AELE Seminars:

Lethal and Less Lethal Force
Oct. 11-13, 2010 - Las Vegas

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

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© Copyright, 2010 by A.E.L.E., Inc.
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Fire and Police Personnel Reporter
ISSN 0164-6397

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

Cite this issue as:
2010 FP Aug

This publication highlighted 369 cases or items in 2009.
This issue contains 25 cases or items in 20 topics

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Monthly Law Journal Article
Genetic Information Privacy
2010 (8) AELE Mo. L. J. 201

Monthly Case Digest
Arbitration Procedures (3 cases)

Arbitration Punishment Awards
Civil Liability
Disciplinary Appeals (2 cases)
Disciplinary Punishment - Disparate Treatment
Family & Personal Leave
Free Speech (2 cases)
Handicap Discrimination - Accommodation
Health Insurance & Benefits
Hearing (Audio) Impairment
Light Duty Assignments
National Origin Discrimination
Political Activity/Patronage (2 cases)
Privacy Rights
Psychological Exams
Reductions in Force
Residency Requirements
Sexual Harassment
Untruthfulness & Resume Fraud



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AELE Seminars:

Lethal and Less Lethal Force
Oct. 11-13, 2010 - Las Vegas

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

Click here for more information about all AELE Seminars


Arbitration Procedures

     In a 5-to-4 holding, the Supreme Court upheld a provision in an employment agreement that provided that an arbitrator, and not a court, should rule on the enforceability of an arbitration agreement between the employer and employees. The plaintiff tried to litigate a discrimination claim in federal court. Rent-A-Center v. Jackson. #09-497, 2010 U.S. Lexis 4981

     The Supreme Court has noted that “when a contract is formed can be as critical as whether it was formed.” The ratification date does not “arise under” the agreement and is a decision for a court, not the arbitrator. Granite Rock v. Teamsters, #08-1214, 2010 U.S. Lexis 5255.

     Although “Illinois case law clearly holds that a non-compensatory, punitive damages award, which is not expressly provided for in a collective bargaining agreement, must be vacated,” an arbitration award that contains a time-and-one-half monetary remedy is not “punitive” and will be enforced. City of Chicago v. FOP L-7, #1-09-1218, 926 N.E.2d 912, 188 LRRM (BNA) 2496, 2010 Ill. App. Lexis 225 (1st Dist.).

Arbitration Punishment Awards - Right of Courts to Interfere

     Appellate court affirms an arbitrator’s decision to reinstate a mental health security aide who was fired for striking a patient. The employee’s performance evaluations were positive, he had no prior problems of this nature despite having been assaulted numerous times in the past by patients. A disciplinary suspension plus a final warning was a rational outcome. Dept. of Central Mgmt. Services v. AFSCME, #5-08-0663, 2010 Ill. App. Lexis 554 (5th Dist.).

Civil Liability

     Federal law, effective Jan. 2011, requires the reporting of litigation and worker’s comp. settlements where Medicare has a financial interest. Self-insured entities are subject to a $1,000 daily fine, plus double damages for a failure to comply. Section 111 of the Medicare Secondary Payer Act, 42 U.S. Code §1395(b)(2); 42 CFR §411.20.

Disciplinary Appeals & Challenges - Reviewing Standards

     Supreme Court rules that a five-member labor board cannot act with a panel of only two members. New Process Steel v. NLRB, #08-1457, 2010 U.S. Lexis 4973, 188 LRRM (BNA) 2833.

     In Ohio civil service appeals, a trial court possesses “extensive power to weigh the preponderance of substantial, reliable and probative evidence.” An appellate court may review the judgment of the trial judge, but only on questions of law. It is the duty of the trial court, and not the appellate court, to examine the evidence.  Lane v. City of East Cleveland, #93530, 2010 Ohio 2352, 2010 Ohio App. Lexis 1923 (8th Dist.).

Disciplinary Punishment - Disparate Treatment

     In a disparate disciplinary punishment case, “the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases are identical.” Ruiz v. County of Rockland, #09-0759-cv, 2010 U.S. App. Lexis 13058 (2nd Cir.).

Family, Medical & Personal Leave

     OPM issues final sick and funeral leave regulations modifying the definitions of family member and immediate relative. New and expanded definitions now cover grandparents and grandchildren, same-sex and opposite-sex domestic partners, stepparents, stepchildren, foster, guardianship, and similar relationships. They do not cover statutory FMLA absences. Absence and Leave; Definitions of Family Member, Immediate Relative, and Related Terms, 5 CFR Part 630, 75 (113) Federal Register 33491 (Jun. 14, 2010).

Free Speech

     First Circuit declines to overturn the 15-day suspension given a fire chief, who made public statements about inadequate funding and staffing. Although he spoke on a matter of public concern, he was in uniform and on duty at the time. He had media attention because of his position and was not speaking as a citizen. Foley v. Town of Randolph, #09-1558, 2010 U.S. App. Lexis 5020 (1st Cir.).

     The First Amendment does not immunize a person for using a website to solicit acts of retaliatory violence against a juror. U.S. v. White, #09-2916, 2010 U.S. App. Lexis 13166 (7th Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     In an ADA action, the Third Circuit found that a need for long, frequent toilet breaks, which are a side-effect of an OTC weight loss medication, is not a disability in the absence of a showing that the treatment is required in the prudent judgment of the medical profession. Sulima v. Tobyhanna Army Depot, #08-4684, 602 F.3d 177, 23 AD Cases (BNA) 27 (3rd Cir. 2010).

Health Insurance & Benefits

     An Oregon city’s policy of denying health insurance coverage to its retirees does not violate their due process rights. The plaintiffs lacked a legally protected property interest to health benefits. Doyle v. City of Medford, #07-35753, 2010 U.S. App. Lexis 10722, 188 LRRM (BNA) 2799 (9th Cir.).

Hearing (Audio) Impairment

     Fifth Circuit declines to retroactively apply the ADA Amendments Act of 2008, 42 U.S. Code §12112(a). Because hearing aids corrected a court security officer’s hearing impairment, he was not legally disabled under the ADA at the time he filed his disabilities discrimination lawsuit, and the 2008 amendments did not supersede that finding. Kemp v. Holder, #09-30255, 2010 U.S. App. Lexis 13964 (5th Cir.).

Light Duty Assignments

     A police department is not obligated to create a new light-duty position for an injured officer when none exists. “Reassignment of a disabled employee to a vacant light-duty position is well established as a reasonable accommodation under the ADA, but [the] petitioner bore the burden of establishing the existence of such a position at the time she sought the transfer.” Abram v. NYS Div. Human Rights and Buffalo Police Dept., #325 TP 09-01934, 2010 NY Slip Op 02279, 2010 N.Y. App. Div. Lexis 2200 (4th Dept.).

National Origin Discrimination

     Ninth Circuit allows an EEOC action for injunctive relief to proceed against a government contractor, but dismisses the damages claims. The Navajo Nation had insisted that contractual firms operating on tribal lands give employment preference to Navajos. EEOC v. Peabody Western, #06-17261, 2010 U.S. App. Lexis 12899 (9th Cir.).


    Tenth Circuit rejects a discrimination claim brought by a 338 lb. 6’3” federal worker. “Plaintiff was not discriminated against because of his weight. He simply failed to meet the minimum physical requirements of the position. ... The job requires an operator who might be able at all times to respond to an emergency with some degree of physical agility.” Wilkerson v. Shinseki, #09-8027, 2010 U.S. App. Lexis 11135, 109 FEP Cases (BNA) 660, 23 A.D. Cases (BNA) 321 (10th Cir.).

Political Activity/Patronage Employment

     “An employee’s past employment record of 38 years of service with no performance problems or disciplinary action is a mitigating factor, but must be weighted against the seriousness of the offenses in assessing whether the presumptive penalty of removal for a Hatch Act violation is not warranted.” Termination was appropriate for soliciting a political contribution to a Presidential candidate’s political campaign.  Special Counsel v. Ware, #CB-1216-09-0025-T-1, 2010 MSPB 105.

     First Circuit affirms a jury award of $19,000 each to seven Ranger cadets who were terminated because of their party affiliations. Cortes-Reyes v. Salas-Quintana, #08-2210, 2010 U.S. App. Lexis 12439 (1st Cir.).

Privacy Rights

     Reversing the Ninth Circuit, the Supreme Court has upheld the search of a police officer’s text messages on a government-owned pager. A warrantless review of the officer’s pager transcript was reasonable because it was motivated by a legitimate work-related purpose, and was not excessive in scope. City of Ontario v. Quon, #08-1332, 2010 U.S. Lexis 4972.

Psychological Exams and Standards
- Punishment for Refusal to Submit to Exam or Cooperate

     Ohio appellate court affirms the termination of a police officer who refused to submit to a FFDE, following a series of complaints made by a resident. Although state statutes relating to internal investigation do not specifically mention a FFDE, a police chief has the authority to require discipline and good order. “Absent a showing that a particular order is manifestly outside those purposes, or is otherwise unlawful, the order is presumed lawful.” DeVilbiss v. Schade, #23484, 2010 Ohio 493, 2010 Ohio App. Lexis 412 (2nd Dist.).

Reductions in Force

     Federal appeals court overturns a trial court holding that the “Contract Clause“ in the U.S. Constitution prevented management from posing a furlough of 80 hours per year on all county employees. There are three issues when deciding on the enforceability of an arbitration clause: (1) whether there has been an impairment of the contract or bargaining agreement; (2) whether that impairment was substantial; and (3) if so, whether the impairment was nonetheless a legitimate exercise of the police power. FOP L-89 v. Prince George’s County, #09-2187, 2010 U.S. App. Lexis 12871 (4th Cir.).].

Residency - Continuing Requirements

     Ohio Supreme Court, followed by a second ruling in an appellate court, upholds a statute prohibiting Ohio municipalities from enforcing residency requirements, even when enacted pursuant to a Home Rule provision in the state’s constitution.  Missig v. Cleveland Civ. Serv. Cmsn., 2010 Ohio 2595, 2010 Ohio App. Lexis 2155 (8th Dist. 2010), relying on Lima v. State, 122 Ohio St.3d 155, 2009 Ohio 2597, 909 N.E.2d 616 (2009).

Sexual Harassment - In General

     Ohio appellate court rejects a sexual harassment suit brought by a female EMS captain who complained that male firefighters frequently urinated on the toilet seat of a common washroom. “Both men and women used the filthy restroom [and] members of both sexes, then, were equally harassed.” Godsey-Marshall v. Vil. of Phillipsburg, # 23687, 2010 Ohio 2266, 2010 Ohio App. Lexis 1868 (2nd Dist.).

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

     Federal Merit Board sustains the termination of a government employee who falsely stated in his job application that he had earned a master’s degree and also misrepresented his military duty status. Crump v. Dept. of Veterans Affairs, #CH-0752-06-0820-I-4, 2010 MSPB 119.

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Educational requirements:

• Article: The Minnesota Police Education Requirement, by S. Hilal & T. Erickson, FBI Law Enforcement Bulletin (Jun. 2010).

Family and medical leave:

• Article: Family and Medical Leave Act Amendments, by Richard G. Schott, FBI Law Enforcement Bulletin (Jun. 2010).

Internal investigations:

• Book: Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege, by Collins & Seide, ABA Book Pub., ISBN: 978-1-60442-916-9 (May 2010).


• Book: Find Info Like a Pro, Vol. 1: Mining the Internet’s Publicly Available Resources for Investigative Research, Levitt & Rosch, ABA Book Pub., ISBN: 978-1-60442-890-2 (Mar. 2010).

National security:

• Book: The U.S. Intelligence Community Law Sourcebook: A Compendium of National Security Related Laws and Policy Documents, by Andrew M. Borene, ABA Book Pub., ISBN: 978-1-60442-979-4 (Jun. 2010).

Police reform:

• Booklet: Making Police Reforms Endure, DoJ/COPS (May 2010). “Presents a framework that other police departments can use and test in their efforts to institutionalize police reforms.”


• Article: Good Decisions: Tips and Strategies for Avoiding Psychological Traps, by Brian Fitch, FBI Law Enforcement Bulletin (Jun. 2010).

• Book: Personality Assessment In Police Psychology: A 21st Century Perspective, ISBN 978-0-39807-915-4, Charles C Thomas (Jun. 2010).


Abbreviationsof laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Reductions in force:

• Article: Downsizing and Organizational Change Survivors and Victims: Mental Health Issues, 7 (1) Int. J. of Applied Mgmt. & Tech. 91.


• Report: Prohibited Personnel Practices - A Study Retrospective, U.S. Merit Systems Protection Board (Jun. 2010).

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Click here for more information about all AELE Seminars

Return to the Contents menu.
Return to the monthly publications menu
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© Copyright 2010 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.

Library of  Employment Law Case Summaries