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
May 6-9, 2019– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© Copyright, 2018 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes
ISSN 0164-6397
An employment law publication for
law enforcement,
corrections and the fire/EMT services
Cite this issue as:
2018 FP September
Click here to view information on the editor of this publication.
Access the multiyear Employment Law Case Digest
Return
to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™
can be used to view contents.
Fair Labor Standards Act: Overtime
First Amendment Related
Handicap/Abilities Discrimination: In General (3 cases)Mental ExaminationsRace Discrimination: General (2 cases)Retirement Rights and BenefitsWrongful Discharge: In General |
Report non-working links here
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
May 6-9, 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
required; nominal fees
• BNA arbitration awards can be obtained for a fee, from BNA Plus
Fair Labor Standards Act: Overtime
|
The plaintiff had served as a Secret Service agent since 2010. As compensation for his availability and overtime hours, he received a 25% enhancement to his base salary under Law Enforcement Availability Pay (LEAP), 5 U.S.C. 5545a(h)(1). He was additionally entitled to overtime compensation for some––but not all––of the overtime hours he worked. For scheduled overtime, employees receiving LEAP were compensated for work in excess of 10 hours on a day during such an investigator’s basic 40-hour workweek, or on a day outside such investigator’s basic 40-hour workweek. All other overtime––scheduled or unscheduled––was considered to be compensated by LEAP rather than by additional hourly wages. There was an exception for performing certain duties, including the protective services, for which employees are compensated for all scheduled overtime. Office of Personnel Management (OPM) regulations added that the exception applies only if “[t]he investigator performs on that same day at least 2 consecutive hours of overtime work that are not scheduled in advance of the administrative workweek and are compensated by availability pay,” 5 C.F.R. 550.111(f)(2)(ii).
The plaintiff sued, seeking overtime back pay for himself and other similarly situated Secret Service agents. He claimed that the OPM regulations improperly required that certain overtime hours be worked consecutively in order to trigger compensation. The U.S. Claims Court found that it lacked jurisdiction to consider some claims and that others failed to state a claim. A federal appeals court reversed in part, finding that the challenged regulations were contrary to the unambiguous meaning of the LEAP statute, requiring further proceedings. The plaintiff had argued that OPM’s consecutive hours requirement was contrary to the plain meaning of 5 U.S.C. § 5542(e), which he argued is triggered by any two hours of unscheduled overtime, whether consecutive or not. The appeals court agreed. Horvath v. United States, #17-1801, 2018 U.S. App. Lexis 20274 (Fed. Cir.). |
First Amendment Related
Three police officers sued a town on claims relating to their individual terminations. A federal appeals court held that the trial court erroneously concluded that each plaintiff’s claim arose out of the “same” wrongful act and, in the alternative, the meaning of “interrelated” was unambiguous, and that under that unambiguous meaning, the plaintiffs’ claims arose out of "interrelated" acts. Therefore, the town waived its governmental immunity for up to $1 million per plaintiff for damages (rather than $1 million altogether) resulting from the three wrongful terminations of the plaintiffs, subject to the $3 million Annual Aggregate Limit of the town's insurance policy.
The appeals court panel also held that although the police chief was not a final policymaker of the town regarding the terminations, the town manager was a final policymaker. Therefore, his unconstitutional actions might fairly be characterized as actions of the town so that the town may be held liable to the plaintiffs for damages under 42 U.S.C. Section 1983. The appeals court also reversed the trial court's dismissal of the First Amendment claims against the town based on their having voiced concerns, prior to their termination, about the police chief’s conduct and management both to him and to the Governor’s office, resulting in an investigation of possible corruption in the Department. Finally, the trial court did not abuse its discretion in awarding one plaintiff 1.75 years of front pay. Hunter v. Town of Mocksville, #17-1374, 2018 U.S. App. Lexis 20829 (4th Cir.).
Handicap/Abilities Discrimination: In General
****Editor's Case Alert****
A correctional officer at a California state prison suffered from a stutter. Other prison employees allegedly mocked or mimicked his stutter at least a dozen times during a two-year period. A sergeant who served as his supervisor allegedly participated in the mocking and mimicking, and a senior prison official stated that this conduct reflected the prisons “culture.”
The officer sued the employer and his supervisor for disability harassment, failure to prevent the harassment, and related claims. A jury found the harassment to be both severe and pervasive and awarded the plaintiff $500,000 in noneconomic damages. The trial judge found the damage award to be excessive and granted the defendants’ motion for a new trial solely as to that issue. Both the defendants and plaintiff appealed.
An intermediate California appeals court ruled that substantial evidence supported the jury’s factual findings. The plaintiff claimed the trial judge failed to file a timely statement of reasons after granting the defendants’ motion for a new trial. The appeals court agreed, and overturned new trial order as to the damage award, affirming the judgment in all other respects. Caldera v. Dept. of Corrections & Rehabilitation, #G053168, 25 Cal. App. 5th 31, 235 Cal. Rptr. 3d 262, 2018 Cal. App. Lexis 611.
A federal appeals court upheld summary judgment for the Arkansas State Treasurer in his official capacity on Rehabilitation Act disability discrimination claims arising out of the plaintiff’s termination as an employee in the office. As the Treasurer neither accepted nor distributed federal financial assistance for its own operation, there was no jurisdiction under the Rehabilitation Act, regardless of the reason for the termination or other actions. The fact that the Treasurer received, and distributed federal funds to other state agencies for their operation was insufficient to create Rehabilitation Act jurisdiction. Singer v. Harris, #17-1972, 2018 U.S. App. Lexis 21054 (8th Cir.).
After the plaintiff, an employee of the Customs and Border Protection Agency, suffered multiple injuries on the job, he returned to work and was erroneously placed in a lesser-paying position. Although the agency swiftly corrected the error, he filed a lawsuit for retaliation and disability discrimination in violation of the Rehabilitation Act of 1973. The district court dismissed the complaint for lack of jurisdiction based on the Federal Employees' Compensation Act, which it found provided the plaintiff a remedy.
The appeals court held that the plaintiff waived his claim of retaliation on appeal when he failed to make arguments and cite authorities in support of his position. The appeals court also held that the trial court erroneously ruled that it lacked jurisdiction where the statutory schemes of the Compensation Act and the Rehabilitation Act concerned different kinds of injuries and thus did not conflict. Therefore, the court could not avoid giving effect to both statutory schemes. Although the trial court had jurisdiction to consider the plaintiff’s claim of disability discrimination, he failed to present evidence that the nondiscriminatory reasons offered by the agency for placing him in a lower paying job (an error as to what positions were available when he returned to work and was unable to perform the duties of his prior position) were a pretext for intentional disability discrimination. Therefore, summary judgment was properly entered on the disability discrimination claim. Center v. Secretary, Department of Homeland Security, #17-14961, 2018 U.S. App. Lexis 19952 (11th Cir.).
|
A county deputy sheriff gave a deposition during which he accused the sheriff of bribery, corruption, trafficking illegal aliens, securing fraudulent loans, and soliciting two murders. The sheriff and his subordinates referred the deputy to a psychologist to evaluate his fitness for duty. The examination resulted in a determination that the deputy was suffering psychological and cognitive problems from a previous brain tumor, rendering him unfit for his duties. The deputy was then fired, based on the examination, the false allegations against the sheriff, and violations of departmental general orders.
The fired deputy sued the sheriff, his subordinates, and the county for federal civil rights violations, claiming that they violated his First Amendment rights by retaliating against him for protected speech.
Upholding summary judgment for the defendants, a federal appeals court found that the fitness-for-duty examination provided an independent, non-pretextual, and non-retaliatory basis for the termination. It rejected the argument that a jury could question whether the fitness examination was ordered in good faith because he received a “standard” rating in his last annual performance review, citing the importance of such precautionary measures in the law enforcement context due to “the risks posed by an officer who is not well enough to work.” Milliman v. City of McHenry, #17-2687, 893 F.3d 422 (7th Cir. 2018). |
Race Discrimination: General
An African-American man claimed that several mayors of the city, during the time when he was employed by the city in its public works department, engaged in race discrimination by paying two specific white employees of the city at a higher rate than he was paid, violating his right to equal protection of the law. A federal appeals court ruled that the defendants were entitled to qualified immunity since the plaintiff failed to show a violation of his constitutional rights. There was no genuine dispute that the plaintiffs job was not “nearly identical” to that of the two white employees. He worked in the water department, while the two white employees worked in the streets department and had different duties. Under those circumstances, different pay rates did not violate his rights. Mitchell v. Mills, #17-40737, 895 F.3d 365 (5th Cir. 2018).
A jury properly awarded over $1.3 million in compensatory damages and $1.3 million in punitive damages to a black female former employee of a public transit authority on her claim that her supervisors conspired to fire her because of her race. An appeals court found that the evidence was sufficient to justify both damage awards. Additionally, the defendant employer failed to show that it was prejudiced when the trial judge allowed a hostile work environment theory not explicitly pled in the complaint to go to the jury. Dimanche v. Massachusetts Bay Transportation Authority, #17-1169, 893 F.3d 1 (1st Cir. 2018).
|
Retirement Rights and Benefits
The plaintiff challenged the defendant’s forfeiture of his vested retirement benefits as a county employee based on a determination by the county that his gambling conduct was committed in the scope of his official duties as defined in the California Public Employees' Pension Reform Act of 2013, Government Code 7522 et seq. An intermediate state appeals court ruled that section 7522.72 was constitutionally sound, but that the defendant retirement association, not the county, bore the burden to give the plaintiff the required due process protections in determining whether his conviction fell within the scope of the statute. Therefore, the court modified the judgment to require the defendant to provide the required due process. Hipsher v. Los Angeles County Employees Retirement Association, #B276486, 24 Cal. App. 5th 740, 234 Cal. Rptr. 3d 564, 2018 Cal. App. Lexis 561.
Wrongful Discharge: In General
A former employee of the District of Columbia claimed that she was discharged based on accusations that she had improperly influenced the bidding process for the District's healthcare contracts. In particular, she claimed that the District then violated her Fifth Amendment due-process rights by leaking these allegedly false accusations to the press and denying her an opportunity to refute them, such as through a name clearing hearing. The appeals court also held that precedent did not mandate a rigid minimum-duration rule governing how long a former government employee must be unemployed before she can claim that the government's actions had the broad effect of largely precluding her from pursuing her chosen career. Therefore, the appeals court rejected the employer’s argument that two years of unemployment is never sufficient to establish that the plaintiff has been deprived of her liberty interest. Accordingly, the court affirmed the denial of the District’s motion for judgment as a matter of law, affirming a jury verdict for the plaintiff. Campbell v. District of Columbia, #16-7077, 894 F.3d 281 (D.C. Cir. 2018). |
|
• Report non-working links here
Officer Safety: Officer Safety Corner: Officer Performance Optimization: An Integrated and Culturally Relevant Approach to Officer Wellness, Health, and Performance by Brandi Burque, Deloria R. Wilson, and Cliff Burns, Police Chief Magazine (August 2018).
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Insurance – See also, First Amendment Related
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
May 6-9, 2019– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
Return to the CONTENTS menu.
Return to the monthly
publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.
© Copyright 2018 by A.E.L.E., Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.
Library of Employment Law Case Summaries