October 2017 Fire, Police & Corrections Personnel Reporter

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Bill of Rights Laws

An intermediate California court of appeals reversed the reinstatement of a terminated police officer, finding that he was not entitled to relief under the Public Safety Officers Procedural Bill of Rights Act (POBRA) because he did not file a timely appeal of his termination with the office of the chief of police as required by a memorandum of understanding with the San Diego Police Officers’ Association. Subsequently, the city was awarded costs in the case. The plaintiff terminated officer appealed the award of costs, arguing that POBRA prohibited an award of costs for the defense of his POBRA claim unless the action was frivolous or brought in bad faith. The City argued that it was entitled to its costs pursuant to Code of Civil Procedure section 9981 since the plaintiff rejected multiple statutory settlement offers and did not obtain a more favorable result. The appeals court agreed with the City and affirmed the cost award. Sviridov v. City of San Diego, #D069785, 14 Cal. App. 5th 514, 2017 Cal. App. Lexis 704.

Civil Service

A federal appeals court overturned a grant of summary judgment to a defendant town on a fire chief’s claim that he was entitled to notice and an opportunity to respond before being terminated. There was disputed evidence sufficient to preclude summary judgment on the issue of whether the chief was a member of the Louisiana civil service and therefore had a property interest in the job entitling him to due process before being fired. Maurer v. Independence Town, #16-30673, 2017 U.S. App. Lexis 17142 (5th Cir.).

Handicap/Abilities Discrimination – In General

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

A Nuclear Security Officer at a nuclear power plant carried a firearm and was authorized to use deadly force. He suffered personal and mental health problems, was paranoid and had problems with alcohol and bath salts—a synthetic drug that affects the central nervous system. He had a three-day stay in an inpatient treatment unit. Under federal regulations, his unrestricted access to the plant was “placed on hold” pending medical clearance. A psychologist interviewed him and performed required testing and reported that he was not fit for duty. He was fired and claimed that this violated the Americans with Disabilities Act (ADA). A federal appeals court upheld the termination because the plaintiff lacked a legally mandated job requirement: the unrestricted security access authorization that the Nuclear Regulatory Commission requires for armed guards. When Congress enacted the ADA, the court commented, “it recognized that federal safety rules would limit application of the ADA as a matter of law.” McNelis v. Pennsylvania Power & Light Co., #16-3883, 2017 U.S. App. Lexis 15207 (3rd Cir.).

Holiday and Premium Pay

Of the 10 federal holidays each year, six are always celebrated on a Monday. Federal employees are paid for holidays that fall on a workday but on which the employee is not required to work. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not overtime work. Some employees whose basic workweek of five workdays is Monday through Friday are granted days off “in-lieu-of” holidays when holidays fall on weekends. Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits.

A part-time employee of the Veterans’ Administration (VA) had a regular workweek of Sunday through Thursday. Between December 15, 2009, and May 16, 2016, there were eight public holidays which fell on either Friday or Saturday. As a part-time employee he was not credited with an in-lieu-of holiday for any of those days, under a longstanding policy of the Office of Personnel Management (OPM), and he sued, challenging that practice.

A federal appeals court rejected his claim, ruling that the applicable statute and Executive Order did not give part-time employees a right to in-lieu-of holidays when federal holidays fall outside their normal workweek. The term “basic workweek,” which appears in both the statute and Executive Order, refers only to full-time employees. Yanko v. U.S., #17-1177, 2017 U.S. App. Lexis 17172

(Fed. Cir.).

Pay Disputes

Current and former correctional officers who worked at various California facilities claimed that they were improperly denied pay for time they were under their employer’s control before and after their shifts, such as when traveling to and from their posts, attending briefings, checking out required equipment, and being searched at security checkpoints. They asserted state law claims for failure to pay contractual overtime, failure to pay the California minimum wage, failure to keep accurate records of hours worked, and failure to pay overtime in breach of common law contractual obligations. The trial court certified classes, with two subclasses, distinguishing between employees represented by unions and those not represented, and then held that the plaintiffs’ entitlement to overtime pay was controlled by federal, rather than California, law, as well as entering judgment for the defendants.

An intermediate state appeals court reversed as to the subclass of unrepresented supervisory employees and affirmed as to the subclass of union represented employees. It ruled that the officers who were employed by state correctional facilities and represented by a union could not recover unpaid minimum wages under state law because a memorandum of understanding, which specified that federal law would apply to preclude compensation for time spent under the employer's control before and after work shifts, had received legislative approval, superseding the state minimum wage law. Unrepresented employees were entitled to pay for all hours worked under the applicable state standard and could pursue breach of contract claims based on the failure to pay overtime. Stoetzl v. State of California, #A142832, 2017 Cal. App. Lexis 765.

Political Activity/Patronage Employment

When the mayor of Chicago announced that he would not seek reelection, several police officers volunteered to provide campaign security for what proved to be the successful candidate in the mayoral election. Six of the volunteers were appointed to the new mayor’s transition detail. He told the police superintendent that his permanent detail should reflect the city's diversity and be “bare bones.” The detail was reduced from 21 officers and two commanders to 16 officers and one commander. Five officers working on the transition detail were selected. The final detail contained seven white, five Hispanic, and five black officers. The department reassigned a number of white and Hispanic members of the prior mayor’s protective services as patrol officers. In their prior assignments, they held the rank of patrol officer but received a sergeant’s pay.

The reassigned officers claimed patronage hiring in violation of the First Amendment, 42 U.S.C. 1983 violation of the “Shakman” consent decrees against patronage employment, and race discrimination. All of the claims were either dismissed or rejected at trial. A federal appeals court upheld this result and ruled that there was sufficient evidence that city officials did not consider political factors when appointing the detail and that the trial court did not err in excluding evidence of historic race discrimination. Houlihan v. City of Chicago, #16-2949, 2017 U.S. App. Lexis 17427 (7th Cir.).

Pregnancy Discrimination

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

A female officer who was reassigned from the narcotics task force to the patrol division when she became a breastfeeding mother received a jury verdict finding that the transfer constituted intentional discrimination in violation of the Pregnancy Discrimination Act (PDA). The jury awarded $374,000 in damages, which was reduced to $161,319 plus attorneys’ fees and costs by the magistrate judge. Upholding this result, a federal appeals court ruled that the denial of accommodations for a breastfeeding employee violated the PDA when it amounted to a constructive discharge, as a reasonable person in the plaintiff's position would have felt compelled to resign. Hicks v. Tuscaloosa, Alabama, #16-13003, 2017 U.S. App. Lexis 17290 (11th Cir.).

Retirement Rights and Benefits

Because of a city’s dire financial situation, the state of Michigan placed it under the supervision of an emergency manager under the authority of a state statute. The emergency manager, with the approval of the state’s treasurer, issued a series of orders temporarily replacing city retiree health-care benefits with monthly stipend payments that retirees could use to buy individual health-care insurance.

The retired employees filed a federal civil rights lawsuit claiming violations of the Contracts Clause of the U.S, Constitution, the Due Process Clause of the Fourteenth Amendment, and the Takings Clause. A federal appeals court rejected these claims, holding that an alleged Contracts Clause violation cannot be the basis for a federal civil rights lawsuit under 42 US.C. Sec. 1983. Further, as the other federal constitutional claims for deprivation of property derived from contract, the court found that a state contract lawsuit would be sufficient to protect any contractual property rights the retirees might have. As the claims failed on their merits, the appeals court found it unnecessary to rule on an asserted Eleventh Amendment immunity defense. Kaminski v. Coulter, #16-1768, 865 F.3d 339 (6th Cir. 2017).

Whistleblower Protection

A U.S. Department of Justice employee objected to certain grant-making decisions, reporting them to both the media and members of Congress. She also filed a complaint with the Inspector General, claiming fraud was involved. Based on her complaints, corrective action resulted. She claimed that she faced whistleblower retaliation, with her employer giving her improper low performance ratings, moving some of her duties to other employees, and canceling her authorization for telework.

After prevailing on her claim with the Merit Systems Protection Board, she sought attorneys’ fees under 5 U.S.C. Sec 1221(g)(1)(B). A federal appeals court ruled that she was entitled to an attorneys’ fee award. The Merit Systems Protection Board (MSPB) erred in denying attorneys' fees to her for the services of one of the lawyers that represented the employee during the course of proceedings before the MSPB because the employee carried her burden of showing entitlement to some award of attorney’s fees. While the employee had stated that there could be some truth to the claim that the time charges should not be fully compensable, she never suggested that the charges were entirely unwarranted, and her statements were not a basis for denying attorney's fees in their entirety. Rumsey v. Dept. of Justice, #16-2661, 866 F.3d 1375 (Fed. Cir. 2017).

An officer with the Bureau of Immigration and Customs Enforcement, an agency of the Department of Homeland Security, made disclosures of information about his employer’s alleged practice of releasing unaccompanied alien children to non-family sponsors with criminal records. He asserted that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. A federal appeals court found that his disclosures alleged serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to a negative personnel action deserved a merits hearing. Piccolo v. Merit Systems Protection Board, #16-2374, 2017 U.S. App. Lexis 17256 (Fed. Cir.).

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CROSS REFERENCES

First Amendment – See also, Political Activity/Patronage Employment

Health Insurance – See also, Retirement Rights and Benefits

Race Discrimination – See also, Political Activity/Patronage Employment

Security Clearances – See also, Handicap/Abilities Discrimination – In General Sex Discrimination – See also, Pregnancy Discrimination

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