not establish racial discrimination, and plaintiffs failed to present evidence that the pay disparity is the product of racial discrimination." Frank v. Co. of Los Angeles, #B169427, 2007 Cal. App. Lexis 530 (2d App. Dist.).

Racial Harassment

     Summary judgment for a county and its fire chief are set aside. Female African-American firefighter adequately alleged that she was subjected to a pattern of persistent harassment severe enough to alter the conditions of her employment. Terrell v. Contra Costa County, #04-17228, 2007 U.S. App. Lexis 8980 (Unpub. 9th Cir.).

Religious Discrimination

     Jewish police officer failed to prove a hostile work environment claim, where he and coworkers teased each other. Cutler v. Dorn, #A-5512-02T15512-02T1, 100 FEP Cases (BNA) 140, 2007 N.J. Super. Lexis 30.

Resignations

     A resignation may not be rescinded after it has been accepted. The employee admitted violating a workplace violence policy and a refusal to allow him to withdraw his resignation did not constitute an abuse of discretion. Pishotti v. N.Y. State Thruway Auth., #501387, 2007 NY Slip Op 02459, 2007 N.Y. App. Div. Lexis 3655.

Retaliatory Personnel Action

     Federal appeals panel finds that there were valid reasons to terminate an officer's employment. Even if management was retaliating against him because of his participation in a sexual harassment investigation, he failed to show that the city's reasons for discharging him were pretextual. The city would have discharged the employee even if the investigation was not a factor. Crawford v. City of Fairburn, #06-13073, 2007 U.S. App. Lexis 7245 (11th Cir.).

Sick Leave & Abuse

     It was improper to charge time spent while on medical appointments to vacation leave, rather than sick leave, for workers that were injured on the job. Andersen v. W.C.A.B. (City of Santa Barbara), #B191064, 2007 Cal. App. Lexis 606 (2d Dist.).

Stress Related Claims and Defenses

     A Virginia public employee's migraine headaches, acid reflux pain, stomach cramps, diarrhea, skin rash and insomnia were a result of job stress, and not a physical injury. She could not sue for the negligent infliction of emotional distress without evidence of other physical injury caused by the alleged coworker harassment. King v. City of Chesapeake, #2:05cv617, 2007 U.S. Dist. Lexis 21709 (D.Va.).

     Appellate court affirms the rejection of a correction officer's job-related stress claim. He chose to work at a maximum-security prison and should have anticipated that he would interact with dangerous inmates and unusual situations, including inmates throwing urine and fecal matter. Babich v. W.C.A.B. (PA Dept. of Corrections), #1472C.D.2006, 2007 Pa. Commw. Lexis 169.

Taxation

     Although a reinstated federal employee might have increased tax liability because his back pay award was lumped with medical expenses, the combined award that was reported on his W-2 was not retaliatory action, because the BoP management acted in compliance with the EEOC order. McDonald v. Gonzales (Fed. Bur. Prisons), #7:05-CV-55, 2007 U.S. Dist. Lexis 21720 (N.D.N.Y.).

Unemployment Compensation Claims

     Appellate court rules that a former worker was not entitled unemployment insurance benefits because she voluntarily left her employment without good cause. Although she had been reprimanded by her superior, she abruptly left her job; criticism by an employer is not good cause for leaving one's employment. Tubiak v. Cmsnr. of Labor, #501029, 2007 NY Slip Op 03038, 2007 N.Y. App. Div. Lexis 4437 (3rd App. Dept.).

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RESOURCES

     Appearance regulations - article: Regulating Matters of Appearance, 76 (2) FBI Law Enforcement Bulletin 25 (Feb. 2007).

     Homeland security website: The Justice Dept. has created a National Security Resources website for the criminal justice community, at: www.nationalsecurityresources.gov/

     Job satisfaction: According to a 2005 survey, 71% of all federal employees are satisfied with their jobs. Justice Dept. workers recorded a 73% satisfaction; Homeland Security rated the lowest, with a 58% job satisfaction rating.

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
Drug Screening - see: Last Chance Agreements
Emotional Distress - see: Stress Related Claims
Seniority - see: Handicap Discrimination - Accommodation


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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