AELE Seminars:

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2008 San Francisco

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

Click here for more information about all AELE Seminars


 Search the Case Law Digest

Fire and Police Personnel Reporter
ISSN 0164-6397

An employment law publication for law enforcement,
corrections and the fire/EMT services

Cite this issue as:
2008 FP Nov

Last year this publication discussed 404 cases.

Click here to view information on the editor of this publication.

Access the multiyear Employment Law Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader must be used to view contents.

CONTENTS
Monthly Law Journal Article
On-Call Duty
2008 (11) AELE Mo. L. J. 201

Digest Topics
Age Discrimination - Entry
Arbitration Procedures (2 cases)
Civilian Review
Civil Service
Disciplinary Punishment - In General
Drug Screening
FLSA - Overtime - in General (2 cases)
FLSA - 7K Exemption
Hairstyle and Appearance Regulations
Handicap Discrimination: Accommodation
Handicap Discrimination: Regarded as Disabled
Handicap Discrimination - Specific Disabilities (2 cases)
Heart Problems
Holiday and Premium Pay
Homosexual & Transgender Employee Rights
National Origin Discrimination
Political Activity
Race Discrimination - In General (2 cases)
Race: Reverse Discrimination
Reductions in Force
Religious Discrimination
Retaliatory Personnel Action (2 cases)
Retirement Rights and Benefits (2 cases)
Sexual Harassment (2 cases)
Sick Leave
Suspensions & Administrative Leave
Untruthfulness & Resume Fraud

Resources

Cross_References

Report non-working links here


AELE Seminars:

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2008 San Francisco

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

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

     It was not a violation of the ADEA for a state police agency to decline to rehire a trooper over age 40 who quit and 2 months later applied for reinstatement, because the plaintiff is past the age for new appointees. If, however, management has overlooked the age requirement in past instances, "the decision not to rehire him was not made pursuant to a bona fide plan." Davis v. Indiana State Police, #07-2543, 2008 U.S. App. Lexis 8811 (7th Cir.).

Arbitration Procedures

     Third Circuit upholds an arbitration clause written in English, when the employee speaks only Spanish. Absent a showing of fraud, the fact that a person cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement is enforceable. Morales v. Sun Constructers, #05-4753, 2008 U.S. App. Lexis 18513 (3rd Cir.).

     Violations of the Uniformed Services Employment and Reemployment Rights Act are subject to arbitration clauses. Landis v. Pinnacle Eye Care, #07-6204, 537 F.3d 559, 2008 U.S. App. Lexis 17055, 2008 FED App. 0285P, 184 LRRM (BNA) 2904 (6th Cir.).

Civilian Review

     Florida appellate court upholds subpoenas that were served on the Miami police chief. Civilian oversight panel was lawfully seeking information about the chief's free use of a car from an auto dealer for more than a year. Timoney v. Miami Civilian Investigative Panel, #3D08-677, 2008 Fla. App. Lexis 13452 (3rd Dist.).

Civil Service

     California appellate panel holds that a government employee hired into a position expressly classified as exempt from civil service is not entitled to the protections of the civil service system upon the employee's release from the position, even if a court finds that, based on the duties of the position, it should not have been classified as exempt. Kreutzer v. C&C of San Francisco, #A116389, 2008 Cal. App. Lexis 1355 (1st Dist.).

Disciplinary Punishment - In General

     Arbitrator sets aside the termination of a state trooper who lied about following his agency's policy. This was the first apparent instance of untruthfulness, and he was under extreme stress at work and at home. The arbitrator ordered the grievant to be reinstated without back pay or benefits and granted immediate retirement. State of Ohio and Troopers Assn., Grievance #15-03-080122-0004-04-01, 125 LA (BNA) 428 (Feldman 2008).

Drug Screening and Specimen Testing

     "A random drug test is a safety measure that protects citizens from the ill effects of a drug or alcohol imbiber who is responsible for a safety sensitive position." While the grievant had a right to the presence of a union representative "it is not reasonable that the city, rather than the union, handle the logistics of getting a representative to the site." City of Cleveland and Munic. C.E.O., AAA #53-390-00505-07, 125 LA (BNA) 431 (Skulina, 2008).

FLSA - Overtime - in General

     Federal court declines to dismiss an overtime lawsuit brought by school resource officers. Whether the county police department and Board of Education were separate and independent employers for purposes of the special detail exemption of 29 U.S. Code. §207(p)(1) and 29 C.F.R. § 553.227, is a question of fact. Baltimore Co. FOP L-4 v. Baltimore Co., #06-2709, 2008 U.S. Dist. Lexis 49457 (D.Md.).

     Fire alarm inspectors were not entitled to pay for commuting time even though they carried extensive materials to their first inspection site. The Portal-to-Portal Act provides that ordinary commuting time is not compensable under FLSA, and carrying a briefcase does not transform commuting time into work time. Singh v. City of New York, #06-2969-cv, 524 F.3d 361, 2008 U.S. App. Lexis 9228, 13 WH Cases2d (BNA) 865 (2nd Cir.).

FLSA - 7K Exemption

     Labor Dept. issues an opinion that jailers who lack the power to make arrests, nevertheless meet the criteria of "security personnel" in correctional institutions as described in 29 C.F.R. §553.211(f), and therefore "qualify for the partial overtime exemption of section 7(k)." DoL Opinion Letter FLSA2008-9NA.

Hairstyle and Appearance Regulations & Discrimination

     The New Jersey Dept. of Corrections' training academy no-facial hair policy was facially neutral and only incidentally burdened religious conduct. It was rationally related to compliance with federal and state health regulations concerning the use of respirator masks and to a concern about the esprit de corps, which comes from uniformity of appearance. It did not violate the rights of a Muslim trainee removed from the training program when he failed, on three separate occasions, to keep his beard within parameters that were allowed to him as an accommodation of his religion. Valdes v. New Jersey, #07-2971, 2008 U.S. App. Lexis 17380 (Unpub. 3rd Cir.).

Handicap Laws/Abilities Discrimination: Accommodation - General

     Appellate court orders a new trial in a disability and race discrimination case. A trooper claimed that wearing a protective vest while on road patrol worsened his back injury and he sought reassignment to station duties. His alleged psychological injury resulting from a failure to accommodate his disability was not an adverse personnel action, and damages awarded on the accommodation claim were not segregated from total damages award. Victor v. State of New Jersey, 952 A.2d 493, 2008 N.J. Super. Lexis 166, 20 AD Cases (BNA) 1591 (Unpub. N.J. App.).

Handicap Laws/Abilities Discrimination: Regarded as Disabled

     Pedophilia is not a mental or physical impairment and a registered sex offender was not "regarded as" disabled, in spite of the employer's policy of not hiring former sex offenders. Vlasek v. Wal-Mart Stores, #H-07-0386, 20 AD Cases (BNA) 1557, 2008 U.S. Dist. Lexis 55761 (S.D. Tex.).

Handicap/Abilities Discrimination - Specific Disabilities

     Following a stroke, a county corrections failed to demonstrate that he could perform the essential functions of his correctional officer position after his physician placed him on restrictions that required no inmate contact. Dargis v. Sheahan, #05-2575, 526 F.3d 981, 2008 U.S. App. Lexis 10526 (7th Cir.).

     Federal appeals panel upholds a trial court ruling that a worker with allergy type sensitivity to perfumes and other fragrances is not disabled under the ADA. Although the plaintiff claimed that her allergy hampered her ability to walk, see, speak, breath, learn and care for herself, the court found that headache, sore throat, fatigue and shortness of breath "are not substantial as a matter of law." Robinson v. Morgan Stanley, #07-3359, 269 Fed. Appx. 603, 2008 U.S. App. Lexis 6229; 20 AD Cases (BNA) 644 (Unpub. 7th Cir.).

Heart Problems

     Florida appeals court upholds a deputy sheriff's workers' comp. claim after he suffered a heart attack while sleeping. The county was unable to overcome a statutory presumption of work-related stress. Punsky v. Clay Co., #1D07-3901, 2008 Fla. App. Lexis 13416 (1st Dist.).

Holiday and Premium Pay

     Arbitrator holds that management did not violate the bargaining agreement when it did not give security employees holiday pay for President Ford's funeral, even though they were provided holiday pay for President Reagan's funeral. Payment for Reagan's funeral did not establish a binding past practice. Caelum Research Corp. and White Sands L-392, IAMAW, FMCS Case #07/003065, 125 LA (BNA) 541 (Halter, 2008).

Homosexual & Transgender Employee Rights

     Appellate court reinstates a dismissed sexual orientation bias lawsuit. While a supervisor who called the plaintiff a "stupid fag" did not have authority to terminate him, she provided to the actual decisionmaker all of the information upon which his termination was based. Her bias against homosexuals may have affected her decision to report the plaintiff in the first place. Kwiatkowski v. Merrill Lynch, #A-2270-06T1, 104 FEP Cases (BNA) 279 (N.J. App. Div. 2008).

National Origin Discrimination

In a national origin discrimination action, the Seventh Circuit concludes that the recording of 24 unauthorized absences in a personnel record, along with an admonition that disciplinary action would ensue if unexcused absences continue, is not an adverse employment action. "We discern no reason to treat the UAs in this case differently than we have treated negative performance evaluations ..." Delarma v. Illinois Dept. Human Services, #07-1156, 2008 U.S. App. Lexis 18756 (7th Cir.).

Political Activity/Patronage Employment

     Sixth Circuit rejects a First Amendment lawsuit filed by a deputy who was fired immediately after the sheriff learned in a newspaper article that the deputy intended to run against him in the next election. Greenwell v. Parsley, #07-5694, 2008 U.S. App. Lexis 18722 (6th Cir.).

Race Discrimination - In General

     Appellate panel rejects a race discrimination and retaliation action. The promotion was initially offered to another African-American and the plaintiff declined to participate in a second round of interviews after the first person turned down the promotion. Hall v. Mich. State Police, #06-2116, 2008 U.S. App. Lexis 18978 (6th Cir.).

     Officer settles discrimination, harassment and retaliation claims for $1.65 million. Alternately called "Sharmageddon" and a "sand nigger," the East-Indian officer was wrongfully terminated. The city also agreed to notify the state's Criminal Justice Training Cmsn. that no adverse action was warranted regarding his POST credentials. Sharma v. City of Vancouver, #C06-5688; prior rulings at 2008 U.S. Dist. Lexis 54027 and 2008 U.S. Dist. Lexis 48430 (W.D. Wash.).

Race: Reverse Discrimination

     Eighth Circuit overturns a damage award for two white firefighter applicants that were passed over because the city was following a 50% black quota, provided for in an earlier consent decree. The decree was valid until formally ended by the court. Panel distinguishes a Boston case where the hiring goals had been met and the city continued to apply racial preferences. Martinez v. City of St. Louis, #06-355, 2008 U.S. App. Lexis 18223 (8th Cir.).

Reductions in Force

     Michigan Supreme court holds that a trial court abused its discretion when it issued a preliminary injunction preventing the City of Pontiac from implementing its plan to reduce a budget shortfall by laying off members of the firefighters union. Pontiac Fire Fighters v. City of Pontiac, #132916, 753 N.W.2d 595, 2008 Mich. Lexis 1403, 184 LRRM (BNA) 2811.

Religious Discrimination

     Jewish police officer's claim that he was subjected to a hostile work environment was sufficient to support the jury's verdict; statements made by superiors that referred to "dirty Jews" and demeaning persons of Jewish ancestry conveyed an ongoing hostility. Cutler v. Dorn, #A-51-2007, 2008 N.J. Lexis 895, 104 FEP Cases (BNA) 25.

Retaliatory Personnel Action

     Seventh Circuit rejects an action brought by a jailer who claimed that she was fired in retaliation for filing a sexual harassment complaint. She unlawfully tape-recorded her meeting with superiors. "Title VII does not grant employees license to engage in dubious self-help activities to obtain evidence." Argyropoulos v. City of Alton, #07-1903, 2008 U.S. App. Lexis 18330 (7th Cir.).

Note: Illinois is one of 12 states that require the consent of all parties to a recorded conversation. The complete list is: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. See: Links to state wiretapping and eavesdropping laws. In these 12 states, resorting to self-help audiotaping could also result in a criminal prosecution for unlawful eavesdropping.

     Appellate panel rejects a retaliation lawsuit brought by a terminated park ranger. He had threatened, intimidated and abused coworkers and made a false complaint. Richey v. City of Independence, #07-2109, 2008 U.S. App. Lexis 18795 (8th Cir.).

Retirement Rights and Benefits

     Florida appellate court affirms forfeiture of an ex officer's pension benefits following his conviction for providing an escort service for a drug courier. Simcox v. City of Hollywood Police Retir. Sys., #4D07-4638, 2008 Fla. App. Lexis 12687.

     Municipal retirement benefits carry with them an inference that they will continue, and under settled principles of collective bargaining, retirees' health insurance benefits in prior bargaining agreements survive the expiration and cannot be diminished without the consent of the retired workers. DiBattista v. Co. of Westchester, #19762/04, 2008 N.Y. Misc. Lexis 5212.

Sexual Harassment - In General

     City was not liable for a Mayor's sexual abuse, which occurred on many occasions in his office, home, and in a city-issued police cruiser. Roe v. City of Waterbury, #070261, 2008 U.S. App. Lexis 19286 (2nd Cir.).

     An employer's policy requiring all supervisors to report sexual harassment does not increase the scope of liability under Title VII; taking the opposite view would discourage and penalize voluntary efforts exceeding Title VII's requirements. Chaloult v. Interstate Brands, #07-2694, 2008 U.S. App. Lexis 18529, 104 FEP Cases (BNA) 229 (1st Cir.).

Sick Leave & Abuse

     Ohio appellate court holds that an employee effectively abandoned her job when, during a six-week period, she failed to notify management of her status following surgery for an injury and had filed for disability benefits. A refusal to allow her to return to her job was not retaliation. Gallagher v. Frohman, #C-070756, 2008-Ohio-3582, 2008 Ohio App. Lexis 3024 (1st Dist.).

Suspensions & Administrative Leave

     Arbitrator finds that management did not violate the bargaining agreement when it suspended with full pay, a schoolteacher who was photographed when off-duty and without her knowledge, while simulating an act of fellatio on a mannequin, which was posted on the Internet. L'Anse Creuse Public Schools and Mich. Educ. Assn. NEA L-1, AAA #54-390-01602-07, 125 LA (BNA) 527 (Daniel, 2008).

Untruthfulness & Resume Fraud

     Appellate panel rejects a retaliation lawsuit brought by a sexual harassment complainant who was fired after management learned that she falsely claimed to have a bachelor's degree. Kosan v. Utah Dept. of Corrections, #07-4261, 2008 U.S. App. Lexis 18381 (10th Cir.).

      Return to the Contents menu.

Report non-working links here

RESOURCES

Free Speech:

Performance measurement:

Workplace searches:

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

Report non-working links here

CROSS REFERENCES
Audio Taping - see: Retaliatory Personnel Action
Collective Bargaining - see: Retirement Rights/Benefits
Disciplinary Discovery - see: Civilian Review
Military Leave - see: Arbitration Procedures
Past Practices - see: Holiday Pay
Representation / Right to Union Rep - see: Drug Screening
Untruthfulness - see: Disciplinary Punishment / General
Workers' Comp. - see: Heart Problems


AELE Seminars:

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2008 San Francisco

Lethal and Less Lethal Force
Mar. 09-11, 2009 - Las Vegas

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.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.


Library of  Employment Law Case Summaries

 Search the Case Law Digest