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

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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 Sep (web edit.)
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CONTENTS
Monthly Law Journal Article
Disciplinary Consequences of Peace Officer Untruthfulness
Part I- Job Applications
2008 (9) AELE Mo. L. J. 201

Digest Topics
Damages
Defamation
Demotions
Disability Rights and Benefits (2 cases)
Disciplinary Appeals & Challenges (3 cases)
Disciplinary Hearings - Proof Required
Disciplinary Interviews - Legal Counsel
Disciplinary Offenses - In General
Disciplinary Offenses - Insubordination
Disciplinary Procedures - Delays & Time Limits
Disciplinary Punishment - In General (2 cases)
FLSA - Meal periods
First Amendment Related (2 cases)
Handicap Discrimination - Specific Disabilities
Inefficiency & Performance Standards
Last Chance Agreements (2 cases)
Pay Disputes
Pregnancy Discrimination (2 cases)
Privacy Rights
Race Discrimination - In General
Race: Reverse Discrimination
Retirement Rights and Benefits (3 cases)
Sex Discrimination - In General
Stress Related Claims
Transfers - Disciplinary or Punitive
Untruthfulness & Resume Fraud

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.

Damages, Remedies and Enforcement of Settlements

     In a 5-to-3 decision, the Supreme Court reduced a large punitive damage award to 100% of the amount of compensatory relief that was paid. The litigation followed an oil spill caused by the negligence of an employee. Exxon Shipping Co. v. Baker, #07-219, 125 S.Ct. 2605, 2008 U.S. Lexis 5263.

Defamation

     Justice Dept. agrees to settle with scientist Stephen Hatfill, who was identified by then Attorney General Ashcroft as a "Person of Interest" in an investigation of the 2001 anthrax attacks on the Congress. Hatfill was followed 24/7 by FBI agents, and lost a $150,000 university teaching job on the order of Justice officials. The DoJ has agreed to pay Dr. Hatfill and his attorneys $2.825 million and to fund an annuity paying him $150,000 for life. Hatfill v. Mukasey (formerly Hatfill v. Ashcroft), #03-cv-1793, 2008 U.S. Dist. Lexis 17756 (D.D.C.); #08-5049, 2008 U.S. App. Lexis 5755 & 6242 (D.C. Cir.). View: Complaint and DoJ Press Release #08-576.

    Note: The FBI has interviewed more than 9,000 persons in the yet unsolved anthrax investigation.

Demotions

     Appellate panel dismisses the appeal of a psychologist who voluntarily accepted a demotion when his academic credentials were challenged by management. The appellant failed to show that management misled him or was derelict in supplying him with information that he needed to make his choice. Rathbun v. Veterans Affairs, #2008-3182, 2008 U.S. App. Lexis 14766 (Unpub. Fed. Cir.).

Disability Rights and Benefits
- Line of duty related/ disputed

     Illinois appellate court upholds a line of duty pension for a police officer who suffered a lower back injury in a scuffle with a homeless man, which caused her lower back pain that prevented her from performing the full range of duties as a police officer. The city cannot avoid liability by claiming that she can return to work with accommodations, because she was never offered a position within her limitations. Kouzoukas v. Retirement Board of Chicago, #1-07-2623, 2008 Ill. App. Lexis 617 (1st Dist.).

     Appellate court sustains a refusal to award disability benefits. Contrary to the appellant's expert, the respondent's expert found no evidence of herniated disks or orthopedic impairments that would interfere with work activities as a police captain. Wilson v. N.Y. Police & Fire Retir. Sys., #504325, 2008 N.Y. App. Div. Lexis 6016 (3rd Dept.).

Disciplinary Appeals & Challenges - In General

     Rather than filing an appeal to contest his employment termination with the civil service commission, an Ohio fire chief filed a court action. The Supreme Court held that under Ohio law, the chief was not required to exhaust the internal administrative remedies before filing suit. Dworning v. City of Euclid, #2007-0307, 2008-Ohio-3318, 2008 Ohio Lexis 1768.

     Even if management incorrectly believed that ex-felons could not work at the agency, the failure to reemploy an ex-felon is not an appealable action under federal regulations. Fortenberry v. Merit Systems Prot. Bd., #2008-3110, 2008 U.S. App. Lexis 14767 (Unpub. Fed. Cir.).

     California appellate court holds that a tie vote by civil service commissioners results in an affirmance of a termination by the department head. Lopez v. Imperial Co. Sheriff's Office, #D051410, 2008 Cal. App. Lexis 1135 (4th Dist.).

Disciplinary Hearings - Proof Required

     Under the bargaining agreement, arbitrator holds that management was not required to call the investigating officer as a witness. Ohio Hwy. Patrol and St. Troopers Assn., Grievance No. 15-03-080129-0007-01, 125 LA (BNA) 95 (Feldman, 2008).

Disciplinary Interviews & Compelled Reports
- Legal Counsel - Right to

     Although mandatory participation in a critical incident review is subject to collective bargaining, troopers are not entitled to the presence of legal counsel, because the review is non-disciplinary and is not an administrative interrogation that may lead to discipline or removal. P.B.A. State Troopers v. N.Y. State Police, #118, 2008 NY Slip Op 05957, 2008 N.Y. Lexis 1930, 2008 NY Int. 113.

Disciplinary Offenses - In General

     Arbitrator sustains a three-day suspension of a police officer for failure to drive with due regard for safety. During a pursuit, where he was driving the third car, he ran a red light at high speed and collided with a citizen. The other driver's failure to yield to an emergency vehicle did not lessen the officer's duty to use due caution, and not driving the first car in the pursuit made his mission less critical. City of Houston and Individual Grievant, AAA Case No. 70-390-00035-08, 125 LA (BNA) 134 (Moore, 2008).

Disciplinary Offenses - Insubordination

     Appellate court overturns the termination of a firefighter who was belligerent towards another firefighter, and made disparaging and threatening remarks about a coworker to a superior officer. At the time, the appellant was on medical leave and was at the home of a friend whose child had been injured. The panel noted the firefighter was present as a family friend and the department's rule against "insubordination" did not apply to his off-duty conduct as a private citizen. D'Alessandro v. W. Hempstead Fire Dist., Index #18072/05, Docket #2007-09156, 2008 NY Slip Op 06294, 2008 N.Y. App. Div. Lexis 6140 (2nd Dept.).

Disciplinary Procedures - Delays & Time Limits

     Arbitrator finds that a grievance arising from the termination of a campus police officer was not arbitrable because union waited for more than 11 months beyond the deadline before requesting a review. Cuyahoga Community College and AFSCME C-8, AAA Case #53-390-00314-07, 124 LA (BNA) 1802 (Skulina, 2008).

Disciplinary Punishment - In General

     Arbitrator upholds discharge of an insubordinate worker, where management offered after-acquired evidence that the grievant had falsified his employment application to hide criminal conduct. Bi-State Development Agency and Amal. Transit Union L-788, FMCS Case No. 0830/59822-A, 125 LA (BNA) 54 (Daly, 2008).

     Independent Hearing Examiner sustains a nine-day suspension for an officer's retaliation against a citizen who had lodged a non-formal, verbal complaint against the officer. "Seldom does a police officer issue parking tickets, without someone complaining, at 2:00 a.m. on New Year's Day to a vehicle parked on a residential street in a dead-end cul-de-sac." City of Houston and Grievant S, AAA Case #70-390-00434-07, 125 LA (BNA) 116 (Moore, 2008).

FLSA - Overtime - Roll Call & Meal periods

     California appellate panel holds that "employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so." Brinker v. Super. Ct., #D049331A, 2008 Cal. App. Lexis 1138 (4th Dist.).

First Amendment Related

     Third Circuit concludes that "truthful trial testimony arising out of the employee's official responsibilities constitutes protected speech," spoken as a citizen, and the Garcetti decision does not apply. The plaintiff had been disciplined for testifying in a trial against another officer. Reilly v. City of Atlantic City, #06-2591, 2008 U.S. App. Lexis 13808 (3rd Cir.).

     Fifth Circuit finds that there was no evidence to find that the plaintiff was terminated from his county job because he sought election as a county commissioner. Rather he was fired for violating county policies against political campaigning activities while working and under other limited circumstances. James v. Texas Collin County, #07-40566, 2008 U.S. App. Lexis 14902 (5th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Appellate panel rejects a suit by an asthmatic corrections officer who sought a smoke-free work environment. "The evidence establishes, and the DOC does not dispute, that [her] asthma was a physical impairment" but she "has not presented significant probative evidence that her impairment substantially limited a major life activity, thereby becoming a disability." Lord v. Ariz. Dept. of Corr., #06-15875, 2008 U.S. App. Lexis 14432 (Unpub. 9th Cir.).

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator finds that management failed to prove that an officer was guilty of low productivity. The City's evidence consisted of comparative statistics. There was no direct evidence that the officer ignored parking violations or that he failed to make arrests. City of Lake Worth, FL and FOP, AAA Case #32-390-00425-06, 125 LA (BNA) 203 (Smith, 2008).

Last Chance Agreements

     Appellate court reverses the termination of an Army CID special agent for violating a last chance agreement. The Personnel Board had relied on a ground for breach of the last chance agreement different from the one that had been asserted by the agency in the notice of breach. Lizzio v. Dept. of the Army, #2007-3224, 2008 U.S. App. Lexis 15108 (Fed, Cir.).

     Correctional facility had just cause to discharge an employee for violating last chance agreement relating to absenteeism when she failed to provide signed physician's verification for entire day for which she called in sick. Ohio Dept. of Rehab. & Corr. and Ohio CSEA/AFSCME L-11, 25 LA (BNA) 199 (Murphy, 2008).

Pay Disputes - In General

     Arbitrator finds that favoritism resulted in others receiving merit pay increases, and orders a retroactive pay raise for the grievant. City of Vandalia and Ohio PBA, 125 LA (BNA) 62 (Paolucci, 2008).

Pregnancy Policies and Discrimination

     Third Circuit holds that terminating a non-tenured employee for having an abortion violates the federal Pregnancy Discrimination Act. Doe v. C.A.R.S. Protection Plus, #06-3625, 527 F.3d 358, 2008 U.S. App. Lexis 11519; 103 FEP Cases (BNA) 577 (3rd Cir.).

     Tenth Circuit reinstates a suit filed by women police officers that alleged that when they took maternity leave, the city required them to do so in a way that adversely affected their eligibility for early retirement, limited their ability to work overtime, and differed significantly from how other employees seeking time off for other medical purposes were treated. A reasonable jury could find that the city's justification was a pretext for intentional discrimination. Orr v. City of Albuquerque, #07-2105, 2008 U.S. App. Lexis 14505 (10th Cir.).

Privacy Rights

     California law now prohibits employers from requiring workers to receive an identification implant as a condition of "employment, promotion, or other employment benefit." Civil Code §52.7.

Race Discrimination - In General

     Eighth Circuit upholds the validity of fire dept. promotional exams that resulted in lower scores for black candidates. The city produced more than 26 large boxes of documents in discovery. Stewart v. City of St. Louis, #07-2548, 2008 U.S. App. Lexis 15100 (8th Cir.). Prior opinions at 2007 U.S. Dist. Lexis 38473 and 38421 (E.D. Mo.), 2006 U.S. Dist. Lexis 6383 and 38157, 220 F.3d 898 (8th Cir. 2000).

Race: Reverse Discrimination

     Second Circuit panel affirms a trial court's ruling that there was insufficient evidence to show that management discriminated against 17 white candidates and one Hispanic candidate when officials refused to certify the results of a firefighters' promotional exam because it had a disparate impact on black and Hispanic candidates. The full court then voted 7-6 to deny en banc review. Ricci v. DeStefano, #06-4996-cv, 2008 U.S. App. Lexis 12261; reh. en banc den., 2008 U.S. App. Lexis 12568 (2nd Cir.).

Retirement Rights and Benefits

     The courts and M.S.P.B. lacked the authority to review an agency decision to recover $53,766 in erroneously paid retirement benefits due to a management error. The employee failed to ask the O.P.M. to waive collection of the overpayments. Alexander v. O.P.M., #2008-3131, 2008 U.S. App. Lexis 14765 (Unpub. Fed. Cir.).

     Federal appeals court rejects a claim brought by the widow of a federal retiree that had elected to receive a reduced annuity with a partial survivor annuity. Although the widow claimed that her late husband made a mistake in filling out the form because he was mentally incompetent at the time and that he intended for her to receive the maximum annuity. The spousal consent form bore the widow's notarized signature. Scalese v. O.P.M., #2008-3168, 2008 U.S. App. Lexis 14711 (Unpub. Fed. Cir.).

     Appellate court overrules a regulation that allowed retiring peace officers who never had been injured on duty to collect higher benefits than an officer who was injured on duty, even if the two have the same rank, years of service. L.A. Co. Prof. POA v. Co. of L.A., #B200582, 2008 Cal. App. Lexis 1136 (2nd Dist.).

Sex Discrimination - In General

     Requiring a female receptionist to serve coffee to male officer workers did not create a hostile work environment. "The act of getting coffee is not, by itself, a gender-specific act." Klopfenstein v. National Sales and Supply, #07-cv-4004, 2008 U.S. Dist. Lexis 44362 (E.D.Pa.).

Stress Related Claims and Defenses

     Federal appeals panel revives a disability discrimination suit filed by an FBI agent-trainee who suffered from PTSD. Sleep is a major life activity. Superiors ended his career after finding an unsigned resignation letter. Desmond v. Mukasey, No. 07-5139, 2008 U.S. App. Lexis 13803 (D.C. Cir.).

Transfers - Disciplinary or Punitive

     Arbitrator overturns an involuntary transfer that occurred immediately after the grievant indicated that he was going to file a grievance challenging a schedule change. City of Reno and Reno Police Employees, 125 LA (BNA) 158 (Staudohar, 2008).

Untruthfulness & Resume Fraud
- Resume fraud or job application omissions and falsehoods

     Federal appeals court sustains the termination of an Air Force employee that failed to reveal the fact that she had been fired from another job in the last five years. Even if the appellant assumed that the question related solely to federal employment, the form clearly indicated discharges from "any job." Wolfbauer v. O.P.M., #2008-3173, 2008 U.S. App. Lexis 14706 (Unpub. Fed. Cir.).

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RESOURCES

Domestic assault among police:

Report: A survey of 123 internal affairs policies (12 pp.) Institute for Law Enforcement Administration, Plano, TX.

Physical fitness programs:

Article: Fit for duty? The need for physical fitness programs for law enforcement officers, by Adrienne Quigley, 75 (6) The Police Chief (June 2008).

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
Arbitration Procedures - see: Disciplinary Procedures - Delays/Time Limits
Civil Service - see: Disciplinary Appeals
Light Duty Assignments - see: Disability Rights and Benefits
Retaliatory Personnel Action - see: Transfers - Disciplinary/Punitive
Sex Discrimination - see: Pregnancy Discrimination
Smoking/Air Quality Claims - see: Handicap Discrimination - Specific Disabilities
Tortious Interference with Employment - see: Defamation
Untruthfulness & Resume Fraud - see: Disciplinary Punishment
Vehicle Related - see: Disciplinary Offenses


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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