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Oct. 20-22, 2008 - Las Vegas

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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: 2008 FP Apr (web edit.)
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CONTENTS

Monthly Law Journal Article
Investigative Detention of Employees

Part One: Criminal Interviews
2008 (4) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Arbitration Procedures

Collective Bargaining - Duty to Bargain (2 cases)
Damages
Demotions
Disability Benefits - Continuing Eligibility
Disability Benefits - Hearing Procedures
Disability Benefits - Line of Duty Related (2 cases)
Disciplinary Appeals & Challenges
Disciplinary Interviews - Legal Counsel
Disciplinary Punishment - In General (2 cases)
Disciplinary Punishment - Disparate Treatment
Driver's License Requirements
Drug Abuse Drug Screening
E-Mail/Internet - Legal Issues
FLSA - 7K Exemption
Family, Medical & Personal Leave
Handicap Discrimination - Specific Disabilities
Health Insurance & Benefits
Homosexual & Transgender Employee Rights
Race Discrimination
Retaliatory Personnel Action (2 cases)
Retirement Rights and Benefits
Sex Discrimination
Sexual Harassment - Verdicts
Smoking Rights
Union Activity
Whistleblower Protection (2 cases)
Wrongful Discharge

Resources

Cross_References

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AELE Seminars:

Public Safety Discipline and Internal Investigations
April 21-23, 2008 San Francisco

Lethal and Less Lethal Force
Oct. 20-22, 2008 - 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 Procedures

     Illinois appellate panel finds that the lower court erroneously vacated an arbitration award in favor of a city because the judge disagreed with the arbitrator's application of a clause in the bargaining agreement. "The scope of judicial review of an arbitration award is nothing like the scope of an appellate court's review of a trial court's decision because the Uniform Arbitration Act provides for limited judicial review of the arbitrator's award." Judicial reviews of arbitration awards are limited to a finding of bad faith, fraud, exceeding the arbitrator's authority, or deliberately refusing to follow the law, none of which occurred. IAFF L-37 v. City of Springfield, #4-07-0439, 2008 Ill. App. Lexis 49 (4th Dist.).

Collective Bargaining - Duty to Bargain

     A police chief may not deal directly with officers in matters of hours or terms of employment "because it violates the union's statutory right to speak exclusively for the employees who have elected it to serve as their sole representative." Where, however, management has reserved the "the right to assign each police officer to different work schedules," management is not obliged to bargain with the union. City of Marlborough and Police Patrol Officers' Assn., #MUP-03-3963 (Mass. Emp. Rel. Bd. 2008).

     Police Commissioner was entitled to judicial intervention reversing a Board of Collective Bargaining determination that officer drug testing by radioimmunoassay was a unilateral and impermissible change in conditions of employment and a mandatory subject of bargaining with the involved unions. City of New York v. PBA, #400007/07, 2007 N.Y. Misc. Lexis 8803.

Damages, Remedies and Enforcement of Settlements

     An award of compensatory damages need not accompany punitive damages awards under Title VII or 42 U.S. Code §1981. Abner v. KCS RR, # 06-30476, 2008 U.S. App. Lexis 27, 102 FEP Cases (BNA) 616 (5th Cir.).

Demotions

     After a removal by a village council, an Illinois police chief is entitled to be restored to his prior rank before the promotion to chief. Szewczyk v. Bd. of Fire and Police Cmsnrs. of Richmond, #2-06-1163, 2008 Ill. App. Lexis 19 (2nd Dist.).

Disability Rights and Benefits - Continuing Eligibility/Testing

     Appellate court affirms holding that a correction officer sufficiently recovered from post-traumatic stress disorder symptoms. Although the state's psychiatrist opposed a contrary view expressed by a psychologist, his opinion was articulate, rational, and based on the officer's medical records and a physical examination. Harko v. N.Y. State Comptroller, #502721, 2007 N.Y. App. Div. Lexis 13198 (3rd Dept.).

Disability Rights and Benefits - Hearing Procedures and Appeals

     Appellate court affirms the dismissal of a disability retirement claim after the applicant refused to be examined by physicians. The Pension Board had warned the ex-officer that a withdrawal of his application for benefits could result in as loss of jurisdiction over a subsequent filing. Tucker v. Bd. of Trs. of Police Pension Fund of Park Forest, #1-06-1827, 376 Ill. App.3d 983, 876 N.E.2d 121, 2007 Ill. App. Lexis 961 (lst Dist.).

Disability Rights and Benefits - Line of Duty Related

     New York appellate court denies benefits to a correction officer that sustained a back injury while removing garbage. The officer's injury was not causally related to his duties as a correction officer; garbage removal is a duty assigned to maintenance workers. Martino v. Co. of Albany, #502989, 2008 N.Y. App. Div. Lexis 166 (3rd Dept.).

     Illinois appellate court rejects a pension board determination that a police officer was not entitled to disability benefits for a shoulder injury caused by a falling railway crossing gate. Raising a malfunctioning crossing gate is not a maneuver generally assumed by the public, and he was performing a duty-related task. Sarkis v. City of Des Plaines, #1-06-2069, 2008 Ill. App. Lexis 68 (1st Dist.).

Disciplinary Appeals & Challenges- In General

     Ninth Circuit rejects the wrongful discharge claims of a former university police officer that unsuccessfully litigated his termination by pursuing a grievance. The panel rejected the assertion that the claims in the present action differed from those raised in the grievance proceedings. Einheber v. Regents of the Univ. of Cal., #06-16462, 2008 U.S. App. Lexis 2994 (Unpub. current appeal, 9th Cir.); #03-15526 (1995 9th Cir. disposition); #SF-CE-322-H, PERB Decision #949-H (Parallel 1992 PERB ruling).

Disciplinary Interviews & Compelled Reports - Legal Counsel

     Ohio appellate panel sets aside an arbitration award that reinstated a police officer because he was denied legal counsel during a disciplinary interview. The officer's remedy was to file a separate grievance; the arbitrator lacked authority to impose an unspecified sanction against the employer. City of Portsmouth v. FOP L-33, #05CA3032, 2006-Ohio-4387, 2006 Ohio App. Lexis 4284,182 L.R.R.M. (BNA) 2566 (4th Dist.).

Disciplinary Punishment - In General

     Eighth Circuit sustains a five-day disciplinary suspension of a corrections officer that failed to report the use of force against an inmate, and rejects the officer's claim of unlawful retaliation. Barker v. Mo. Dept. of Corrections, #07-1422, 2008 U.S. App. Lexis 1328 (8th Cir.).

     Arbitrator reduces the termination of a transit police officer to 21-day suspension; he unintentionally had forwarded a racist joke that he had received on his mobile phone. Washington Metro Area Transit Auth. and Frat. Order of Police, FMCS Case #07/56574-A, 124 LA (BNA) 972 (Evans, 2007).

Disciplinary Punishment - Disparate Treatment

     Former police recruit was unable to show that his removal from a preservice training program for assaulting another recruit was pretextual, despite his claim that three recruits attacked him first, but were not punished. Management articulated nondiscriminatory reasons for disbelieving the plaintiff. Turner v. Federal Law Enforcement Training Center, #04c-0606, 2007 U.S. Dist. Lexis 91558, 102 FEP Cases (BNA) 856 (D.D.C.).

Driver's License Requirements

     Arbitrator holds that management had just cause to discharge a firefighter/EMT who had his driver's license revoked due to a DUI conviction and refused offer of another position that did not require driving. Osceola County and IAFF L-3284, FMCS #06/05036, 124 LA (BNA) 850 (Smith, 2007).

Drug Abuse and Rehabilitation

     California Supreme Court, in a 5-to-2 holding, allows an employer to fire workers who use medical marijuana, even when the employee has a doctor's written approval. Ross v. Ragingwire Tel., #S138130, 2008 Cal. Lexis 784.

Drug Screening and Specimen Testing

     Seventh Circuit upholds random drug testing of safety-sensitive public employees. The appellant was a large vehicle and heavy equipment operator for an Indiana municipality. Krieg v. Seybold, #06-2322, 481 F.3d 512, 2007 U.S. App. Lexis 6453 (7th Cir. 2007).

E-Mail/Internet - Legal Issues

     California appellate panel rejects an attempt to learn the identity of an e-message board user that disparaged another person. "The use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox political views, or criticize corporate or individual behavior without fear of intimidation or reprisal. In addition, by concealing speakers' identities, the online forum allows individuals of any economic, political, or social status to be heard without suppression or other intervention by the media or more powerful figures in the field." Krinsky v. Doe 6, #H030767, 2008 Cal. App. Lexis 180 (6th Dist.).

FLSA - 7K Exemption

     Paramedics employed by a fire department and trained in fire suppression, have the "responsibility to engage in fire suppression" under 29 U.S. Code §203(y), and are partially exempt from the normal 40-hour overtime schedule established by the Fair Labor Standards Act, even if they do not regularly engage in fire suppression. Huff v. DeKalb County, #07-10862, 2008 U.S. App. Lexis 3224 (11th Cir.).

Family, Medical & Personal Leave

     Involuntary placement of a detention officer with lupus on unpaid FMLA leave during a chicken pox outbreak did not violate ADA, since her physician cautioned her against an exposure to chicken pox. Andrews v. Geo Group Inc., #06-cv-00844, 2007 U.S. Dist. Lexis 77474, 20 AD Cases (BNA) 171 (D.Colo).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A diabetic police officer, suffering from dizziness and blackouts, was not substantially limited in a major life activity, because the symptoms were alleviated with prescription medications. Walker v. City of Vicksburg, #5:06cv60, 2008 U.S. Dist. Lexis 2173; 20 AD Cases (BNA) 257, 2007 U.S. Dist. Lexis 83974 (S.D. Miss.).

Health Insurance & Benefits

     The mere fact that a county sheriff has chosen to participate in a group health plan managed by a city does not make the city the "employer" of county correctional officers. City of Boston and AFSCME C-93, #MUP-03-3880 (Mass. Emp. Rel. Bd. 2008).

Homosexual & Transgender Employee Rights

     Preop-transsexual public employees with male genitalia must use the men's toilet facilities; "this court cannot conclude it requires employers to allow biological males to use women's restrooms." Etsitty v. Utah Transit Auth., #05-4193, 502 F.3d 1215 (10th Cir. 2007).

Race Discrimination - In General

     Federal court finds sufficient evidence to allow a jury to find that the fire lieutenant promotion exam intentionally was designed to discriminate against African Americans, Men of Color Helping All Society v. City of Buffalo, #98-CV-99C, 2008 U.S. Dist. Lexis 8880; 2007 U.S. Dist Lexis 93075, 93066, 93064 and 83544 (W.D.N.Y.).

Retaliatory Personnel Action

     California appellate panel reinstates a jury verdict for retaliation won by a social worker that was assigned to a prison by a temp. agency. She was a special DoC employee under Gov. Code § 12940(j) and had standing to assert a discrimination claim, even though she was not an official employee of the state for civil service purposes. Bradley v. Cal. Dept. of Corrections, #F049541, 2008 Cal. App. Lexis 78 (5th Dist.).

     Federal court in Florida upholds a damages claim for corrections officer who alleged that she was fired in retaliation for making disabilities discrimination complaints. Rumler v. Fla. Dept. of Corrections, #2:06-cv-522, Pacer Doc. #59 (M.D. Fla.).

Retirement Rights and Benefits

     Eighth Circuit overturns a city's unilateral discontinuance of health insurance premium payments for retired public employees as required by a bargaining agreement; Art. I §10 of the U.S. Constitution prohibits the impairment of contracts. AFGE L-2957 v. City of Benton, Ark, #07-1589, 2008 U.S. App. Lexis 1416 (8th Cir.).

Sex Discrimination - In General

     District of Columbia joins fourteen states that have laws allowing breast-feeding in the workplace. Employers must provide "reasonable daily unpaid break periods" unless "it would create an undue hardship on the operations of the employer." Child's Right to Nurse Human Rights Amendment, D.C. Official Code §2-1401.01 (2007).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Federal jury awards $658,000 in compensatory and $100,000 in punitive damages to four Mississippi women firefighters who sued over a sexually hostile environment and retaliation by their superiors and coworkers. Alexander v. Jackson, #3:04-cv-614, Pacer Doc. 168 & 169 (S.D. Miss.).

Smoking Rights/Restrictions & Air Quality Claims

     Appellate court confirms the right of a Pennsylvania municipality to adopt an ordinance that bans smoking in public buildings, overturning a Labor Board ruling that required the city to recognize a past practice. The ordinance did not prohibit employees from using tobacco while on duty; it only established that specific locations were smoke free. Bor. of Ellwood City v. Penna. Labor Rel. Bd., #473 C.D. 2007, 2008 Pa. Commw. Lexis 26.

Union and Associational Activity

     Federal appeals court reinstates an action filed by Ohio firefighters who claimed they were passed over for promotion because of their union activities. Zerman v. City of Strongsville, #06-4461, 2008 U.S. Dist. App. Lexis 367 (Unpub. 6th Cir.).

Whistleblower Requirements and Protection

     Following the Supreme Court's 5-4 holding in Garcetti v. Ceballos, #04-473, 547 U.S. 410 (2006), the Second Circuit rejects a retaliation lawsuit filed by a NYPD sergeant after he wrote a report about health concerns at his precinct. He was required to prepare the report in his role as the precinct Safety Officer, and was not writing as a citizen. Ruotolo v. City of New York, #06-3886, 2008 U.S. App. Lexis 2551.

     Police detective and a deputy police chief who reported alleged illegal conduct by fellow officers to the professional accountability bureau and to the chief of police were protected by Michigan Whistleblowers' Protection Act, where the act protects reports made within employee's own agency. "... the WPA does not require that an employee of a public body must report violations or suspected violations to an outside agency ..." Brown v. Mayor of Detroit, #132016, 26 IER Cases (BNA) 1057.

Wrongful Discharge - In General

****Editor's Case Alert****

     Fifth Circuit affirms a holding that denied qualified immunity to a police chief that fired a detective who refused to waive her Miranda rights as part of a polygraph exam. Termination for invoking one's constitutional rights violated clearly established federal law. Hancock v. Baker, #07-40794, 2008 U.S. App. Lexis 1847 (5th Cir.).

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RESOURCES

     Article:

     Training:

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
Civil Liability - see: Wrongful Discharge

Collective Bargaining/Duty to Bargain - see: Smoking Rights
Disciplinary Evid. / Exclusionary Rule - see: Disciplinary Interviews
Disciplinary Offenses - see: Driver's License Requirements
Drug Screening - see: Collective Bargaining - Duty to Bargain
First Amendment Related - see: Whistleblower Protection
Handicap Discrimination - see: Retaliatory Personnel Action
Health Insurance - see: Retirement Benefits
Polygraph Exams - see: Wrongful Discharge
Psych. Exams - see: Disability Benefits/Continuing Eligibility
Retaliatory Personnel Action - see: Disciplinary Punishment


AELE Seminars:

Public Safety Discipline and Internal Investigations
April 21-23, 2008 San Francisco

Lethal and Less Lethal Force
Oct. 20-22, 2008 - Las Vegas

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 2008 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.


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