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ISSN 0164-6397

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

Cite this issue as:
2009 FP Jan

This publication highlighted 424 cases or items in 2008.

This issue contains 36 cases or items in 27 topics

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CONTENTS

Monthly Law Journal Article

Overtime Pay for Preduty Preparations

2009 (1) AELE Mo. L. J. 201

Monthly Case Digest

Alcohol Abuse, Testing & Rehabilitation

Collective Bargaining - Duty to Bargain

Defamation

Disability Benefits (2 cases)

Drug Screening

Employee Harassment - Sexual Orientation

FLSA - Overtime-General

FLSA - 7K Exemption (2 cases)

FLSA - Meal periods

Family, Medical & Personal Leave (3 items)

Firearms - Restrictions on Wearing

First Amendment Related

Handicap Discrimination - Psychiatric

Handicap Discrimination - Specific Disabilities

Handicap Discrimination - TDD/Sign Language

Inefficiency and Performance Standards (2 cases)

Injuries to Employees

Past Practices Clauses

Psychological Exams

Race Discrimination - In General (2 cases)

Race and Sex Discrimination

Religious Discrimination

Retaliatory Personnel Action (3 cases)

Sexual Harassment - In General (2 cases)

Stress Related Claims - Disciplinary Action

Whistleblower Protection

Workplace Violence

MONTHLY CASE DIGEST

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

• Cases that have a Lexis citation can be retrieved, for a fee on their website.

• Most Federal District Court opinions can be accessed via PACER. Registration required.

• BNA arbitration awards can be obtained for a fee, from BNA Plus.

Alcohol Abuse, Testing & Rehabilitation

Consent is not a factor as to whether blood-alcohol test results are admissible; an involuntary test of bodily substances does not violate any constitutional rights where the search is supported by probable cause. The fact that the defendant, a police officer, was ordered to submit to the test as a condition of his continued employment does not limit the test results to administrative proceedings. People v. Carey, #1-07-3262, 2008 Ill. App. Lexis 1087 (1st Dist.).

Collective Bargaining - Duty to Bargain

Management violated the bargaining agreement when it began deducting federal taxes from firefighters’ uniform allowances without negotiating with the union. The city could have opted to put the burden of tax payments on individual firefighters. City of Fostoria, Ohio and IAFF L-325, 125 LA (BNA) 801, FMCS Case #07/04793 (Larney, 2008).

Defamation

Although a misconduct complaint about another officer, sent to one’s superiors, is absolutely privileged from defamation claims, but it is not immunized from liability if the allegations are revealed to officers outside the complainant’s chain of command. It becomes a conditional privilege and is a question of fact for the jury as to whether the privilege was abused. Anderson v. Beach, #1-07-1911, 2008 Ill. App. Lexis 1047 (1st Dist.).

Disability Rights and Benefits - Other issues

In a case where a police officer sought accidental disability retirement benefits, the opinions of an orthopedic surgeon and a neurologist might differ, because an injured officer can be orthopedically disabled but neurologically intact. The court annulled the comptroller’s determination as not supported by substantial evidence. The neurologist’s testimony was not in conflict with the orthopedic surgeons because they performed different types of evaluations. Rossi v. N.Y. State Controller, #504860, 866 N.Y.S.2d 399, 2008 N.Y. App. Div. Lexis 7907 (3rd Dept.).

Appellate court overturns a Retirement Board finding that a Chicago Police officer was not disabled due to lower back pain. “Although none of the objective medical tests or scans performed on the plaintiff identified the source of her pain, each of the physicians that examined the plaintiff, with the exception of Dr. S_, rendered a diagnosis as to the source of her pain. ... Contrary to the Board’s finding, none of the physicians that treated or examined the plaintiff opined that she could return to a full duty position with the Department.” Kouzoukas v. Ret. Bd. of Chicago, #1-07-2623, 383 Ill. App.3rd 942, 890 N.E.2d 1135, 2008 Ill. App. Lexis 617 (1st Dist.).

Drug Screening and Specimen Testing

Noting that “extreme mood swings, manic-like symptoms leading to violence and depression may result from abuse of anabolic steroids,” the EEOC Office of Legal Counsel wrote that the ADA permits a POST authority to detect whether peace officers are using androgenic anabolic steroids, and to deny, revoke, suspend, or cancel a peace officer’s certified status for a failure to notify the agency appointing authority, within 72 hours of initial use. However, the interpretation applies only to “peace officers in positions affecting public safety (as opposed to individuals designated as peace officers but who perform only administrative duties).” EEOC OLC Inf. Opin. Letters 9-10-2008 and 6-24-2008.

Employee Harassment - Sexual Orientation

Arbitrator reduces a termination to a suspension, in the case of an employee who violated an anti-hate rule, which read, “Behavior that violates the company’s work environment policy, even if intended as a joke, is absolutely prohibited and will be grounds for severe corrective action, up to and including termination of employment.” Although the grievant referred to a coworker as a “faggot” on a electronic bulletin board, he was reacting to the coworker’s political activities. Nevertheless, homophobic language is a serious offense and warrants a substantial suspension. American Airlines and Allied Pilots Assn., 125 LA (BNA) 1025 (Vernon, 2008).

FLSA - Overtime - in General

Management violated the bargaining agreement and the FLSA when it did not compensate prison correctional officers for required pre-shift duties, where duties took substantial time and were indispensable. “All of the rounds of ammunition in the tower have to be counted by the on-coming officer ... to unload all clips ... then reload the clips and place them back in the weapons before the other officer can leave.” The average time it took to perform the pre-shift activities was 30 minutes. Federal Bur. of Prisons and AFGE L-1242, FMCS Case #05-57849, 125 LA (BNA) 707 (Calhoun, 2008).

FLSA - 7K Exemption

Labor Dept. concludes that jailers, although lacking arrest authority, qualify for the 207(k) exemption because §553.211(f) of the regulations does not require security personnel for correctional institutions to have the power of arrest to qualify for the §7(k) partial exemption. DOL Opinion Letter 2008-9NA, 2008 DOLWH Lexis 15.

Because firefighters who are assigned as paramedics are “engaged in the ... response to emergency situations where life, property, or the environment is at risk,” they are partially exempt from overtime requirements under 29 U.S. Code §203(y). Gonzalez v. City of Deerfield Beach, #07-11280, 2008 U.S. App. Lexis 24037 (11th Cir.).

FLSA - Overtime - Roll Call & Meal periods

Illinois Federal court declines to dismiss an overtime action arising over meal breaks. “A reasonable jury could find that there were sufficient limitations on the break periods of … the Plaintiffs in the Investigations or Operations Bureaus so that those periods were predominantly for the benefit of the employer.” Wood v. City of Elgin, #07-Cv-05418, 2008 U.S. Dist. Lexis 80559 (N.D. Ill.).

Family, Medical & Personal Leave

U.S. Dept. of Labor, Wage & Hour Division publishes new Family Medical Leave Act regulations, effective Jan. 16, 2009. They cover military leave and HIPAA. Revised Final Regulations Under the Family and Medical Leave Act, RIN 1215-AB35.

Office of Personnel Management revises rules pertaining to emergency leave for General Schedule employees. Changes in Pay Administration Rules, 73 (217) Federal Register 66143 (11/7/2008).

Fifth Circuit holds that the anti-retaliation provisions of the FMLA do not automatically protect a coworker or spouse of an employee from retaliation. Elsensohn v. St. Tammany Parish Sheriff’s Office, #07-30693, 530 F.3d 368 (5th Cir. 2008).

Firearms - Restrictions on Wearing

Due to paranoia, there was no evidence of pretext in management’s legitimate, nondiscriminatory, reasons for an officer’s decommissioning while undergoing therapy. Although she claimed age and sex discrimination. Moreover, she was not qualified to perform the essential functions of her position, for purposes of an ADA claim. Reed v. Metro. Govt. of Nashville, #07-5557, 286 Fed. Appx. 251, 2008 U.S. App. Lexis 13909 (Unpub. 6th Cir.).

First Amendment Related

First Circuit recognizes a claim that superiors retaliated against a detective sergeant for his failure to participate in a council recall election. Reassigning him to another division was an adverse personnel action because he lost an additional stipend that accompanied the detective sergeant position as well as an opportunity to earn overtime. Welch v. Ciampa, #07-2470, 542 F.3d 927, 2008 U.S. App. Lexis 20485, 28 IER Cases (BNA) 295 (1st Cir.).

Handicap Laws / Abilities Discrimination - Psychiatric

Employer vindicated in a wrongful termination and disability discrimination action; the plaintiff was taking prescription drugs that affected his cognitive abilities and held a safety-sensitive position. Kosmicki v. BN&SF Ry., #08-1511, 2008 U.S. App. Lexis 22310 (8th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

Tenth Circuit holds, in the case of an epileptic worker, that driving is not major life activity, even though there was no public transportation; the importance of an activity is not dependent on where one lives. Kellogg v. Energy Safety Services, #07-8072, 2008 U.S. App. Lexis 21567, 21 AD Cases (BNA) 193, 14 WH Cases 2d (BNA) 241 (10th Cir.).

Handicap Laws / Abilities Discrimination

- TDD/Sign Language & Physical Barriers

*** Editor’s Case Alert ***

Sixth Circuit holds that Savannah, Tenn., police did not violate Title II of ADA by failing to provide sign language interpreter for deaf arrestees, where they did not allege intentional discrimination or challenge validity of their arrests.

1. The language of the statute does not specifically enumerate whether an arrest is a “service, program, or activity” contemplated by the ADA;

2. To conclude that an arrest may be an “activity” subject to the ADA does not direct a finding that an interpreter was required here. Each of the plaintiffs must show that he or she was intentionally discriminated against, or that reasonable accommodations were not made to provide them with communications that were as effective as those provided to non-disabled persons.

3. There was no evidence that a sign language interpreter would have changed the events in any way.

Tucker v. State of Tennessee, #06-6208, 539 F.3d 526, 2008 U.S. App. Lexis 18618 (6th Cir.), citing Rosen v. Montgomery Co., #96-1833, 121 F.3d 154, at 157-158 (4th Cir. 1997) and Bircoll v. Miami-Dade Co., #06-11098, 480 F.3d 1072 (11th Cir. 2007).

Inefficiency, Performance Standards, Negligence and Incompetence

Federal appeals court sustains the termination of a Treasury employee who failed a sixty-day performance improvement plan during which he was given weekly counseling sessions, on-the-job training, and mentoring. Morrissey v. Dept. of the Treasury, #2008-3248, 2008 U.S. App. Lexis 22108 (Fed. Cir.) affirming 108 M.S.P.R. 576.

Panel rejects claims of race, color, age and sex discrimination raised by a terminated TSA inspector. She manifested unsatisfactory performance in conducting inspections and investigations. Edwards v. Dept, of Homeland Security, #CH-0432-08-0314-I-1, 2008 MSPB 241, 2008 MSPB Lexis 5109.

Injuries to Employees

Police officer was entitled to payment of his health care premiums pursuant to the IL Safety Employee Benefits Act, after he slipped and fell while checking a residence in response to burglar alarm. It qualified as an “emergency” even though he did not activate his lights or siren, and there is high incidence of false alarms, particularly during a thunderstorm. DeRose v. City of Highland Park, #2-07-0938, 2008 Ill. App. Lexis 1081 (2nd Dist.).

Past Practices, Precedents & Zipper Clauses

Arbitrator finds that management violated the bargaining agreement by guaranteeing overtime pay for police Field Training Officers and by not paying FTOs taking vacation time during a cycle, where the city had a past practice of paying FTOs in each category, and management was unsuccessful in negotiating a change in that past practice. City of Aurora, Colo. and Aurora Police Assn., 125 LA (BNA) 769, AAA Case #77-390-00446-07 (Landau, 2008).

Psychological Exams and Standards

- Use of, or Disclosure of the Results and Privacy

Federal court holds that the fact that a police officer “was the subject of an involuntary psychological evaluation is a permanent record in his personnel file and may be a detriment to obtaining law enforcement positions in the future. The involuntary psychological evaluation thus rises to the level of a materially adverse action.” There was sufficient evidence in the record for the officer to proceed with a retaliation claim under Title VII. Dodd v. SEPTA, #06-4213, 2007 U.S. Dist. Lexis 46878; 2008 WL 2902618, 2008 U.S. Dist. Lexis 56301, 104 FEP Cases (BNA) 43 (E.D. Pa. 2008).

Race Discrimination - In General

Federal court declines to dismiss a suit brought by a black assistant chief of police. The complaint raised factual issues as to whether hiring a white candidate from outside the department was justified. The city council had voted along racial lines in deciding whom to hire. Johnson v. City of Columbus, Miss. #1:2007cv00168, 2008 U.S. Dist. Lexis 81933, 104 FEP Cases (BNA) 1349 (N.D. Miss.); on remand from 279 Fed. Appx. 309, 2008 U.S. App. Lexis 11141 (5th Cir.).

Federal court rejects a suit brought by Hispanic firefighters against their unions under 42 U.S. Code § 1983 or state law. The complaint contained only conclusory allegations, not specific factual allegations, that the unions had conspired with the city to discrimination against them. There can be no claim against the union “for merely failing to remedy the employer’s discrimination.” Figueroa v. City of Camden, #1:2008cv00059, Pacer Doc. 29, 2008 U.S. Dist. Lexis 77241 & 77260, 104 FEP Cases (BNA) 1312 (D.N.J.).

Race and Sex Discrimination

“Title VII was enacted to prohibit discrimination on the basis of race, gender, and other legislatively enumerated grounds. It is not a statute intended to police standards of general fairness in the workplace, or even to protect against the firing of an employee in order to cover up wrongdoing by an employer.” Lightner v. City of Wilmington, #071442, 2008 U.S. App. Lexis 22688, 104 FEP Cases (BNA) 1155 (4th Cir.).

Religious Discrimination

After a city changed psychologists it used for pre-employment evaluations, the firm failed to prove that his protected activity was a motivating factor in their termination of the contract because of his membership in a conservative, religious organization. Campion, Barrow & Associates v. City of Springfield, #06-CV-3215, 2008 U.S. Dist. Lexis 21249 (C.D. Ill.); prior ruling at 2007 U.S. Dist. Lexis 56235.

Retaliatory Personnel Action

Los Angeles jury awards $3.6 million to a male officer who claimed that he was demoted and suffered retaliation after supporting a female officer’s harassment charges. Bender v. City of Los Angeles, Super. Ct. #BC361139; L. A. Times, Nov. 13, 2008. The woman has her own lawsuit pending; Fuller v. City of Los Angeles, Super. Ct. #BC346464.

Although it was five years between the filing of an EEO complaint against the Bureau of Prisons and the denial of a promotion, the government was not entitled to dismissal of the action. The BoP paid $10,000 from the agency’s budget to settle the plaintiff’s EEO complaint, and his application for the position sought was denied five times. Mack v. Mukasey, #06-cv-00350, 2008 U.S. Dist. Lexis 76111, 104 FEP Cases (BNA) 799 (D. Colo.).

In a case involving a DHS employee who brought a retaliation lawsuit, “lower performance ratings are not actionable unless they are accompanied by tangible job consequences.” Even if the lower rating prevented the plaintiff from receiving a merit bonus, it would not be enough to constitute a materially adverse action. Lapka v. Chertoff, #06-4099, 517 F.3d 974, 2008 U.S. App. Lexis 4391, 102 FEP Cases (BNA) 1253 (7th Cir. 2008).

Sexual Harassment - In General

A female corrections officer failed to prove a hostile work environment; in a two-year period, the only racially insensitive comments she heard were when a named defendant called her “girl” and called two male black employees “boys.” McCann v. Tillman, #07-11743, 526 F.3d 1370, 2008 U.S. App. Lexis 10048 (11th Cir. 2008).

A federal court declined to dismiss a civil suit for retaliatory discharge, brought by a bailiff/secretary and a court reporter against an Oklahoma Judge, who was sentenced to four years in prison for secretly using a “penis pump” in chambers and while on the bench. He could have been observed by a person of either gender, so the plaintiffs were not fired because they are female -- thus their sex discrimination and harassment claims failed. Subsequently, they each received a settlement of $170,000, because the judge had fired them for testifying before the Council on Judicial Complaints. Foster v. Thompson, #05-CV-305, 2008 U.S. Dist. Lexis 16736; Hindman v. Thompson, #05-CV-306, 557 F.Supp.2d 1293, 2008 U.S. Dist. Lexis 16740 (N.D. Okla. 2008).

Stress Related Claims and Defenses

- Disciplinary Action - Punishment

Two years prior to his retirement, a deputy sheriff with 25 years of service was accused by the media of colluding with a murder suspect. He was fired, and later rehired, but was assigned to lesser duties. He sought work-related disability retirement benefits. Because the State’s psychiatrist testified that his symptoms were exacerbated after he was initially fired due to a false accusation, it was a line-of-duty incidents. Debilitating anxiety or stress over loss of duties can be considered a work-related injury, even if there were significant outside stressors. Jernigan v. Florida Mgmt. Serv., #1D07-5011, 2008 Fla. App. Lexis 16213 (1st Dist.).

Whistleblower Requirements and Protection

Seventh Circuit dismisses a whistleblower retaliation claim brought by a terminated corrections official. Although her report to the FBI was protected speech, she failed to present evidence that her supervisors knew that she had made the report. Trigillo v. Snyder, #06-2578, 2008 U.S. App. Lexis 23545, 2008 WL 4755789 (7th Cir.); prior decis. at 2006 U.S. Dist. Lexis 28598 & 22615 (C.D. Ill.).

Workplace Violence

A private security firm that employed unarmed guards was not liable under a failure to protect theory, for the shooting deaths and injuries of employees at the guarded facility. The guards were hired to prevent loss from fire, theft, sabotage, vandalism, or horseplay, not to protect workers. Aidroos v. Vance Uniformed Protection Services, #1-06-2009, 2008 Ill. App. Lexis 1063 (1st Dist.).

RESOURCES

Stress: Revised book, Cop Shock, Surviving Posttraumatic Stress Disorder, by Allen Kates, ISBN-13: 9780966850123 (2nd edit. 2008).

Worker Visibility: New federal regulation provides that all workers within the right-of-way of a Federal-aid highway who are exposed to traffic “shall wear high-visibility safety apparel.” Firefighters or other emergency responders “may wear retro reflective turn-out gear.” 23 C.F.R. §634.3, Federal Highway Admin. Docket FHWA-2008-0157, FR Doc. E8-27671, RIN 2125-AF28, 73 (226) Federal Register 70593 (11/21/2008)

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

CROSS REFERENCES

Handicap Discrimination/Employee Medical Exams-see: Drug Screening

Military Leave - see: Family Leave

Retaliatory Personnel Action - see: Family, Medical & Personal Leave

Retaliatory Personnel Action - see: First Amendment Related

Suspensions - see: Firearms - Restrictions on Wearing

Report non-working links here