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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 Mar (web edit.)
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CONTENTS

Monthly Law Journal Article
Regulation of an Employee's Off-Duty Activities
Part Four - Sexual Conduct
2008 (3) AELE Mo. L. J. 201
(PDF format)

Digest Topics

Alcohol Testing
Applicant Rejections
Arbitration Procedures
Attorney's Fee (2 cases)
Bill of Rights Laws
Contracts, Consultants and Outsourcing
Criminal Liability (Interviews)
Disciplinary Appeals - In General
Disciplinary Appeals - Reviewing Standards
Disciplinary Interviews - Criminal Immunity
Disciplinary Punishment - Disparate Treatment
First Amendment Related
Handicap Laws Discrimination - Specific Disabilities
Impasse Arbitration (2 cases)
Inefficiency, Performance, Negligence & Incompetence (2 cases)
Injuries to Employees
Promotional Rights
Psychological Exams - Fitness
Race Discrimination (2 cases)
Religious Discrimination (2 cases)
Resignations
Retaliatory Personnel Actions
Sexual Harassment - In General (3 cases)
Transfers - Non Punitive
Untruthfulness (2 cases)
Wrongful Discharge

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.

Alcohol Abuse, Testing & Rehabilitation

     Sixth Circuit rejects a civil rights suit filed by an officer who, following an altercation at a bar while off duty, was required by his superiors to take a breathalyzer test. He was not "seized" when he submitted to the test, but was merely fearful that he would be disciplined if he refused it. Pennington v. Metro. Gov't of Nashville & Davidson Co., #07-5180, 511 F.3d 647, 2008 U.S. App. Lexis 447 (6th Cir.), relying on Grow v. City of Milwaukee, 84 F.Supp.2d 990 (E.D. Wis. 2000) and Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir.2002).

Applicant Rejections

     Temporary corrections officers that were promised permanent employment lacked legally enforceable rights. They did not have a constitutionally-protected property interest in the promised jobs. Aguilera v. Negron, #06-2467, 2007 U.S. App. Lexis 28032 (1st Cir.).

Arbitration Procedures

     Federal court concludes that a military reservist was bound by an agreement to arbitrate all employment-related claims, including discrimination or retaliation arising from his military service. The USERRA does not prohibit arbitration and the Congress has repeatedly declined to create bars to arbitration in other statutes. Kitts v. Menards, #3:2006cv00708, 2007 U.S. Dist. Lexis 73052, 182 LRRM (BNA) 3109 (N.D. Ind.).

Attorneys' Fees, Sanctions and Legal Defense Rights

     Federal court orders a sanction of $24,407 against a police officer and his counsel for violating a protective order concerning a parody police video, which allegedly contained racist, sexist, and homophobic scenes, after they disclosed confidential excerpts from a video deposition to the news media. Harmston v. City of San Francisco, #07-cv-01186, 2007 U.S. Dist. Lexis 74891, 102 FEP Cases (BNA) 402 (N.D. Cal.)

     Appellate court sustains most of an attorney fee award of $1.1 million for a recovery of $30,300 in a discrimination action brought by an airport safety officer. "The law does not mandate, however, that attorney fees bear a percentage relationship to the ultimate recovery of damages in a civil rights case." Harman v. C&C of San Francisco, #A115519, 2007 Cal. App. Lexis 2079 (1st Dist.).

Bill of Rights Laws

     Rights granted law enforcement officers under the California Public Safety Officers Procedural Bill of Rights Act do not apply to officers that are subjected to criminal investigations conducted by their employers. Van Winkle v. County of Ventura, #B194395, 158 Cal.App. 4th 492, 2007 Cal. App. Lexis 2086 (2nd Dist.).

Contracts, Consultants and Outsourcing

     A terminated municipal official was entitled to collect severance pay, equal to nine months salary, that was negotiated at the commencement of employment; it is not impermissible gift of public property. If a contract is terminable at will, it does not unlawfully exceed the term of office for the mayor. Vil. of Oak Lawn v. Faber, #1-06-2622, 2007 Ill. App. Lexis 1356 (1st App. Dist. 2007).

Criminal Liability

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

     Divided panel of the Ninth Circuit rejects a civil rights suit brought by deputies that were required to remain on duty to assist superiors with a criminal investigation of an unlawful use of force. They were paid overtime, were allowed to contact counsel and "were not treated like criminal suspects." "A law enforcement officer is not seized for purposes of the Fourth Amendment simply because a supervisor orders him to remain at work after the termination of his shift or to come into the station to submit to questioning about the discharge of his duties as a peace officer." Dissenting judge noted that the deputies "weren't told they were free to leave, and they weren't told they didn't have to answer questions." Aguilera v. Baca, #05-56617, 510 F.3d 1161, 2007 U.S. App. Lexis 29804 (9th Cir.).

Disciplinary Appeals & Challenges - In General

     Appellate court reverses a disciplinary penalty, imposed by a county civil service commission, because it was not authorized in the bargaining agreement. Valencia v. Co. of Sonoma, #A116848, 2007 Cal. App. Lexis 2126 (1st Dist.).

Disciplinary Appeals & Challenges - Reviewing Standards

     Appellate panel reverses a trial court order that overruled an Ohio State Personnel Board of Review decision that reduced the penalty of a deputy sheriff from termination to a suspension and reinstatement. The trial court exceeded its authority by substituting its judgment for that of the Board. Franklin County Sheriff v. Frazier, #07AP-363, 2007-Ohio-7001, 2007 Ohio App. Lexis 6147 (10th Dist. 2007).

Disciplinary Interviews & Compelled Reports - Criminal Investigations and Immunity

     Arbitrator holds that management had just cause to remove a police officer who invoked his right to remain silent under Fifth Amendment in an internal investigation. The grievant understood the order given to him and knew the consequences of disobeying the order, and was aware that his answers could not be used against him in a criminal prosecution. City of Houston and Individual Grievant, AAA # 70-390-00123-07, 124 LA (BNA) 755 (H. Moore, 2007).

Disciplinary Punishment - Disparate Treatment

     Appellate court revives a sex discrimination / wrongful termination action filed by a female civilian police employee that was fired for passing out in a stranger's parked car while intoxicated; she showed that several male co-workers were not fired after being involved in alcohol-related incidents. Johnson v. Olmsted Township, #89194, 2007-Ohio-6487, 2007 Ohio App. Lexis 5680, 102 FEP Cases (BNA) 482 (8th Dist.).

First Amendment Related

     A detective filed an I-A complaint and informed the mayor that other detectives had "filed false or misleading affidavits" in support of search warrants. He was demoted to the patrol division, resigned, and sued for First Amendment violations. The Seventh Circuit rejected his claims. "Because [he] was responsible for the operations of the narcotics unit, his speech regarding alleged misconduct that may affect his unit was made pursuant to his official responsibilities, and not as a private citizen, despite not having explicit responsibility for the detectives involved or the search warrants at issue." Vose v. Kliment, #07-1792, 506 F.3d 565, 2007 U.S. App. Lexis 25136 (7th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court in Washington holds that a city did not violate the ADA by requiring an epileptic job applicant to provide a driver's license or proof of mobility, because mobility was an essential requirement of the position of information coordinator. McKereghan v. Spokane, #06-cv-0215, 2007 U.S. Dist Lexis 83859, Pacer Doc. 41 (E.D. Wash.2007).

Impasse Arbitration

     "Interest arbitration is not an exact science." An arbitrator should approximate what the parties would have reached if they had bargained with determination and good faith. The award "should not be a mere compromise between the parties' positions because such a compromise would favor the party with the more extreme or intransigent position." City of Mt. Vernon, Wash. and M.V. Police Services Guild, 124 LA (BNA) 716, PERC #20682-1-06-0482 (Reeves, 2007).

     Pennsylvania appellate court vacates part of an impasse award requiring the Corrections Dept. to provide legal representation to state corrections employees in any legal proceeding arising from employment-related conduct, even if that conduct was criminal and malicious, and to indemnify them against civil judgments resulting from such conduct. It violated Pennsylvania Code. Dept. of Corrections v. Corrections Officers Assn., #445 C.D. 2006, 932 A.2d 359, 2007 Pa. Commw. 515.

Inefficiency, Performance Standards, Negligence and Incompetence

     Appellate court sustains the termination of a SWAT officer that entered a gun store and negligently shot the owner. He had failed to remove the AR-15's ammunition magazine or to engage the weapon's safety. Oper. Engin. L-3 v. Co. of Monterey, #H030460, 2007 Cal. App. Unpub. Lexis 8394, 2007 WL 3020036 (6th Dist.).

     Arbitrator finds that a police officer was "properly penalized for his habit of complaining, since this was conduct reasonably viewed by management to be disruptive." City of McAlester and FOP L-97, 124 LA (BNA) 449, FMCS Case #07/0312-54589-8 (Crider, 2007).

Injuries to Employees

     Police officer, who had a history of back problems, was required to become certified to use an ASP retractable baton. He injured his back and underwent surgery. His subsequent suit for due process violations and emotional distress failed to show egregious or outrageous conduct; his physicians owed him no special duty to modify the training. Feirson v. Dist. of Columbia, #05-7188, 506 F.3d 1063, 2007 U.S. App Lexis 25356, 26 IER Cases (BNA) 1454 (D.C. Cir. 2007).

Promotional Rights, Procedures Performance Appraisals

     Federal appeals court rejects claims brought by correctional officers that management denied them due process and equal protection of the laws by "blacklisting" employees who had filed administrative appeals of personnel actions, resulting in them not being considered for promotions and other opportunities. The employees lacked a protected property interest in being considered for employment opportunities and they retained their rank and salaries. Teigen v. Renfrow, #06-1283, 2007 U.S. App. Lexis 29854 (10th Cir.).

Psychological Exams and Standards - Fitness for Continued Duty

     Placement of an officer on paid administrative leave pending the result of a psychological fitness-for-duty evaluation, following a use of force incident, does not constitute a materially adverse action that would support a retaliation claim. Nichols v. So. Ill. Univ., #06-2688, 102 FEP Cases (BNA) 519, 2007 U.S. App. Lexis 29865 (7th Cir.), affirming 432 F.Supp.2d 798.

Race Discrimination - In General

     In a discrimination action where three black university police officers claimed that assignment to the East St. Louis campus was a materially adverse employment action, the Seventh Circuit -- citing O'Neal v. City of Chicago, #04-1402, 392 F.3d 909 (7th Cir. 2004) -- rejected their claims. The assignment did not affect their salary, perks, or opportunities for future advancement. Nichols v. So. Ill. Univ., #06-2688, 102 FEP Cases (BNA) 519, 2007 U.S. App. Lexis 29865 (7th Cir.), affirming 432 F.Supp.2d 798.

     Appellate court affirms the dismissal of a discrimination suit filed by an air marshal who was suspended from a training class for a firearms safety violation and then terminated. Mariani-Colon v. Dept. of Homeland Security, #06-2468, 2007 U.S. App. Lexis 29233 (1st Cir.).

Religious Discrimination

     Appellate court upholds the termination of a Muslim firefighter for taking an unauthorized leave to visit Mecca. The plaintiff failed to cooperate and explore accommodation through shift trades, unpaid leave, vacation time, or other possible options before departing on his religious pilgrimage." Waqia v. City of Oakland, #A114704, 2007 Cal. App. Unpub. Lexis 9558 (1st Dist.).

     Federal court finds that a sheriff and a captain violated the "Establishment of Religion" clause of the First Amendment when they "invited representatives of a Christian organization to present a proselytizing Christian message to deputies at meetings held at the workplace during working hours, which deputies were required to attend, and conveyed a message of endorsement of the presentations. The effect of defendants' actions was to promote religion and to do so coercively." A Catholic and a Muslim deputy brought the suit. Milwaukee Deputy Sheriffs Assn. v. Clarke, # 06-C-602, 513 F Supp.2d 1014, 2007 U.S. Dist. Lexis 71454, 101 FEP Cases (BNA) 1519 (E.D. Wis.).

Resignations

     Arbitrator holds that a state worker "resigned" when she took off the lanyard that held her ID and key card and then threw them on the supervisor's desk saying "I'm out of here." Ohio Lottery Commission and Ohio Civ. Serv. Employees Assn., Grievance #22-01-20060825-007-01-14, 124 LA (BNA) 691 (Murphy, 2007).

Retaliatory Personnel Actions

     Ninth Circuit affirms dismissal of a retaliation suit filed by a sheriff's deputy that was fired for sexual harassment. Court also sustains an award of attorney's fees to the county against the ex-deputy, who alleged disability and national origin discrimination. Loera v. Co. of Imperial, #06-55438, 2007 U.S. App. Lexis 27781 (Unpub. 9th Cir.).

Sexual Harassment - In General

     Fifth Circuit rejects a sexual harassment claim against the corrections service, filed by an employee that was abused by a prison chaplain. Management promptly initiated an investigation, resulting in the resignation of the chaplain, who had no later contact with the employee. McMorris v. Louisiana State Penitentiary, #07-30427, 2008 U.S. App. Lexis 71 (Unpub. 5th Cir. 2008).

     California holds that a contract clinical social worker assigned to work at a California prison was entitled to the protections afforded by California's Fair Employment Act, and that DoC management had a duty to act to stop the sexual harassment. Bradley v. Cal. Dept. of Corr. & Rehab., #F049541, 2008 Cal. App. Lexis 78 (5th Dist.).

     Appellate court revives a sexual harassment suit brought by a female police officer; an employer's preventative and corrective measures are not enough. The city also must demonstrate that the officer unreasonably failed to take advantage of city's sexual harassment procedures. Smith v. City of Chattanooga, #E2006-00635-COA-R3-CV, 102 FEP Cases (BNA) 475, 200? Tenn. App. Lexis 770.

Transfers - Non Punitive

     Supreme Court declines to hear the appeal of a black prison chaplain who was laterally transferred to a facility more than 200 miles from his residence. Transfers were made according to seniority, not race. Broussard v. Texas Dept. of Crim. Justice, #07-54007-540, 2008 U.S. Lexis 196 (2008); #06-20663, 2007 U.S. App. Lexis 17209 (Unpub. 5th Cir. 2007).

Untruthfulness & Resume Fraud

     Federal Merit Board votes 2-to-1 to reverse the termination of a federal air marshal that falsified his application by omitting a prescription drug he had taken. Asking an appellant to disclose the medications he is taking prior to extending a job offer violates 42 U.S. Code §12111(d) and 29 C.F.R. §1630.13(a). The majority relied on Downs v. Mass. Bay Transp. Auth., 8 AD Cases (BNA) 447, 13 F.Supp.2d 130 (D. Mass. 1998). The dissenting member wrote that the Supreme Court's decisions in LaChance v. Erickson, #96-1395, 522 U.S. 262 (1998) and Bryson v. United States, #35, 396 U.S. 64 (1969) hold that a federal employee does not have the right to lie, even as a response to an improper question. Evans v. Dept. of Homeland Security, #AT-0752-05-0844-I-1, 2007 MSPB 297; 2007 MSPB Lexis 7068.

     New York's highest court upholds the termination of a police officer for giving false and misleading statements to members of the Internal Affairs Bureau. Duncan v. Kelly, #47-SSM-36, 2008 N.Y. Lexis 66, 2008 NY Slip Op 00181, 2008 NY Int. 5.

Wrongful Discharge - In General

     Illinois police chief did not have a constitutionally-protected property interest to continued employment, and may not claim breach of contract in a 42 U.S. Code 1983 action. Miyler v. Village of East Galesburg, #06-3625, 2008 U.S. App. Lexis 329 (7th 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
Attorneys' Fees and Sanctions - see: Retaliatory Personnel Actions
Attorney's Fees - see: Impasse Arbitration
Criminal Liability - see: Bill of Rights Laws
Disciplinary Investigations - see: Criminal Liability
Disciplinary Interviews - see: Criminal Liability
Disciplinary Investigations - see: Psychological Exams
Drug Screening - see: Untruthfulness
First Amendment - see: Religious Discrimination
Military Leave - see: Arbitration Procedures
Race Discrimination - see: Transfers - Non Punitive
Retaliatory Personnel Action - see: Promotional Rights
Sex Discrimination - see: Disciplinary Punishment - Disparate Treatment


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



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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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