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Attorneys' Fees, Sanctions, and Legal Defense Rights

     Even though a candidate for chief of police won his election, he sued his opponent for violation of his federal civil rights, as well as claims under state law, for allegedly interfering with his right to seek public office. A federal court dismissed the federal claims as frivolous, and sent the other claims to state court. The U.S. Supreme Court held that reasonable attorneys' fees could be awarded to the defendant under 42 U.S.C. Sec. 1988, but only for costs that the defendant would not have incurred "but for the frivolous claims." Fox v. Vice, #10-144, 2011 U.S. Lexis 4182.

Disciplinary Hearings - Tenured/General

     A police officer's federal civil rights and state law claims concerning his arrest and termination for allegedly misappropriating $600 from a crime scene during a search of a home were properly dismissed. He could not relitigate the issue of whether he took the money when he had previously been found, in an administrative post-suspension hearing, to have violated police department policy by doing so. His post-suspension hearing satisfied due process requirements, even though it occurred fourteen days after his acquittal on criminal charges arising out of the incident. Nunez-Colon v. Toledo-Davila, #09-1784, 2011 U.S. App. Lexis 10639 (1st Cir.).     

Drug Abuse and Rehabilitation: unlawful drug use

     While Washington state law allows the medical use of marijuana for patients with a certificate for certain conditions, the Washington Supreme Court has ruled that this does not bar employers in the state from firing employees with such certificates for marijuana use, nor require employers to "reasonably accommodate" medical marijuana users. The decision prohibits the state's Human Rights Commission from investigating complaints about such firings. The court reasoned that, despite the allowance for medical use under state law, it would violate public policy to require employers to sanction criminal conduct by retaining such workers, since use of the drug is a federal crime. Roe v. TeleTech Customer Care Mgmt., #83768-6, 2011 Wash. Lexis 393.

     Editor's Note: While the use of marijuana is unlawful under federal law, sixteen states and the District of Columbia permit its use for medical purposes, and Maryland, while not making such use lawful, makes medical use of marijuana a non-incarcerable offense with a $100 fine. See Medical cannabis in the United States (Wikipedia).

First Amendment

****Editor's Case Alert****

     A police chief who was fired won his job back through union arbitration, and was subsequently subjected to a variety of restrictions concerning how to do his duties by the borough council. He sued the borough under 42 U.S.C. Sec. 1983, arguing that his collective bargaining grievance constituted a "petition" protected by the provision in the First Amendment concerning the right to petition the government for redress of grievances. He further claimed that the restrictions imposed were unlawful retaliation for his exercise of his First Amendment rights, and that his request for overtime pay was also denied in retaliation for his filing of the lawsuit..

     A federal appeals court ruled that the "public concern" test applicable to First Amendment cases brought by public employees does not apply to claims brought under the petition clause. The U.S. Supreme Court disagreed, holding that a public employee's exercise of rights under either the free speech or petition clauses must involve a matter of public concern to be protected. The petition clause does not create "a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts." The appeals court decision upholding jury awards of damages for the police chief was therefore vacated. Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564.

     An officer failed to show that she was retaliated against for protected speech in violation of the First Amendment. Her "war stories" concerning limited harassment by a trainer almost ten years earlier had, at most, a "minimal bearing" on matters of public concern, and the stories were communicated only to an audience of one with the apparent intention of entertaining a co-worker, rather than "illuminating governmental deficiencies." On the other hand, the trial court acted improperly in granting summary judgment against the officer on her sexual discrimination claim against a trainer who allegedly filed a complaint subjecting her to a prolonged investigation and allegedly made statements referring to her as a "cunt" and "dike." Conklin v. City of Reno, #10-15482, 2011 U.S. App. Lexis 9763 (Unpub. 9th Cir.).

FLSA - Overtime - in General

     Sixteen firefighters sued a city for overtime under the Fair Labor Standards Act (FLSA) for work done at the request of the state of South Dakota to fight wildfires in western South Dakota and Nebraska. A federal appeals court held that the trial court inappropriately granted the city summary judgment on its argument that the "special detail" exemption to the FLSA, 29 U.S.C. Sec. 207(p)(1) applied. The city argued that the firefighters volunteered for the state firefighting assignment, and that, because the state and city are separate and independent employers, the hours that the firefighters worked for each are not combined for purposes of overtime pay. The appeals court, however, found that there was a factual issue as to whether the firefighters were actually working for the city during their wildfire deployment. Specht v. City of Sioux Falls, #10-1733, 2011 U.S. App. Lexis 9553 (8th Cir.).

Race Discrimination - In General

     While there was evidence of "tension" between an African-American police officer and his co-workers when he returned to work after having been suspended and arrested on charges of sexually abusing his daughter, there was no indication that he suffered racial discrimination, a hostile work environment, or retaliation on account of his race. His claim that he was treated "differently" when he returned did not show intentional discrimination. Livingston v. Borough of Edgewood, #10-4455, 2011 U.S. App. Lexis 11240 (Unpub. 3rd Cir.).

Race or Sex Discrimination

     Two candidates for firefighter jobs who were placed on the eligibility list after written and physical fitness tests and interviews claimed they were not hired because one of them is a woman and the other Native American. Rejecting these discrimination claims, a federal appeals court noted that both of the plaintiffs ranked low on the eligibility list, and had failed to show that the reasons given for the decisions not to hire them were pretexts for discrimination. Several of the jobs filled were funded by the federal government under the Staffing for Adequate Fire and Emergency Response (SAFER) grant program, encouraging cities to recruit racial minorities and women. This, however, did not alter the result, and allegedly negative remarks about SAFER did not constitute direct evidence that discrimination had occurred. Torgerson v. City of Rochester, #09-1131, 2011 U.S. App. Lexis 10938;112 Fair Empl. Prac. Cas. (BNA) 613 (8th Cir.).

Retaliation

     An African-American police officer failed to show that she was dismissed in retaliation for opposing discrimination, as protected under Title VII or New Jersey state law. Her complaints about certain alleged violations of departmental regulations - such as another officer's transfer, officers' smoking on site, and the practice of sending one-officer units to two-officer areas did not involve practices made unlawful under the statutes at issue, and did not constitute protected activity. Her reports to her supervisors about being called a "pain" also did not involve criticism based on her race or gender. Davis v. City of Newark, #10-4365, 2011 U.S. App. Lexis 4903 (Unpub. 3rd Cir.).

Whistleblower Requirements and Protection

     Nurses who worked in the health care unit of a privately run jail failed to show that their employer violated an Indiana state whistleblower protection law by allegedly constructively discharging them for complaining about safety problems at the jail. The plaintiffs could not point to any violation of the law that they reported, which was a prerequisite to making a claim under the whistleblower statute. A federal appeals court also rejected the nurses' racial discrimination and hostile work environment claims. While the effect of the adoption of a shift rotation policy was to split up a predominately black shift, there was no evidence that the change was motivated by race. Ellis v. CCA of Tenn. LLC, #10-2768, 2011 U.S. App. Lexis 11577, 112 Fair Empl. Prac. Cas. (BNA) 791 (7th Cir.).

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     Firefighter Staffing: "Staffing for Adequate Fire and Emergency Response: The SAFER Grant Program," by Lennard G. Kruger (Congressional Research Service, April 20, 2011).

     Policy and Procedure Manuals: "Writing Policy and Procedure Manuals in a Small Campus Police Environment," by Robert A. Johnson, FBI Law Enforcement Bulletin
(February 2011).

     Supervision: "The Two Roles of Supervision in Performance Counseling," by Brian Fitch, Ph.D., FBI Law Enforcement Bulletin (March 2011).

     Training: "Law Enforcement Professionalism: Training is the Key," by Anthony J. Pinizzotto, Shannon Bohrer, and Edward F. Davis, FBI Law Enforcement Bulletin (April 2011). "A significant factor in the history of law enforcement professionalism is training."

Reference:

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

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CROSS REFERENCES
Drug Abuse: prescription drugs -- See also, Drug Abuse: unlawful drug use
First Amendment -- See also, Attorneys' Fees
First Amendment -- See also, Retaliation
Race Discrimination: In General -- See also, Whistleblower Protection
Retaliation -- See also, Race Discrimination - In General
Retaliation -- See also, First Amendment (1st case)
Sex Discrimination: In General -- See also, First Amendment (2nd case)
Union and Associational Activity -- See also, First Amendment (1st case)

AELE Seminars:

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force
Oct. 10-12, 2011 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 – Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 – Las Vegas

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