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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 Jan (web edit.)
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CONTENTS

Monthly Law Journal Article
Regulation of an Employee's Off-Duty Activities
Secondary Employment (Moonlighting)
Part Two - Special Issues
2008 (1) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Collective Bargaining - Duty to Bargain (2 cases)
Disability Benefits - Line of Duty (2 cases)
Disciplinary Offenses - Conduct Unbecoming (2 cases)
Disciplinary Hearings - Untenured
Disciplinary Interviews - Weingarten Rights
Disciplinary Procedures - Delays & Time Limits
Equal Pay Laws
Erroneous Employment
First Amendment Related (2 cases)
Hairstyle Discrimination (2 cases)
Handicap Discrimination - Light Duty
Homosexual Employee Rights
Impasse Arbitration
Injuries to Employees
National Origin Discrimination
Polygraph Exams
Psychological Exams - Refusal to Submit to Exam
Residency Requirements
Retaliatory Personnel Action (4 cases)
Retirement Rights and Benefits
Sexual Harassment - Retaliation
Sexual Harassment - Suits Against the Union
Sexual Harassment - Verdicts
Suspensions
Training Rights
Union and Associational Activities
Whistleblower Protection (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.

Collective Bargaining - Duty to Bargain

     Wisconsin appellate panel upholds a state Employment Relations Cmsn. determination that management's decision to eliminate three firefighter positions and return to a volunteer work force was a mandatory subject of bargaining, even if a budget shortfall arises due to the purchase of new fire truck. Edgerton Fire Prot. Dist. v. WERC, #2006-AP-000862, 2007 Wis.App. Lexis 717, 182 LRRM (BNA) 2928 (Unpub. 2007).

     A California municipality's decision to contract with the county sheriff for law enforcement services and to abolish own police department, is subject to the meet and confer requirements of the labor provisions in the Government Code. Rialto Police Benefit Assn. v. City of Rialto, #E039649, 155 Cal.App.4th 1295, 2007 Cal.App. Lexis 1653 (4th Dist.).

Disability Rights and Benefits - Line of Duty related / disputed

     Resolving conflicting appellate court decisions, the Illinois Supreme Court holds that while the opinion of three physicians is required, "the decision regarding disability is for the [pension] board, not any individual physician." Wade v. City of N. Chicago Police Pension Bd., #101265, 2007 Ill. Lexis 1694.

     Illinois appellate court overturns a pension board denial of duty-related disability benefits. There were justifiable reasons for not undergoing additional remedial surgery. Roszak v. Kankakee Firefighters' Pension Bd., #3-06-0865, 2007 Ill. App. Lexis 1076 (3rd Dist.).

     Disciplinary Offenses - Conduct Unbecoming Eighth Circuit upholds the termination of a police officer that rented space in his privately owned building for placing a pinhole camera in the bathroom wall. Poolman v. City of Grafton, #06-3220, 487 F.3d 1098, 2007 U.S. App. Lexis12933, 26 IER Cases (BNA) 363 (8th Cir.).

     Arbitrator sustains a 15-day suspension of a police officer for bringing discredit to his department during an off-duty incident in other city; he also paid a fine and agreed to pretrial diversion for resisting arrest after a public intoxication charge was dropped. City of Houston and Individual Grievant, 123 LA (BNA) 1821 (Moore, 2007).

Disciplinary Hearings - Untenured

     Deputy marshal was an at-will employee and was not entitled to a pretermination hearing. Darr v. Town of Telluride, #06-1227, 495 F.3d 1243, 2007 U.S. App. Lexis 18467 (10th Cir.).

Disciplinary Interviews & Compelled Reports - Weingarten Rights

     Although the bargaining agreement required management to "remind" employees of their Weingarten rights prior to a disciplinary interview, arbitrator rules that the clause was not applicable to a worker's compensation deposition. Untruthfulness at the deposition is just cause for termination. Horsehead Corp. and USW Internl. Union, L-13-401, 124 LA (BNA) 193, FMCS Case No. 07/01637 (Moore, 2007).

Disciplinary Procedures - Delays & Time Limits

     Because an officer's improper access of criminal history information was not criminal, accesses more than two years before disciplinary charges were filed could not be punished. Chrisman v. City of Los Angeles, #B184689, 2007 Cal. App. Lexis 1521 (2nd Dist.).

Equal Pay Laws

    Court declines to dismiss a suit filed by women police communication officers, who are paid less than all-male fire communication technicians for allegedly equal work. Ebbert v. Nassau County, #05-CV-5445, 2007 U.S. Dist. Lexis 58344, 101 FEP Cases (BNA) 764 (E.D.N.Y.).

Erroneous Employment

     Firefighter lacked standing to challenge the appointment of a new fire chief by raising a claim of non-residency and Sunshine law violations. Newell v. City of Jackson, #06CA19, 2007-Ohio-4729, 2007 Ohio App. Lexis 4286 (4th Dist.).

First Amendment Related

     Eleventh Circuit holds that the termination of a chief jailer after her testimony about jail conditions was pursuant to her duties as public employee rather than as citizen on a matter of public concern. The First Amendment did not protect her testimony, and the sheriff has qualified immune from her §1983 claim. Supreme Court denies review. Green v. Barrett, #06-15104, 226 Fed. Appx. 883, 2007 U.S. App. Lexis 6200 (11th Cir.); cert den. #07-177, 2007 U.S. Lexis 11550 (2007).

     The job responsibilities of a corrections officer include reporting inmate complaints to his superiors, and are not protected by the First Amendment. Wesolowski v. Bockelman, #1:05-CV-0321, 2007 U.S. Dist. Lexis 64806 (N.D.N.Y.).

Hairstyle and Appearance Regulations & Discrimination

     New Jersey appellate court reinstates a sex discrimination claim brought by a male Rastafarian corrections officer who refused to cut his dreadlocks. Only women officers are allowed to pin or twist their hair to comply with a collar-length hair standard. "... the record does not indicate why female corrections officers are still permitted to pin or twist their long hair to meet the standard, and there is no evidence or data explaining why any safety hazard cannot be reduced to an acceptable level by pinning or twisting the hair or by some means other than cutting the hair. Furthermore, the record does not disclose any detail about the motivation for the Director's changing the grooming policy in 2004. Defendant does not cite to any reports on the relevant safety issue, and there is no reference to any specific incident or study that precipitated the change in policy. Finally, contrary to the impression formed by the motion judge, plaintiff worked in the subject environment from 1994 to 2004, ostensibly without incident." Hicks v. Hudson County Corr. Ctr., #A-2407-05T3 2007 WL 2428429, 101 FEP Cases (BNA) 1075 (Unpub. N.J. App. Div. 2007).

     Federal court finds that the grooming standards for D.C. firefighters and paramedics violates the Religious Freedom Restoration Act, and management "has not proven or even attempted to prove that bearded firefighters fail tests more frequently than clean-shaven firefighters.". Potter v. Dist. of Columbia, #01-1189, 2007 U.S. Dist. Lexis 72507, 2007 WL 2892685, 101 FEP Cases (BNA) 1302. (D.D.C.).

Handicap Laws / Abilities Discrimination - Light Duty

     Arbitrator finds that management did not violate the bargaining agreement or disability laws by refusing to assign a firefighter with muscular dystrophy in an altered paramedic position as a trainer when he no longer could fulfill the active firefighting requirements. Orange County and IAFF L-2057, 124 LA (BNA) 150, AAA #32-390-00219-06 (Smith, 2007).

Homosexual & Transgendered Employee Rights

     New York State Div. of Human Rights awards $850,000 in compensatory damages for the harassment of a lesbian corrections officer. The agency found that she was subjected to a "daily, relentless regimen of humiliating insults" placing her in an "extremely serious and dangerous situation" by disclosing her sexual orientation to inmates. Humig v. New York State Dept. of Corr. Servs., #7905228 (N.Y. Div. of Hum. Rts.10/11/07).

Impasse Arbitration

     Pennsylvania appellate courts, in a 7-to-1 ruling, holds that an arbitrator acted unlawfully in requiring management to provide legal representation to correctional employees and to indemnify them against civil judgments. State law limits such relief; 4 Pa. Code §§ 39.1-39.3. Dept. of Corrections v. Penna. State Corrections Officers Assn., #445-CD-2006, 2007 Pa. Commw. Lexis 515.

Injuries to Employees

     Federal appeals court rejects a civil rights suit filed by an officer that was disabled from injuries received during an expandable baton training session. The plaintiff claimed his substantive due process rights were violated when the instructor attacked him "with a level of force that exceeded any legitimate training objective." The court noted that more than 1300 officers had been trained and only seven reported significant injuries. Feirson v. Dist. of Columbia, #05-7188, 2007 U.S. App. Lexis 25356 (D.C. Cir.).

National Origin Discrimination

     Seventh Circuit sustains the termination of a corrections officer for bringing contraband into a prison. There was no evidence that the failure to offer him a Last Chance Agreement was influenced by national origin discrimination. "An independent investigator and independent arbitrator separately reached the conclusion that [he] had engaged in the prohibited conduct of trading and trafficking" and there was no evidence they "bore any discriminatory animus..." Jennings v. Ill. Dept. of Corrections, #06-1637, 2007 U.S. App. Lexis 18325, 101 FEP Cases (BNA) 249 (7th Cir.).

Polygraph Exams

     Appellate court dismisses the appeal of a police applicant that was rejected because his polygraph examination indicated deception concerning his involvement with illegal drugs and narcotics. Management did not act irrationally or arbitrarily in relying on the results of their own polygraph test as well as a secondary review conducted by the Vermont state police. Mullen v. County of Suffolk, #2006-03220, 2007 N.Y. App. Div. Lexis 9671 (3rd Dept.).

Psychological Exams and Standards
     - Punishment for Refusal to Submit to Exam or Cooperate

     Appeals panel affirms a Merit Systems Protection Board decision to uphold the termination of an employee for insubordination. Management ordered the employee to undergo a fitness-for-duty evaluation after the he made improper requests for records. Moreover, the record supported a finding that management did not fire him in violation of the Whistleblower Protection Act. Sweeney v. Dep't of Homeland Sec., #2007-3091, 2007 U.S. App. Lexis 21813 (Unpub. Fed. Cir.).

Residency Requirements

     In a 2-to-1 holding, the Sixth Circuit rejects an appeal by Cleveland firefighters who challenged a city residency requirement on the right to travel, vagueness and equal protection claims; "it is rational for a city to treat firefighters differently from other city employees." Assn. of Cleveland Fire Fighters, IAFF L-93 v. City of Cleveland, #06-3823, 2007 U.S. App. Lexis 22680 (6th Cir.).

Retaliatory Personnel Action

     State investigator, who won a $1.5 million verdict for being denied a promotion in retaliation for reporting misconduct, may sue again for denial of a promotion in retaliation for having filed the first lawsuit. Dillon v. Morano, #06-2501-CV, 497 F.3d 247, 2007 U.S. App. Lexis 19453 (2nd Cir.).

     Eighth Circuit rejects retaliation fear claims raised by two women police dispatchers because they were not credible and did not excuse a yearlong delay in reporting a superior's sexual harassment. The District Court properly dismissed their hostile work environment sexual harassment and retaliation claims. Weger v. City of Ladue, #06-1970, 2007 U.S. App. Lexis 21909 (8th Cir.).

     Federal court refuses to dismiss wrongful discharges action filed by three former police employees that had cooperated in a public corruption investigation. Cheek v. City of Edwardsville, #06-2210, 2007 U.S. Dist. Lexis 66150 (D. Kan.)

     In a retaliation lawsuit, a New York court declines to set aside jury verdicts of $491,706, $479,473 and $507,198 awarded to a former sergeant, lieutenant and captain. The sergeant had filed a discrimination complaint; the two superior officers opposed discriminatory acts against the him. They complained of retaliation and constructive discharge. Sorrenti v. City of New York, #126981/02, 2007 N.Y. Misc. Lexis 6363 (N.Y. Co. Sup.).

Retirement Rights and Benefits

     White House police officer was not a federal law enforcement officer within the meaning of 5 U.S. Code 8331(20), §8401(17) and 5 C.F.R. § 831.902 because his primary function was not the "investigation, apprehension, or detention" criminals. Duties involving maintaining order and protecting life and property do not qualify for premium retirement benefits. Lowder v. Dept. of Homeland Security, #2006-3181, 2007 U.S. App. Lexis 24191 (Fed. Cir.).

Sexual Harassment - Retaliation

     Pornography belonging to a former supervisor that was found in a cabinet, where it sat undiscovered for a year, did not create a hostile environment. Moreover, the employee could not make out a prima facie case of retaliation because the chain of events was too attenuated to show that the supervisor harassed the employee by leaving pornography behind. Coolidge v. Consol. City of Indianapolis, #06-3587, 2007 U.S. App. Lexis 24193 (7th Cir.).

Sexual Harassment - Suits Against the Union

     First Circuit upholds a jury award of $1,205,000 in compensatory damages and $1,027,501 in punitive damages against a police union and others. A woman union member alleged sexual harassment during a union event, and a union official made threatening and intimidating remarks about her on television. Dixon v. IBPO L-382, #06-1210, 2007 U.S. App. Lexis 22891, 101 FEP Cases (BNA) 1121 (1st Cir.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Mississippi federal jury awards $658,000 in compensatory damages and $100,000 in punitive damages for maintaining a sexually hostile environment. The misconduct allegedly included sexual advances, intimidation, and offering money or gifts in exchange for sex. Alexander v. Jackson, #3:04-cv-614 (S.D. Miss. 2007); verdict rptd. at 45 (2211) G.E.R.R. (BNA) 728.

Suspensions

     In an indefinite suspension appeal by Bureau of Prisons officers, "merely informed the appellants that they were being investigated for criminal assault of an inmate without describing the circumstances surrounding the alleged assault, was insufficiently detailed to provide the appellants notice of the charges against them and, consequently, the agency denied the appellants a meaningful opportunity to be heard." Lamour v. Dept. of Justice, #NY-0752-06-0267-I-1, 2007 MSPB 185.

Training Rights, Requirements and Cost Reimbursement

     Federal court upholds a management rule that "no personnel will attend any police related schools whether it be on your time and expense or the Borough's time and expense unless authorized by the Chief of Police." For reasons of liability, management has a legitimate interest in knowing what training officers are getting. Johnson v. Borough of Palmyra, #1:04cv5370, 2007 U.S. Dist. Lexis 56628 (D.N.J.).

Union and Associational Activities

     New Jersey appellate court upholds the assessment of a fine and costs against a union official that erected a ten-foot inflatable rat on the sidewalk in front of the premises that the union was seeking to organize. The National Labor Relations Act did not preempt a local sign ordinance, it did not violate the First Amendment, was not unconstitutionally vague, was a content-neutral restriction, and was not selectively enforced against labor unions. New Jersey v. DeAngelo, # A-4229-05T3, 2007 N.J. Super. Lexis 304 (App. Div.).

Whistleblower Requirements and Protection

     Federal court refuses to dismiss a whistleblower action filed by a former police chief; his position was abolished by ordinance, he was reduced to lieutenant with no pay loss, and a public safety director assumed his administrative duties. "We cannot say as a matter of law that no reasonable jury could find that the actions taken in eliminating the position of chief of police ... did not amount to a wrongful intentional act or a wanton and willful disregard of [the plaintiff's] rights." The New Jersey whistleblower law allows a jury to award punitive damages. Ragan v. Fuentes, #1:05-cv-02825, 2007 U.S. Dist. Lexis 72605 (D.N.J.).

     A city's interest in promoting police efficiency does not outweigh a union official's First Amendment right to disclose allegations of misconduct to the FBI. See v. City of Elyria, #06-4195, 2007 U.S. App. Lexis 22308 (6th Cir.).

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RESOURCES

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: Polygraph Exams
Demotions - see: Whistleblower Protection
Drug Abuse - see: Polygraph Exams
Last Chance Agreements - see: National Origin Discrimination
Sexual Harassment - see: Homosexual Rights
Workers' Comp. - see: Disciplinary Interviews - Weingarten


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
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© Copyright 2008 by A.E.L.E., Inc.
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