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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 May (web edit.)
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Monthly Law Journal Article
Investigative Detention of Employees

Part Two: Non-testimonial Evidence
2008 (5) AELE Mo. L. J. 201
(PDF format)

Digest Topics
Applicant Rejections
Arbitration Procedures (3 cases)
Civil Liability
Collective Bargaining - Duty to Bargain
Disciplinary Appeals & Challenges
Disability Rights & Benefits - Hearing Procedures
Disability Rights & Benefits - Other Issues (2 Cases)
Disciplinary Hearings
Disciplinary Punishment - In General (2 Cases)
Disciplinary Punishment - Disparate Treatment
FLSA Overtime - In General
FLSA Overtime - Meal Periods
Handicap Discrimination - Psychiatric
Handicap Discrimination - Specific Disabilities
Homosexual & Transgendered Employee Rights
Race Discrimination Race: Reverse Discrimination
Race and Sex Discrimination
Racial Harassment
Religious Discrimination (2 cases)
Residency Requirements
Retaliatory Personnel Action (2 cases)
Sexual Harassment (2 cases)
Untruthfulness & Resume Fraud (2 cases)
Whistleblower Protection
Workers' Compensation



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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


     Some of the case digests do not have a link to the full opinion.

Applicant Rejections

     New York court orders city officials to reconsider the status of a rejected applicant for an urban park ranger/ special police position. Although he had an arrest record and one conviction, he had submitted a "certificate of relief from disabilities" for the conviction. The applicant was entitled to a presumption of rehabilitation and the city did not consider the enumerated factors in Correction Law §753. Matter of Langston v. City of New York, #116083/06, 2008 N.Y. Misc. Lexis 706 (N.Y. Co. Sup.).

Arbitration Procedures

     In a pay rate dispute, arbitrator rejects a city's request to bifurcate the hearing to allow a ruling on arbitrability followed by a hearing on the merits -- including a possible appeal of the first award; the inefficiency and cost of such procedure would defeat the value of arbitration as an alternative dispute resolution method. "... one of the fundamental objectives of arbitration - speedy resolution of disputes - could be thwarted if parties were able to delay arbitration by litigating procedural formalities before the trial court." City of Northfield and IUOE, L-70, 124 LA (BNA) 1077, BMS Case #07-PA-1041 (Daly, 2008), citing Brothers Jurewicz v. Aheari, 296 N.W.2d 422 at 427 (Minn. 1980) and Bartley v. Jefferson Parish, 302 So.2d 280 (La. 1974).

     "A party that does not object to the arbitrator's jurisdiction during the arbitration may not later do so in court." Howard University v. Metro. Campus Police, 512 F.3d 716, 2008 U.S. App. Lexis 1038, 183 LRRM (BNA) 2526 (D.C. Cir.).

     Oklahoma arbitrator declines to decide whether a terminated firefighter was entitled to workers' compensation benefits, where the bargaining agreement precluded an arbitrator from interpreting or applying external law. City of Tahlequah and IAFF L-4099, FMCS Case #06/512272-7 124 LA (BNA) 1147 (Nicholas, 2007).

Civil Liability and Indemnity

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

     Witnesses, including a police chief, have absolute immunity for their testimony at police officer's disciplinary hearing. Absolute immunity is justified by the functions it protects, not by the person to whom it attaches. Rolon v. Henneman, #06-3890-cv, 2008 U.S. App. Lexis 402 (2nd Cir.) citing Forrester v. White, #86-761, 484 U.S. 219 (1988).

Collective Bargaining - Duty to Bargain

     California appellate court concludes that a public employer committed an unfair labor practice when it excluded members of the bargaining unit from parking in newly-built parking structures without first giving the association an opportunity to bargain over the issue. Calif. Faculty Assn. v. PERB (Cal. State Univ.), #C054725, 2008 Cal. App. Lexis 291 (3rd Dist.).

Disciplinary Appeals & Challenges - In General

     Management's letter to a federal employee was not an adverse employment action. It only warned that disciplinary action might be taken if she failed to comply with the directive of the letter. Atanus v. Perry, #07-1430, 2008 U.S. App. Lexis 5625 (7th Cir.).

Disability Rights and Benefits - Hearing Procedures and Appeals

     N.Y. appellate court overturns the denial of a line-of-duty disability retirement application. Following an altercation with an emotionally disturbed person, a doctor then diagnosed him with a herniated/ bulging/ degenerative disc. The Pension Fund failed to address the officer's orthopedic complaints. Matter of Barbour v. Kelly, #103095/07, 2008 N.Y. Misc. Lexis 71 (N.Y. Co. Sup.).

Disability Rights and Benefits - Other Issues

     Appellate court rejects a disability retirement petition because the applicant, a police sergeant, unreasonably refused to undergo a surgical procedure to resolve his disability. Matter of Mullins v N.Y. State Comptroller, #503291, 2008 N.Y. App. Div. Lexis 1835 (3d Dept.).

     Appellate court rejects a disability retirement petition. The police officer was not permanently incapacitated due to a nerve problem and bursitis, which could be relieved by generally safe and successful surgery. Quigley v. Hevesi, #503462, 2008 N.Y. App. Div. Lexis 1613 (3d Dept.).

Disciplinary Hearings - Tenured/General

     Illinois appellate court concludes that village officials, after terminating the police chief, must give him a hearing on his petition to be restored to his former rank as sergeant. Szewczyk v. Board of Fire and Police Cmsnrs. of Richmond, #2-06-1163, 2008 Ill. App. Lexis 207 (2d Dist.).

Disciplinary Punishment - In General

     Arbitrator reduces a termination for use of excessive force to a 90-day suspension. The grievant, a jail officer, was criminally convicted of dereliction of duty for abusing a handcuffed inmate. Although the inmate was swearing at the officer, the use of a pressure point hold was unnecessary punishment. The termination was reduced in light of the grievant's 14 years of service, but a substantial suspension was imposed in light of a prior disciplinary action for excessive force. Fairfield County Sheriff's Office and FOP, FMCS Case #07/01667, 124 LA (BNA) 1066 (Chattman, 2007).

     Pennsylvania arbitrator reduces a five-day suspension of a corrections officer who brought a video game to work. Although the rules forbid "magazines, newspapers, etc." at duty posts, there was no written directive specifically prohibiting video games. More importantly, supervisors staffing security checkpoints routinely permitted officers to bring in video games. Co. of Allegheny and Allegheny Co. Prison Employees, Case #L-KAD-07-G-39, 124 LA (BNA) 1013 (Franckiewicz, 2007).

Disciplinary Punishment - Disparate Treatment

     In a disparate discipline action, a higher-ranking officer may be treated more harshly. "It cannot be said that conduct that might be tolerated or treated with progressive discipline at lower ranks must be similarly accepted from the Chief's immediate advisors, who are held to a higher level of professionalism and who are expected to set the standard of conduct for the department." Rioux v. City of Atlanta, #07-11657, 2008 U.S. App. Lexis 5683 (11th Cir.).

FLSA - Overtime - in General

     U.S. Dept. of Labor issues an advisory ruling that certain police officers who perform security duties during their off duty hours for a particular convention center and sports arena are not city employees for overtime purposes. The secondary employer is a private non-profit corporation. Factors that are relevant to the determination of whether two agencies are separate employers include: whether the employers have separate payroll, personnel and retirement systems; have separate budgets and funding authorities; whether they are separate legal entities; whether they deal with each other at arm's length concerning the employment of the individuals in question; how they are treated under state law and whether one entity controls the appointment of the officers of the other entity. Adm. W&H Letter FLSA2007-12.

FLSA - Overtime - Roll Call & Meal periods

     Arbitrator sustains overtime claims of New River Gorge NRA park rangers that were unable to take meal breaks while on river safety assignments. However, the agency was not required to pay overtime to rangers who were required to keep their radio or cell phone on during a meal break period. Natl. Park Service and AFGE L-2198, FMCS Case #060810/58715-A, 124 LA (BNA) 358 and 1005. (Pritzker, 2007/08).

Handicap Laws / Abilities Discrimination - Psychiatric

     Former state police officer who was removed from duty due to allegedly irrational behavior may proceed with a claim that she was regarded as disabled, where the psychologist that conducted fitness-for-duty evaluation diagnosed her as depressed, having a paranoid personality and unfit for duty. Broberg v. Illinois State Police, #06cv3901, 2008 U.S. Dist. Lexis 7916, 20 AD Cases (BNA) 321 (N.D.Ill.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     For shift accommodation purposes, a corrections officer with photophobia (sensitivity to light) was not disabled because his sight was not significantly restricted when compared to the general population. Watson v. Texas Youth Cmsn., #07-50295, 2008 U.S. App. Lexis 5468 (Unpub. 5th Cir.).

Homosexual & Transgendered Employee Rights

     "Outing" a gay or lesbian coworker can violate an employer's sexual harassment policy and be grounds for disciplinary action. Bell v. Adelberg Assocs. Med. Group, #C053673, 2008 Cal. App. Unpub. Lexis 1930 (3rd Dist).

Race Discrimination - In General

     Federal appeals court rejects the complaints of a black warden. Management had legitimate and non-retaliatory reasons for promoting whites that were more qualified. Watkins v. Texas Dept. of Crim. Justice, #06-20843, 2008 U.S. App. Lexis 5401 (Unpub. 5th Cir. 2008).

Race: Reverse Discrimination

     In a civil rights action brought by a white police officer, the Sixth Circuit finds that there was no evidence to support his claims of hostile environment or retaliation. Arendale v. City of Memphis, #07-5230, 2008 U.S. App. Lexis 5843, 2008 FED App. 0116P (6th Cir.).

Race and Sex Discrimination

     Federal court declines to dismiss a suit against the NYPD alleging race, nationality, gender and disability discrimination, a hostile work environment and retaliation. The plaintiff was terminated two weeks after filing an EEOC complaint and a male officer, whom had failed to disclose psychological treatment on his job application, was not terminated. Rodriguez v. City of N.Y., #05-CV-5117, 2008 U.S. Dist. Lexis 9966 (E.D.N.Y.).

Racial Harassment

     Arbitrator sustains the termination of a private sector employee that called a coworker a "mother fucking nigger," rejecting the union's argument that since both grievant and her coworker are African-American, no violation of the employer's discriminatory harassment policy occurred. U.S. Steel Corp. and Steelworkers L-1014, 124 LA (BNA) 1021 (Petersen, 2007).

Religious Discrimination

     Fourth Circuit rejects an action brought by the EEOC on behalf of a worker that belonged to the Living Church of God and who sought extensive leave for religious reasons. Employers must respect seniority rights, if protected in a bargaining agreement, when excusing attendance from work. EEOC v. Firestone, #06-2241, 515 F.3d 307, 2008 U.S. App. Lexis 2949, 102 FEP Cases (BNA) 961 (4th Cir.).

     An atheist member of a town council had been recalled by the voters and removed from public officer because of his refusal to recite the Pledge of Allegiance. Any alleged injury resulting from social pressure to recite the pledge was not compensable or redressable. Habecker v. Town of Estes Park, #06-1515, 2008 U.S. App. Lexis 5630 (10th Cir.).

Residency - Continuing Requirements

     Ohio appellate panel affirms a trial court decision that management failed to prove that a firefighter violated the city's residency requirement with reliable, probative, and substantial evidence. The appellant had purchased the second home to operate his secondary business, installing windows, and not to live in. Ruck v. City of Cleveland, #89564, 2008-Ohio-1075, 2008 Ohio App. Lexis 952 (8th Dist.).

Retaliatory Personnel Action

     To prevail in a retaliation action a party must show that the decision not to promote her was influenced by a retaliatory animus of her superior. Metzger v. Illinois State Police, #06-3251, 2008 U.S. App. Lexis 5679 (7th Cir.).

     In a retaliation and gender bias lawsuit against a U.S. Marshal, the relevant question was whether the Marshal retaliated against the deputy for filing a complaint, not whether he was motivated by gender bias at the time. DeCaire v. Mukasey, #07-1539, 2008 U.S. App. Lexis 5174 (1st Cir.).

Sexual Harassment - In General

     Seventh Circuit affirms the dismissal of sexual harassment and retaliation claims. Even if the plaintiff was raped by another DHS employee while off-duty and attending training at the FLETC facility, management had separated her from the alleged assailant, and local authorities declined to prosecute her complaint for lack of evidence. She could not recall important details of incident due to her own intoxication. Lapka v. Chertoff, #06-4099, 2008 U.S. App. Lexis 4391 (7th Cir.).

     Eighth Circuit dismisses a harassment lawsuit. A "single, relatively tame comment at issue here is insufficient as a matter of law to support an objectively reasonable belief it amounted to unlawful sexual harassment." Brannum v. Missouri Dept. of Corrections, #07-1598, 2008 U.S. App. Lexis 4478.

Untruthfulness & Resume Fraud

     Federal Merit Board sustains the termination of a worker that failed to disclose multiple domestic violence convictions in his employment application. Christopher v. Dept. of the Army, Docket #AT-0752-07-0092-I-1, 2008 MSPB 2.

     Federal Merit Board overturns an arbitrator that upheld the termination of a FLETC instructor for falsifying her educational qualifications. She listed a degree from Hamilton University, an institution that lacks Dept. of Education approval and grants credit for "life experiences." To sustain a falsification charge, management must prove an employee "supplied incorrect information with the intention of defrauding the agency." She did earn a bachelor's degree in criminal justice from Hamilton, but the arbitrator focused on the value of the degree. FitzGerald v. Dept. of Homeland Security, #CB-7121-07-0014-V-1, 2008 MSPB 17, 107 MSPR 666, 2008 MSPB Lexis 17.

Whistleblower Requirements and Protection

     Federal employee's complaint that training deficiencies could impair job safety was protected under the Whistleblower Protection Act of 1989; a subsequent reduction in her responsibilities was actionable as a reprisal. Johnston v. M.S.P.B., #2007-3167, 2008 U.S. App. Lexis 4476 (Fed. Cir.).

Workers' Compensation - Claim Validity

     An employee who sustained multiple scars on his forehead and eyelid during a work-related auto accident did not sustain "permanent and severe facial disfigurement" under the N.Y. workers' compensation law. Fleming v. Graham, #41, 2008 NY Slip Op. 2502, 2008 N.Y. Lexis 602.

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     Federal retirement: The U.S. Office of Personnel Management has initiated an electronic retirement process. Employees will be able to apply under a system known as RetireEZ that was designed to quickly and accurately calculate their retirement benefits.

     Intelligence officer's liability: The CIA announced that it will now pay the full cost of legal liability insurance for qualified employees. Private carriers cover legal expenses and damages arising out of a CIA officer's official duties. It is meant to cover potential litigation expenses, including damages.


      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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Disciplinary Offenses - see: Racial Harassment
Psychological Exams/Fitness for Duty - see: Handicap Discrimination-Psychiatric
Workers' Compensation - see: Arbitration Procedures

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.

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