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Las Vegas -- November 12-14, 2007

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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 Nov (web edit.)
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CONTENTS

Monthly Law Journal Article
Picketing Rights of Public Employees
2007 (11) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Attorneys' Fees
Civil Liability
Collective Bargaining - In General
Collective Bargaining - Duty to Bargain
Death Benefits (2 cases)
Disability Benefits - Hearing Procedures
Disability Benefits - Line of Duty
Disciplinary Appeals
Disciplinary Discovery
Disciplinary Interviews & Reports - Weingarten Rights
Disciplinary Offenses - Conduct Unbecoming
Disciplinary Procedures - In General
Disciplinary Procedures - Delays/Time Limits (2 cases)
Drug Screening and Specimen Testing
Employee Harassment - Sexual Orientation
Family, Medical & Personal Leave
First Amendment Related
Inefficiency and Incompetence
Injuries to Employees (2 cases)
National Origin Discrimination
Pay Disputes
Pregnancy Policies and Discrimination
Privacy Rights (3 cases)
Race Discrimination - Disparate Discipline
Race and Sex Discrimination
Retaliatory Personnel Action
Sex Discrimination (2 cases)
Sexual Harassment
Smoking & Air Quality Claims
Whistleblower Protection (2 items)
Wrongful Discharge

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.

Attorneys' Fees and Legal Defense Rights

     Second Circuit overturns an arbitration award that denied a prevailing age discrimination plaintiff the recovery of $262,000 in attorney fees. Porzig v. Dresdner Kleinwort, #06-1212-cv, 2007 U.S. App. Lexis 18674 (2nd Cir.).

Civil Liability

     The American Bar Association advises that defense counsel ethically can contact putative members of an employees' class action lawsuit before the court certifies class membership. ABA Comm. on Ethics & Prof. Responsibility Formal Opin. #07-445.

Collective Bargaining - In General

     Missouri Supreme Court holds that public employees enjoy a Constitutional right to collective bargaining. Independence-National Educ. Assn. v. Independence School Dist., #SC87980, 223 S.W.3d 131, 2007 Mo. Lexis 83.

Collective Bargaining - Duty to Bargain

     Arbitrator finds that management violated the bargaining agreement by unilaterally adding a spousal surcharge or additional payment for health coverage. City of Painesville and IBEW L-673, 123 LA (BNA) 1563, FMCS Case #06/58893 (Cohen, 2007).

Death Benefits

     An EMT who was an "associate fire fighter" and was killed while providing emergency medical assistance during the Sept. 11th terrorist attacks was a public safety officer within the meaning of Public Law 107-37, 115 STAT. 219 (2001). Winuk v. United States, #06-770C, 2007 U.S. Claims Lexis 199, 77 Fed. Cl. 207.

     A private helicopter pilot and a private air tanker pilot who were killed in separate incidents while flying fire suppression missions were not "public safety officers" under the Public Safety Officers' Benefits Act, 42 U.S. Code § 3796 and their the survivors were not entitled to federal death benefits. Groff v. U.S., #2006-5141, 2007 U.S. App. Lexis 15821 (Fed. Cir.).

Disability Rights and Benefits - Hearing Procedures and Appeals

     A New York correction officer must be afforded notice when management exercises its authority to apply for the officer's retirement without the officer's consent. He is not entitled to a hearing process separate from the proceeding before the Comptroller. Davis v. Co. of Westchester, #501774, 2007 N.Y. App. Div. Lexis 8580, 2007 NY Slip Op 6147 (3rd Dept.).

Disability Rights and Benefits - Line of duty related/ disputed

     An Illinois police officer assigned as a crime scene technician was not entitled to a line of duty disability pension for injuries sustained in a motor vehicle collision where he was a passenger. Section 3--114.1(a) of the Illinois Pension Code awards duty-related benefits for an "injury incurred in or resulting from the performance of an act of duty." Fedorski v. Board of Tr. of Aurora Police Pens. Fund, #2-06-1004, 2007 Ill. App. Lexis 838 (2nd Dist. 2007).

Disciplinary Appeals & Challenges- In General

     New York trial court finds that a terminated police officer was entitled to an arbitration hearing, under the bargaining agreement. A town law in New York cannot abolish hearing rights established in a bargaining agreement. Elias v. Town of Crawford, #4933-2007, 2007 N.Y. Misc. Lexis 5086, 2007 NY Slip Op 27302 (Orange Co. Sup. Ct.).

Disciplinary Discovery

     Appellate court overturns an arbitration award where the city's witnesses were not allowed to testify because a document had not been given to the accused officer. The union should have used other means to enforce the documents subpoena; a preclusion order was too drastic a remedy. City of Philadelphia v. Frat. Order of Police L-5, #44 C.D. 2007, 2007 Pa. Commw. Lexis 409.

Disciplinary Interviews & Compelled Reports - Weingarten Rights

     New York appellate court rejects a suit challenging a revised state police policy that officers who are questioned after a critical incident are no longer allowed to have a union representative present. The officers failed to show that the revised policy "is reasonably certain to result in actual harm to members in either the criminal or disciplinary context" and they lack legal standing to challenge managements' current policy. Police Benevolent Assn. of N.Y. State Troopers v. New York State Div. of State Police, #501721, 2007 N.Y. App. Div. Lexis 8725 (3rd Dept.).

Disciplinary Offenses - Conduct Unbecoming

     The undefined term "misconduct" in a city ordinance is not void for vagueness under the federal or Nebraska Constitutions, where it has a generally accepted meaning. "In the employment context, misconduct is generally defined to include behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations." Maxon v. City of Grand Island, #S-05-1204, 273 Neb. 647, 731 N.W.2d 882, 2007 Neb. Lexis 74, 26 IER Cases 510.

Disciplinary Procedures - In General

     Arbitrator sets aside a ten-day prehearing suspension of a firefighter accused of a residency violation. Management failed to "make a proper investigation prior to suspending the Grievant, including interviewing the Grievant as to the suspension." The suspension was "a violation of the just cause principles." City of Massillon, Ohio and IAFF L-251, 123 LA (BNA) 1374, FMCS Case #071214/00686-8 (Fullmer, 2007).

Disciplinary Procedures - Delays & Time Limits

     N.J. Supreme Court clarifies time limitations on disciplinary complaints. N.J.S.A. 53:1-33 requires that disciplinary charges against state troopers must be brought within 45 days from the date management obtains "sufficient information" on which to base disciplinary action -- except where there is a criminal investigation the applicable time limit begins on the day after the disposition of the criminal investigation. Roberts v. New Jersey Div. of State Police, #A-62-ST2006, 191 N.J. 516, 924 A.2d 550, 2007 N.J. Lexis 704.

     Management should object to the timeliness of a grievance at the time it is filed, or promptly thereafter. Arbitrator holds that where management fails to raise an objection prior to the arbitration hearing, the issue of timeliness is waived. Dept. of Homeland Security (Customs) and AFGE L-2724, Case #06-03893-8, 123 LA (BNA) 1524 (Skulina, 2007).

Drug Screening and Specimen Testing

     Arbitrator overturns the termination of a firefighter because the medical officer "should have conducted a more thorough investigation to determine whether there was clinical evidence of [the] unauthorized use of opiates ... before he certified the test result as positive." The grievant was taking prescription dosages of hydrocodone and Tylenol 3 (with codeine) which can metabolize into morphine, and there was no evidence that the grievant had abused drugs in past. Orange Co., FL and IAFF L-2057, 123 LA (BNA) 1464, AAA Case #32-390-00220-06 (Smith, 2007).

Employee Harassment - Sexual Orientation

     Black Lesbian LAFD firefighter wins $6.2 million for harassment and retaliation, including $2.7 million for emotional distress. City had rejected a settlement offer of $4.5 million. Bressler (Lee) v. City of Los Angeles, #BC336783, (L.A. Co. Super. Ct. 2007); verdict summarized at 45 (2214) G.E.R.R. (BNA) 822.

Family, Medical & Personal Leave

     FMLA claim rejected; corrections officer exceeded the 504 hours of excused leave and was lawfully terminated for his absences. Coker v. McFaul, #06-3587, 2007 U.S. App. Lexis 16565 (Unpub. 6th Cir.).

First Amendment Related

     Appellate court rejects retaliation claims filed by police officers that alleged anti-union bias. The failure to promote action was seven months after participation in a union's petition drive. Harvey v. City of Rio Rancho, #06-2278, 2007 U.S. App. Lexis 18010 (10th Cir.)

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator overturns the demotion of a battalion chief for inadequate performance. The grievant "is not incompetent to perform the duties of a battalion chief [and] he did not exhibit behavior that warrants any form of discipline." Lehigh Acres Fire Control Dist. and IAFF L-1826, 123 LA (BNA) 1553, FMCS Case #06/03535 (Wolfson, 2007).

Injuries to Employees

     New law requires the N.Y. Dept. of Civil Service to log work-related accidents and injuries, the amount of time lost, the types of injuries, and the job titles of injured workers. The bill was supported by the state employee unions; N.Y. Sen. Bill 1710; N.Y. Civil Service Law §7(6) (enacted 7/3/2007).

     Federal court refuses to dismiss a negligent training claim by an Army base gate security officer who was injured while practicing takedown maneuvers. Costigan v. U.S., #C06-5425, 2007 U.S. Dist. Lexis 51161 (W.D. Wash.).

National Origin Discrimination

     Seventh Circuit rejects a national origin discrimination suit filed by an Hispanic corrections officer who was fired for smuggling contraband cigars into a prison. Although there was evidence that non-Hispanic employees were treated less harshly, there was no causal connection between discriminatory conduct by his superior and his termination. Jennings v. Illinois Dept. of Corrections, #06-1637, 101 FEP Cases (BNA) 249, 2007 U.S. App. Lexis 18325 (7th Cir.).

Pay Disputes - In General

     In a pay dispute where the employer raised the defense of prior litigation, a federal court rejects the theory that each paycheck that a plaintiff receives constitutes a new discriminatory act; the continuing effects of past discriminatory actions do not resuscitate time-barred claims. Groesch v. City of Springfield, #04-3162, 2007 U.S. Dist. Lexis 50009 (C.D. Ill.).

Pregnancy Policies and Discrimination

     New Illinois law makes it unlawful for a public employer to refuse to temporarily transfer a pregnant female peace officer or firefighter "to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated." Public Act 095-0025 (Eff. 1/1/2008).

Privacy Rights

     Relying on its 1998 decision in Kallstrom v. City of Columbus, #96-3853, 1998 FED App. 0055P, 136 F.3d 1055 at 1065, the Sixth Circuit rejects a civil rights suit filed by corrections officers after select inmates were provided with documents that included the officers' birth dates and social security numbers. Barber v. Overton, #05-2014, 2007 U.S. App. Lexis 18320 (6th Cir. 2007).

     Appellate court affirms the dismissal of a privacy lawsuit brought by two former undercover police officers against television station for broadcasting their identities and their undercover status in the context of a suspected involvement in an alleged sexual assault. The broadcast of allegations of police misconduct are in the public interest, and there is no exception in the law for undercover officers. Alvarado v. KOB-TV, #06-2001, 2007 U.S. App. Lexis 16720 (10th Cir.).

     Federal court rejects the invasion of privacy claims of ex-CIA agent Valerie Plame Wilson and her husband, brought against Vice President Cheney, his former Chief of Staff, and others. Wilson v. Libby, #06-1258, 2007 U.S. Dist. Lexis 51978 (D.D.C.).

Race or Sex Discrimination - Disparate Discipline

     Evidence that white correction officers who engaged in similar misconduct were not disciplined as severely as the plaintiff creates a fact issue as to whether the decision to extend his probationary period and ultimate termination were discriminatory. Hawkins v. Co. of Oneida, #5:04-CV-132, 2007 U.S. Dist. Lexis 53575 (N.D.N.Y.).

Race and Sex Discrimination

     EEOC endorses arbitration and mediation over litigation to resolve workplace bias claims, citing the lower costs and fewer delays. Report: ADR in the Federal Sector EEO Process for FY 2006.

Retaliatory Personnel Action

     Seventh Circuit affirms the dismissal of a wrongful discharge suit, where the worker claimed that the employer terminated him for filing a workers' compensation claim. In fact, the worker was fired because he failed to provide management with periodic medical status reports as required under the collective bargaining agreement. McCoy v. Maytag Corp., #06-2417, 2007 U.S. App. Lexis 18058 (7th Cir.).

Sex Discrimination - In General

     Denial of a woman police officer's request to work an out-of-town assignment was an adverse personnel action because of the loss of substantial overtime. Lewis v. City of Chicago, #06-2302, 2007 U.S. App. Lexis 17811, 101 FEP Cases (BNA) 139 (7th Cir.).

     Police officials were entitled to qualified immunity, in an action by women officers who were involuntarily assigned to the night watch because there were no female officers; the defendants had a reasonable belief that the reassignments were lawful. Duckworth v. St. Louis Metro. Police Dept., #06-3433, 2007 U.S. App. Lexis 17137, 101 FEP Cases (BNA) 121 (8th Cir.).

Sexual Harassment - In General

    Fifth Circuit affirms a jury award of $600,000 damages and $315,000 legal fees in an action for sexual harassment and retaliation. The plaintiff is a former Houston police officer assigned to the motorcycle squad. Kruezer v. City of Houston, #05-20796 (Unpub. 5th Cir. 2007); Summary Affirmance Order at 2007 U.S. App. Lexis 13784; verdict summarized at 29 (3) Empl. Discrim. Rep. (BNA) 83.

Smoking Rights/Restrictions & Air Quality Claims

     Federal prison guards lose claims for hazard duty pay arising from their exposure to inmate tobacco smoke. Adair v. U.S., #2006-5077, 2007 U.S. App. Lexis 18055 (Fed. Cir. 2007) affirming 70 Fed. Cl. 65.

Whistleblower Requirements and Protection

     H.R. 1, Improving America's Security Act, became Public Law #110-53 in 2007; among other provisions, it creates rights for public transit, motor carrier and railroad whistleblowers. Workers will be able to seek reinstatement, back pay with interest, compensatory damages, litigation costs, expert witness fees, attorney fees, and punitive damages not exceeding $250,000.

     Montana canine officer who alleged retaliation after reporting that other two officers pilfered the drugs that he used to train his dog wins $1.3 million. The retaliatory acts included unwarranted discipline, denial of training opportunities and promotions. Feuerstein v. Billings Police Dept., #DV06-0332 (13th Dist. Ct. Montana, 2007); verdict summarized at 45 (2217) G.E.R.R. (BNA) 915.

Wrongful Discharge - In General

     Plaintiffs had no property interest in temporary or durational positions as correctional officers. Pina v. Lantz, #3:04CV1574, 2007 U.S. Dist. Lexis 48837 (D. Conn.).

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RESOURCES

     E government report: State E-Government Strategies: Identifying Best Practices and Applications, Congressional Research Service Report RL34104 (2007).

     Officer safety article: New Federal Rule Seeks to Improve Officer Visibility at Roadside, IACP Police Chief magazine (July 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
Attorneys' Fees - see: Arbitration Procedures
Health Insurance - see: Coll. Barg. / Duty to Bargain


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.
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Access the multiyear Employment Law Case Digest
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© Copyright 2007 by A.E.L.E., Inc.
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