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Apr. 21-23, 2008 - San Francisco

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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 Feb (web edit.)
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CONTENTS

Monthly Law Journal Article
Regulation of an Employee's Off-Duty Activities - Part Three
Participating in Unapproved Training Programs and/or
Membership in Controversial Organizations or Events
2008 (2) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Arbitration Procedures
Background Investigations
Civil Service
Collective Bargaining - Duty to Bargain (2 cases)
Disability Rights and Benefits - Disputed
Disability Rights and Benefits - Appeals
Disability Rights and Benefits - Other Issues
Disciplinary Appeals & Challenges
Disciplinary Interviews & Compelled Reports - Immunity
Disciplinary Offenses - In General (2 cases)
Disciplinary Offenses - Sufficiency of Proof
Disciplinary Punishment (2 cases)
Employee Monitoring
FLSA - Overtime - Meal periods
Family, Medical & Personal Leave (2 cases)
First Amendment Related Free Speech (3 cases)
Handicap Discrimination - Specific Disabilities (2 cases)
Homosexual & Transgendered Employee Rights
Minimum Staffing Requirements
Pay Disputes - In General
Psychological Exams - Weingarten
Reductions in Force (2 cases)
Releases & Waivers
Retirement Rights & Benefits
Sexual Harassment (2 cases)

Resources

Cross_References

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AELE Seminars:

Lethal and Less Lethal Force
Mar. 24-26, 2008 - San Francisco

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

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

     "Federal courts are not obligated to accord res judicata or collateral estoppel to an arbitrator's decision." Lohman v. Duryea Borough, #3:05-CV-1423, 2007 U.S. Dist. Lexis 87720 (M.D. Pa.), citing McDonald v. City of West Branch, 466 U.S. 284 at 285-6 (1984).

Background Investigations

     Female black applicant who was rejected for employment as an immigration inspector because of prior her workplace misconduct and public drunkenness, failed to show that the use of background checks had disparate impact on blacks or women. Crawford v. Dept. of Homeland Security, 101 FEP Cases (BNA) 948, 2007 U.S. App. Lexis 19540 (5th Cir.).

Civil Service

     U.S. Office of Personnel Management adopts a final rule authorizing the use of retention bonuses to keep key federal employees from quitting agencies that are restructuring or relocating their offices. Retention Incentives, 72 (221) Fed. Reg. 64523-528 (Nov. 16, 2007).

Collective Bargaining - Duty to Bargain

     Arbitrator holds that management did not have a unilateral right to issue a policy on workplace violence that involved employee searches. Policies, rules, and regulations that affect wages, hours and other terms and conditions of employment are mandatory subjects of bargaining. City of Okmulgee. Okla. and FOP L-96, 124 LA (BNA) 423, FMCS Case #071120/51434-5 (Walker, 2007).

     "It is not bad faith for management to declare an end to the negotiations before an agreement on additional proposals is reached by declaring it has no duty to bargain over such proposals. The fact that the agency did, in fact, negotiate for a while does not mean it must continue to negotiate on matters which the agency has no duty to bargain over. The agency has a right to break off negotiations at any time when it is or has been discussing an issue upon which there is no duty to bargain." Federal Bureau of Prisons and AFGE L-801, FMCS #06/57219, 124 LA (BNA) 622 (Daly, 2007).

Disability Rights and Benefits
     - Line of duty related/ disputed

     Appellate court rejects a claim for accidental disability retirement benefits as a result of injuries a police officer suffered in a 1980 motor vehicle accident. The hearing officer founded that a cervical spine injury did not cause permanent incapacitation, and that the an injury to his right hip was not caused by the 1980 accident. Morgani v. Hevesi, #502764, 2007 N.Y. App. Div. Lexis 12410 (3rd Dept.).

Disability Rights and Benefits
     - Hearing Procedures and Appeals

     A reviewing court must accept a medical board's conclusion that a firefighter is not disabled if supported by credible evidence; a trial court cannot weigh the medical evidence and substitute its own judgment for that of the board. Clarke v. Bd. of Tr. NYCFD Pension Fund, Index #33929/04, Docket #2006-09450, 2007 N.Y. App. Div. Lexis 12362 (2nd Dept.).

Disability Rights and Benefits - Other issues

     New York appellate court affirms a decision to end the pension benefits paid to a disabled police officer, following his conviction for a misdemeanor. Furrer v. Suffolk Co. Police Dept. & WCAB, #501460, 2007 N.Y. Slip Op. 8324, 2007 N.Y. App. Div. Lexis 11177 (3rd Dept.).

Disciplinary Appeals & Challenges- In General

     Federal appeals panel rejects a challenge to a senior police officer's termination because he had a viable remedy in state court [under N.Y.C.P.L.R. art. 78]. Sindone v. Kelly, #06-3230-cv, 2007 U.S. App. Lexis 26463 (Unpub. 2nd Cir.) affirming 439 F.Supp.2d 268 (S.D.N.Y.).

Disciplinary Interviews & Compelled Reports
     - Criminal Investigations and Immunity

     Federal court rejects a claim that use of force reports may not be used against an officer because they are obtained in violation of the Fifth Amendment right against self-incrimination. "Garrity does not stand for the proposition that a statement made in a standard report is coerced whenever an officer faces both the remote possibility of criminal prosecution if he files the report and the arguably even more speculative possibility of termination if he declines to do so." U.S. v. Cook, #CR-07-192, 2007 U.S. Dist. Lexis 77495 (D.D.C.).

Disciplinary Offenses - In General

     Federal Circuit upholds the termination of an ICE special agent that unlawfully employed a foreign national and lied about her status. Lair v. Dept. of Homeland Security, #2007-3147, 2007 U.S. App. Lexis 29077 (Unpub. Fed. Cir.).

     Federal Circuit sustains the termination of a border patrol agent who failed to respond to another agent's calls for help. Although the agent claimed that he acted properly because he was supervising two unrestrained suspects, and that the other agent was not in danger, those defenses were rejected because (1) border patrol agents are trained to abandon their role supervising unrestrained suspects as soon as a fellow officer calls for help and (2) the appellant was put on notice of the need to respond to an agent requesting assistance after he had failed to respond to an agent requesting help in 2003. Caswell v. Dept. of Homeland Security, #2007-3253, 2007 U.S. App. Lexis 28398, affirming 2007 MSPB Lexis 2668 (Unpub. Fed. Cir.).

Disciplinary Offenses - Sufficiency of Proof

     Arbitrator reinstates a property room supervisor that was terminated for ineffectiveness. Although she did not possess the necessary leadership qualities for supervision, the penalty was reduced to a 20-day suspension because she had been rated as "highly effective" in her last performance report. City of Arlington, Tex. and Grievant, 124 LA (BNA) 648 (Moore, 2007).

Disciplinary Punishment - In General

     Federal appeals panel sustains an arbitration decision removing a DHS employee for failing to report for work on multiple occasions without justification. Removal was appropriate because of prior warnings. Hawkins v. Dept. of Homeland Security, #2007-3213, 2007 U.S. App. Lexis 26368 affirming 228 Fed. Appx. 998, 2007 U.S. App. Lexis 16042 (Fed. Cir. 2007).

     Management had just cause to discipline the grievant for misuse of computer resources when he accessed a law enforcement database for personal reasons. Because he did not misuse or disseminate the information, his termination is ordered reduced to a 20-day suspension. Franklin Co. Sheriff's Office and FOP L9, 124 LA (BNA) 654, FMCS #070625/57876-8 (Bell, 2007).

Employee Monitoring

     California now prohibits requiring or compelling another person to undergo the subcutaneous implanting of an identification device, including RFID tagging; civil penalties attach. Calif. Civil Code §52.7 (2007). Note: The U.S. Food and Drug Admin. approved an 11 mm. RFID device for implantation in humans in 2004.

FLSA - Overtime - Roll Call & Meal periods

     Arbitrator holds that management violated government rules, agency policy, and the Fair Labor Standards Act by failing to pay park rangers for a half hour lunch break, where their duties prevented them from taking lunch break at all or without interruption. Natl. Park Serv. and AFGE L-2198, 124 LA (BNA) 358 (Pritzker, 2007).

Family, Medical & Personal Leave

     Federal appeals court affirms a jury verdict against a Louisiana sheriff for a FMLA violation, including $16,400 in back pay and $13,128 in front pay. Management failed to provide her with an individualized notice that leave would be counted against her FMLA allowance, as required under 29 C.F.R. §825.208(a)-(b)(1). Downey v. Strain, #06-30613, 2007 U.S. App. Lexis 28796 (5th Cir.).

     Federal court denies a FMLA claim that a police officer was compelled to use her vacation time for a two-day absence caused by a psychological impairment. The condition did not require continuing treatment, was not a serious health condition within the meaning of 29 U.S. Code §2612(a)(1)(D) and an inability to attend training is not a disability. Lundy v. Town of Brighton, #06-CV-6280L, 2007 U.S. Dist. Lexis 83132 (W.D.N.Y.).

First Amendment Related

     Supreme Court declines to review a Seventh Circuit ruling that vacated a $210,000 verdict in favor of a corrections officer. She had alleged retaliatory action after she complained that she was stopped from searching a vehicle that two senior prison officials used to leave the facility. Her complaint about prison security was not protected under the First Amendment because of the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006). Spiegla v. Hull, #05-3722, 481 F.3d 961, 2007 U.S. App. Lexis 7396, 25 IER Cases (BNA) 1508 (7th Cir.); cert. den. #07-273, 2007 U.S. Lexis 11650.

Free Speech

     First Circuit sustains the termination of a corrections officer, who on a union website, identified the sheriff as Hitlercorrectional officers as Jews, and the department's commanders as Nazi generals. "Because of the special degree of trust and discipline required in a police force there may be a stronger governmental interest in regulating the speech of police officers than in regulating the speech of other governmental employees. Curran v. Cousins, #07-1686, 2007 U.S. App. Lexis 28029 (1st Cir.) affirming 482 F.Supp.2d 36 (D.Mass.).

     Michigan appeals court agrees with the state's Employment Relations Commission that management violated an officer's right to free speech for terminating him because he maintained a website critical of the police chief, www.firejerryo.com. City of Detroit v. DPOA (Bennett), #268278, 2007 Mich. App. Lexis 2734 (unpub. 2007); also see 274 Mich. App. 307, 732 N.W.2d 164 (2006).

     Fifth Circuit rejects a suit filed by a terminated Houston police officer who alleged retaliation and First Amendment violations. The First Amendment did not protect his "caustic, offensive, and disrespectful" statements and magazine articles. He was not speaking as a citizen and identified himself as a police officer; he discussed his police-related activities and policies and undermined discipline and public confidence in the department. Nixon v. City of Houston, #07-20162, 2007 U.S. App. Lexis 29389 (5th Cir.).

Handicap Laws / Abilities Discrimination
     - Specific Disabilities

     EEOC rules that a police officer that experienced breathing problems after an exposure to cologne is not disabled because he was not substantially limited in the major life activity of breathing. EEOC Office of Legal Counsel, Opin. Letter Oct. 1, 2007, 45 (2233) G.E.R.R. (BNA) 1363.

     Federal court finds that a non-insulin dependent mellitus type II diabetic police officer who experienced blackouts while driving was substantially limited in the major life activities of caring for himself and thinking. Walker v. City of Vicksburg, #5:06cv60, 2007 U.S. Dist. Lexis 83974 (S.D. Miss.).

     Note: Guidance on the ADA definition of disability is available at www.eeoc.gov/policy/docs/902cm.html

Homosexual & Transgendered Employee Rights

     Transsexual applicant, who was rejected for position as terrorism research analyst with the Library of Congress, stated a Title VII claim of sex discrimination based on gender stereotyping about her appearance and behavior. Schroer v. Billington, #05-1090, 2007 WL 4225667, 2007 U.S. Dist. Lexis 89885, 102 FEP Cases (BNA) 296 (D.D.C.); prior opin. at 424 F.Supp.2d 203 (2006).

Minimum Staffing Requirements - Firefighters

     In a decision where one grievance was dismissed and the award was for one hour of pay in two other grievances, the arbitrator concludes that the "Union must return to common sense application of its CBA during extraordinary events or because of extenuating circumstances." Union Township, Ohio and Firefighters L-3412, 124 LA (BNA) 403, FMCS Case #07/03565-8 (Frockt, 2007).

Pay Disputes - In General

     Arbitrator holds that management violated the bargaining agreement by denying pay shift differential to police officers that volunteered to work on the swing or night shifts; the term "regular rate of pay" under the Fair Labor Standards Act includes shift incentives and differentials. City of Tacoma and Tacoma Police Union L-6, 124 LA (BNA) 642 (Landau, 2007).

Psychological Exams and Standards
     - Right to Have Attorney or Weingarten Representative Present

     Arbitrator holds that bargaining unit members are entitled to be accompanied by a Weingarten representative, if requested, at a fitness for duty evaluation required by a superior. Although the union did not claim medical expertise, "union representation during a fitness for work examination is necessary to ensure that the employee's rights are not being violated during the course of the examination ..." AFGE L-596 and DoJ Fed. Bur of Prisons (FCC Coleman, FL), Grievance 06-540891 (Sherman, 2007).

Reductions in Force

     Arbitrator finds that a city violated the bargaining agreement when it hired a new part-time police officer rather than recall an officer who had been laid off three years earlier, even though the CBA provided that an employee's right to recall ends 12 months after he has been laid off. City of Frankfort and P.O.A. of Michigan, 124 LA (BNA) 381 (Mackraz, 2007).

     A police officer that was furloughed for economic reasons is not entitled to a Loudermill type hearing because his removal was non disciplinary. Lohman v. Duryea Borough, #3:05-CV-1423, 2007 U.S. Dist. Lexis 87720 (M.D. Pa.).

Releases & Waivers

     Ninth Circuit affirms dismissal of a suit filed by a rejected police applicant that failed a psychological evaluation that cited her stubborn nature and impulsivity. The appellate panel enforced a pre-employment waiver of legal rights "for any acts, or omissions in the course of the investigation into background, employment history, health, family, personal habits and suitability for employment ..." The waiver was not effective against another claim that she was rejected because she had filed an EEOC complaint against a neighboring city. Nilsson v. City of Mesa, #05-15627, 503 F.3d 947, 2007 U.S. App. Lexis 21912, 101 FEP Cases (BNA) 901, 19 AD Cases 1418 (9th Cir.).

Retirement Rights and Benefits

     Retiree benefits are not arbitrable if they don't vest prior to expiration of the collective bargaining agreement. Crown Cork & Seal v. Intl. Assn. of Machinists, #06-3639, 2007 U.S. App. Lexis 22207 (8th Cir.).

Sexual Harassment - In General

     Police management exercised reasonable care to correct promptly alleged sexual harassment; employee observations are not relevant to the question of whether notice can be imputed to an employer, and female officers must use the established complaint procedure to establish actual notice. Weger v. City of Ladue, #06-1970, 2007 U.S. App. Lexis 21909,101 FEP Cases (BNA) 917 (8th Cir.).

     Woman code enforcement officer failed to prove that she was subjected to an objectively hostile work environment. Larocque v. City of Eastpointe, #06-1752, 101 FEP Cases (BNA) 958, 2007 U.S. App. Lexis 21047 (6th Cir.).

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RESOURCES

     Occupational Disease - Article: Carcinogenicity of Shift-work, Painting and Fire-fighting, IARC Monograph, 98 (12) The Lancet Oncology 1065-66 Dec. 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
Applicant Rejections - see: Releases & Waivers
Arbitration Procedures - see: Retirement Rights & Benefits
Criminal Liability - see: Disability Rights and Benefits
Disciplinary Punishment - see: Disability Rights and Benefits
Disciplinary Searches - see: Collective Barg. - Duty to Bargain
Psychological Exams - see: Releases & Waivers
Race Discrimination - see: Background Investigations
Retaliatory Personnel Action - see: First Amendment Related
Sex Discrimination - see: Background Investigations
Workplace Violence - see: Collective Barg. - Duty to Bargain


AELE Seminars:

Lethal and Less Lethal Force
Mar. 24-26, 2008 - San Francisco

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

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.
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