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Age Discrimination - Promotion/Assignment

     Federal court rejects the ADEA claims of seven DEA employees who sought promotions as special agents, which has an entry age limit of 37. Albert v. Holder, #08-13289, 2009 U.S. Dist. Lexis 96770 (E.D. Mich).

     State appellate court finds that a provision in a bargaining unit, requiring that a person transferring to the Fire Investigations Unit to spend at least five years in that capacity, unlawfully discriminates against employees who will reach retirement age before five years. Campolieti v. Cleveland Dept. of Public Safety, #92238, 2009 Ohio 5224, 2009 Ohio App. Lexis 4417 (8th Dist.).

Arbitration Procedures

     A court “has no power to set aside an arbitration award because another construction could be given to the contract provisions and a different conclusion reached.” Steuben County v. CSEA L-1000, #281 CA 01-02277, 292 A.D.2d 810, 738 N.Y.S.2d 923, 2002 N.Y. App. Div. Lexis 2567 (4th Dept.); leave to appeal denied, 98 N.Y.2d 606.

Contagious & Infectious Diseases

     Federal appeals court refuses to halt mandatory anthrax vaccinations for members of the armed services. Eight plaintiffs challenged a FDA order that found the vaccine effective; they did not contest the safety of the vaccine. Rempfer v. Sharfstein, #08-5117, 2009 U.S. App. Lexis 21344 (D.C. Cir.).

Disability Rights and Benefits - Hearing procedures and appeals

     An Illinois firefighter who was denied reinstatement due to a duty-related injury was not automatically entitled to disability retirement benefits. “Given the compelling public interest in ensuring the fitness of firefighters to perform their duties, it is reasonable to conclude that the [state legislature] deliberately set the bar lower for a municipality seeking to discharge an unfit firefighter than for a firefighter to obtain a disability pension. ... Moreover, he was not entitled to a hearing on his application for ordinary disability retirement, after his claim for a duty-related pension was denied. The standard for proving disability is the same for both duty and ordinary disability benefits.” Reed v. The Retirement Board of Chicago, #1-08-3544, 2009 Ill. App. Lexis 1007 (1st Dist.).

Disciplinary Evidence - Admissibility/In General

     The tape-recorded sworn testimony of a deceased witness may be admitted as evidence in an administrative hearing. N.Y.C. Dept. of Buildings v. Stallone Testing Labs, Index #362/10, New York City Office of Admin. Trials and Hearings (2009).

Disciplinary Hearings - Proof Required

     Arbitrator overturns the termination of a correctional officer accused of assaulting an inmate, where the only prosecution witness was not credible, a photo lineup procedure was flawed, the polygraph was of little value, the inmate did not testify, there was no physical evidence of assault. Dept. of Justice and AFGE L-2343, FMCS #08/04400, 126 LA (BNA) 1386 (Fowler, 2009).

Disciplinary Procedures - In General

     New York appellate panel finds, 5-to-0, that there is no duty to meticulously review a long record made by a hearing officer in order to sustain the charges against a state trooper. Matter of McKinney v. Bennett, #99617, 817 N.Y.S.2d 767, 31 A.D.3d 860 (3rd Dept. 2006).

     Arbitrator finds that management’s failure to interview witnesses before imposing a written reprimand was not a violation of due process. The contract allowed the county to dispense with formal procedures in the case of minor disciplinary action. Lane County and AFGE L-2831, 126 LA (BNA) 1473 (Calhoun, 2009).

Disciplinary Punishment - In General

     In upholding the demotion of a male police corporal for the inappropriate touching of female officer, the arbitrator found no basis to disturb the penalty. “The mere fact that management has imposed a somewhat different penalty or a somewhat more severe penalty than the arbitrator would have, if he had had the decision to make originally, it is not justification for changing it. The minds of equally reasonable men differ.” City of Mission, Texas and G, Individual Grievant. AAA Case #70-390-00110-09, 126 LA (BNA) 1372 (Jennings, 2009).

     Arbitrator finds just cause to discharge an employee of a mental illness facility. Although she had diarrhea, she failed to notify supervisors before leaving the workplace for an hour-long toilet break, and she had been warned about absences on three prior occasions. Ohio Dept. of Mental Retardation and Civil Serv. Empl. Assn. L-11, Case #24-06-(2008-03-07)-0011-01-04, 125 LA (BNA) 1616 (Murphy, 2008).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Federal court allows a former parole officer with a degenerative joint condition to proceed with a constructive discharge claim arising under the Rehabilitation Act, where there was evidence that a failure to accommodate her disability exacerbated her impairment. Sturz v. Wisconsin Dept. of Corrections, # 3:2008cv00625, 2009 U.S. Dist. Lexis 62455 (W.D. Wis.).

Handicap Laws / Abilities Discrimination - Regarded as Disabled

      City emergency dispatcher that was terminated after her diagnosis of depression and anxiety was not regarded as disabled, even though she had been required to undergo a fitness-for-duty examination. Alertness and concentration are job-related skills and are consistent with business necessity. Wisbey v. City of Lincoln, #4:08-CV-3093, 2009 U.S. Dist. Lexis 30819, 21 AD Cases (BNA) 1377 (D. Neb.)

Injuries to Employees

    Arbitrator enforces a contract clause that provides that in the case of non-severe injuries, a firefighter “can elect to go to [a city physician] or to the employee’s health care provider.” IAFF L-863 (MacGovern) and City of Newton, Mass., AAA #11390-00247-09 (Daly, 2009).

Job Classification Rights

     It is a “well-established principle in New York that out-of-title work creates no automatic right to reclassification.” Lake City Police Club v City of Oswego, #807 CA 06-00160, 31 A.D.3d 1159, 2006 NY Slip Op 05442, 818 N.Y.S.2d 703, 2006 N.Y. App. Div. Lexis 9032.

Light Duty Assignments

     Seventh Circuit rejects a suit by a disabled former police sergeant that management should have created a light duty position for him to accommodate his chronic obstructive pulmonary disease. “A person who applied for disability benefits must live with the factual representations made to obtain them, and if these show inability to do the job then an ADA claim may be rejected without further inquiry. ...  A party who prevails on one ground in a prior proceeding cannot turn around and deny that ground in a subsequent one.” Butler v. Village of Round Lake Police Dept., #08-3856, 2009 U.S. App. Lexis 23602 (7th Cir.).

Moonlighting (Secondary Employment)

     Arbitrator finds that management unfairly denied an officer the right to work secondary employment while he was on FMLA leave due to the birth of a child. The city had no policy against moonlighting while taking family leave. City of Warrensville Heights and Ohio PBA, 126 LA (BNA) 1313, FMCS Case #09/54968 (Lalka, 2009).

Out of Title Assignments

     Arbitrator finds that management did not violate the bargaining agreement by assigning dispatchers, who are in the police union, to answer telephones when records clerks, who are in a different unit, are not at work. Dispatchers had been doing that work for more than 11 years and job duties often overlap between classifications. City of Elyria and FOP Ohio, FMCS #080715/03884-8, 125 LA (BNA) 1793 (Sellman, 2009).

Retaliatory Personnel Action

     Illinois appellate court affirms a verdict of $3,082,350 in damages, including $2.8 million in punitive damages, plus $1.18 million in attorney fees, for a former private sector employee fired six days after stating that she would be supportive of a co-worker’s racial and sexual harassment action. Blount v. Stroud, # 1-06-2428, 2009 Ill. App. Lexis 980 (1st Dist.).

     Ninth Circuit concludes that the anti-retaliation provisions of Rehabilitation Act and the ADA grant standing to non-disabled employees who are retaliated against for attempting to protect the rights of disabled individuals. Barker v. Riverside County, #07-56313, 2009 U.S. App. Lexis 23343 (9th Cir.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Private prison operators agree to pay $1.3 million to settle a suit claiming that women employees at the prison were subjected to sexual harassment that included male managers forcing them to perform sex acts in order to keep their jobs. In the settlement, the defendants did not admit liability. EEOC v. Corrections Corp. of Amer. and Dominion Corr. Serv., #1:06-cv-01956, settlement; prior decisions at 2009 U.S. Dist. Lexis 19538 and 20125 (D. Colo. 2009). EEOC press release.

Sick Leave and Abuse

     Arbitrator sustains a three-day suspension of an officer who, after prior warnings, continued to call in sick on a Friday or Monday. “The legitimacy of illness certainly is questioned when there is a habitual pattern of calling in ‘sick’ on a Monday or Friday.” City of Marion and Illinois FOP L-197, FMCS #08/04796, 126 LA (BNA) 1441 (Van Kalker, 2009).

     Arbitrator reinstates a private sector worker that was accident-prone. Management did not establish that he was careless or disregarded safety rules. However, long periods of absenteeism due to work-related injuries could furnish grounds for termination. Lehigh Specialty Melting and United Steelworkers L-1537-3, 126 LA (BNA) 1422 (Fagan, 2009).

        See, Accident proneness, does it exist? A review and meta-analysis, 39 (3) Accident Analysis & Prevention 556-564 (May 2007). Abstract.

Union and Associational Activity

     Management violated the collective bargaining agreement when it asked the president of the firefighter’s union what he would be doing while on union leave. The CBA stated that president “shall be granted” leave “for the purposes of discharging his official duties as Local President”, and nothing authorized his superiors to request the particulars of a leave request. Union Township, Ohio and IAFF L-3412, FMCS #08/02678, 125 LA (BNA) 1638 (Rosen, 2008).

Untruthfulness & Resume Fraud - Falsifying time cards or other records

     Arbitrator sustains the termination of a public employee, without a prior warning, for falsifying a doctor’s note, extending the time that she could be off work. Univ. of Calif. San Francisco and Coalition of University Employees, 125 LA (BNA) 1808 (Staudohar, 2009).

Visual Acuity Standards

      Federal court dismisses an ADA suit brought by a police applicant who was rejected because of a color vision impairment.  He was not regarded as disabled and the lack of normal color vision is not a substantial limitation on the ability to see. Finally, he was not entitled to reasonable accommodation. Lekich v. Munic. Police Officers Educ. Training Cmsn., #08-1048, 2009 U.S. Dist. Lexis 16645, 21 AD Cases (BNA) 1409 (E.D. Pa.).

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Stress

• New book: Traumatic Stress in Police Officers: A Career-Length Assessment, ISBN 978-0-398-07894-2 (CC Thomas, 2009).

• New book: Processing Under Pressure: Stress, Memory and Decision-Making in Law Enforcement, ISBN 978-1-932777-89-5 (Looseleaf Law Pub., 2009).

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
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CROSS REFERENCES
Family Leave – see: Moonlighting
Handicap Discrimination – see: Light Duty Assignments
Handicap Discrimination – see: Visual Acuity Standards
Out of Title Assignments – see: Job Classification Rights
Past Practices – see: Out of Title Assignments
Sick Leave – see: Injuries to Employees
Wrongful Discharge: Damages – see: Retaliatory Personnel Action

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. 13-15, 2010 – Las Vegas

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