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Employee Injury
While assigned to fight a wildfire, a female firefighter was injured when a
water truck ran over her while she was sleeping at the fire base camp. She
sued two fire protection districts and three of their employees for
negligence or a dangerous condition on public property. The claims were
properly rejected as the defendants were statutorily exempt from liability
under California law. Quigley v. Garden Valley, #C079270, 10 Cal. App. 5th 1135 (2017).
The Kansas Supreme Court has decided that the firefighter’s rule, which
limits liability to firefighters for injuries suffered while performing
their duties should be extended to police officers in the state. The case
involved injuries suffered by a police officer while he tried to assist a
male motorist who feel asleep behind the wheel of his car. The court found
that the officer could not recover for the motorist’s alleged negligence
causing his injuries because he was engaged in the performance of his
duties at the time of his injuries for which he was paid and assumes the
risk. Apodaca
v. Willmore,
#111987, 2017 Kan. Lexis 131.
Family and Medical Leave
A former
government employee at a registry of deeds office claimed that her rights
under the Family and Medical Leave Act had been violated. A federal appeals
court rejected this claim because it was not plausible
that an email that stated the employee would be out sick for a week caused
her termination. The allegations related to a longstanding dispute between
the employer and the employee, the employer's fear that the employee may
have brought a gun to work, and a subsequent lock-out of the employee, all
before the email was sent. She failed to show that she was terminated in
retaliation for seeking leave under the FMLA. Germanowski
v. Harris, #16-1306, 2017 U.S. App. Lexis 6288 (1st Cir.).
A man
worked for a Port Authority for four years, primarily managing fleet
vehicles. He suffered from migraine headaches and claimed that their
frequency increased after he was transferred to the engineering department.
He applied for Family and Medical Leave Act (FMLA) leave. Intermittent FMLA
leave was approved. An issue came up because he had been reporting only the
approximate number of hours he had been working. He was then informed that
all economic development work was being eliminated (he had actually done
only a small amount of such work), that his “temporary reassignment” to the
engineering department was ended, and that he was terminated. He claimed
that this was in retaliation for his seeking FMLA leave. A jury rejected
this claim and the federal appeals court found that the trial court erred
in failing to give a mixed motive jury instruction. A U.S. Department of
Labor regulation stated that a plaintiff could rely o a mixed motive theory
if there was evidence, either direct or circumstantial, that would lead a
reasonable juror to decide that the use of FMLA leave was a negative factor
in the employer’s adverse employment action against her. Egan
v. Delaware River Port Authority, #16-471, (3rd Cir.),
Handicap/Abilities Discrimination
For around ten years, an employee of the Boston Police Department performed
the full duties of a patrol officer. Then he was placed on administrative
duty because of his loss of memory, cognitive function, and
neuropsychological speech problems. A police union filed a grievance on his
behalf asking that he be allowed to resume the role of a patrol officer. An
arbitrator ruled that the city did not act unreasonably when it placed him
on administrative duties. When he sued for disability discrimination, the
highest court in Massachusetts ruled that summary judgment was not
appropriate because there were disputed facts as to whether or not he was
an otherwise qualified handicapped individual capable of accomplishing the
full duties of a patrol officer or whether his attempting to do so would
create an unreasonable risk of serious injury either to others or to
himself. Gannon
v. City of Boston, #QJC-12136, 476
Mass. 786, 2017 Mass. Lexis 266.
Residency Requirements
A federal appeals court has upheld the city of Milwaukee’s residency
requirement for law enforcement and emergency personnel. The city’s charter
at one point mandated for all municipal employees live within the city
limits, but the legislature in 2013 made such a blanket requirement illegal
under state law, exempting only requirements that law enforcement, fire, or
emergency workers live within 15 miles of jurisdictional boundaries. The
city attempted to enforce its original residency rules under the state constitution’s
home rule provision, but that was rejected by the state supreme court. The
city then required that every law enforcement, fire, and emergency worker
reside within 15 miles of city limits, giving them six months to comply,
with extensions available for hardship situations. The federal appeals
court upheld this, finding no constitutional right for such employees to be
free of residency restrictions, which violated neither substantive nor
procedural due process. Milwaukee Police Association v.
City of Milwaukee, #16-4151, 2017 U.S. App. Lexis 7889
(7th Cir.).
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Retirement
Rights and Benefits
Current and
former federal employees assigned to work in non-foreign areas outside of
the contiguous U.S. received, in addition to their normal salaries
certain cost-of-living allowances (COLAs). They sued, complaining that
regulations excluded those COLAs from the formula used to calculate their
retirement and other employee benefits. They claimed that this exclusion
was discriminatory under Title VII, as well as arbitrary, capricious, and
contrary to legal requirements under the Administrative Procedure Act.
Upholding the dismissal of the lawsuit, a federal appeals court found
that the trial court was correct in concluding that the disparate impact
argument raised by the plaintiffs was foreclosed by the location-based
safe harbor provision of 24 U.S.C. 2000e-2(h). Further, they did not
properly exhaust their administrative remedies on their disparate
treatment claims. Other, non-discrimination, claims were barred by the
Civil Service Reform Act. Rodriguez v. United States, #15-2178, 2017 U.S. App. Lexis 5235, 129 Fair Empl.
Prac. Cas. (BNA) 1857, 41 I.E.R. Cas. (BNA) 1706 (1st Cir.).
Sex
Discrimination
****Editor's Case Alert****
A management level
employee of a public school system discovered that she was being paid
less for the same work than her male counterparts. A federal appeals
court rejected her equal pay claims under the Equal Pay Act, 29 U.S.C. 206(d); Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e-5; and the California Fair Employment and
Housing Act, Cal. Gov. Code 12940. The county admitted that it paid her
less than comparable male employees, but raised an affirmative defense
under the Equal Pay Act that the difference was based on the prior
salaries of the employees involved. Prior salary can be a factor other
than sex, so long as the employer shows that prior salary accomplishes
some business policy and that the employer uses prior salary reasonably in
light of its stated purpose as well as its other practices. The appeals
court vacated the district court's denial of the county's motion for
summary judgment, providing instructions for the trial court to evaluate
the business reasons offered by the county and determine whether it used
prior salary reasonably in light of its stated purposes as well as its
other practices. Rizo
v. Yovino, #16-15372, 2017 U.S. App. Lexis 7427 (9th Cir.).
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Survivor’s
Benefits
A civilian employee of the FBI elected his
wife to receive survivor benefits in the Federal Employees Retirement
System upon his death. He was married to her for less than nine months
before his death and had no children together. When she sought the
benefits, the Office of Personnel Management denied her claim. Under 5
U.S.C. 8441(1), a widow is defined as a “surviving wife” who: “was
married to [the covered decedent] for at least [nine] months immediately
before his death” or “is the mother of issue by that marriage.”
Subsequently, a Merit Systems Protection Board administrative law judge
denied a request she filed for information as to whether the nine-month
requirement had previously been waived for others and whether the
nine-month requirement ad ever been sufficiently explained to her
husband. This ruling became the final decision of the Board, and a
federal appeals court affirmed it, applying rational basis scrutiny and
applicable U.S. Supreme Court precedent. It rejected an argument that the
nine months rule was unconstitutional. Becker
v. Office of Personnel Management, #16-1365, (Fed. Cir.).
Workers’
Compensation
An
intermediate California appeals court held that apportionment of
permanent disability in a workers' compensation case may properly be based
on genetics or hereditability. Further, a qualified medical evaluator
(QME) in this case properly apportioned an employee's disability when she
concluded his disability, i.e., his debilitating neck, arm, hand, and
shoulder pain preventing him from performing his job activities, was
caused only partially (17 percent) by his work activities as a police
officer, and was caused primarily (49 percent) by his genetics. The QME’s
combined reports were sufficient as substantial medical evidence to
justify apportioning 49 percent of the employee's disability to
non-industrial factors, as her diagnosis was based on medical history, a
physical examination, and diagnostic studies, and her conclusion was
based on published medical studies that were cited in her report, in
addition to an adequate medical history and examination. City
of Jackson v. WCAB, #Co78706, 2017 Cal. App. Lexis 383.
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RESOURCES
Correctional Employment: Employment, Program
Statement 3300.03, Federal Bureau of Prisons (May 8, 2017).
Reference:
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CROSS REFERENCES
Pay Disputes – See also, Sex
Discrimination
Pensions – See also, Retirement Rights
and Benefits
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