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Age Discrimination

     The Indiana State Police's hiring plan, which limits the rehiring rights of former officers to those under age 40, falls under an exception to the federal age discrimination statute exempting bona fide hiring or retirement plans not intended as a subterfuge to evade the law. The court ordered further proceedings, however, on the issue as to whether the decision to not rehire the plaintiff officer was made "pursuant" to the plan, or whether the State Police exercised discretion to hire other former officers over the age limit despite the plan, and used that same discretion to not rehire the plaintiff officer. Davis v. Whitesell, #10-2617, 2011 U.S. App. Lexis 13719 (Unpub. 7th Cir.).

Disciplinary Offenses/Punishment - Sexual Misconduct

     An officer arrested for soliciting a prostitute under a sting operation pled no contest to criminal charges, receiving a fine and probation. He entered into a settlement agreement to resolve disciplinary charges against him, under which he would serve a 30 day suspension, and waive his administrative appeal rights. His lawyer later sent the police chief a letter stating that the settlement was null and void. This repudiation of the settlement justified the department's decision to proceed with the officer's termination. Ferguson v. City of Cathedral City, #E051039, 2011 Cal. App. Lexis 978 (4th Dist.).

First Amendment Related

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

     A probationary officer was entitled to First Amendment protection against retaliatory termination for his refusal to comply with orders to make false statements, retract his earlier truthful report, and make a new report concealing a co-worker's alleged use of excessive force. His claim was not barred by Garcetti v. Ceballos, #04-473, 547 U.S. 410 (2006), or Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.) , cert. denied, 131 S. Ct. 444 (2010), since he was not just doing his job in disobeying orders from the chief of police and other top administrators. Jackler v. Byrne, #10-0859, 2011 U.S. App. Lexis 15265 (2nd Cir.).

Race and National Origin Discrimination

     A city was justified in deciding not to hire a police applicant who was born in Afghanistan. Serious concerns about his temperament because of his reaction during an interview to questions about apparent discrepancies in his application did not amount to a pretext for race or national origin discrimination. The applicant argued with the interviewer concerning whether he had once been a suspect in an assault case and had received reprimands from an earlier employer, facts uncovered in the screening process which were not revealed on his application. Amini v. City of Minneapolis, #10-2888, 2011 U.S. App. Lexis 13641, 112 Fair Empl. Prac. Cas. (BNA) 1089 (8th Cir.).

Retaliatory Personnel Action

     When a Hispanic police officer was denied a requested transfer to Internal Affairs after repeatedly complaining of racial discrimination, there was sufficient evidence to support a jury verdict finding unlawful retaliation. The jury's award of $90,000 under Title VII and $90,000 under a District of Columbia law, however, was an improper double recovery, since both retaliation claims involved the same facts and were seeking the same relief. The jury rejected the officer's racial discrimination claims. Medina v. District of Columbia, #10-7094, 643 F.3d 323 (D.C. Cir. 2011)

Search and Seizure

     Officials at a correctional training facility were entitled to qualified immunity in a civil rights lawsuit by employees subjected to screening with a portable ion scanner as they entered the building, and then to a body cavity search if this resulted in a positive alert for drugs. No clearly established federal law gave notice that attempting to keep contraband out of a correctional building with these methods was illegal. Braun v. Maynard, #10-1401, 2011 U.S. App. Lexis 14940 (4th Cir.).

Sexual Harassment - Suits by the Person Accused

     An African-American correctional employee failed to show that he was terminated because of his race after he was accused of sexually harassing a female co-worker. There was no proof that the plaintiff was treated differently, on the basis of race, than others accused of sexual harassment. Another employee accused of harassment was not terminated, but this occurred as a result of engaging in a grievance process to keep his job. The plaintiff, in contrast, did not file a grievance when terminated, but instead resigned. The court also noted that the termination was supported by an internal investigation showing that the sexual harassment had occurred. Luster v. Ill. Dept. of Corrections, #09-4066, 2011 U.S. App. Lexis 14730 ((7th Cir.).

Suicide Related

     The widow of a detective lieutenant who committed suicide argued that he had done so because of undiagnosed cumulative post-traumatic stress disorder (CPTSD). Her civil rights lawsuit against the department and its officials failed to establish that the defendants provided inadequate training on suicide prevention, suicide risk assessment, or the effects of CPTSD, in deliberate indifference to a known problem. Robischung-Walsh v. Nassau County Police Dept., #10-1596, 2011 U.S. App. Lexis 8856 (Unpub. 2nd Cir.).

Telephone & Pager Monitoring / Audio & Video Taping

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

     A police chief did not violate a state eavesdropping law by installing surveillance software on a department owned mobile data terminal used by an officer. There was no showing that the senders of the pornographic images intercepted intended for them to be private. The officer was properly discharged for accessing pornography on the device while on duty, in violation of departmental rules. Hurst v. Bd. of the Fire & Police Comm'n for Clinton, #4-10-0964, 2011 Ill. App. Lexis 734 (4th Dist.).

Teleworking (Non disability related)

     The Office of Management and Budget (OMB) issued a security directive to federal agency heads entitled "Implementing the Telework Enhancement Act of 2010: Security Guidelines." OMB Memo M-11-27 (July 15, 2011).

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     FLSA: "'Donning and Doffing' Police Uniforms and Protective Gear Under the Fair Labor Standards Act," by Richard G. Schott, FBI Law Enforcement Bulletin (June 2011).

     Overtime:  "Guidance on Applying FLSA Overtime Provisions to Law Enforcement Employees Receiving Administratively Uncontrollable Overtime Pay," U.S. Office of Personnel Management.

     Sexual Misconduct: Addressing Sexual Offenses and Misconduct by Law Enforcement: Executive Guide, International Association of Chiefs of Police (June 2011).

     Stress: "Vicarious Traumatization and Spirituality in Law Enforcement," by Lynn A. Tovar, FBI Law Enforcement Bulletin (July 2011).

Reference:

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

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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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