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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 Jul (web edit.)
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CONTENTS
Monthly Law Journal Article
Last Chance Agreements
2008 (7) AELE Mo. L. J. 201

Digest Topics
Age Discrimination
Arbitration Procedures (2 cases)
Disability Benefits (2 cases)
Disciplinary Offenses - Conduct Unbecoming
Disciplinary Procedures
Disciplinary Punishment (2 cases)
Domestic Partner Rights (2 cases)
Employee Harassment - Sexual Orientation
FLSA - Overtime
Family Medical & Personal Leave
Free Speech (2 cases)
Fringe Benefits
Handicap Discrimination - Accommodation
Handicap Discrimination - Psychiatric
Handicap Discrimination - Specific Disabilities (3 cases)
Heart Problems
Impasse Arbitration
Injuries to Employees
Last Chance Agreements
National Origin Discrimination
Privacy Rights
Resignations
Retaliatory Personnel Action
Retirement Benefits
Sex Discrimination
Sexual Harassment
Transfers - Punitive
Union Activity
Whistleblower Protection

Resources

Cross_References

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AELE Seminars:

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

Public Safety Discipline and Internal Investigations
Dec. 15-17, 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.

Age Discrimination - Entry

     Fifth Circuit affirms the dismissal of an ADEA action brought by a 49-year-old rejected police applicant. He gave unacceptable answers to hypothetical police scenarios and appeared unable to logically process information. Joseph v. City of Dallas, #07-11235, 2008 U.S. App. Lexis 9742 (Unpub. 5th Cir.).

Arbitration Procedures

     Arbitrator finds that a union was guilty of laches in not raising an overtime issue for three years. City of Oregon, Ohio and Ore. Part-time Fire Fighters Assn., FMCS Case #07/59337, 124 LA (BNA) 1592 (Bell, 2008).

     Pennsylvania appellate court reinstates an arbitration award granting a duty-related pension to a disabled officer. The arbitrator did not exceed his powers by awarding the officer a work-related disability pension. Bor. of Mahanoy City v. M.C. Police Dept., #1172 C.D. 2007, 2008 Pa. Commw. Lexis 194.

Disability Rights and Benefits

     Appellate court rejects an employer's effort to reduce benefits paid to a corrections officer that suffered a duty-related neck injury. Although management identified five positions for which the officer had been medically cleared, none of the jobs were available to him because public transportation was not available and he did not drive. Penn. Dept. of Corrections v. WCAB, #1614 C.D. 2007, 2008 Pa. Commw. Lexis 190.

     Because the claimant was able to perform all of his duties prior to a work-related injury to his knees, denial of benefits by the sheriff, due to pre-existent injuries, was arbitrary and capricious. Schmidt v. Putnam County Sheriff, Index #1432/06, Docket #2007-01219, 2008 N.Y. App. Div. Lexis 2527 (2nd Dept.).

Disciplinary Offenses - Conduct Unbecoming

     Arbitrator finds that management lacked just cause to terminate an off-duty police officer for frequenting a bar that is a known hangout for gangs, where other officers also visited the premises without suffering disciplinary action. City of El Paso and Individual Grievant, AAA Case #70-390-00665-04, 124 LA (BNA) 1583 (Jennings, 2008).

Disciplinary Procedures - In General

     In a civil rights action, the Eleventh Circuit holds that a Florida sheriff is not a final policymaker simply because a civil service board had only overturned one termination in 15 years. Maschmeier v. Scott, #07-13439, 2008 U.S. App. Lexis 6043 (Unpub. 11th Cir.).

Disciplinary Punishment - In General

     Overturning a 90-day suspension imposed by an Administrative Law Judge, the Federal Merit Board sustains the termination of a TSA supervisor who repeatedly degraded his subordinates. Kamahele and Dept. of Homeland Security, #SF-0752-06-0866-I-1, 2008 MSPB 106.

     Federal court affirms an arbitration award that sustained the termination of a correctional officer that had refused to obey an order to provide a copy of the Koran to an inmate, and had threatened a coworker with a knife. Webb v. Fed. Bur. of Prisons, #2007-3085, 2008 U.S. App. Lexis 5913 (Unpub. Fed. Cir.), affirming arbitration award, FMCS #05-05272.

Domestic Partner Rights

     California Supreme Court joins Massachusetts in overturning the ban on same-sex marriages. In re Marriage Cases, #S147999, 2008 Cal. Lexis 6155.

     N.Y. Court rejects an attempt to block spousal benefits applying to same-sex marriage partners of public employees. Because same-sex marriages performed in Canada are valid in N.Y., civil service rules extending such benefits are constitutional and consistent with legislative policy, and is not an illegal expenditure of state funds. Lewis v. N.Y. State Dept. of Civil Services, #4078-07, 2008 N.Y. Misc. Lexis 1623, 239 NYLJ 52 (Albany Co.).

Employee Harassment - Sexual Orientation

     Federal court dismisses an action filed by a terminated African-American who alleged verbal abuse from coworkers regarding her sexual orientation, religion, and race. Title VII does not prohibit discrimination based on sexual orientation and she was legitimately terminated because of her physical assault of two coworkers. Ford v. New York City, #06-Civ-8254, 2008 U.S. Dist. Lexis 33473 (S.D.N.Y.).

FLSA - Overtime - in General

     Jail and patrol officers for a county sheriff's dept. who work part-time as civilian communications personnel do not need to be paid at the same rate that they earn as peace officers, because work performed in the communications division "is in a different capacity" from the work they perform in the detention and patrol divisions. Communications personnel perform civilian functions, not law enforcement duties. W&H Opin. Letter # FLSA2008-5NA, 2008 DOLWH Lexis 6.

Family Medical & Personal Leave

     Even if a police employee's leave was protected under the FMLA, her case would still fail because there was no evidence of a connection between her leave in 1999 and her termination in May 2003. Ney v. City of Hoisington, #07-3086, 2008 U.S. App. Lexis 2882 (10th Cir.).

Free Speech

     Federal court rejects a First Amendment challenge to the termination of a volunteer firefighter after he wrote a letter to the U.S. Fire Administration complaining about inadequate funding. His letter alleged that a neighboring agency received funding for a fire truck that it didn't need and that another had misappropriated funds. The disclosures had a damaging effect on his own department's working relationship with nearby agencies. McClernon v. Beaver Dams VFD, #05-CV-6257T, 2007 U.S. Dist. Lexis 38029 (W.D.N.Y.).

     "Pennsylvania law allows an employer to implement a chain of command policy to regulate the time, manner, and place of expression. ... The chain of command policy regulating procedures to follow when making complaints of improper conduct by fellow officers and superiors is necessary for the orderly and efficient operation of paramilitary organizations, such as the [city's] Police Department." Day v. Civil Service Cmsn. of Bor. of Carlisle, 550 C.D. 2005, 2008 Pa. Commw. Lexis 207.

Fringe Benefits

     Office of Personnel Management issues final rules on comp. time earned for travel, per 5 CFR Part 550. 73 (103) Fed. Reg. 30455 (5/28/2008).

Handicap/ Abilities Discrimination - Accommodation - In General

     In a selective treatment action brought by a disabled former NYPD officer, the trial court failed to allow sufficient discovery as to whether patrol duty constitutes an essential job function. The case was remanded. Price v. City of New York, #06-3481-cv, 2008 U.S. App. Lexis 3133 (2nd Cir.).

Handicap / Abilities Discrimination - Psychiatric

     Rejecting an ADA claim, the Ninth Circuit holds that a former deputy sheriff's inability to interact with others was of limited severity, and was mitigated by anti-depressant medication for his PTSD. Magdaleno v. Washington Co., Ore., #06-35319, 2008 U.S. App. Lexis 10153 (Unpub. 9th Cir.).

Handicap/Abilities Discrimination - Specific Disabilities

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

     Federal court declines to dismiss a suit brought by a corrections officer applicant who was rejected because she was born with only one hand. Taylor v. Hampton Roads Regional Jail Auth., #2:07cv294, 2008 U.S. Dist. Lexis 37508 (E.D. Va.).

» Editor's Note: The plaintiff had hired an expert in tactical defense training who led her through a series of drills; each one related to an essential function. The tests assessed her ability to:

     The applicant's expert concluded, with accommodation, that she could discharge all of the essential functions of a jail officer.

     The Jail Authority offered "nothing more than the generalized, conclusory statements of its employees." None of the defense witnesses attempted to explain why the evaluation by the plaintiff's expert was inaccurate, implausible, or otherwise not indicative of on-the-job conditions.

     Long before passage of the ADA, amputees had won discrimination lawsuits.

     * In California, an amputee won an order for reinstatement with the highway patrol; the absence of foot. Sedler and Cal. Highway Patrol, Calif. Public Emp. Retir. Sys. Case #562-20-4688, CHP File #76.A1273.A2868 (1982).

     * In Illinois, an applicant with amputated leg was entitled to seek employment as city firefighter. A state law banning the appointment of amputees was found to be unconstitutional. Melvin v. City of West Frankfort, 417 N.E.2d 260 (Ill. App. 1981).

Heart Problems

     Florida firefighter with peripheral vascular disease was entitled to disability benefits. The city presented no evidence to overcome a statutory presumption that heart disease is job-induced. It was of no relevance that the claimant was able to perform other occupations. Butler v. City of Jacksonville, #1D06-5918, 2008 Fla. App. Lexis 6937 (1st Dist.).

Impasse Arbitration

     Appellate court reinstates an impasse arbitration award increasing the work period of probation officers by a half-hour a day. Washington Co. v. Assn. of Prof. Emp., AFL-CIO, #938 C.D. 2007, 2008 Pa. Commw. Lexis 203.

Injuries to Employees

     Appellate panel upholds a claim brought by a Beverly Hills SWAT officer who broke an ankle while on vacation and while training for a scheduled physical fitness test. Tomlin v. Workers' Comp. App. Bd., #B199429, 2008 Cal. App. Lexis 744 (2d Dist.).

Last Chance Agreements

     New York appellate court upholds a last chance agreement that included a waiver of the employee's right to arbitrate or litigate a subsequent termination. Schmitt v. N. Y. State Dept. of Corr. Serv., #502415, 2008 NY Slip Op 317, 47 A.D.3d 1098, 850 N.Y.S.2d 270 (3rd Dept.); appeal denied, 2008 N.Y. Lexis 1398.

National Origin Discrimination

     Hispanic probation officer who was terminated for alleged misconduct failed to establish that he was similarly situated to non-Hispanic employees that were treated more favorably. Salas v. Wisconsin Dept. of Corrections, #06-2483, 493 F.3d 913, 2007 U.S. App. Lexis 16986, 101 FEP Cases (BNA) 11 (7th Cir).

Privacy Rights

     Court dismisses a privacy action brought by a uniformed DHS employee who was required to furnish medical reasons why he should be excused from a ban on facial hair. Boyd v. Chertoff, #07-1098, 2008 U.S. Dist. Lexis 25029 and 25002 (D.D.C.).

Resignations

     Arbitrator follows the "unanimous conclusion" of other arbitrators that a resignation may not be revoked after the employer has hired a replacement worker. American Standard and United Steel L-1538, FMCS Case No. 07/04608, 124 LA (BNA) 1537, (Franckiewicz, 2008).

Retaliatory Personnel Action

     Seventh Circuit overturns a judgment for $210,000 in compensatory and $150,000 in punitive damages, awarded to a State Police lieutenant that was laterally transferred because of his criticism of a case and the filing of an internal complaint. His statements and reports were made pursuant to his official duties, and not as a citizen. Callahan v. Fermon, #05-4313, 2008 U.S. App. Lexis 10800 (7th Cir.).

Retirement Rights and Benefits

     The term "regular compensation" provided in Calif. Govt. Code 31724 includes sick leave and vacation periods, when taken as time off. Katosh v. Sonoma Co. Employees' Ret. Assn., #A115094, 2008 Cal. App. Lexis 758 (2nd Dist.).

Sex Discrimination - In General

     Even if a male superior subjected the plaintiff and another woman police officer to a demeaning uniform inspection, it did not rise to the level of severity that triggers liability under Title VII. Sword-Frakes v. City of N. Las Vegas, #06-16918, 2008 U.S. App. Lexis 3982 (Unpub. 9th Cir.).

Sexual Harassment - In General

     Third Circuit rejects a sexual harassment claim brought by a corrections officer. The aggressor was a coworker, not a supervisor, and she never reported the alleged harassment to her supervisor, to the police, or to the county's EEO Officer. Hitchins v. Montgomery Co., #06-4819, 2008 U.S. App. Lexis 10688 (Unpub. 3rd Cir.).

Transfers - Disciplinary or Punitive

     Federal appeals court reinstates an action challenging a court security officer's transfer in violation of the bargaining agreement. There was no showing by the employer that the transfer could have been challenged via grievance mechanisms. Cephas v. MVM, #06-5244, 2008 U.S. App. Lexis 6461 (D.C. Cir.).

Union and Associational Activity

     First Circuit affirms a jury verdict of $17,980 against a Massachusetts sheriff for retaliation against correctional officers for engaging in pro-union activity. Davignon v. Hodgson, #06-1191, 2008 U.S. App. Lexis 8855 (1st Cir.).

Whistleblower Requirements and Protection

     In a whistleblower action, the Federal Circuit remands the action for further findings, but writes that "removal was a reasonable penalty in light of [the appellant's] repeated violation of that trust." Chambers v. Dept. of Interior, #2007-3050, 2008 U.S. App. Lexis 3161 (Fed. 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: Age Discrimination - Entry
Associating With Known Criminals - see: Disciplinary Offenses - Conduct Unbecoming
Chain of Command - see: Free Speech
Disciplinary Punishment/Disparate Treatment - see: Disciplinary Offenses/CUBO
First Amend. Related - see: Retaliatory Persnl. Action and Union Activity
Free Speech - see: Retaliatory Personnel Action
Hairstyle Regulations - see: Privacy Rights
Transfers - see: Retaliatory Personnel Action
Worker's Comp - see: Injuries to Employees


AELE Seminars:

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

Public Safety Discipline and Internal Investigations
Dec. 15-17, 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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