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Fire and Police Personnel Reporter
ISSN 0164-6397

An employment law publication for law enforcement,
corrections and the fire/EMT services

Cite this issue as:
2008 FP Dec

This publication discussed 424 cases or items in 2008.

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CONTENTS
Monthly Law Journal Article
Weight and Fitness Requirements
2008 (12) AELE Mo. L. J. 201

 

Digest Topics
Arbitration Punishment Awards (2 cases)

Bargaining Unit Determinations

Bill of Rights Laws (2 cases)

Death Benefits

Disability Benefits - Benefit disputes

Disability Benefits - Line of duty related (2 cases)

Disciplinary & Administrative Investigations

Disciplinary Hearings - Proof Required

Disciplinary Procedures - In General

Disciplinary Punishment - Disparate Treatment

Discovery, Publicity and Media Rights

Domestic Partner Rights

First Amendment Related

Handicap Discrimination - Amendments

Homosexual & Transgendered Employee Rights

National Security Issues

Pensions

Privacy Rights

Psychological Counseling

Psychological Exams

Race and Sex Discrimination

Religious Discrimination

Retaliatory Personnel Action (2 cases)

Retirement Rights and Benefits (2 cases)

Sick Leave & Abuse (2 cases)   

Stress Related - Research Articles

Untruthfulness

Whistleblower Protection (2 cases)

Workers’ Compensation - Claim Validity (2 cases)

Resources

Cross_References

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AELE Seminars:

Public Safety Discipline and Internal Investigations
Apr. 13-15, 2009 – San Francisco

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

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.

Arbitration Punishment Awards - Right of Courts to Interfere

 * * * Editor’s Alert * * *

 

     Federal appeals panel vacates a 342-day “time served” disciplinary suspension as arbitrary and capricious, because it was based solely on the length of time that elapses between the date of the termination and the date of the arbitrator’s decision. “There are many factors that a reviewing authority may and should take into account when determining the appropriate length of an employee’s suspension. But it may not set the length of a suspension based solely on the time that it takes the reviewing authority to reach a decision. To permit the length of a suspension to be based solely on “time served” would make the penalty depend not on the Douglas factors, which reflect the individual employee’s particular situation, but on the speed with which (1) the employee or his representative handled the case, and (2) the tribunal rendered its decision.” Greenstreet v. Social Secur. Admin., #2007-3312, 2008 U.S. App. Lexis 20155 (Fed. Cir.).

 

     Pennsylvania appellate court overturns an arbitration award reinstating a worker who “repeatedly and egregiously sexually harassed” a coworker by engaging in behavior that was “lewd, lascivious and extraordinarily perverse.”  “If forced to honor the arbitration award, [management] will not be complying with Title VII ... which requires that an employer impose appropriate discipline for proven cases of sexual harassment in order to ensure a safe work environment free of sexual harassment.” Phila. Housing Auth. v. AFSCME C-33, L-934, #2405 C.D. 2004, 2008 Pa. Comm. Lexis 417.

 

Bargaining Unit Determinations

 

     Illinois appellate panel finds that police sergeants in an agency are “supervisors.” They are responsible for continually monitoring their subordinates, documenting instances of wrongdoing and completing performance evaluations. They “have authority to issue verbal reprimands and recommend more severe disciplinary action and they consistently use independent judgment in exercising such authority.” Village of Hazel Crest v. Illinois Labor Relations Board, #1-07-2722, 2008 Ill. App. Lexis 938.

 

Bill of Rights Laws

 

     Arbitrator orders the reinstatement of a police officer who was removed for violating a conduct regulation. Management failed to comply with state law and provide him with a signed complaint. A “Garrity Warning” form is not a signed complaint. City of Lubbock, Texas, and Individual Grievant, 125 LA (BNA) 554, AAA Case #71-390-00053-08 (Moore, 2008).

 

     Although verbal statements must be suppressed for not complying with the state’s Bill of Rights law, a California appellate panel declines to exclude evidence of an officer’s act of pointing her loaded firearm at a sergeant during her interrogation. “Although this action occurred during an interrogation which was conducted in a questionable manner, the remedy of suppression protects statements, not actions ...” Perez v. City of Los Angeles, #B199810, 2008 Cal. App. Lexis 1469 (2nd Dist.).

 

Death Benefits

 

     Federal PSOBA payments to a statutory beneficiary of a law enforcement officer who is killed in the line of duty are payable to the claimant’s estate, if the beneficiary dies before the claim is fully processed. However, the beneficiary must still be alive and file a claim after the death of the officer. White v. U.S., #007-5126, 2008 U.S. App. Lexis 007-5126 (Fed. Cir.).

 

Disability Rights and Benefits - Benefit disputes

 

     Because a statute was silent about cost-of-living increases for the widows of disabled police officers, an Illinois appellate court concludes that the legislature did not intend for surviving spouses to receive such COLA increases. Therefore a pension board has no authority to grant COLA increases. Village of Roselle v. Police Pension Bd., #2-07-0354, 889 N.E.2d 665, 2008 Ill. App. Lexis 470 (2nd Dist.).

 

Disability Rights and Benefits - Line of duty related/ disputed

 

     Although driving a car involves only an ordinary risk, a police officer acts in a capacity that involves a special risk when engaged in routine patrol. Appellate court reverses a holding that he was entitled only to non duty-related disability benefits. Jones v. Bd. of Trs., Police Pension Fund of Bloomington, #4-07-0687, 2008 Ill. App. Lexis 920 (4th Dist.).

 

     A police officer’s tripping over a snow bank and falling from a fence while chasing suspects are “inherent risks of his employment and not the result of unexpected events.” N.Y. appellate panel holds that the officer’s application for accidental disability retirement benefits were properly denied. Melendez v. N.Y. State Comptroller, #504636, 2008 N.Y. App. Div. Lexis 6756 (3rd Dept.).

 

Disciplinary & Administrative Investigations

 

     California appeals panel rejects preliminary injunctive relief because a sheriff’s dept. revised its procedures to prevent officers, who were either involved in or witnessed an officer-involved shooting to consult with legal counsel and or labor representatives collectively or in groups (two or more officers consulting at the same time with the same legal counsel/labor representative. They may continue to consult counsel individually, or to be represented as a group at a later time. Nothing in the constitution or bargaining laws warrants an injunction against the policy change while the litigation is pending. Assn. L.A. Deputy Sheriffs v. Co. of Los Angeles, #B197611, 2008 Cal. App. Lexis 1460 (2nd Dist.).

 

Note: AELE has two Monthly Law Journal articles on point:

 

·         Administrative Investigations of Police Shootings and Other Critical Incidents: Officer Statements and Use of Force Reports - Part One: The Prologue.

 

·         Administrative Investigations of Police Shootings and Other Critical Incidents: Officer Statements and Use of Force Reports Part Two: The Basics.

      

Disciplinary Hearings - Proof Required

 

     Arbitrator sets aside a 60 working-day suspension of a corrections officer for misdirecting a security camera. Management failed to prove that the grievant abused property because of an unproven burst of anger. Clermont Co. Sheriff and Ohio FOP L-112, 125 LA (BNA) 592, FMCS Case #08/00909 (Bordone, 2008).

 

Disciplinary Procedures - In General

 

     Arbitrator finds that the grievant, a corrections officer, brought a mobile phone into the facility, allowed an inmate to use it, and then was deceptive and untruthful about her actions. However, she was not provided with notice that management had rejected a hearing officer’s recommendation of a 45-day suspension, and terminated her. Because of a lack of due process, the 45-day suspension recommendation was determinative, and her termination is annulled. Virgin Islands Bur. of Corrections and UIW-SIU, Case #RA-010-08, 125 LA (BNA) 626 (Henner, 2008).

 

Disciplinary Punishment - Disparate Treatment

 

     Appellate court rejects a disciplinary bias claim. The appellant, a terminated black officer, “cited no examples of comparable employees who were similarly situated” that were treated more favorably. Greene v. City of Cincinnati, #C-070830, 2008 Ohio App. Lexis 4121 (1st Dist.).

 

Discovery, Publicity and Media Rights

 

     Noting that the U.S. Government widely disseminated photos of emaciated prisoners and corpses found in Japanese and German WWII prison camps, the Second Circuit upholds a FOIA action to release 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan. ACLU v. Dept. of Defense, #06-3140-cv, 2008 U.S. App. Lexis 20074 (2nd Cir.).

 

·         View the ACLU’s report, “Enduring Abuse: Torture and Cruel Treatment by the United States at Home and Abroad” (2006).

 

Domestic Partner Rights

 

     Connecticut Supreme Court strikes a ban on same sex marriages in a 4-to-3 holding. “... in light of the history of pernicious discrimination faced by gay men and lesbians, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm.” Kerrigan v. Commissioner of Public Health, #SC 17716, 289 Conn. 135, 957 A.2d 407, 2008 Conn. Lexis 385.

 

First Amendment Related

 

     Appellate panel rejects a suit filed by an at-will probation officer who was fired after she wrote a letter to a judge which was critical of her supervisor. The letter was a personal grievance, not a matter of public concern. Miller v. Clinton County, #07-2105, 2008 U.S. App. Lexis 20682 (3rd Cir.).

 

Handicap Laws / Abilities Discrimination - In General

* * * Editor’s Alert * * *

 

     President signs S. 3406 to modify the holdings in three Supreme Court cases:

 * School Bd. of Nassau Co. v. Arline, 480 U.S. 273 (1987);

 * Sutton v. United Air Lines, 527 U.S. 471 (1999);

 * Toyota Motor Mfg v. Williams, 534 U.S. 184 (2002).

 

The amendments are now Public Law No.110-325, and become effective Jan. 1, 2009. Among other things, the law has these definitions and features:

 

1.      Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

 

2.      A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

 

3.      An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. Impairments that are transitory (6 months or less) or minor do not count..

 

4.      An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

 

5.      An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

 

6.      The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies ...

 

Note: The amendments do NOT affect federal workers. Federal government employees are covered under Section 501 of the Rehabilitation Act of 1973.

 

Homosexual & Transgendered Employee Rights

 

     In a third interim ruling, a federal court finds that the Congressional Research Service unlawfully denied a position as a terrorist analyst to an applicant who was undergoing gender reassignment surgery.  The government revoked its job offer when management learned that a man named David intended to become a woman named Diane. The suit was launched by the ACLU. Schroer v. Billington, #1:05-cv-01090, Pacer Doc. 70, 2008 U.S. Dist. Lexis 71358 (D.D.C. 2008); prior decisions at 525 F.Supp.2d 58 and 424 F.Supp.2d 203.

 

·         See, Legal Rights of Transsexual Public Safety Employees, 2007 (6) AELE Mo. L. J. 201. 

 

National Security Issues

 

     Federal court rejects a national origin discrimination suit brought by a Treasury Dept. worker who was subjected to an intensive security investigation. Management believed the employee was traveling to Afghanistan because his mother was ill and later discovered that the employee’s mother was already deceased. Asghar v. Paulson, #06-0400, 2008 U.S. Dist. Lexis 73279 (D.D.C.).

 

Pensions 

 

     Florida pension trustees file a class action lawsuit in N.Y. City, claiming that a major insurance and financial services firm artificially inflated its share prices and concealed risky investments, resulting in investor asset losses. Jacksonville Police and Fire Pension Fund v. American International Group, #1:2008cv04772, Complaint, Pacer Doc. 1 (S.D.N.Y. 2008). 

 

Privacy Rights

 

     California appellate court holds that city officials must not disclose police officer personnel records and must cease permitting the public to access the Police Review Commission’s investigations, reports, hearings, and findings. Berkeley Police Assn. v. City of Berkeley, #A118537, 2008 Cal. App. Lexis 1567 (1st Dist.).

 

Psychological Counseling

 

Defense Dept. revises its policy on intelligence interrogations, detainee debriefings and tactical questioning. Among other things, it limits the role of psychologists advising interrogators: “Behavioral science consultants may not be used to determine detainee phobias for the purpose of exploitation during the interrogation process.” DoD Directive 3115.09 (9 Oct. 2008).

 

Psychological Exams and Standards

- Fitness for Continued Duty or a Return to Active Duty

 

     Ohio appellate court sustains the suspension and demotion of a fire lieutenant for failing to submit to a psychological exam following a 5-month absence from work after undergoing back surgery. A separate action against the union for failing to seek arbitration also was dismissed. A psychological evaluation request was reasonable and is not an unlawful search of his mind. Jenkins v. City of Sandusky, #E-07-067, 2008 Ohio App. Lexis 3966 (6th App. Dist.).

 

Race and Sex Discrimination

 

     Study shows that job discrimination plaintiffs win only 15% of the time. “The most significant observation about the district courts’ adjudication of these cases is the long-run lack of success for employment discrimination plaintiffs relative to other plaintiffs. Over the period of 1979-2006 in federal court, the plaintiff win rate for jobs cases (15%) was lower than that for non jobs cases (51%).” Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 (1) Harvard Law & Policy Review 1 at 30 (Winter 2009).

 

Religious Discrimination

 

     Jury awards a former worker $147,174 for economic losses, $500,000 for emotional distress and $5.9 million in punitive damages against her former employer. Initially, a federal district court in Sacramento dismissed her lawsuit. Reversing, the Ninth Circuit recognized a claim of reverse religious discrimination. The plaintiff had alleged she was denied a promotion because she was not a member of a favored religious group. Post-trial, the judge reduced the punitive damages award to $647,174, plus attorney’s fees. Noyes v. Kelly Services, #2:02-cv-2685, Pacer Doc. 226 (7/31/2008); prior decis. at #04-17050, 488 F.3d 1163 (9th Cir. 2007).

 

·         The employer unsuccessfully argued that punitive damages should be limited on a 1-to-1 ratio of economic losses, excluding the $500,000 for emotional distress.

 

Retaliatory Personnel Action

 

     Fifth Circuit rejects claims raised by a former prison nurse. Allegations of unfriendly behavior, being reprimanded in front of coworkers, unpleasant work meetings, and unfair treatment do not constitute adverse employment actions. King v. Louisiana Dept. of P.S. & C., #07-31069, 2008 U.S. App. Lexis 20294 (5th Cir.).

 

     Federal court dismisses a §1983 suit by a former state trooper who claimed that a superior violated his right to equal protection by treating him differently because of personal malice. His claim was not based on membership in a particular group, and “class of one” equal protection claims are invalid in the public employment context. Stas v. Lynch, #3:07-CV-0268, 2008 U.S. Dist. Lexis 70783 (D. Conn.).

 

Retirement Rights and Benefits

 

     Florida appellate court grants limited relief to a retired city employee who was mistakenly informed that he would receive $175,000 if he enrolled in a Deferred Retirement Option Plan (DROP) but the actual amount was around $75,000. Retirement Board, City of Coral Gables v. Pinon, #3D08-1114, 2008 Fla. App. Lexis 15120.

 

     Federal Merit Board declines to excuse or abate a $45,341 claim against a former federal worker who collected disability pay in excess of the income limitations provided by law [5 C.F.R. §831.1209(a) and §8337(d)]. Zelenka v. O.P.M., #PH-831M-07-0316-B-1, OPM Claim #328-9-643, 2008 MSPB 228.

 

Sick Leave & Abuse    

 

     Appellate panel sustains the termination of a female city worker who called in sick so that she could extend her vacation. She was unable show that male workers were treated less harshly for misusing sick leave and lying to their superiors. Hughes v. City of Bethlehem, #07-2349, 2008 U.S. App. Lexis 20974 (Unpub. 3rd Cir.).

 

     Arbitrator finds that management did not have just cause to discipline a firefighter for dishonesty when he took sick leave for a sore wrist. He was videotaped carrying bicycles and washing his vehicle. There was no evidence to believe that he had “faked” an injury and the modest tasks that he was photographed performing did not prove that he was fit for the considerable physical demands of an active firefighter. City of Rialto and IAFF L-3668, CSMCS #ARB-06-0255, 125 LA (BNA) 550 (Gentile).

 

Stress Related Claims and Defenses - Research Articles

 

     University of Buffalo pilot studies have shown, that “officers over age 40 had a higher 10-year risk of a coronary event compared to average national standards; 72 percent of female officers and 43 percent of male officers, had higher-than-recommended cholesterol levels; and police officers as a group had higher-than-average pulse rates and diastolic blood pressure.” NIOSH/Buffalo Cardio-Metabolic Occupational Police Stress Study news (9-25-2008).

 

Untruthfulness & Resume Fraud

- Resume fraud or job application omissions and falsehoods

 

     Arbitrator orders the reinstatement of a Bureau of Prisons employee in spite of her failure to disclose an investigation of her at another location. She had an excellent work record and was cleared of charges. Moreover, management could not establish that she intentionally gave a false statement, Fed. Bur. of Prisons and AFGE L-0922, FMCS Case #07-02327, 125 LA (BNA) 573 (Nicholas).

 

Whistleblower Requirements and Protection

 

     Ninth Circuit rejects a whistleblower claim raised by a terminated air marshal. He revealed to the media the contents of a DHS decision to suspend air marshal protection for overnight flights. The Whistleblower Protection Act did not apply to the TSA staffing decision because it was not a personnel action. Mac Lean v. Dept. Homeland Security, #04-17050, 2008 U.S. App. Lexis 19618 (9th Cir.).

 

     The failure to reappoint a detective sergeant constitutes an adverse employment action sufficient to support a §1983 action; his whistleblower claims should be decided by a jury, since there was a question of fact as to whether he was not reappointed because of his involvement in a grand jury investigation. Welch v. Campi, #072470, 2008 U.S. App. Lexis 20485 (1st Cir.).

 

Workers’ Compensation - Claim Validity

 

     Appellate court denies comp. benefits to an injured D.C. officer, who was assaulted in Maryland while off-duty. The fact the Maryland county has a reciprocal enforcement agreement did not make his injuries duty-incurred. Smallwood v. D.C. Metro. Police Dept., #07-CV-851, 2008 D.C. App. Lexis 396.

 

     A claimant’s earnings from subsequent employment should not be subtracted from a vocational rehabilitation maintenance allowance, because it is not a wage replacement benefit. Medrano v. Workers’ Comp. App. Bd., #B202828, 2008 Cal. App. Lexis 1462.

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RESOURCES

Post-Traumatic Stress

• Guide: Combat Deployment and the Returning Police Officer, Institute for Law and Justice, Alexandria, VA.

  

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


Bill of Rights Laws - see: Privacy Rights

Disciplinary Evidence/Exclusionary Rule - see: Bill of Rights Laws

Disciplinary Punishment - see: Arbitration Punishment Awards

Discovery and Media Rights - see: Privacy Rights

Free Speech - see: Whistleblower Protection

National Origin Discrimination - see: National Security Issues

National Security Issues - see: Discovery, Publicity & Media Rights

Retaliatory Personnel Action - see: First Amendment Related

Retirement Benefits - see: Disability Benefits

 


AELE Seminars:

Public Safety Discipline and Internal Investigations
Apr. 13-15, 2009 – San Francisco

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

Click here for more information about all AELE Seminars



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