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Dec. 15-17, 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 Oct (web edit.)
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CONTENTS
Monthly Law Journal Article
Disciplinary Consequences of Peace Officer Untruthfulness
Part II - Employee Dishonesty
2008 (10) AELE Mo. L. J. 201

Digest Topics
Arbitration Procedures
Arbitration Awards - Right of Courts to Interfere
Attorneys' Fees
Back Pay Claims
Bargaining Unit Determinations
Civil Service
Collective Bargaining - Duty to Bargain (2 cases)
Damages, Remedies and Enforcement of Settlements
Disability Rights and Benefits
Disciplinary Offenses - In General
Disciplinary Punishment - In General (2 cases)
Disciplinary Punishment - Disparate Treatment
Hairstyle Regulations & Discrimination
Handicap Discrimination - Specific Disabilities (2 cases)
Health Insurance & Benefits
Last Chance Agreements
Military Leave
National Origin Discrimination
National Security Clearances
Pay Disputes
Privacy Rights
Probationary Employment
Promotional Rights & Procedures (2 cases)
Psychological Exams
Race Discrimination (2 cases)
Residency Requirements (2 cases)
Sex Discrimination - Correctional Facilities
Sex Discrimination - In General
Telephone & Pager Monitoring

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.

Arbitration Procedures

     Appeals court overturns an arbitration award that ignored the time limit for filing a grievance by characterizing it as a continuing violation. The time limit for filing grievances was plain and unambiguous. City of Fairfield, Ohio v. AFSCME C-8, #CA2007-11-267, 2008 Ohio App. Lexis 3300, 2008 Ohio 3891 (12th Dist.).

Arbitration Punishment Awards - Right of Courts to Interfere

     Florida appellate panel reinstates an award where the arbitrator set aside termination as an inappropriate penalty. Although the CBA provided that an arbitrator could not mitigate a penalty, another section required a finding of just cause. Raynor v. Frat. Order of Police, #1D07-1439, 2008 Fla. App. Lexis 10829 (1st Dist.).

Attorneys' Fees, Sanctions and Legal Defense Rights

     Federal Merit Board affirms a decision to award an air marshal the legal costs of overturning his termination, but reduces the amount from $99,322 to $72,302. Coradeschi v. Dept. of Homeland Security, #NY-0752-04-0163-A-1, 2008 MSPB 199.

Back Pay Claims and Awards

     Although it was correct to reinstate a public safety officer that was fired after he enrolled in an alcohol rehab program, he was not entitled to back pay. "... the losses in his salary were attributable to his disability, not as a result of the discrimination." N.Y. Off. of Mental Health v. Div. of Human Rights, #503600, 2008 N.Y. App. Div. Lexis 6160 (3rd Dept.).

Bargaining Unit Determinations

     Although state labor laws might specify otherwise, the Second Circuit finds nothing unlawful about a collective bargaining agreement where the bargaining unit consists of only one person. Local 377 v. 1864 Tenants Assoc., 2008 U.S. App. Lexis 144472, 184 LRRM (BNA) 2596 (2nd Cir.).

Civil Service

     Federal court holds that a terminated Kentucky homeland security civil servant must establish with evidence that her Democratic affiliation was a substantial or motivating factor in the decision to terminate her. And if she meets that burden, to avoid liability, the defendants need to show that they would have fired her anyway, even if she were a Republican. Back v. Hall, #07-5934/07-5935, 2008 U.S. App. Lexis 17057 (6th Cir.).

Collective Bargaining - Duty to Bargain

     Appellate court holds that Boston must bargain over the issue of creating separate locker rooms for women sergeants. Although the bargaining agreement did not require rank-specific locker room space, the city provides rank-specific locker rooms for male supervising officers, but not for female sergeants. "Separate locker rooms alleviate potential tensions between superior officers and the patrol officers whom they are required to supervise and discipline." King v. City of Boston, #06-P-1013, 71 Mass. App. 460, 883 N.E.2d 316, 2008 Mass. App. Lexis 322, 103 FEP Cases (BNA) 54.

     A divided New Jersey Supreme Court dismisses a failure to bargain charge. Although Port Authority police officers were assigned to JFK airport, when another entity took over management of the international terminal, the Port Authority went out of the business of operating that facility. No officers were furloughed, and all were transferred to other assignments. In re Port Auth. v. Employment Relations Panel, A-6-2007, 194 N.J. 314, 944 A.2d 611, 2008 N.J. Lexis 313, 184 LRRM (BNA) 2016.

Damages, Remedies and Enforcement of Settlements

     "... in the absence of a showing of fraud, duress, or other circumstances suggesting that the settlement was not knowing or voluntary, the district court need not examine the circumstances surrounding the settlement ... Buyer's remorse, however, cannot undo a contract to which all parties have given their assent and for which all of the conditions precedent have been fulfilled." Newkirk v. Vil. of Steger, #06-3140, 2008 U.S. App. Lexis 16608 (7th Cir.).

Disability Rights and Benefits - Benefit Disputes

     Supreme Court holds that a retirement program that offers older disabled officers only normal retirement benefits does not violate federal age discrimination laws. The plaintiff, a 61-year old deputy sheriff, was past the normal retirement age of 55. Kentucky Retirement Systems v. EEOC, #06-1037, 128 S.Ct. 2361, 2008 U.S. Lexis 5032.

Disciplinary Offenses - In General

     Arbitrator overturns a two-week suspension of a sheriff's deputy for taking enforcement action while off-duty in an incident where he personally was involved. The policy language was confusing. Lawrence County Sheriff and Ohio FOP, FMCS Case #08/01635, 125 LA (BNA) 304 (Harlan, 2008).

Disciplinary Punishment - In General

     Appellate court confirms the termination of a deputy sheriff that attempted to stop a speeding vehicle by firing 14 rounds at its tires, in violation of a regulation that prohibits the discharge of a firearm at a moving vehicle unless the occupant of the vehicle was asserting deadly physical force. "... considering the seriousness of petitioner's misconduct, we do not find that the penalty of dismissal was so disproportionate to the offenses as to shock our sense of fairness." Clarke v. Cleveland, #503699, 2008 N.Y. App. Div. Lexis 6166 (3rd Dept.).

     Arbitrator upholds a three-day suspension of an emergency dispatcher that failed to reporting to work on time and to maintain performances standards, where she had been warned of the consequences of these problems. City of Tampa and ATU L-1464, FMCS Case#06/00364-3, 125 LA (BNA) 294 (Terrill, 2007; rptd. 2008).

Disciplinary Punishment - Disparate Treatment

     Fifth Circuit rejects a race discrimination and retaliation lawsuit brought by a terminated detention officer that was fired for slashing his supervisor's car tires following a low performance evaluation. He failed to allege a prima facie case of disparate treatment. Jackson v. Dallas County, #07-10818, 2008 U.S. App. Lexis 16417 (Unpub. 5th Cir.).

Hairstyle and Appearance Regulations & Discrimination

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

     Federal court grants a partial summary judgment for a Las Vegas police officer who converted to Orthodox Judaism and grew a beard. Agency policy allowed medical exemptions from the no-beards rule for uniformed personnel, but not for religious reasons. Riback v. Las Vegas Metro Police Dept., #2:07-cv-0115, 2008 WL 3211279 (D.Nev.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court declines to dismiss a disabilities accommodation action brought by a transit employee with irritable bowel syndrome, concluding that waste elimination is a major life activity. Simmons v. N.Y. City Transit Auth., CV-02-1575, 2008 U.S. Dist. Lexis 54872 (E.D.N.Y.).

     Ninth Circuit rejects the disabilities discrimination claim of a criminal investigator with Guillain-Barre Syndrome, a disease that causes temporary paralysis of his body. The plaintiff is not a "qualified individual with a disability" under the ADA, because he cannot perform the essential functions of the employment position, which requires "running, climbing, negotiating obstacles, and physically subduing and lifting uncooperative individuals." Puletasi v. Wills, #07-15015, 2008 U.S. App. Lexis 15073 (9th Cir.).

Health Insurance & Benefits

     City employee recovers payment for the two hours of work time lost to take a mammogram. N.Y. Civil Service Law §159-b/c provides that employees are entitled to up to four hours leave annually to have a mammogram or prostate cancer screening. Moran v. City of Saratoga Springs, #45-1-2008-0150, 2008 N.Y. Misc. Lexis 4605 (Sup. Saratoga Co.).

Last Chance Agreements

     Arbitrator sustains the termination of a corrections officer for breaching a last chance agreement. He violated a rule that requires officers to immediately report any arrest -- and waited four days before reporting arrest for solicitation for an act of prostitution. Ohio Dept. of Corrections and Ohio CSEA/AFSCME L-11, #27-04-20070914-1673-01-03, 25 LA (BNA) 232 (Murphy, 2008).

Military Leave

     Congress created a narrow exception in veteran reemployment rights and 38 U.S. Code §4315(a) allows the heads of the FBI, CIA, and NSA to prescribe procedures for reemployment with those agencies. "Congress did not grant similar discretion to local police departments" and Nashville's return-to-work process "was in violation of USERRA's reemployment provisions." Under §4313(a) reemployment "must occur within two weeks of the employee's application for reemployment." Petty v. Metro. Govt. of Nashville-Davidson Co., #07-5649, 2008 U.S. App. Lexis 17549, 2008 FED App. 0302P (6th Cir.)

National Origin Discrimination

     "When viewed in the context of 15 years of employment, two allegedly offensive statements made by the supervisor did not constitute extreme harassment that changed the terms and conditions of the employee's employment." Fuentes v. Bor. of Watchung, N.J., #07-2812, 2008 U.S. App. Lexis 15882 (3rd Cir.).

National Security Issues and Security Clearances

     Federal appeals court rejects a national origin and religion discrimination claim brought by an Egyptian-American DHS anti-terrorist specialist who was suspended and then fired after his security clearance was not renewed. Relying on Dept. of the Navy v. Egan, #86-1552, 484 U.S. 518 (1988), there can be no judicial review of the merits of a security clearance determination; that decision is exclusively for the executive branch and the denial of a security clearance is not an "adverse action." Makky v. Chertoff, #07-3271, 2008 U.S. App. Lexis 16687 (3rd Cir.).

     Link: Questionnaire for National Security Positions, OPM Standard Form 86.

Pay Disputes - In General

     Arbitrator upholds a pay grade grievance where a corporal was temporarily placed in sergeant's position without receiving the pay differential. The contract was silent on temporary assignments to acting ranks. Franklin Co. Sheriff's Office and FOP L-9, FMCS Case #070724/58773-8, 125 LA (BNA) 332, (Weatherspoon, 2008).

Privacy Rights

     D.C. Circuit dismisses all claims brought by ex-CIA agent Valerie Plame Wilson and her husband alleging that employees in the Office of the Vice President and the State Dept. violated their rights by publishing her status as a covert agent. The panel also wrote that the Intelligence Identities Protection Act, 50 U.S. Code §421-26 "is not a comprehensive remedial scheme ... because it is a purely criminal statute that only authorizes criminal prosecution of those who intentionally disclose the identity of a covert agent." Wilson v. Libby, #07-5257, 2008 U.S. App. Lexis 17119 (D.C. Cir.).

Probationary Employment

     Third Circuit rejects a wrongful termination lawsuit brought by an officer who had his probationary period extended because of pending criminal charges. His placement on administrative leave interrupted his successful completion of the probationary term and he was still a probationary, at-will employee when he was fired. Bartal v. Borough of Laureldale, #07-2951, 2008 U.S. App. Lexis 16024 (Unpub. 3rd Cir.), affirming 515 F.Supp.2d 556 (E.D. Pa., 2007).

Promotional Rights, Procedures and Performance Appraisals

     Pennsylvania appellate panel overturns a decision to lower the passing grade on a promotional exam from 70% to 60% to increase the number of qualified candidates. There were four lieutenant vacancies, four persons who scored above 70%, and the mayor could follow the "rule of three." McAndrew v. Mun. Civil Serv. Cmsn. of Scranton, #1373 C.D. 2007, 2008 Pa. Commw. Lexis 325.

     Although the plaintiff worked as an inspector for 32 months, while the person who was promoted had only worked as an inspector for 16 months, there was no evidence that management only promoted on a basis of seniority. Her retaliation claim must fail. Hall v. Forest River, #07-2653, 2008 U.S. App. Lexis 16115 (Unpub. 7th Cir.).

Psychological Exams and Standards
     - Conduct Justifying a Required Exam

     Federal court denies an employer's motion to compel a sexual harassment plaintiff to submit to a mental exam, even though she allegedly experienced emotional distress as result of being compelled to perform oral sex on her supervisor. The plaintiff did not intend to present expert testimony to support her claim of emotional distress and did not allege ongoing severe emotional distress. EEOC v. Consolidated Resorts, #2:06-cv-01104, 103 FEP Cases (BNA) 1599, 2008 WL 942289 (D. Nev.).

Race Discrimination - In General

     In a hostile work environment claim, the plaintiff alleged that after reporting another officer for a violation of police regulations, a tire on her car was slashed and the incident was not investigated. After fellow officers discovered she was the source of smoking violation complaint, they only spoke Spanish around her. The court wrote that even if those incidents were racially motivated, the frequency and severity of the conduct was not sufficient to sustain a hostile work environment claim. Davis v. City of Newark, #06-4806, 2008 U.S. App. Lexis 16826 (Unpub. 3rd Cir.).

     In resolving Title VII discrimination actions against a political entity, it is unnecessary to secure a right to sue letter from the U.S. Attorney, if one has been requested by the aggrieved party, and the EEOC has issued a right to sue letter. Johnson v. City of Houston, # H-07-4516, 2008 U.S. Dist. Lexis 49748 (S.D. Tex.).

Residency - Continuing Requirements

     Ohio statutes §9.481, which prohibits municipalities from imposing a residency requirement as a condition of employment, is a matter statewide interest, controlled by the legislature, and supersedes home rule powers. AFSCME L-74 v. City of Warren, #2007-T-0110, 2008 Ohio App. Lexis 3298, 2008 Ohio 3905 (11th Dist.).

     Ohio appellate court declines to issue a writ ordering a city to reinstate a police officer who was fired for violating a municipal residency ordinance, which may be invalid. "...it is well-established that an administrative appeal is an adequate remedy for appealing the termination of a police officer." Ohio ex rel. Cleveland Police Pat. Assn. v. City of Cleveland, #90554, 2008-Ohio-325, 2008 Ohio App. Lexis 273, 183 LRRM (BNA) 2829 (8th App. Dist).

Sex Discrimination - Correctional Facilities

     Seventh Circuit reinstates a gender discrimination suit. The fact that more males were incarcerated in a juvenile facility did not justify a new staffing rule that required that at least one male officer work in every pod on each shift. Women officers with greater seniority lost overtime assignments to males with less seniority. "The evidence in the record does not support the conclusion that the juveniles' safety or security, or the institution's ability to manage risk effectively, was at all in jeopardy because of the presence of opposite-sex JCOs on the third shift." Henry v. Milwaukee County, #07-2534, 2008 U.S. App. Lexis 17724 (7th Cir.).

Sex Discrimination - In General

     California appellate panel affirms damages of $1.25 million for sex discrimination and retaliation, awarded to a woman police officer. $530,012 in economic and $372,503 in non-economic damages were for sex discrimination, and $59,150 in economic and $287,500 in non-economic damages were for retaliation. Zanone v. City of Whittier, #B189567, 162 Cal.App.4th 174, 75 Cal.Rptr.3d 439, 2008 Cal. App. Lexis 597 (2nd App. Dist.).

Telephone & Pager Monitoring / Audio & Video Taping

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

     Ninth Circuit Court rules in favor of a police officer whose text messages were read by his superiors without his permission, even though the city paid for the wireless service. The three-judge panel's holding would require management to obtain a warrant before they could access an employee's e-mail or pager text messages.

     * The court found that a wireless firm violated the federal Stored Communications Act, which prohibits providers from divulging, without a warrant, the contents of any communication that is maintained on the service.

     * The fact that the city had informed employees that it had the right to read e-mails and text messages did not override an expectation of privacy by employees. Quon v. Arch Wireless Oper. Co., #07-55282, 529 F.3d 892, 27 IER Cases (BNA) 1377, 2008 U.S. App. Lexis 12766 (9th Cir.).

     Note: California police attorney Martin J. Mayer has issued a Client Alert on the Quon case, and the need to have effective policies on employee privacy expectations.

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RESOURCES

Electronic Crime Scene Investigation:

     * A Guide for First Responders, Second Edition

Stress related:

     * A Prospective Study of Trait Anger and PTSD Symptoms in Police, by Meffert et al., 21 (4) Journal of Traumatic Stress 410-416 (Aug. 2008). DOI: 10.1002/jts.20350.

Substance abuse:

     * Anabolic Steroid Use and Abuse by Police Officers: Policy & Prevention, by Commander Kim R. Humphrey, July 2008 Police Chief.

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
Age Discrimination - see: Disability Benefits
Disciplinary Appeals & Challenges - see Residency Requirements
Disciplinary Offenses - see: Last Chance Agreements
First Amendment Related - see: Civil Service
Political Activity - see: Civil Service
Privacy Rights - see: Telephone & Pager Monitoring
Religious Discrimination - see: Hairstyle Regulations


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



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Access the multiyear Employment Law Case Digest
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