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 Oct (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
Financial Disclosure Requirements
2007 (10) AELE Mo. L. J. 201
(PDF format)

Digest Topics

Age Discrimination - General Arbitration Procedures
Attorneys Fees
Conflicts of Interest
Contracts and Outsourcing
Death Benefits
Disability Benefits - Disputes
Disciplinary Offenses (2 cases)
Disciplinary Procedures - Delays & Time Limits
Disciplinary Punishment - In General (2 cases)
Disciplinary Punishment - Disparate Treatment (2 cases)
Equal Pay Laws
First Amendment Related
Free Speech
Grievance Procedures
Handicap Discrimination - Specific Disabilities
Light Duty Assignments
National Origin Discrimination
Past Practices Clauses
Polygraph Exams
Psychological Exams - Conduct Justifying
Race: Reverse Discrimination
Retaliatory Personnel Action (2 cases)
Retirement Rights and Benefits
Sex Discrimination - Equal Opportunity Claims (2 cases)
Union and Associational Activity
Untruthfulness & Resume Fraud
Whistleblower Requirements and Protection

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

     EEOC revises ADEA regulations to conform to General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004); the 6-to-3 holding had rejected the claims of employees in their 40s who would not receive the same retirement health benefits as the employer's older employees. Coverage Under the Age Discrimination in Employment Act, EEOC Amendment to 29 C.F.R. Part 1625, 72 (129) Fed. Reg. 36873 (7/6/07).

Arbitration Procedures

     California appellate court finds that an arbitrator exceeded her authority when she concluded that the bargaining agreement did not comport with the parties' actual understanding. State employee bargaining agreements must be approved by the legislature, and cannot be later modified by an arbitrator, even if there was a mutual misunderstanding. Dept. Pers. Admin. v. Cal. Corr. Peace Officers Assn., #C051636, 2007 Cal. App. Lexis 1100 (3rd Dist.).

Attorneys' Fees and Legal Defense Rights

     Federal appeals court holds that plaintiffs were entitled to an award of attorneys fees in a lawsuit that challenged the employer's use of a psychological test as a condition of promotion purposes; an injunction ordering the destruction of the test results conferred enough of a benefit on the plaintiffs to classify them within the ADA's definition of a prevailing party. Karraker v. Rent-A-Center, #06-2617, 2007 U.S. App. Lexis 16184 (7th Cir.).

Conflicts of Interest

     Arbitrator sustains disciplinary action against a fire captain who secretly had accepted employment as a paid sales representative of American La France while acting as the city's agent for the purchase of a $432,000 ALF fire engine, including inspecting and accepting the final product in violation of city policies and a Washington state conflicts law. The grievant's termination is reversed, because under the city's progressive discipline policy the appropriate penalty is a demotion from Captain to firefighter and a six month suspension without pay. City of Sumner and IAFF L-2877, Case #20755-A-06-1436, 123 LA (BNA) 1249 (Coss, 2007).

Contracts, Consultants and Outsourcing

     Wisconsin sheriff violated the state's bargaining laws by outsourcing jail food preparation. "... the Sheriff's hiring and firing of personnel to provide food service to the county jail is not a time immemorial, principal, and important duty that characterizes and distinguishes the office of sheriff, and as such, is not within the Sheriff's constitutional powers." Kocken v. Wis. C-40, AFSCME, #2005AP2742, 2007 WI 72, 732 N.W.2d 828 2007 Wis. Lexis 400.

Death Benefits

     The Public Safety Officers' Benefits Act does not provide death benefits for the relatives of private contractor pilots that died while assisting in fire suppression operations. They were not public safety officer within the meaning of PSOBA. Groff v. U.S., #2006-5141, 2007 U.S. App. Lexis 15821 (Fed. Cir.).

Disability Rights and Benefits - Benefit Disputes

     Ohio appellate court sustains decisions that a state trooper should be removed because of a disability, and that she was not entitled to a disability pension. Each agency must make an independent decision regarding trooper injuries and disabilities and need not come to the same conclusion. State ex rel. Grien v. Ohio Hwy. Pat. Retir. Sys., #06AP-506, 2007 Ohio App. Lexis 2172 (10th Dist.).

Disciplinary Offenses - In General

     Federal appeals court upholds an ICE special agent's 30-day suspension for violating a rule against communicating with confidential informants while alone and a failure to properly secure evidence. Sweeney v. Dept. of Homeland Security, #07-3014, 2007 U.S. App. Lexis 11336 (Unpub. Fed. Cir. 2007).

     Federal appeals court sustains a grant of summary judgment to a city on the due-process claims raised by police officer, who was fired after he admitted storing drug evidence in a home safe. Poolman v. City of Grafton, #06-3220, 2007 U.S. App. Lexis 12933, 26 IER Cases (BNA) 363.

Disciplinary Procedures - Delays & Time Limits

     Police officer, who was suspended indefinitely after criminal charges were filed against him did not file a timely claim for reinstatement, where he waited 11 months after expiration of a 30-day period of suspension authorized by N.Y. Civil Service Law § 75 (3). Dorsey v. Coleman, #501741, 2007 NY Slip Op 3821, 40 A.D.2d 1187, 834 N.Y. Supp.2d 743, 2007 N.Y. App. Div. Lexis 5446, 26 IER Cases (BNA) 395 (3rd App. Dept.).

Disciplinary Punishment - In General

     Appellate court confirms arbitration award that reversed the termination of an off-duty corrections officer that allegedly called a coworker to tell him he planned to kill his ex-wife and sent a cellular text message to another coworker warning him to watch his back. The arbitrator found no evidence that grievant was a violent person or that his conduct had an adverse effect on the Dept. of Corrections. Dept. of Corrections v. Penna. St. Corr. Officers Assn., #2132 C.D. 2006, 2007 Pa. Commw. Lexis 198.

     Although a city employee saved, forwarded and transmitted e-mails that contained nudity and a racially themed cartoon, termination was an excessive penalty. City of Fort Worth and Individual Grievant, 123 LA (BNA) 1125 (Moore, 2007).

Disciplinary Punishment - Disparate Treatment

     Appellate court sustains the termination of a Chicago police officer that worked as part-time as a security guard for a school district while on medical leave. "... the fact that different individuals have been disciplined differently is not a basis for concluding that an agency's disciplinary decision is unreasonable; such conclusions are appropriate when individuals receive different discipline in a single, identical, "completely related" case." Siwek v. Police Bd. of Chicago, #1-05-3273, 2007 Ill. App. Lexis 729 (1st Dist.).

     Federal appeals court affirms termination of a police officer that watched a fellow officer lose control of his patrol car, spin, and jump a curb; she neither stopped to check on the officer nor sought assistance. Although a male officer drove by the scene without realizing that a collision had occurred was not disciplined, the appellant was fired because she failed to render aid to a fellow officer. Sullivan v. Vil. of McFarland, #06-3231, 2007 U.S. App. Lexis 10961 (Unpub. 7th Cir., 2007), affirming 457 F.Supp.2d 909 (W.D. Wis.).

Equal Pay Laws

     Federal appellate panel rejects Equal Pay Act claim; her duties differed from males that were paid more. Sims-Fingers v. City of Indianapolis, #06-2198, 2007 U.S. App. Lexis 15253 (7th Cir.).

First Amendment Related

     First Circuit holds that a website posting of an allegedly unlawfully taped police episode was protected by the First Amendment. Jean v. Massachusetts State Police, #06-1775, 2007 U.S. App. Lexis 14813 (1st Cir.).

Free Speech

     Federal appeals court concludes that a jury could infer that the fire chief's repeated decisions not to promote an outspoken firefighter were in part motivated by her protected activities in opposing fire station closures. Davison v. City of Minneapolis, #06-2368, 2007 U.S. App. Lexis 14459 (8th Cir. 2007).

Grievance Procedures

     Arbitrator holds that an unsigned grievance is arbitrable; the deviation from the bargaining agreement was too trivial, the agency was not prejudiced by omission of a signature, and management could have easily demanded that the union sign the grievance. Federal Bureau of Prisons and AFGE L-1007, FMCS Case #06/01920, 123 LA (BNA) 1254 (Sergent, 2007).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Customs Service officer with a attention deficit hyperactivity disorder failed to prove that there was a discriminatory motive for placing her on restricted duty or requesting a fitness-for-duty evaluation. Montgomery v. Chertoff, #03CV5387, 2007 U.S. Dist. Lexis 30519, 19 AD Cases (BNA) 542 (E.D.N.Y. 2007).

Light Duty Assignments

     Management did not have to accommodate a corrections officer with Grave's disease by assigning him to a light duty position with no inmate contact; availability of light duty assignments for temporarily disabled officers does not obligate an employer to assign permanently disabled employees to light duty assignments; $273,000 verdict overturned. Raspa v. Office of the Sheriff, #A53-2006, 2007 N.J. Lexis 693, 19 AD Cases (BNA) 591.

National Origin Discrimination

     Los Angeles jury awards $10.4 million to four South Gate police officers who alleged that they were harassed by coworkers because of their support for Latino city officials. The jury voted 10-2 to award approximately $1.4 million in economic damages and $9 million in non-economic damages; individual verdicts ranged from $1.5 to over $4 million Hernandez v. City of South Gate, #BC312104 (L.A. Super .2007); verdict rptd. at 45 (2208) G.E.R.R. (BNA) 636.

Past Practices, Precedents & Zipper Clauses

     Arbitrator holds that management did not violate the bargaining agreement when the fire chief unilaterally changed work schedules, where the agreement provided that the chief should determine schedules; past practices are irrelevant if the contract language is unambiguous ). City of Sunnyside and IAFF L-3542, #20039-A-05-01425, 123 LA (BNA) 1217 (Boedecker, 2007).

Polygraph Exams

    Town did not violate state polygraph statute by requiring police officer, accused of sexually molesting two minors, to submit to test to determine whether he should be disciplined after he was granted immunity from prosecution. Furtado v. Town of Plymouth, #06-P-892, 69 Mass. App. Ct. 319, 867 N.E.2d 801, 2007 Mass. App. Lexis 663, 26 IER Cases (BNA) 401.

Psychological Exams and Standards - Conduct Justifying a Required Exam

     Although a temporary transfer and compulsory fitness-for-duty examinations arguably constituted adverse employment actions, a Bureau of Prisons employee failed to prove a connection to an earlier filing of an EEOC complaint. Management established legitimate, non-retaliatory reasons for her transfer and the FFD exam, based on her outbursts and statements regarding a brain tumor. The warden legitimately was concerned that she could no longer perform her job duties. Murry v. Attorney General, #06-15764, 2007 U.S. App. Lexis 11473 (Unpub. 11th Cir. 2007).

Race: Reverse Discrimination

     Twenty-seven mostly white Georgia sheriff's deputies that were fired by newly elected black sheriff, and another seven that alleged mistreatment, to receive a $7 million settlement; most went back to work shortly thereafter. Massengale v. Hill, #1:05-cv-00083, Pacer Doc. #2 (N.D. Ga.); Clayton Co. Cmsn. Resol. 2007-106/A (6/19/2007).

Retaliatory Personnel Action

     LAFD captain awarded $3.75 million in retaliation lawsuit, including $2.96 million for pain and suffering, after he refused to lower physical fitness standards for women recruits. He alleged that he suffered heart problems after management tried to punish him and he was denied assignments. Lima v. City of Los Angeles, #BC353261; verdict rptd. Nat. L. J. 15 (6-18-2007) and L.A. Times (6-9-2007).

     Federal court refuses to dismiss a retaliation lawsuit brought by an Islamic, Jamaican born, African-American FBI agent who, after his conversion to Islam, was subjected to a file review, an on-site review, and a loyalty investigation. A "mere investigation" may constitute a material, adverse personnel action. Rattigan v. Gonzales, #04-2009, 2007 U.S. Dist. Lexis 39227, 100 FEP Cases (BNA) 1680 (D.D.C.).

Retirement Rights and Benefits

     Retired Rhode Island police officers and firefighters had vested rights to receive cost-of-living adjustments "that cannot be decreased by future ordinance." Arena v. City of Providence, #2005-207, 919 A.2d 379 2007 R.I. Lexis 39, 181 LRRM (BNA) 3307 (R.I. 2007).

Sex Discrimination - Equal Pay & Opportunity Claims

     FBI agrees to pay $5.8 million to end gender discrimination claims brought by 1200 current and former female support staff at its headquarters and field offices, plus another $2.9 million in legal fees and costs. The plaintiffs complained that management denied promotion and advancement opportunities to women employees who were not special agents and thus could not qualify for GS-14 and GS-15 positions. They claimed that agent qualifications were not job-related. Boord v. Gonzales, EEOC#100-A1-7101X; settlement agmt. rptd. at 45 (2213) G.E.R.R. (BNA) 780.

     Fifth Circuit revives a sex discrimination action filed by a woman sergeant that unsuccessfully sought a transfer to the Texas Rangers. Although the denial of a purely lateral transfer is not an adverse employment action redressible under Title VII, Texas Rangers "are an elite unit within DPS and have a unique and illustrious history." Rangers "have greater job responsibilities, including being the primary investigators of homicides and handling other major high-profile and sensitive cases." A "reasonable juror could find that [the plaintiff] suffered an adverse employment action." Alvarado v. Texas Rangers, #05-51064, 2007 U.S. App. Lexis 16928 (5th Cir.).

Union and Associational Activity

     Michigan sheriff lawfully disciplined a detective who had faxed an internal pager policy to the union's attorney without complying with the department's prior-authorization rule, even though employee work rules are a mandatory subject of bargaining. Ingham Co. v. Capitol City FOP L-141, #263956, 2007 Mich. App. Lexis 890, 181 LRRM (BNA) 3052.

Untruthfulness & Resume Fraud

     Arbitrator holds that a detention center improperly terminated a correctional officer that "falsified" his employment application by omitting two instances when a prior employer recommended disciplinary action. "From the time the grievant falsified his pre-employment application, a period of 44 months elapsed until he was terminated [and] the misrepresentations of the grievant on his pre-employment application were not material to the employer at the time of his termination." Disciplinary action is reversed. Federal Detention Center Miami and AFGE) L-501, FMCS Case #07/51043, 123 LA (BNA) 1236. (J. Wolfson, 2007).

Whistleblower Requirements and Protection

     Keeping a detailed log on the errant activities of coworkers is not protected activity under the Idaho Whistleblower Law and was a waste of resources, justifying the termination of a fire dept. clerk. Curlee v. Kootenai Co. Fire & Rescue, #32794, 2007 Idaho App. 44.

      Return to the Contents menu.

Report non-working links here

RESOURCES

     Discrimination - Report: Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination, UCLA School of Law (2007).

     Repetitive motion injuries - Article: The Safety Guys: Office Ergonomics 101, Part 1 and Part 2, Forensic Magazine (2007).

     Worker safety - Report: Preventing Fire Fighter Fatalities Due to Heart Attacks and Other Sudden Cardiovascular Events, NIOSH Publication No. 2007-133 (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

Report non-working links here

CROSS REFERENCES

Contracts and Outsourcing - see: Coll. Brg. / Duty to Bargain
Disciplinary Punishment - see: Conflicts of Interest
Disciplinary Punishment - see: Untruthfulness
Retaliatory Personnel Action - see: Psychological Exams
Retirement Benefits - see: Age Discrimination
Transfers /Non Disciplinary - see: Sex Discrimination


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