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 Age Discrimination - General

     In a 5-4 holding, the Supreme Court ruled that plaintiffs in a "mixed motive" age discrimination case must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was a motivating factor in that decision. Gross v. FBL Financial Services, #08-441, 129 S.Ct. 2343, 2009 U.S. Lexis 4535.

Alcohol Abuse, Testing & Rehabilitation

     Federal court rejects an ADA claim of a police chief who was fired for DUI. The Act does not protect unlawful conduct, even if the employee is an alcoholic. Budde v. Kane County Forest Preserve, #1:06-cv-01165, 603 F. Supp.2d 1136 (N.D.Ill. 2009).

Arbitration Procedures

     Fourth Circuit enforces an arbitration demand, despite the fact that the grievances were filed after the bargaining agreements had expired. The statute of limitations period does not begin until a party unequivocally refuses to arbitrate. United Steel Workers v. Continental Tire, #08-1778, 568 F.3d 158, 2009 U.S. App. Lexis 12469 (4th Cir.).

Bill of Rights Laws

     California appellate panel rejects a city’s claim that the LEOBOR does not apply if accused police officers ultimately are exonerated by a Board of Rights. "Under the City’s theory, it could choose to violate the Act if it was confident that it would not ultimately prevail in its attempt to impose discipline, an absurd result." Paterson v. City of Los Angeles, #B208682, 2009 Cal. App. Lexis 963 (2nd Dist.).

Collective Bargaining - Duty to Bargain

     Although Wisconsin sheriffs are not required to bargain or arbitrate impasses that impact a sheriff’s constitutional duties, the staffing of an x-ray and metal detector security screening station is not among those tasks. The sheriff was required to bargain the replacement of full-time bargaining unit deputies with part-time special deputies. Washington Co. v. Deputy Sheriff’s Assn., #2008AP1210, 2009 Wisc. App. Lexis 426 (2d Dist.).

Defamation - In General

     Illinois appellate panel finds that the First Amendment’s freedom of religion clause protects persons who testify against a priest in an internal disciplinary proceeding, and a defamation suit filed by the accused party must fail. Stepak v. Doe, #1-08-2140 (Catholic Bishop of Chicago), 2009 Ill. App. Lexis 513 (1st Dist.), citing Serbian E. Orth. Diocese v. Milivojevich, 426 U.S. 696 (1976).

Demotions

     Federal court rejects a suit brought by a former highway patrol lieutenant who was reclassified as a sergeant-II after the patrol merged with the state police. He retained the same annual pay and he lacked a property right to retain the title of lieutenant. Carlberg v. New Hampshire Dept. of Safety, #08-cv-230-PB, 2009 DNH 68, 2009 U.S. Dist. Lexis 40304 (D.N.H.).

Disciplinary Evidence - Admissibility/In General

     In a termination appeal, an excited call to the sheriff’s dept., complaining that her boyfriend, a sheriff’s officer, had violently attacked her and threatened serious harm, is admissible in a hearing. Although hearsay, it qualifies under the spontaneous statement exception. Melkonians v. Los Ang. Co. Civil Serv. Cmsn., #B208046, 174 Cal.App.4th 1159, 2009 Cal. App. Lexis 919 (2nd Dist.).

     Arbitrator orders the reinstatement of a state trooper accused of a failure to notify his superior of exam cheating by other troopers. The trooper testified that he notified his sergeant. Although the sergeant denied this in an affidavit, he did not attend the arbitration hearing and could not be cross-examined. The sergeant’s "testimony would have been essential to rebut anything the grievant said in that regard to the contrary." State of Ohio and State Troopers Assn., Grievance #15-03-20080912- 0132-04-01, 126 LA (BNA) 702 (Feldman, 2009).

Disciplinary Hearings - Untenured

     Because a rejected CIA applicant admitted facts relating to his termination from a county police dept., he did not establish that he was harmed by not having a name-clearing hearing, citing Codd v. Velger, 429 U.S. 624 at 628 (1977). Walsh v. Suffolk County Police Dept., #08-2624-cv, 2009 U.S. App. Lexis 14292 (Unpub. 2nd Cir.).

Disciplinary Procedures - Delays & Time Limits

     California appellate court revives disciplinary counts against an LAPD detective. The delay in initiating administrative proceedings against him was tolled by an ongoing criminal investigation, even if no criminal charges resulted. "The question of what constitutes a criminal investigation logically focuses on whether the conduct at issue is potentially criminal, not whether the resulting charges amount to crimes." An additional count of making false statements was properly filed, where the statement was made before expiration of the statute of limitations on the underlying conduct. Crawford v. City of Los Angeles, #B210821, 2009 Cal. App. Lexis 1002 (2d Dist.).

Domestic Partner Rights

     President Obama directs department heads to extend spousal benefits to same-sex domestic partners of federal employees, when consistent with law. Federal Benefits and Non-Discrimination, FR Doc. E9–14737, 74 (118) Federal Register 29393 (6/22/2009).

Free Speech

     In rejecting an appeal brought by a federal air marshal who was terminated for improper media disclosures, the MSPB finds that the Congress entrusted the Transportation Security Administration to define and determine what is "sensitive security information." MacLean v. Dept. of Homeland Security, #SF-0752-06-0611-I-2, 2009 MSPB 114, 2009 MSPB Lexis 3471 (2009).

Handicap Laws / Abilities Discrimination - Psychiatric

     Rejecting First Amendment and disabilities discrimination claims, the Seventh Circuit upholds the termination of a county physician. Management presented undisputed evidence that it fired the plaintiff because he had threatened to kill his superior and coworkers. Bodenstab v. County of Cook, #08-1450, 2009 U.S. App. Lexis 13313 (7th Cir.).

Injuries to Applicants & Trainees

     Because a police trainee had signed a liability release to participate in physically demanding training programs, he was not entitled to damages after he was injured while carrying 70-pound cooler containing the lunches of other police recruits. Such releases serve a public interest in obtaining adequately trained police force. Marcinczyk v. New Jersey Police Training Cmsn., #A-4340-07T3, 406 N.J. Super. 608, 968 A.2d 1205, 2009 N.J. Super. Lexis 94 (App. Div.).
     • See AELE Monthly Law Journal articles on this topic:
     Legal Aspects of Training Injuries -- Part One (Aug. 2007)
     Legal Aspects of Training Injuries -- Part Two (Sep. 2007)

Pay Disputes - In General

     After a three-year wage freeze had ended, police officers, firefighters and other employee were entitled to more than a one-year advancement on their pay scales. They continued to accrue service credit and climbed the ladder of salary and career increments set forth in the bargaining agreements, but a partial lifting of the wage freeze with respect to one union should not have applied to all. Meegan v. Brown; Foley v. Brown, #322CA-08-00492, 2009 NY Slip Op 4805, 2009 N.Y. App. Div. Lexis 4721 (4th Dept.).

Picketing

     Second Circuit overturns the termination of correctional health care workers who participated in an unlawful picket line. "While labor organizations are subject to sanction for either striking or picketing without observing the [10-day] notice requirement specified by section 8(g) [Pub. L. 93-360, 88 Stat. 396] … the statute specifies sanctions for employees who participate in the violation only in the case of strikes and not in the case of picketing (unless the employees are agents of the labor organization and have violated section 8(b))." Civil Service Employees' Assn. v. NLRB, #07-5041, 2009 U.S. App. Lexis 13187 (2nd Cir.).

Pregnancy Policies and Discrimination

     After 9 years of litigation and appeals, the Fifth Circuit affirms dismissal of pregnancy bias action brought by a Border Patrol agent who was given permission to breast feed her newborn child during two 30-minute breaks. Under the Pregnancy Discrimination Act, the agent was not entitled to receive additional paid breaks on top of the 70-minutes of break time allocated to all employees. Puente v. Ridge, #08-40282, 2009 U.S. App. Lexis 10406, 106 FEP Cases (BNA) 678 (Unpub. 5th Cir.).

Promotional Rights, Procedures and Performance Appraisals

     Arbitrator upholds a chief’s decision to bypass an officer who was next in line for promotion to sergeant. During 2008, the grievant made 141 adult arrests, 94 traffic arrests, and wrote 1467 traffic citations. But he also made an arrest for conduct that was not a crime, he was unfamiliar with (or disregarded) department policy, and "made statements and comments about illegal immigrants which reflect a bias and reflect poorly on the department." City of Waco and N, 126 LA (BNA) 567, FMCS #09-01184 (Jennings, 2009).

Race: Reverse Discrimination

     In a 5-4 holding, the Supreme Court overturns the dismissal of a suit by white and Hispanic firefighters challenging the city’s decision to reject the results because black candidates scored poorly. The written test was at a tenth grade level. 40% of the score was oral, and each assessment panel consisted of one white, one Hispanic, and one African-American judge. Absent proof that tests are not job related or that equally valid less-discriminatory tests were available, the "fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Ricci v. DeStefano, #07-1428, 2009 U.S. Lexis 4945.

Race or Sex Discrimination - Disparate Discipline

     Fifth Circuit revives a race discrimination lawsuit of a black teacher who was barred from working at a state correctional facility in retaliation for complaining about preferential treatment of a white coworker. She claimed she received disparate punishment for an alleged security lapse (leaving a pager in area accessible to prisoners). Parker v. Louisiana Dept. of Educ., #08-30984, 2009 U.S. App. Lexis 8632, 106 FEP Cases (BNA) 133 (Unpub. 5th Cir.).

Racial Harassment

     Appellate court sustains the termination of an African-American police officer at an Army facility who was observed on videotape placing highly offensive materials in another coworker’s mailbox. The three-judge panel rejected a claim of racially-motivate hostile work environment because it was not severe enough to create an abusive working environment. An Asian-American superior had denied a leave request, lied to him about a meeting, requested verification of a drug test, and had called him "boy." Perry v. Harvey, #08-3339, 2009 U.S. App. Lexis 12441 (Unpub. 3rd Cir.).

Retaliatory Personnel Action

     Joining the 3rd, 5th, and 8th Circuits, a divided en banc panel of the 6th Circuit concludes that Title VII of the Civil Rights Act of 1964 does NOT create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity. The plaintiff was fired because his fiancée had filed a gender bias complaint with the EEOC. "The intended beneficiaries of the anti-retaliation provision of § 2000e-3(a) are obviously the persons retaliated against, not persons who are incidentally hurt by the retaliation." Thompson v. N. Am. Stainless, #07-5040, 567 F.3d 804, 2009 U.S. App. Lexis 12100, 2009 FED App. 0202P, 106 FEP Cases (BNA) 639 (En banc 6th Cir.), reversing 520 F.3d 644.
     • Legal Research Note: See "The Troublemaker’s Friend: Retaliation Against Third Parties and the Right of Association in the Workplace," 59 Fla. L. Rev. 931 (2007). Abstract.

     In a 2-1 decision, the Sixth Circuit affirms a judgment for a white Cleveland police officer who sued the city and various officials for discriminating and retaliating against him after he shot an adolescent black driver of a stolen vehicle. There was evidence that white officers who shot blacks were treated harshly because of the "high profile" nature of the incident. However, an $800,000 jury award included more than $700,000 for emotional distress - which the panel thought was excessive. Lentz v. City of Cleveland, #07-4385, 2009 U.S. App. Lexis 12500, 106 FEP Cases (BNA) 753 (Unpub. 6th Cir.).

     In a private sector case, an Illinois appellate panel upholds a verdict of $2.8 million for a woman who was wrongfully discharged because she refused to perjure herself in a §1981 lawsuit. The court also awarded back pay, $25,000 for emotional distress and $1.2 million in attorneys’ fees. Blount v. Stroud, #1-06-2428, 2009 Ill. App. Lexis 553 (3rd Dist.). The Supreme Court has held that §1981 encompasses retaliation claims filed by individuals who have tried to help others that have suffered racial discrimination. CBOCS West v. Humphries, 128 S.Ct. 1951 (2008).

     Although the plaintiff had filed a lawsuit alleging race discrimination, there was no evidence that he was retaliated against when others were selected for promotion. There were legitimate reasons for recommending one candidate over others, and to promote the applicant with the highest score. Stephens v. Erickson, #08-1416, 2009 U.S. App. Lexis 14117 (7th Cir.).
     • See the September 2009 issue of the AELE Monthly Law Journal Retaliatory Personnel Action: Part One – Statutory Remedies

Retirement Rights and Benefits

     An off-duty Maryland police officer’s criminal act can, as a matter of law, be enough to disqualify his application for retirement benefits. Whether off-duty criminality actually disqualifies an application is something that must be decided by the retirement board, as a matter of fact. Here, the retirement board found that an officer’s persistent abuse of cocaine for eight years was sufficient reason to deny him retirement benefits, even if he performed his duties in a competent manner.
     On appeal, the panel noted that "the issue was not whether [the retiree] had abused cocaine ... [but] how serious a breach of his duty that abuse represented." In upholding the denial of benefits, the appellate panel wrote that the officer engaged in long-term abuse, rather than an "isolated lapse of judgment under extreme emotional circumstances." Employees Ret. Sys. of Baltimore Co. v. Brown, #0954-2008, 2009 Md. App. Lexis 94.
     Note: The Maryland appellate panel cited two other states that have upheld a denial of retirement benefits for similar misconduct. DeSoto v. Hialeah Police Pension Fund, #3D03-63, 870 So.2d 844 (Fla. App. 2003) and Siwek v. Ret. Bd. of Policemen’s Fund, #1-00-4147, 756 N.E.2d 374 (Ill. App. 2001).

     As a matter of due process, an Illinois appellate court refuses to enforce a time limit to file a death benefit claim because a letter sent to the widow of a deceased firefighter did not "fairly and adequately inform" her of the retirement board’s decision. Coleman v. Retirement Bd. of the Firemen’s Annuity of Chicago, #1-07-2355, 2009 Ill. App. Lexis 440 (1st Dist.).

Smoking Rights/Restrictions & Air Quality Claims

     Arbitrator finds that an existing bargaining agreement allowing smoking areas in fire stations supersedes a new city-county ordinance banning indoor smoking in the workplace. Unif. Govt. Wyandotte Co. Kansas City Fire Dept. and IAFF L-64, 126 LA (BNA) 609 (Berger, 2009).

Union and Associational Activity

     Seventh Circuit rejects a civil rights suit filed by two FOP members who were expelled from the organization after they backed opposition candidates in a union election. While "unions should tolerate ... dissension among their ranks ... the Constitution ... does not require private organizations to provide free speech or due process rights to its members in matters concerning their purely private and internal affairs." The First and Fourteenth Amendments "protect citizens from conduct by the government, but not from conduct by private actors, no matter how egregious that conduct might be." Hallinan v. FOP L-7, #06-3602, 2009 U.S. App. Lexis 14038 (7th Cir.).

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Military benefits – tuition programs:
     Defense Department publishes its policy for transferring educational benefits to the spouses and children of service members under the "Post 9/11 GI Bill," effective Aug. 1, 2009. DoD Memorandum 09-003.

Stress related article:
     Trauma Resilience Training for Police: Psychophysiological and Performance Effects, Bengt B. Arnetz et al., 24 Journal of Police and Criminal Psychology (Springer) 1-9 (2009). Abstract.

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