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

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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 June (web edit.)
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CONTENTS

Monthly Law Journal Article
Legal Rights of Transsexual Public Safety Employees
2007 (6) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Applicant Rejections
Arbitration Punishment Awards
Collective Bargaining - Duty to Bargain
Disability Rights & Benefits
Disciplinary Offenses (2 cases)
Disciplinary Punishment
Disciplinary Procedures - Time Limits
Divorce Proceedings
Free Speech (3 cases)
Grievance Procedures
Health Insurance & Benefits
Holiday Pay
Inefficiency and Incompetence
Injuries to Applicants and Trainees
Injuries to Employees
Military Leave (2 cases)
Pregnancy Discrimination
Product Liability
Psychological Exams - ADA Compliance
Psychological Exams - Screening of Applicants
Race Discrimination
Releases & Waivers
Religious Discrimination
Resignations
Sex Discrimination
Sexual Harassment Verdicts
Stress Related Claims
Untruthfulness
Workers' Compensation - Claim Validity

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.

Applicant Rejections

     Although a transit authority's policy of not hiring persons convicted of violent crimes has a disparate impact on African Americans and Hispanics, data from the Dept. of Justice showed high rates of recidivism, and a reasonable juror would find that the employer's rejection policy was consistent with business necessity and is lawful. El v. S.E. Penna. Transp. Auth., #05-3857, 2007 U.S. App. Lexis 6297 (3rd Cir.).

Arbitration Punishment Awards - Right of Courts to Interfere

     Massachusetts appellate court declines to overturn an arbitrator's award that reduced the punishment of a corrections officer from termination to a six-month suspension, for opening a cell door for another officer who assaulted an inmate. The arbitrator found that the grievant "had no advance knowledge of what was going to transpire nor was he a party to it before or during the event." Sheriff of Suffolk Co. v. Jail Officers & Employees of Suffolk Co., #03-P-1154, 68 Mass. App. Ct. 903, 860 N.E.2d 963, 2007 Mass. App. Lexis 93.

Collective Bargaining - Duty to Bargain

     Appellate court sustains an arbitrator's finding that the management's new policy to reduce staffing on fire engines violated the bargaining agreement. The appellate panel found that the arbitrator's decision drew its essence from the agreement and the arbitrator did not exceed his authority when he gave "great weight" to the staffing requirement suggested by the NFPA. City of Dayton and IAFF L-136, # 21681, 2007-Ohio-1337, 2007 Ohio App. Lexis 1207 (2nd Dist.).

Disability Rights and Benefits - Line of duty related/ disputed

     N.Y. court officer, that was injured when a defendant fell while handcuffed to him, was not entitled to receive accidental disability retirement benefits. The officer's regular job duties entailed escorting defendants. Wise v. N.Y. St. Comptroller, #501154, 2007 NY Slip Op 01927, 2007 N.Y. App. Div. Lexis 2626 (3rd Dept.).

Disciplinary Offenses - In General
****Editor's Case Alert****

     Appellate court holds that a corrections officer was lawfully terminated for not reporting rumors that a fellow officer intended to have a prisoner assaulted by other inmates. The officer "believed that if he reported the rumors, his fellow correction officers would retaliate against him by shunning him, refusing to work with him, delaying responses to emergency situations, or causing personal injury." The fact that a corrections officer "may suffer indignation at the hands of his coworkers does not allow him to compromise the safety of those in his charge." A fear of retaliation by other officers does not justify a refusal to report a known threat; the officer's conduct was unconscionable. Dept. of Corrections v. Unemployment Comp. Bd., #1205 C.D. 2006, 2007 Pa. Commw. Lexis 72.

     Federal appeals court sustains disciplinary action for presenting a DoD police badge to an officer when the federal employee was no longer employed in a law enforcement capacity. Welch v. Dept. of Veterans Affairs, #2006-3206, 2007 U.S. App. Lexis 6059 (Unpub. Fed. Cir.). http://fedcir.gov/opinions/06-3206.pdf

Disciplinary Punishment - In General

     Alaska Supreme Court upholds the termination of a police sergeant that called female dispatchers at their homes, used lewd language and made sexual propositions. Jurgens v. City of North Pole, #S-11847, 2007 Alas. Lexis 21.

Disciplinary Procedures - Delays & Time Limits

     California appellate court holds that lying during an internal interview is a separate offense from the misconduct under investigation; the two do not merge and the time for counting the limitation period begins with the date of interview. Cal. Dept. of Corr. v. Cal. State Pers. Bd., #F048806, 147 Cal. App.4th 797, 54 Cal.Rptr.3d 665, 2007 Cal. App. Lexis 192 (5th App. Dist. 2007).

Divorce Proceedings

     Although a public employee, as part of the divorce decree, was supposed to designate his ex-wife as beneficiary, he failed to do so. Upon his death the pension properly was distributed to his children; his signing of the dissolution agreement was not a substitute for the strict requirements for designating a beneficiary. Hansford v. Public Empl. Retir. Sys., #06AP-880, 2007-Ohio-1242, 2007 Ohio App. Lexis 1156.

Free Speech

     Federal appeals court rejects a First Amendment claim brought by a former university police captain that was fired after making allegations of intoxication against the chief of police. His speech was not constitutionally protected because it was made pursuant to his official and professional duties, and not as a private citizen. Bradley v. James, #06-2283, 2007 U.S. App. Lexis 4781 (8th Cir. 2007), relying on Garcetti v. Ceballos, 126 S. Ct. 1951 at 1960 (2006).

     Massachusetts Labor Commission annuls a ten-day suspension of a sheriff's employee, who at a grievance hearing, exclaimed "Oh my God, what a liar," referring to the testimony of a major. Filing a grievance is a protected activity, and impulsively calling a superior a liar during in response to a perceived inaccuracy, fell within the protection of the state's collective bargaining laws. Bristol County Sheriff's Dept. and Mass. Corr. Officers Feder. Union, Case No. MUP-03-3900 (Mass. Lab. Rel. Cmsn. 2007).

     A police sergeant's advice to her superiors that the chief's crime reduction plan will not work was not spoken as a citizen and was not protected by First Amendment. Mills v. City of Evansville, #05-3207, 452 F.3d 646 (7th Cir. 2006).

Grievance Procedures

     Fifth Circuit holds that when a bargaining agreement establishes a mandatory grievance procedure and vests the union with the exclusive right to pursue claims on behalf of aggrieved employees, members of the bargaining unit lack legal standing to challenge the results of the grievance process in court. The sole exception is an unfair representation claim. Mitchell v. Continental Airlines, #05-20791, 2007 U.S. App. Lexis 5439 (5th Cir.)

Health Insurance & Benefits

     Massachusetts appellate court concludes that it was lawful for a town to fire an at-will animal-control officer after she requested enrollment in the town's health insurance plan. "Mere eligibility for the insurance does not in any way protect the employment status of a town employee." Parker v. Town of North Brookfield, #06-P-167, 68 Mass. App. Ct. 235, 861 N.E.2d 770, 25 IER Cases (BNA) 1283, 2007 Mass. App. Lexis 157.

Holiday and Premium Pay

     Michigan arbitrators interpret overtime and double-time holiday pay provisions in two different bargaining agreements. City of Ecorse and IAFF L-684, AAA #54-390-00196-06, 123 LA (BNA) 550 (McDonald, 2006); City of Lansing and FOP L-141, FMCS #06/58541, 123 LA (BNA) 555 (Stratton, 2006).

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator finds that management had just cause to terminate a police dispatcher for incompetence, insubordination, and violation of procedures for waiting five minutes to call the fire dept. after an officer told her that a person was "unconscious." City of Orrville and Ohio P.B.A., FMCS Case #06/57434, 123 LA (BNA) 509 (Lalka, 2007).

Injuries to Applicants & Trainees

     U.S. District Judge rejects constitutional claims brought by the estate of a Maryland firefighter trainee that died from heat exhaustion during physical training exercises, but remands the state claims to the state court. No fact supported the application of a state-created danger theory of liability. Waybright v. Frederick Co. Fire & Rescue, #05-55, 2007 U.S. Dist. Lexis 14432 (D. Md. 2007).

Injuries to Employees

     Seventh Circuit denies recovery to a bailiff that sued the county after a criminal defendant shot him. "[He] was paid to protect judges and the public from the likes of [his attacker]. To the extent this exposed him to a personal risk he took it willingly, in exchange for pay and fringe benefits. ... Neither the text nor the history of the Due Process Clause supports a claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause. Witkowski v. Milwaukee Co., #06-3627, 2007 U.S. App. Lexis 5761 (7th Cir.), citing Collins v. Harker Heights, 503 U.S. 115 (1992).

Military Leave

     A mandamus action to reclassify a corrections employee that returned from military leave was not an appropriate remedy because he had an adequate remedy through civil service appeal procedures under state law. Turner v. Houk, #2006-2240, 112 Ohio St.3d 561, 2007-Ohio-814, 2007 Ohio Lexis 521.

     The fact that an employer allows workers to earn holiday benefits while on jury duty does not entitle an employee to accrue those benefits while on military leave. Tully v. Dept. of Justice, #2007-3004, 2007 U.S. App. Lexis 6440 (Fed. Cir. 2007).

Pregnancy Policies and Discrimination

     Eighth Circuit holds that an employer does not violate the Pregnancy Discrimination Act by denying coverage under its health care plan for contraceptives unless they are medically needed. Standridge v. Union Pacific RR., #06-1706, 2007 U.S. App. Lexis 5934.

Product Liability

     Federal court certifies multi-state body armor litigation as a class action. Southern States Police Benevolent Assn. v. First Choice Armor & Equip., #06-10034, 2007 U.S. Dist. Lexis 18372 (D. Mass.).

Psychological Exams and Standards - ADA Compliance

     Federal appeals court affirms a liability award against a city over the wrongful termination of two women police officers that were found psychologically unfit for service. The jury had awarded each of the plaintiffs $2.5 million -- $1 million in compensatory damages, $223,080 in back pay and $1,276,920 in front pay. The trial court then reduced the non-pay verdicts from $1 million to $350,000. The appeals court panel affirmed the reduction of damages decision. Denhof v. City of Grand Rapids, #05-1819, 2007 U.S. App. Lexis 5605, 2007 FED App. 0163N (Unpub. 6th Cir.). (Click here to read an article on the verdict).

Psychological Exams and Standards - Psychological Screening of Applicants

     A person seeking reinstatement as a New York corrections officer after recovering from an off-duty injury must pass the same psychological screening examination administered to applicants. Coleman v. N.Y., #501363, 2007 NY Slip Op 01936, 2007 N.Y. App. Div. Lexis 2653 (3rd Dept.).

Race Discrimination - In General

     Federal appeals panel rejects the discrimination claims brought by a minority Dept. of Corrections employee that sought promotion to an internal affairs investigator position. Management made a mistake in grading her qualifications, which was not the result of discrimination, and offered her the position with retroactive pay differential. The fact that management declined to offer her more than the standard pay rate for the position sought was not an adverse or discriminatory personnel action. Fair v. Norris, #06-1580, 2007 U.S. App. Lexis 7059 (8th Cir.).

Releases & Waivers

     Federal appeals court rejects a claim that a settlement agreement was unenforceable. Independent counsel represented the employees and a settlement agreement is presumed to be knowing and voluntary. The agreement required the city to revise hiring and promotional policies and to implement diversity training. Baptist v. City of Kankakee, #05-4034, 2007 U.S. App. Lexis 6295 (7th Cir.).

Religious Discrimination

     U.S. Justice Dept. sues N.Y. DoC seeking accommodation of Muslim Corrections officers to wear a Kufi (skullcap) while in uniform. U.S. v. N.Y. State Dept. of Corr. Servs., #07-2243 (S.D.N.Y.). The civil action parallels private litigation filed by an Islamic corrections officer. Haqq v. N.Y. State Dep't of Corr. Servs., #06-8156 (S.D.N.Y).

Resignations

     "An employee-initiated action, such as a resignation, is presumed to be voluntary, and thus outside the Board's jurisdiction, unless the employee presents sufficient evidence to establish that the action was obtained through duress or coercion or shows that a reasonable person would have been misled by the agency." The Merit Systems Protection Board lacks jurisdiction over the an allegation that management coerced his resignation in retaliation for his alleged whistleblower activities. Neice v. Dept. of Homeland Security, #SF-0752-06-0030-I-1, 2007 MSPB 85.

Sex Discrimination - In General

     Federal appeals panel rejects a suit by a university police officer brought because her supervisor interrupted her during personal break times, during which she expressed breast milk for her baby. She failed to show that she suffered an adverse employment action, because one of her supervisors expressed comments that were derogatory, unprofessional, or motivated by discriminatory animus. Page v. Univ. of Penna., #06-1008, 2007 U.S. App. Lexis 6738 (3rd Cir.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Federal jury awards $1 million in compensatory damages to a male NYC corrections officer that alleged he had been subjected to a hostile work environment by a woman captain's unwelcome sexual proposals. Singleton v. City of New York, #05-7769, 45 (2197) G.E.R.R. (BNA) 312 (S.D.N.Y. 2007).

Stress Related Claims and Defenses

     Federal Merit Board finds undisputed evidence established that an employee was angry, severely depressed, anxious, suffered from post traumatic stress disorder, suicidal ideation, psychosis, was obsessed with management, and posed a threat to his colleagues. His psychiatric condition was precipitated and exacerbated by job-related stress to the point it became disabling such that disability was adequately proved. Thorne v. Office of Personnel Management, #AT-844E-06-0227-I-1, 2007 MSPB 75 (MSPB 2007).

Untruthfulness & Resume Fraud

     Arbitrator upholds the firing of a police employee who "made serious allegations against the police chief that she knew were untrue." A police dept. "must have confidence that its employees will be truthful at all times." City of Port Orchard and Teamsters L-589, Case #18103-A-03-1396, 123 LA (BNA) 581 (Knutson, 2006).

Workers' Compensation - Claim Validity

     Connecticut firefighter was not entitled to workers' comp. benefits for a knee injury that occurred while playing in an official basketball game. The game was not firefighter "training." Hardt v. Town of Watertown, #SC 17684, 2007 Conn. Lexis 93 (2007).

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RESOURCES

     The (Federal) Whistleblower Protection Act: An Overview, Congressional Research Service Doc. RL33918 (Mar. 2007).

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
Arbitration Procedures - see: Collective Barg. - Duty to Bargain
Grievance Procedures - see: Free Speech
Holiday Pay - see: Military Leave
Retirement Rights and Benefits - see: Divorce Proceedings
Uniforms - see: Religious Discrimination
Untruthfulness - see: Disciplinary Offenses (3rd case)
Wrongful Discharge - see: Health Insurance


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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