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Age Discrimination - Entry

    A state statute imposing 34-year-old age limit on firefighter hiring violated the equal protection clause of the Montana Constitution. The statute’s legislative history was not supported by any empirical studies to justify the cut-off point at 34 years and the claim that period of productivity of a firefighter over 34 might be shorter was not a safety concern. Jaksha v. Butte-Silver Bow Co., #DA 08-0457, 2009 MT 263, 352 Mont. 46, 106 FEP Cases (BNA) 1746, 2009 Mont. Lexis 398.

Arbitration Punishment Awards – Right of Courts to Interfere

     Illinois appellate court sustains the termination of a corrections officer who, during a six-month period, had been progressively disciplined for calling in sick on 25 days without having accrued sick days. The three-judge panel overturned an arbitrator’s award, which had found that the discipline policy was unreasonable because its series of successively longer suspensions was punitive rather than remedial. The arbitrator’s powers were limited to reviewing only the validity of the Sheriff’s implementation of the sick leave policy. Cruz v. Cook County Sheriff’s Merit Bd., #1-08-2648, 2009 Ill. App. Lexis 797 (1st Dist.).

Attorneys’ Fees and Legal Defense Rights

     Seventh Circuit upholds an award of attorney’s fees and costs to the county after finding that the plaintiff, a deputy sheriff, litigated part of his age discrimination lawsuit in bad faith. Mach v. Will Co. Sheriff, #08-2907, 2009 U.S. App. Lexis 19631, 107 FEP Cases (BNA) 13 (7th Cir.).

Bargaining Unit Determinations

     Illinois appellate court affirms a determination to exclude jail deputies from a sheriff’s police bargaining unit because “any police duties completed by the corrections deputies were temporary, occasional, and sporadic.” County of Du Page v. Illinois Labor Relations Board, #2-06-0380, 2009 Ill. App. Lexis 928 (2nd Dist.); prior decisions at 900 N.E.2d 1095 (Ill. 2008) and 2007 PERI (LRP) Lexis 123 (2d Dist. 2007).

Disability Rights and Benefits
- Line of duty related/disputed

     Illinois Supreme Court overturns the denial of a disability retirement of a police officer who complained of back pain. “Although no medical test, X-ray or MRI scan revealed a deformity or abnormality which would explain the reason for [her] pain, this does not mean that [she] failed to present objective evidence of her pain, nor does it mean that [she] did not prove that she is disabled. The Board’s determination that [her] pain was subjective and not demonstrated by objective proof ignores the fact that every doctor who examined [her] believed that she was, indeed, experiencing pain.” Kouzoukas v. Retirement Bd. of the Policemen’s Annuity Fund of Chicago, #106976, 2009 Ill. Lexis 1293.

Disciplinary Appeals & Challenges - Reviewing Standards

     Discipline imposed on California police officers affects their fundamental vested right in employment, and when an officer challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. The “substantial evidence” standard does not apply. Wences v. City of Los Angeles, #B208525, 177 Cal. App.4th 305, 2009 Cal. App. Lexis 1477 (2nd Dist.).

Disciplinary Offenses - Conduct Unbecoming

     Administrative Law Judge upholds the termination of a NYC firefighter for disorderly and disruptive conduct, refusing to perform a task assigned by a supervisor, directing profanities to superiors, and engaging them in a physical altercation. Fire Dept. N.Y. v. Krasner, #2967/09 (N.Y.C. Admin. Trials 2009).

• Editor’s note: The paramilitary nature of public safety agencies often is a determining factor in insubordination cases. In a private sector case, an arbitrator ordered reinstatement, but without back pay, for an employee who asked her supervisor “Were you born a prick?” Safeway and United Food Workers L-5, 126 LA (BNA) 1249 (Staudohar, 2009).

Disciplinary Procedures - In General

     Management violated the bargaining agreement by failing to provide all employees with a current versions of the “Policies, Procedures and Work Rules Manual.” None of the bargaining unit members received a copy. The issue was not whether the grievant was inappropriate in his conduct, but whether he was properly charged under a set of work rules that were unpublished at the time of the suspension. Grievance allowed. City of Mount Vernon and FOP Ohio Labor Council, FMCS Case No. 09/01714, 126 LA (BNA) 1159 (Feldman, 2009).

Disciplinary Punishment - In General

     Louisiana appellate court rejects a fire chief’s attempt to demote a captain because of a Mardi Gras photo posted on the Internet, showing him with females wearing only body paint and pasties. The civil service commission imposed only an 18-hour suspension. The Court noted that management had not disciplined firefighters for similar past conduct. “Though we do not condone appellant’s bad judgment, we are not convinced that the disciplinary step of demotion was commensurate with appellant’s misconduct.” Hennessey v. Dept. of Fire, #2009-CA-0590, 2009 La. App. Unpub. Lexis 547.

Disciplinary Surveillance

     The use of a GPS tracking device for surveillance purposes requires a judicial warrant, supported by probable cause. Comm. v. Connolly, #SJC-10355, 2009 Mass. Lexis 642.

Drug Screening and Specimen Testing

     Arbitrator upholds the termination of a nurse who refused a drug test. Agreeing to take the test one day later is not a defense. St. Vincent Mercy Medical Center and UAW Nurse Unit L-12, FMCS Case #080918/59508-8, 126 LA (BNA) 1029 (Cohen, 2009).

FLSA - Overtime - in General

     Arbitrator finds that a federal correctional institution violated the bargaining agreement and the FLSA by failing to pay officers for necessary pre- and post-shift activities. “… neither an employee nor a union can voluntarily agree to not be paid for performing work in excess of the regular work day.” 29 C.F.R. §785.11 Federal Bur. of Prisons (La Tuna) and AFGE L-83, FMCS Case #060908/05274-1, 126 LA (BNA) 1271 (Curtis, 2009).

Family, Medical & Personal Leave

     Enlarging the scope of the Family and Medical Leave Act, the Third Circuit holds that the anti-retaliation provision protects employees who claim they were fired for merely asking permission to take a leave, and is not limited to those who actually exercise the right. “It would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.” Erdman v. Nationwide Insur., #07-3796, 2009 U.S. App. Lexis 20979 (3rd Cir.).

Handicap Laws / Abilities Discrimination - In General

     Although retaining the basic definitions of “disability,” proposed new EEOC rules will significantly lower the threshold to establish that an individual is “substantially limited.” An impairment need not “significantly” or “severely” restrict a major life activity. They also expand the definition of “major life activities,” with two lists of included activities and functions. Regulations to Implement the Equal Employment Provisions of the ADA, 74 (183) Federal Register 48431-48450, 29 CFR Part 1630 (9/23/2009).

Injuries to Applicants, Trainees, Participants & Observers

      Federal court rejects a suit brought by U.S. Navy civilian police officers challenging the use of direct-impact pepper spray in while in training. The risk of injury by the spray was offset by the benefit of training. FOP v. Gates, # 08-0039, 602 F.Supp.2d 104, 2009 U.S. Dist. Lexis 20403 (D.D.C.).

Mental Illness and Instability

     Federal Circuit vacates a Merit Board decision terminating an employee with a mental impairment. When mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, it must be taken into account when taking an adverse action against an employee.  The court noted that “mental impairment” is included among the Douglas Factors that must be considered in assessing the reasonableness of the penalty Malloy v. U.S. Postal Service, #2008-3117, 2009 U.S. App. Lexis 19000 (Fed. Cir.).

Military Leave

     A federal agency cannot refuse to reemploy a returning veteran on the technical ground he was paid by a government contractor. “If, as the appellant alleges, DHS exercised direct control over [the private contractor] to such an extent that DHS effectively prevented his reemployment, then DHS should be considered to be the appellant’s employer under USERRA.” Silva v. Dept. of Homeland Security, #DC-4324-08-0776-I-1, 2009 MSPB 189.

Pay Disputes - In General

     Federal court overturns an employer-imposed economic measure that reduced the work hours of all covered employees by 80 in FY-2009, reducing the annual salaries of those employees by 3.85%. “The Framers of the Constitution drafted the Contract Clause (U.S. Const. art. I, §10, cl. 1.) based on the concern that state governments might enact legislation to alter, relax or unilaterally modify contractual obligations.” FOP v. Prince George’s Co., #AW-08-2455, 2009 U.S. Dist. Lexis 72810 (D.Md.).

•          See, Public Sector Layoffs – Part One, AELE Monthly Law Journal (June, 2009)
           and Public Sector Layoffs – Part Two, AELE Monthly Law Journal (July, 2009)

Psychological Exams and Standards
- Reasons Justifying Rejection of an Applicant

     Federal court refuses to dismiss a gender bias claim against a military contractor that rejected a police advisor applicant because she failed a psychological screening. The applicant was an El Paso police officer, and had passed a second psychological screening when she was reinstated by the El Paso Police. The psychologist who rejected her was an agent of the employer; his “non-contestable” evaluation was the sole basis upon which employer withdrew its offer.

     The psychologist determined that the applicant (a) was not “particularly skilled at establishing appropriate friendships,” (b) tended to overestimate her assets and successes and (c) “has very high expectations of herself which are difficult to meet.” However, he repeatedly focused on her “ability to handle the sexual advances of the opposite sex” and displayed a “purportedly contemptuous attitude” to her having out of wedlock child at age 18. Jimenez v. Dyncorp Intl., #3:08-CV-174, 106 FEP Cases (BNA) 1780, 2009 U.S. Dist. Lexis 64187.

Race: Reverse Discrimination

     Ending more than 20 years of litigation, 75 white Chicago firefighters share $6 million settlement in an action that accused the city of reverse discrimination in a 1986 lieutenants’ promotional exam. The city had “race normed” the results of the exam out of concern that it discriminated against black firefighters, but a jury found the test was fair. The city appealed to the U.S. Supreme Court, which ruled on behalf of the white firefighters. Among the firefighters is a plaintiff who lost $140,000 in back pay because he was not promoted to lieutenant. A group of 100 other white firefighters previously received tens of millions of dollars and benefits in a separate settlement in the same lawsuit. Chicago Firefighters L-2 v. City of Chicago; prior decis. at 249 F.3d 649 (7th Cir.).

Retaliatory Personnel Action

     Eighth Circuit rejects a retaliation claim brought by a woman corrections officer who complained that a captain had rubbed her arm and grabbed her breast on one occasion and that she had been treated unfairly by coworkers. The allegations were insufficient to support a hostile work environment claim, where the captain was disciplined and she has not shown severe or pervasive harassment. Petty slights and minor annoyances in the workplace, as well as personality conflicts and snubs by co-workers, are not actionable. Sutherland v. Missouri Dept. of Corr., #08-3000, 107 FEP Cases (BNA) 269, 2009 U.S. App. Lexis 20056 (8th Cir.).

       Seventh Circuit rejects a First Amendment claim brought by two jail guards who quit after coworkers threatened to kill them for reporting excessive force on inmates. “The purported code of silence is a ban on filing complaints about guard-on-inmate violence. Such a policy might be foolish; it might expose the County to other lawsuits; but it does not offend the first amendment, because what one guard says about another through the grievance system is part of the job, and the employer can discipline a guard for poor performance of work related tasks.” Fairley v. Andrews, #07-3343, 2009 U.S. App. Lexis 18720 (7th Cir.).

•          See, Retaliatory Personnel Action Part One – Statutory remedies, AELE Monthly Law Journal (Sep. 2009),
           Retaliatory Personnel Action Part Two – Reporting coworkers, AELE Monthly Law Journal (Oct. 2009) and
           Retaliatory Personnel Action Part Three: What constitutes employer retaliation?, AELE Monthly Law Journal (Nov. 2009)

Sex Discrimination - In General

     Woman firefighter who is under five feet tall failed to show that management discriminated against her because of “sex plus height,” where performance and psychological evaluations, a suspension, and a reassignment to light duty assignment occurred because she is female, or that these actions were sufficiently severe or pervasive to create a hostile work environment. Coffman v. Indianapolis Fire Dept., #08-1642, 106 FEP Cases (BNA) 1793, 22 AD Cases (BNA) 360, 2009 U.S. App. Lexis 18717 (7th Cir.).

     Sixth Circuit reinstates a gender bias suit brought by a 17-year patrol veteran who was passed over for promotion to detective in favor of two males that had lower scores than the plaintiff. Risch v. Royal Oak Police Dept., #08-1883, 2009 U.S. App. Lexis 20980 (6th Cir.).

     Overturning a statute of limitations defense, the Third Circuit revives an Equal Pay Act claim where a police grants administrator complained that she is paid $7,000 less than a male holding a comparable position. Mikula v. Allegheny County, #07-4023, 2009 U.S. App. Lexis 6281, 105 FEP Cases (BNA) 1786 (3rd Cir.).

Sexual Harassment - In General

     During the Porn Star Costume Ball at a hotel in 2004, a Sacramento Fire Captain allegedly allowed firefighters to attend the event and even to drive a fire truck there to “pick up” women. Appellate court concludes that although “a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty,” that holding should be “limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting.” M.P. v. City of Sacramento, #C057324, 177 Cal. App.4th 121, 2009 Cal. App. Lexis 1439 (3rd Dist.).

Sick Leave & Abuse

     Arbitrator holds that although management claimed there was an “unwritten” rule that those on disability leave do not accrue additional sick leave, the bargaining agreement did not distinguish between those officers in active service and those who are not. Grievance sustained. Green Tree Borough and Police Assn., Penna. Bd. of Mediation Case #8608, 126 LA (BNA) 1053 (Franckiewicz, 2009).

     OPM proposes changes to “Sick Leave for Pandemic Influenza and Other Serious Communicable Diseases,” 74 (164) Federal Register 43065-43066 (Aug. 26, 2009).

Suicide Related

      “I have seen 4 or 5 people in the course of thousands of [police] pre-employment evaluations who actually attempted suicide. I have seen about 20 people who cut and self mutilated. I’ve seen many more, though still not an extreme number, of folks who threatened/expressed ideation at some point in their life.” Posting of a section member on the IACP’s Police Psychological Services Section Listserver (2009).

Untruthfulness & Resume Fraud

     In affirming the termination of a federal worker for lack of candor, the undisputed evidence demonstrates that, moments after she left a voicemail message for her supervisor stating that she was unable to report for duty due to illness, background laughter ensued, and she admitted that she came up with excuses for her absences on both dates. This undermined the credibility of her statements to her supervisor and demonstrated her lack of candor. Smith v. Dept. of Interior, #DC-0752-09-0135-I-1, 2009 MSPB 165, 2009 MSPB Lexis 5660.

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Disabilities - articles:

“A Disability by Any Other Name is Still a Disability: Log Cabin, the Disability Spectrum, and the ADA(AA),” 4 Seventh Cir. Rev. 253 (2009).
“Providing Police Services to the Deaf,” 76 (8) Police Chief (IACP) July 2009.
“ADA and the Hiring Process,” 76 (9) Police Chief (IACP) Sep. 2009.

Military veterans (publication):

Employing Returning Combat Veterans as Law Enforcement Officers, a BJA funded IACP document, Sep. 2009.

National security:

Revised Policies and Procedures Governing Invocation of the State Secrets Privilege, A. G. Memo. Dated 9/23/2009.

Pandemic influenza:

Law Enforcement Pandemic Influenza Planning Checklist, HHS Centers for Disease Control.

Sexual harassment article:

“Supervisors, Sex, and the Seventh Circuit: No Should Always Mean No,” 4 Seventh Cir. Rev. 291 (2009).

Sick leave (federal):

OPM Proposal, 5 CFR Part 630, 74 (176) Fed. Reg. 46934 (Sep. 14, 2009).

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
Disciplinary Punishment – see: Mental Illness
Reductions in Force – see: Pay Disputes
Sexual Harassment - see: Retaliatory Personnel Action
Sick Leave – see: Arbitration Punishment Awards
Sick Leave & Abuse - see: Untruthfulness

AELE Seminars:

Jail and Prisoner Legal Issues
Jan. 11-13, 2010 – Las Vegas

Lethal and Less Lethal Force
Mar. 08-10, 2010 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 14-16, 2009 & Dec. 13-15, 2010 – Las Vegas

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