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


 Search the Case Law Digest

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 May (web edit.)
Click here to view information on the editor of this publication.

Access the multiyear Employment Law Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader must be used to view contents.

CONTENTS

Monthly Law Journal Article
Suicide and Public Safety Officers:
Disciplinary, Medical and Compensation Issues
2007 (5) AELE Mo. L. J. 201
(PDF format)

Digest Topics

Age Discrimination - General
Civil Service
Collective Bargaining - Duty to Bargain (2 cases)
Disciplinary Appeals & Challenges
Disciplinary Hearings - Untenured (2 cases)
Disciplinary Interviews - Weingarten (2 cases)
Disciplinary Offenses (2 cases)
Disciplinary Punishment
Discovery
FLSA - 7K Exemption
FLSA - Canine Officers
Grievance Procedures
Handicap Discrimination - General (2 cases)
Handicap Discrimination - Accommodation
Hearing (Audio) Impairment (2 cases)
Inefficiency and Incompetence (2 cases)
National Origin Discrimination
Past Practices
Political Activity
Reductions in Force
Releases
Resignations (2 cases)
Retaliatory Personal Action
Sex Discrimination - In General
Wrongful Discharge (2 cases)

Resources

Cross_References

Report non-working links here


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 - General

     Congress did not include an anti-retaliation provision in the Age Discrimination in Employment Act, 29 U.S. Code §633a(15), or intend to protect workers from retaliation for bringing an ADEA complaint. "We presume that a legislature says in a statute what it means and means in a statute what it says." Gomez-Perez v. Potter, #06-1614, 2007 U.S. App. Lexis 2943 (1st Cir.).

Civil Service

     Whether summarily terminated, or just not reappointed after a new constable takes office, deputy constables in Dallas, Texas, are covered by the county's civil service system and cannot be discharged without just cause. County of Dallas v. Wiland, #040247, 2007 Tex. Lexis 149, and Co. of Dallas v. Walton, #04-0631, 2007 Tex. Lexis 147 (Tex. 2007).

Collective Bargaining - Duty to Bargain

     Arbitrator holds that a county violated the bargaining agreement when it denied a promotion to a worker seeking an investigator position because she lacked an associate's degree, where there was nothing in the contract requiring the degree. Franklin County and Prof. Guild L-1960, 123 LA (BNA) 314, FMCS Case #6/59036 (Smith, 2006).

     Rhode Island fire district is entitled to summary judgment where there have been no unionized employees for more than 10 years and the parties have not had a bargaining agreement for more than 14 years. Lime Rock Fire District Inc. v. Fire Fighters L-3023, 2007 R.I. Super. Lexis 18, 181 L.R.R.M. (BNA) 2412 (R.I. Super.).

Disciplinary Appeals & Challenges- In General

     Ninth Circuit rejects a challenge to the termination of a highway patrol employee that faked two subpoenas. The fact that she lost her state court appeal precludes her from raising those issues in a parallel action under the civil rights acts. Holcombe v. Hosmer, #05-15151, 2007 U.S. App. Lexis 3923 (9th Cir. 2007).

Disciplinary Hearings - Untenured

     Fourth Circuit concludes that a city was required to provide a terminated probationary police officer with a name-clearing hearing. The city had a practice of sharing separation information with some prospective employers. Sciolino v. City of Newport News, #05-2229, 2007 U.S. App. Lexis 5734 (4th Cir.).

     Federal magistrate holds that a volunteer police reserve officer has no due process right to a hearing or reinstatement, because he lacks a property interest in continued employment. Dennison v. City of Phoenix (Oregon), #06-77-CO , 2007 U.S. Dist. Lexis 14569 (D. Ore, 2007).

Disciplinary Interviews & Compelled Reports - Weingarten Rights

     New York laws that provide public employees with the right to bargain collectively do not provide them with Weingarten rights, and the city did not violate state law when it denied an employee's request for union representation at meeting that could have resulted in disciplinary action. N.Y. City Transit Authority v. P.E.R.B., #5, 2007 N.Y. Lexis 163, 181 L.R.R.M. (BNA) 2463 (N.Y. 2007).

     Pennsylvania Supreme Court upholds a public employee's Weingarten right to request union representative of employee's choice. Penn. Office of Administration v. P.L.R.B., #101 MAP 2005, 2007 Pa. Lexis 355, 181 L.R.R.M. (BNA) 2469 (Pa. 2007).

Disciplinary Offenses - In General

     City did not have just cause to suspend a police officer for his use of the F--- word at a crime scene, even if he violated a rule against using indecent, profane, or harsh language. "... the use of the F--- word with the four suspects could not under these circumstances be considered as indecent, profane or harsh because this was the language they understood. ... This is clearly evident by the language used by the four suspects before the [Grievant] quieted them down." City of Hurst and Individual Grievant, AAA Case #71-390-00290-06, 123 LA (BNA) 302 (Moore, 2006).

     Arbitrator finds that management did not have just cause to impose a 24-hour suspension on a firefighter EMT who went to his nearby residence for lunch; there is no written policy prohibiting such action. Orange County, FL and IAFF L-2057, AAA Case #32-390-00218-06, 123 LA (BNA) 460 (Smith, 2007).

Disciplinary Punishment - In General

     Arbitrator upholds the termination of a firefighter for a DUI offense, where he had earlier suspension and had failed a drug test before his arrest. "It is tremendously disappointing and baffling that a Firefighter/EMT would engage in conduct involving 'road rage' and driving while under the influence of intoxicants, not to mention drug use. Such immature and dangerous behavior is not in keeping with the calling of a Firefighter/EMT." City of Houston and Houston IAFF, AAA Case #70-390-00476-06, 123 LA (BNA) 293 (Allen, 2007).

Discovery, Publicity and Media Rights

     Fourth Circuit upholds a District Court's refusal to enforce a DoJ subpoena for I-A interviews of police officers. The creation of a so-called Garrity Review Team in the U.S. Attorney's Office was insufficient reason to enforce the subpoena. I-A investigators "face an uphill battle due to the so-called 'blue wall,' the tendency of law enforcement officers to place solidarity above all else and to be less than fully cooperative with investigations of fellow officers. Officers who report misconduct are ostracized and harassed; become targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis." In Re Grand Jury, G.J. 2005-2, #06-4612, 2007 U.S. App. Lexis 3809 (4th Cir. 2007).

FLSA - 7K Exemption

     Paramedics are employees engaged in fire suppression and are exempt from FLSA overtime requirements where they carry fire protective gear in their rescue vehicles and are regularly dispatched to fire scenes. Huff v. DeKalb Co., 2007 U.S. Dist. Lexis 6398, 12 WH Cases2d (BNA) 498 (N.D. Ga. 2007).

FLSA - Overtime - Canine Officers

     Federal appeals court affirms a judgment for $287,489.94 in overtime compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act, awarded to six K9 officers with the Customs and Border Protection Service. The plaintiffs were uncompensated for certain home care duties. Bull v. U.S., #2006-5038, 2007 U.S. App. Lexis 5925, 12 WH Cases2d 699 (Fed Cir.).

Grievance Procedures

     Police officers are not required to follow a grievance procedure in the police dept. handbook before bringing suit in state court for unpaid standby duty. No statute allows a city to create a grievance procedure that requires compliance before bringing a civil suit in court. City of McAllen, Texas v. Zellers, #13-06-470-CV, 12 WH Cases2d (BNA) 670, 2007 Tex. App. Lexis 1499.

Handicap Laws / Abilities Discrimination - In General

     Former fire chief was not required to appeal his termination because of alcoholism to the civil service commission before filing a suit under a state discrimination law. There is nothing to suggest that the legislature meant to treat civil service employees differently than other employees. Dworning v. City of Euclid, 2006-Ohio-6772, 18 AD Cases (BNA) 1668, 2006 Ohio App. Lexis 6685 (8th App. Dist.).

     Ohio appellate court upholds a two-year statute of limitations for discrimination lawsuits brought by public employees or applicants, even though there is a longer period for suits against private employers. Anglen v. Ohio State Univ., #06AP-901, 2007-Ohio-935, 2007 Ohio App. Lexis 889 (10th App. Dist.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Federal court refuses to dismiss a constructive discharge claim where a newly diagnosed diabetic needed frequent breaks and the employer's restrictions created intolerable working conditions. Countryman v. Nordstrom, #05-2588, 18 AD Cases (BNA) 1661, 2007 U.S. Dist. Lexis 1503 (D. Minn. 2007).

Hearing (Audio) Impairment

     A person with monaural hearing, impairing the ability to localize sounds, is not disabled within the meaning of the ADA. Moreover, "an allegation that the employer regards the impairment as precluding the employee from a single, particular position," such as a courthouse security officer, "is insufficient to support a claim that the employer regards the employee as having a substantially limiting impairment." Walton v. U.S. Marshals Service, #05-17308, 2007 U.S. App. Lexis 2937, 18 AD Cases. (BNA) 1705 (9th Cir.).

     Eight NYPD officers sued the city claiming that they suffered hearing loss as a result of firearms training and that the noise protection devices provided to them were defective. The city's motion to dismiss was rejected because the city failed to produce evidence that the hearing protection devices were adequate. Miniero v. City of New York, #25285 / 1992, 2007 NY Slip Op 27045, 2007 N.Y. Misc. Lexis 270 (Sup. Ct. Bronx Co. N.Y. 2007).

Inefficiency, Performance Standards, Negligence and Incompetence

     Federal court holds that even if the decision to terminate a probationary police officer was "foolish, trivial, or baseless," she failed to prove that the reasons cited for her discharge were false. Gutzwiller v. City of Chicago, 99 FEP Cases (BNA) 1226, 2007 U.S. Dist. Lexis 6550 (N.D.Ill.).

     Ninth Circuit rejects a defense of carpal tunnel syndrome, raised to counter her inefficiency-related termination. Her immigration case backlog had accrued before she experienced any problems with her hands or wrists. Fernandez v. Chertoff, #05-15873, 2007 U.S. App. Lexis 3514 (Unpub. 9th Cir. 2007).

National Origin Discrimination

     A foreign-born security guard cannot claim wage discrimination because other employees with less experience were paid more, where the rate of pay was governed by prevailing wage rates at each work site under the union contract. Bhaduri v. Summit Security Services, #05 Civ 7024, 2007 U.S. Dist. Lexis 2985, 99 FEP Cases (BNA) 1343 (S.D.N.Y. 2007).

Past Practices, Precedents & Zipper Clauses

     Management violated the bargaining agreement when it reduced the employee lunch period from 45 or 40 to 30 minutes; although a state law set a 30-minute floor for lunch break, the parties had 25-year practice of longer breaks. Sandridge School Dist. 172 and Sandridge Educ. Assn., 123 LA (BNA) 344 (Goldstein, 2006).

Political Activity/Patronage Employment

     In a 2-to-1 ruling, the federal Merit Service Protection Board declined to review a lower ruling that a sheriff's dept. was not an executive branch agency and therefore was not covered by the federal Hatch Act, banning certain political activity. Special Counsel v. Jackson Co. Sheriff Dept., #3B-1216-06-0010-T-1, 2007 MSPB 35 (MSPB) 2007, 2007 MSPB Lexis 1520.

Reductions in Force

     Non permanent federal employees, that are not protected by civil service laws, are not entitled to the protections afforded permanent employees in a workforce reduction under 38 U.S. Code §7405. Bouchard v. Dept. of Veterans Affairs, Docket #AT-3443-06-0636-I-1, 2007 MSPB 63(2007).

Releases & Waivers

     Federal appeals court declines to set aside a settlement agreement involving a Smithsonian police supervisor and the government. Even if an employee is induced to settle on the bad advice of his or her personal attorney and even if his or her employer did not explain the scope of the release, those allegations are insufficient to show that a settlement agreement was involuntary. The employee agreed that he had read the settlement agreement and understood its terms. Devera v. Smithsonian, #20 06-3354, 2007 U.S. App. Lexis 3142 (Fed. Cir. 2007).

Resignations

     A GSA employee's demotion from a probationary GS-14 position to GS-13 would not have coerced a reasonable employee to resign, and does not constitute a constructive discharge. Moody v. MSPB, #06-3432, 2007 U.S. App. Lexis 3051 (Unpub. Fed. Cir. 2007), affirming 2006 MSPB Lexis 4655 (2006).

     Although a deputy's actions should be interpreted as a resignation, it was not effective because the sheriff never accepted it. The sheriff's action in terminating her could therefore be appealed. Gallagher v. Ross County Sheriff, #06AP-942, 2007-Ohio-847, 2007 Ohio App. Lexis 729 (10th App. Dist.).

Retaliatory Personal Action

     Federal jury awards $505,000 [reduced to $300,000] for emotional distress and loss of reputation and $60,000 for lost wages to a former FBI agent who allegedly was retaliated against for filing a sex discrimination complaint. Turner v. Gonzalez, #01-CV-1407, 45 (2194) G.E.R.R. (BNA) 220 (D. Minn. 2007); prior ruling at 421 F.3d 688 (8th Cir. 2005).

Sex Discrimination - In General

     Fourth Circuit rejects the sex discrimination claims brought by a former undercover narcotics officer that was fired by the sheriff after the state police refused to work with her; she filed a report with discrepancies and was unable to resolve them. The sheriff terminated the plaintiff because she could no longer participate in a drug task force work for which she was hired, not due to her gender. Johnson v. Caudill, #06-1281, 2007 U.S. App. Lexis 2309 (4th Cir. 2007).

Wrongful Discharge - In General

     Federal appeals court applies legislative immunity in a wrongful discharge case where council members voted to eliminate certain jobs. Almonte v. City of Long Beach, #06-2010, 2007 U.S. App. Lexis 3244 (2nd Cir. 2007).

     Albuquerque jury awards a former security analyst $4 million in punitive and $387,536 in compensatory damages. The plaintiff was fired for cooperating with federal authorities that were investigating Chinese cyber intelligence efforts in Operation Titan Rain. Carpenter v. Sandia Natl. Laboratories, #D-202-CV-200506347, Bernalillo Co. NM Dist. Court (verdict 2/13/2007).

      Return to the Contents menu.

Report non-working links here

RESOURCES

     Occupational safety: OSHA Guidance on Preparing Workplaces for an Influenza Pandemic.

     Deception techniques: Polygraph and Credibility Assessment Program, DoD Directive 5210.48 (2007, replacing 1984 version).

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

Report non-working links here

CROSS REFERENCES

Break time - see: Past Practices

Handicap Discrimination - see: Hearing (Audio) Impairment

Promotional Rights - see: Collective Bargaining - Duty to Bargain

Retaliatory Personnel Action - see: Age Discrimination

Sex Discrimination - see: Retaliatory Personal Action


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.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.


Library of  Employment Law Case Summaries

 Search the Case Law Digest