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© Copyright, 2018 by A.E.L.E., Inc.
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ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
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2018 FP July
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Age Discrimination
Disciplinary Offenses: In General
Family, Medical, and Personal Leave
First Amendment (2 cases)
Handicap/Abilities Discrimination: In General
Health Insurance
Political Discrimination
Probationary Employment
Race Discrimination: In General
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AELE Seminars:
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Some of
the case digests do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration is
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Age Discrimination
An employee of the federal Environmental Protection Agency (EPA) claimed that his supervisors discriminated against him because of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. 621–634. Upholding summary judgment against the plaintiff, a federal appeals court ruled that there was no excuse for the plaintiff's noncompliance with an EEOC regulation requiring a federal employee to contact a counselor within 45 days of the date of the matter alleged to be discriminatory. In regard to plaintiff’s remaining timely claims of age discrimination, the court held that he failed to establish that he suffered an adverse employment action where each of his claims did not cause objectively tangible harm of the kind that would render them adverse employment actions. Drielak v. Pruitt, #16-5299, 2018 U.S. App. Lexis 12544 (D.C. Cir.).
Disciplinary Offenses: In General
****Editor's Case Alert****
An intermediate California appeals court ruled that the San Francisco police department can properly initiate discipline proceedings against police officers for sending homophobic and racist texts. In disciplinary cases, the state Peace Officer's Bill of Rights requires police agencies to file charges within one year after discovering misconduct. A trial court had dismissed the case, saying that the department filed charges after the statute of limitations period. But the appeals court disagreed, saying that the department was cooperating with a federal criminal investigation at the time, which extended the deadline. A joint police misconduct investigation in 2012 that led to the arrest of a former police sergeant Sgt. Ian and other officers who were later convicted of pocketing money found at the houses of drug dealers. During the investigations, local authorities discovered racist and homophobic texts between nine officers. “[San Francisco Police] cooperated with federal authorities by adhering to the [U.S. Attorney Office’s] confidentiality restriction and a federal protective order during the pendency of a wide-ranging criminal investigation aimed at uncovering the full scope of a conspiracy within the department’s ranks,” the court stated, tolling (extending) the time to file disciplinary charges. Daugherty v. City and County of San Francisco, #A145863, 2018 Cal. App. Unpub. Lexis 3789.
Family, Medical, and Personal Leave
A county employee went on unpaid Family Medical Leave Act (FMLA) leave for severe anxiety and depression. Before she returned to work for the county, she filed a claim for unemployment benefits. The Texas Workforce Commission determined that she was “unemployed” while on her unpaid leave of absence and that it could pay her benefits if she met all other requirements. The Supreme Court of Texas upheld the decision, ruling that a person on unpaid medical leave, even if their return to their job is protected by the FMLA, qualifies as unemployed for purposes of the state’s unemployment benefits law and may qualify for unemployment benefits if they meet other eligibility requirements. Substantial evidence supported the Commission’s decision. Texas Workforce Commission v. Wichita County, Texas, #17-0130, 2018 Tex. Lexis 443.
A town manager and its director of public safety were entitled to qualified immunity on claims that they violated the First Amendment by terminating several employees of the town’s Department of Public Safety based on the content of their private text messages, several of which expressed concern that the Department was providing inadequate training to public safety officers. The plaintiffs’ evidence did not establish beyond debate that their interest in speaking freely outweighed the Department's interest in maintaining order and discipline. Cannon v. Village of Bald Head Island, #17-1847, 2018 U.S. App. Lexis 14190 (4th Cir.).
A police officer who is also a former police union official sued the city which employed him and a number of individuals, claiming that they violated his First Amendment right to freedom of speech by retaliating against him for criticizing management decisions by police officials. A federal appeals court ruled that his union remarks were not made pursuant to his official duties as a police officer and was therefore speaking as a private citizen for purposes of the First Amendment. But two individual defendants were entitled to qualified immunity as their actions did not violate clearly established law. Additionally, the plaintiff failed to allege a plausible claim for municipal liability against the city. Montero v. City of Yonkers, #17-76, 2018 U.S. App. Lexis 12629 (2nd Cir.).
Handicap/Abilities Discrimination: In General
A county juvenile court in Indiana established a juvenile facility, where the plaintiff began working in 1995. His offer of employment included the seal of the “Allen Superior Court,” and he signed the court’s Employee Handbook, acknowledging an employment relationship with the court. His job description bore the seal of the Board of Commissioners, his medical records authorization identified the Commissioners as his employer and the juvenile center as his department. His discipline was handled by the court, and his evaluations were titled “Allen County Employee Performance Appraisal.” After he injured his back at work, a county attorney sent him a form listing “Allen County Government” as his employer so that he could collect workers’ compensation benefits. A doctor determined that he had reached maximum medical improvement and imposed work restrictions.
The county attorney stated that these restrictions prevented the employee from “perform[ing] the essential functions” of his position “with or without a reasonable accommodation.” The employee then applied to several county jobs but did not obtain employment. He sued under the Americans with Disabilities Act (ADA) for disability discrimination. The trial court granted the county summary judgment, concluding that the Board was not the plaintiff’s employer. The plaintiff voluntarily dismissed the court as a defendant. A federal appeals court ruled that the plaintiff had not established that the Board sufficiently controlled his employment, so a reasonable trier of fact could only conclude that the Board was not his employer. Harris v. Allen County Board of Commissioners, #17-2577, 2018 U.S. App. Lexis 12951 (7th Cir.).
A Virginia trial court did not err in ruling that a retired firefighter was not a disabled person entitled to receive health insurance benefits under the Virginia Line of Duty Death and Disability Act, Va. Code 9.1-400 et seq. He was diagnosed with throat cancer after he retired from the fire department but did not experience any health problems while he worked as a firefighter. His duties as a firefighter ceased as of his retirement. Because he became disabled after he retired, his claim for insurance coverage under the Act was not viable. The Supreme Court of Virginia held that the plaintiff was not a “disabled person” entitled to health insurance coverage under the Act because his incapacity did not prevent the “further performance” of his duties as a firefighter. Jones v. Von Moll, #170639, 2018 Va. Lexis 73.
Political Discrimination
An elected county court clerk hired the plaintiff as a deputy court clerk and did not run for reelection, instead supporting a fellow Democrat who was running for the nomination for the position. The clerk allegedly summoned the deputy clerk and tried to forcefully impress upon her the need for her to vote for the Democratic ticket and his preferred successor. She told him, “what you’re threatening is unconstitutional,” and then voted in the Republican primary election. She claimed that three weeks later, the clerk told her: “I know how you voted ... this could cause you your job.” Weeks later, the clerk terminated the deputy’s employment, citing: “Poor work performance, unable to complete tasks correctly and within given time lines. Abuse of sick leave, insubordination by lying to assigned supervisor.” The plaintiff claimed that the court clerk’s son, who was the county clerk, had “access to all voter information.” A federal appeals court upheld summary judgment for the county clerk and county on First Amendment claims. Besides the plaintiff’s speculation that the county clerk told the court clerk how she voted, the plaintiff failed to present any evidence that he improperly influenced her termination. Summary judgment for the court clerk, however, was overturned, as he had not definitively established that he would have terminated the plaintiff anyway for her performance issues. Mahn v. Jefferson County, #16-1731, 2018 U.S. App. Lexis 15386 (8th Cir.).
Probationary Employment
An employee of a municipal agency sued his employer claiming that it terminated him from his probationary promotional position without due process, in violation of the Fourteenth Amendment. Upholding summary judgment for the defendant employer, a federal appeals court held that the plaintiff lacked any constitutionally protected property interest in his probationary job. Palm v. L.A. Dept. of Water and Power, #16-55691, 2018 U.S. App. Lexis 12248 (9th Cir.).
Race Discrimination: In General
After the City of Detroit filed for bankruptcy, a number of city firefighters were laid off as part of a reduction in force. Eleven minority firefighters who were laid off sued for race discrimination under Title VII. The trial court rejected their claims on summary judgment, finding that only one plaintiff had exhausted his administrative remedies to pursue a claim against the city, but that even on the merits, all of the plaintiffs failed to present direct evidence or to establish a prima facie case under the circumstantial evidence approach, which includes a heightened burden in a reduction in force. A federal appeals court agreed that 10 plaintiffs failed to exhaust administrative remedies, that there was no direct evidence of discriminatory motive, and that the plaintiffs’ statistical evidence was not probative of racial discrimination. Peeples v. City of Detroit, #17-1222, 2018 U.S. App. Lexis 14486, 2018 Fed. App. 102P (6th Cir.).
• Report non-working links here
Officer Safety and Wellness: Special Issue of The Police Chief on Officer Safety and Wellness (May 2018).
Sexual Harassment: Chief’s Counsel: Reducing Sexual Harassment and Other Police Sexual Misconduct by Pam McDonald, The Police Chief (May 2018).
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
First Amendment – See also, Disciplinary Offenses: In General
First Amendment – See also, Political Discrimination
Retirement Rights and Benefits – See also, Health Insurance
Public Safety Discipline and Internal Investigations
Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 14-17,
2019 - Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars