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San Francisco April 23-25, 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 Mar (web edit.)
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Monthly Law Journal Article
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Training Reimbursement Contracts

Digest Topics
Age Discrimination
Applicant Rejections
Arbitration Procedures
Attorneys' Fees
Bill of Rights Laws
Collective Bargaining - Duty to Bargain (2 cases)
Death Benefits
Disability Rights and Benefits (2 cases)
Disciplinary Evidence - Admissibility
Disciplinary Hearings - Loudermill Rights
Disciplinary Hearings - Proof Required
Disciplinary Hearings - Tenured
Disciplinary Offenses (3 cases)
Discovery Rights
Drug Screening
FLSA - Overtime
Handicap Discrimination - Specific Disabilities
Health Insurance
Occupational Safety
Personnel Manuals
Polygraph Exams
Retaliatory Personnel Action (2 cases)
Sexual Harassment - Same Gender
Transfers - Non Disciplinary (2 cases)
Workers' Compensation
Wrongful Discharge: Damages



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

Age Discrimination - General

     City's "Leave Donation Program," under which employees can donate excess leave to coworkers who have medical problems, violates the ADEA because workers age sixty or older could not participate. EEOC v. City of Independence, #05-4489, 2006 U.S. App. Lexis 31499 (8th Cir. 2006).

Applicant Rejections

     Federal court sustains the rejection of a police dispatcher applicant. She refused to submit documentation of a claim that she made against a prior employer. Masso v. Miami-Dade Co., #06-20904, 2006 U.S. Dist. Lexis 89600 (S.D. Fla. 2006).

Arbitration Procedures

     Illinois Supreme Court concludes that a ban on class actions in an arbitration clause is unconscionable and unenforceable. Kinkel v. Cingular Wireless, #, 2006 Ill. Lexis 1639, 2006 WL 2828664 (Ill. 2006); also see Kristian v. Comcast, #04-2619, 446 F.3d 25 (1st Cir. 2006).

Attorneys' Fees and Legal Defense Rights

     Under the Equal Access to Justice Act, paralegal costs are not recoverable as fees, but are only recoverable when they are itemized expenses of a successful attorney. Richlin v. Chertoff, #06-1055, 2006 U.S. App. Lexis 31749 (Fed Cir. 2006).

Bill of Rights Laws

     Where at most a reprimand could have resulted, an officer's conversation with her sergeant about report classifying procedures did not implicate the state's Bill of Rights Act, Calif. Govt. Code §3300. Steinert v. City of Covina, #B187940, 2006 Cal. App. Lexis 2097 (2d App. Dist. 2006).

Collective Bargaining - Duty to Bargain

     N.Y. appellate court concludes that management had a duty to bargain over creating police positions and staffing them with civilians and that the union had standing to raise the issue in court. Westchester Co. PBA v Westchester Co., #2005-02969, Index #9680/04, 2006 NY Slip Op 09456, 2006 N.Y. App. Div. Lexis 14953 (2nd App. Dept. 2006).

     State Police had a duty to bargain over the replacement of troopers with civilians at regional dispatch centers. Penn. State Police v. Penn. Labor Rel. Bd., #2274 C.D. 2005, 2006 Pa. Commw. Lexis 671 (2006).

Contracts, Consultants and Outsourcing

     Under the Illinois Municipal Code, a Village is forbidden from entering into a contract where the duration exceeds the term of the mayor holding office at the time the contract is signed. Walters v. Vil. of Colfax, #04-1287, 2006 U.S. Dist. Lexis 89539 (C.D. Ill. 2006).

Death Benefits

     Appellate court reverses and rules against the surviving spouse of a school zone officer who was killed while directing school traffic; she sought survivor benefits under the Public Safety Officers' Benefits Act of 1976. The statute's intent was to include only those who enforce criminal law, and the officer was not trained or certified as a law enforcement officer. Cassella v. United States, #06-5035, 2006 U.S. App. Lexis 29508 (Fed. Cir. 2006) affirming 68 Fed. Cl. 189 (2005).

Disability Rights and Benefits - Benefit Disputes

     N.Y. appellate court denies a disability claim brought by a corrections officer, even though he had received a favorable determination from the Social Security Administration. A determination by the SSA did not control the medical board's disability decision. Stephenson v. N.Y.C. Employees' Retir. Sys., #2005-10395, Index #24524/02, 2006 NY Slip Op 9257, 2006 N.Y. App. Div. Lexis 14526 (2006).

     Appellate court finds that a retirement fund wrongfully denied a firefighter a disability pension. California has a statutory presumption (Gov. Code §31720) relating to heart disease, and the retirement fund failed to rebut the presumption. §31720.5 presumption. Pellerin v. Kern Co. Emp. Retirement, #F049335, 2006 Cal. App. Lexis 1949 (5th Dist. 2006).

Disciplinary Evidence - Admissibility/In General

    Arbitrator holds that a captain's conversations with a prostitute, who allegedly had sex with a police officer, and the results of her polygraph examination were inadmissible as hearsay. Hearsay will not be accepted in termination cases, except in most extreme circumstances. City of Oklahoma City and FOP L-123, FMCS Case #060310/54391-7, 123 LA (BNA) 24 (Walker, 2006).

Disciplinary Hearings - Loudermill Rights

     A psychologically impaired officer was not entitled to a presuspension hearing after her arrest on felony charges. Golt v. City of Los Angeles, #04-57026, 2006 U.S. App. Lexis 31823 (Unpub. 9th Cir. 2006).

Disciplinary Hearings - Proof Required

     Appellate court overturns an arbitration award that applied the beyond reasonable doubt standard to the trial of a corrections lieutenant that was accused of having sex with an inmate. N.Y. State Law Enforcement Officers Union C-82 v. State of New York, #500783, 2006 N.Y. App. Lexis 14103, 2006 NY Slip Op 08861 (3rd App. Dept. 2006).

Disciplinary Hearings - Tenured/General

     N.Y. appellate court upholds the termination of a police officer following a trial before a Hearing Officer. Even if a local law providing that police disciplinary charges shall be heard by a Hearing Officer that is appointed by Town Board is invalid because it transfers or curtails powers of elected officials, the officer lacked to challenge the procedure because he was a nonresident of the Town. Matter of Gizzo v. Town of Mamaroneck, #2004-11097, Index #11408/04, 2006 NY Slip Op 08130, 2006 N.Y. App. Div. Lexis 13350, 25 IER Cases (BNA) 619 (2d App. Dept. 2006).

Disciplinary Offenses - In General

     Appellate court sustains the termination of a Justice Dept. employee for the repeated use of sexist and ethnically insensitive language and profanity. Levinsky v. DoJ, #06-3046, 2006 U.S. App. Lexis 30388 (unpub. Fed. Cir.) affirming 99 M.S.P.R. 574, 2005 MSPB Lexis 4853 (2005).

     Although the plaintiff was fired from her job as a jailer on the day after she gave a deposition in her Title VII lawsuit, there were two nondiscriminatory reasons for firing her: a prisoner suicide occurred on her watch, and her apparent dishonesty in the death investigation. McGowan v. City of Eufala, # 04-7083, 2006 U.S. App. Lexis 31277 (10th Cir. 2006).

     Fifth Circuit upholds the termination of a county nurse that was fired for calling the Secret Service to report a mental patient's threats against the President. Her termination did not violate the First Amendment because the patient was delusional, she violated the hospital's confidentiality policy, and the facility's doctor was in a better position to assess the gravity of the threat and to decide whether the Secret Service should be notified. Davis v. Allen Parish, #06-30017, 2006 U.S. App. Lexis 31119 (5th Cir. 2006).

Discovery, Publicity and Media Rights

     In a dissolution of marriage action, a deputy sheriff's spouse was entitled to have an in-camera review of her husband's personnel records. Slayton v. Superior Ct. of Sutter Co., #C053780, 2006 Cal. App. Lexis 2051 (3d App. Dist. 2006).

Drug Screening and Specimen Testing

     N.Y. appellate court refuses to set aside an arbitration award that reduced a termination to a 30-day suspension for a city worker that was unable to produce a urine sample during a 2½-hour period allowed for random testing. Local 333 v. N.Y. City Dept. of Transp., #8918, Index #112873/05, 2006 NY Slip Op 09287, 2006 N.Y. App. Div. Lexis 14722 (2006). The panel cited N.Y. Tr. Auth. v. TWU L-100, 6 N.Y.3d 332, 2004 NY Slip Op 09513 (2004) where the N.Y. Court of Appeals upheld a similar award because the arbitrator found that a failure to provide a sufficient sample is not a refusal to submit to testing.

FLSA - Overtime - in General

     Federal agents who are assigned government-owned police vehicles are not entitled to be paid while commuting even though they are required to drive directly from home to work and back without unauthorized detours or stops. Adams v. U.S., #06-5040, 2006 U.S. App. Lexis 31065 (Fed. Cir. 2006).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Sixth Circuit concludes that a person with sleep apnea, chronic depression, irritable bowel syndrome, judgment disorder, and panic attacks was not disabled. Greathouse v. Westfall, #06-5269, 2006 WL 3218557, 2006 U.S. App. Lexis 27882, 18 AD Cases (BNA) 1310 (unpub. 6th Cir. 2006).

Health Insurance & Benefits

     Arbitrator rejects a grievance that the county deducted too much for medical insurance; "for at least fifteen years prior to the instant grievance, the county has administered the opt-out provision in precisely the same fashion." Cuyahoga Co. and Ohio PBA, FMCS Case #050926/59407, 122 LA (BNA) 1808 (Ruben, 2006).

Occupational Safety & Disease

     Dangerous working conditions can give rise to an Eighth Amendment claim, even if the worker is a prisoner that volunteered for work. A prison official is not entitled to qualified immunity if he orders an inmate to continue using work equipment that the official has reason to believe is unnecessarily dangerous. Morgan v. Morgensen, #04-35608, 2006 U.S. App. Lexis 29399 (9th Cir. 2006).

Personnel Manuals

     A city worker's at-will status was not altered by a progressive disciplinary policy contained in an employee handbook. The employee did not demonstrate that he detrimentally relied on the handbook. Ford v. Newton Twp., #2006T0042, 2006-Ohio-6530, 2006 Ohio App. Lexis 6425 (11th Dist. 2006).

Polygraph Exams

     Management did not have just cause to discharge a police officer for failing to cooperate in a polygraph examination, because the officer took short, choppy breaths that made it difficult to score the results. City of Oklahoma City and FOP L-123, FMCS Case #060310/54391-7, 123 LA (BNA) 24 (Walker, 2006).

Retaliatory Personnel Action

     Relocating an employee's desk in the police station after she complained of sexual harassment was not an adverse employment action that would support a retaliation claim. McCullough v. Kirkum, #06-30481, 2006 U.S. App. Lexis 31335 (5th Cir. 2006).

     The onset of the appellant's disability preceded the date of his termination only because management investigated the incident. He was fired because he violated safety instructions, not because he was injured. Gross v. Indus. Cmsn of Ohio, #2005-1689, 2006 Ohio Lexis 3551 (Ohio 2006).

Sexual Harassment - Same Gender

     Employer was not entitled to a summary judgment of a same-sex, sexual harassment claim under Title VII, where a supervisor frequently hugged the plaintiff, repeatedly jumped into her lap, touched her buttocks 30 times and often commented that she could turn any women gay. Kampmier v. Emeritus Corp., #06-1788, 2007 U.S. App. Lexis 12 (7th Cir. 2007).

Transfers - Non Disciplinary/Punitive

     Appellate court rejects a claim that a postal worker was forced to retire because the agency gave him a choice of either being reassigned to a different city or retiring. DeMaggio v. USPS, #06-3247, 2006 U.S. App. Lexis 30251 (Fed. Cir. 2006) affirming 2006 MSPB Lexis 1158 (2006).

     The involuntary reassignment of a U.S. Customs technician from temporary duty on a forfeiture fund team back to her regular assignment was not an adverse job action. This action was unlike the employee in Burlington Northern v. White, #05-259, 126 S. Ct. 2405 (2006) that was reassigned to a position with substantially less desirable duties. Jordan v. Chertoff, #05-1788, 2006 U.S. App. Lexis 30903 (7th Cir. 2006).

Workers' Compensation - Claim Validity

     Pennsylvania appellate court holds that an employee who was killed by a drunk driver while walking on a public sidewalk while reporting to work died in the course of his employment because it was the only route from the parking lot to the gate. Allegheny Ludlum Corp. v. Workers' Compensation Appeal Board, #1022 C.D. 2006, 2006 Pa. Commw. Lexis 679 (2006).

Wrongful Discharge/Discipline: Damages & Settlements

     In a wrongful discharge case where the jury awarded separate verdicts for the same conduct, it was error for the trial court to enter a judgment for the combined total. The judge should have used the highest amount awarded. Roby v. McKesson, #C047617, 2006 Cal. App. Lexis 2052 (3d App. Dist. 2006).

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     Secrecy: President Bush reaffirmed Executive Order 13292 and on Dec. 31, 2006, with certain limitations, "all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical" value under Title 44, U.S. Code, "shall be automatically declassified whether or not the records have been reviewed."

      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: Disciplinary Offenses
Retaliatory Personnel Action - see: Disciplinary Offenses

AELE Seminars:
Public Safety Discipline and Internal Investigations
San Francisco April 23-25, 2007

Click here for more information about all AELE Seminars

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