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© Copyright, 2019 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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2019 FP March
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Age Discrimination: Entry
Collective Bargaining – Duty to Bargain
Disciplinary Interviews & Compelled Reports – Garrity Warnings
First Amendment Related
Handicap/Abilities Discrimination: Reasonable Accommodation (2 cases)
National Origin Discrimination
Race Discrimination – In General
Retirement Rights and Benefits
Workers’ Compensation
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AELE Seminars:
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
MONTHLY CASE DIGEST
Some of
the case digests do not have a link to the full opinion.
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Age Discrimination: Entry
****Editor's Case Alert****
A federal appeals court, ruling en banc, has held that the Age Discrimination in Employment Act applies only to current employees and does not protect outside job applicants against age discrimination, based on the plain language of the law. The court made its ruling by an 8-4 vote. In the case a 58-year-old applicant with over 25 years of extensive relevant experience was not hired for a position as a general counsel for the employer, a large private corporation. Instead, the employer hired a 29-year-old applicant with more limited experience for the job. The ruling overturned a prior decision in the plaintiff’s favor by a three-judge appeals court panel that would have allowed the plaintiff’s claim to move forward. The new ruling affirmed a dismissal of the lawsuit by the trial court. While the ruling came in a case involving a private employer, the reasoning would also apply to claims by applicants for jobs with public employers. Kleber v. CareFusion Corporation, 2019 U.S. App. Lexis 2192 2019 WL 290241 (7th Cir.).
Collective Bargaining – Duty to Bargain
An officer was fired by the U.S. Capitol Police for misconduct, with the termination approved by the Capitol Police Board. He challenged his firing under the terms of a collective bargaining agreement, and an arbitrator ruled that the firing constituted excessive punishment, directing the employer to instead suspend him for 30-days and then reinstate him along with an award of back pay and benefits. No deadline was set for compliance. The Board of Directors of the Congressional Accountability Office of Compliance rejected the employer’s exceptions to the arbitration award, and a 30-day deadline for compliance was set. Just before the deadline expired, the employer announce that it would not comply. The union brought charges of an unfair labor practice before the Office of Compliance (OOC) alleging an unfair labor practice. The OOC’s General Counsel filed an unfair labor practice complaint with the Board, and a hearing officer sustained the charge.
The Board subsequently agreed, rejecting the employer’s assertion that the arbitrator lacked jurisdiction over employee termination and that the subject of termination was barred from inclusion in a collective bargaining agreement because employee termination is specifically provided for by federal statute. A federal appeals court upheld this ruling and granted enforcement. The Capitol Police Administrative Technical Corrections Act, 124 Stat. 49, the court concluded, does not require the Capitol Police Board’s participation in employee termination decisions, so that matter was not “specifically provided for,” and could be bargained over. U.S. Capitol Police v. Office of Compliance, #18-1201, 2019 U.S. App. Lexis 2469, 2019 WL 321167 (Fed. Cir.).
Disciplinary Interviews & Compelled Reports – Garrity Warnings
A police officer was criminally prosecuted and convicted for willfully depriving the passengers of a vehicle of their right to be free from unreasonable force under 18 U.S.C. 242. He fired 16 shots after the stopped vehicle was put in reverse, with shots injuring two passengers. He had argued that he shot because of an “imminent threat of battery” from the vehicle, but no one was in its path. A federal appeals court upheld the conviction, rejecting the officer’s arguments regarding the admission of training and policy evidence and a jury instruction on willfulness. The court further upheld the denial of a “Garrity” motion. Under Garrity v. New Jersey, #13, 385 U.S. 403 (1967) when an officer must choose between cooperating in an internal investigation or losing his job, his statements during the investigation cannot be used against him in a criminal prosecution. But in this case, prosecutors were never exposed to the officer’s protected statements. A dashcam video, other witnesses, and police reports all provided independent bases from which they could have learned the facts. U.S. v. Proano, #17-3466, 2019 U.S. App. Lexis 390, 2019 WL 115317 (7th Cir.).
First Amendment Related
A federal appeals court upheld the dismissal of a sheriff’s department sergeant’s federal civil rights lawsuit claiming that various defendants retaliated against him in violation of his First Amendment rights after he filed a report that a fellow sergeant had misused a digital repository of criminal justice information. He also claimed that they had infringed his right to intimate familial association with his sister. The plaintiff’s sister had ended a long relationship with his fellow officer and took up with another man. “Bad blood” between the plaintiff and his fellow officer followed, in part because the plaintiff refused to encourage a reconciliation. The fellow officer then used a police database to check out the man who was living with the plaintiff’s sister (and his son) and saw that the man was a felon. When the plaintiff reported this misuse of the police database, the fellow officer was disciplined. The plaintiff alleged that he was subjected to harassment by the fellow officer, the county, and other officials, as retaliation for reporting this misconduct, in violation of his First Amendment right to speak on a matter of public concern; and that the defendants infringed on his right to intimate association with his sister by setting one against the other in the fellow officer’s quest to win back the sister.
The court found that the defendants were entitled to qualified immunity because a reasonable officer would not have known that it was clearly established law that defendant's speech constituted a matter of public concern. Further, the plaintiff failed to allege any facts that would allow a reasonable jury to infer that anyone intentionally interfered with his relationship with his sister. Gorman v. Rensselaer County, #17-1120, 910 F.3d 40 (2nd Cir. 2018).
Handicap/Abilities Discrimination: Reasonable Accommodation
A city was entitled to summary judgment on claims of employment discrimination under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) when it refused to allow a senior accountant to return to his now eliminated city job because he had not returned to work after the expiration of his Family Medical Leave Act (FMLA) leave. He had previously contracted Fournier's gangrenous necrotizing fasciitis, a rare, life-threatening disease commonly known as “flesh-eating” bacteria and underwent three life-saving surgeries, spent nearly five months in a hospital/nursing care facility, and returned to his home. He took leave under the Family and Medical Leave Act and when that was exhausted was granted further unpaid leave. The disease left him with long-term injuries. The evidence showed that there was no medical reason why he needed to be reinstated to his former position, and therefore he failed to show that returning to his original position was a reasonable accommodation. A federal appeals court further ruled that the plaintiff’s request that he be allowed to work from home was not a reasonable accommodation, pointing to his testimony that he could work at city hall but that it “would have been easier” to work from home. He failed to show that he could perform the essential functions of the job from home. He also did not show that the city eliminated his job because of his disability or that it fired him because of his disability. There was no genuine issue of material fact that the employer engaged in anything but a good-faith interactive dialogue, and his claim of unlawful retaliation claim also failed. Brunckhorst v. City of Oak Park Heights, #17-3238, 2019 U.S. App. Lexis 3426, 2019 WL 419178 (8th Cir.).
An employee of a state insurance regulatory agency claimed that she needed reasonable accommodations for mental health disabilities. Her difficulties began in a prior state job in a prison when she learned that an inmate wrote in his diary that he wanted to torture her sexually. She reacted emotionally and left her employment and sought medical treatment for the trauma. Later, she began working at the state insurance agency as a clerical assistant. She received good reviews, promotions, and no discipline until the termination at issue in the lawsuit. When that agency hired a recently released offender, this apparently scared her, and as a result she was diagnosed with depression, bipolar disorder, and post-traumatic stress disorder.
Among other things, she requested that her coworkers not “startle” her. She received these accommodations for several years. In May 2013, however a frustrated supervisor reached toward her and stated, “I could just strangle you.” An investigation of this incident revealed that several months before, the employee commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”
The employer then terminated her, and she sued for disability discrimination and retaliation. Summary judgment was granted for the employer on some claims and the plaintiff lost on the rest of them at trial. A federal appeals court upheld this result, finding that the closest the plaintiff came to proving a failure-to-accommodate claim was under the theory that she asked her coworkers not to startle her, but the supervisor threatened to strangle her, but that episode was an isolated, “one-off” event. She also argued that her elevator comment was statutorily protected activity but the court ruled that she failed to prove both the required subjective and objective factors because she did not have a sincere, good-faith belief that she was opposing an unlawful practice and her remark did not involve discrimination prohibited by Title VII. She did not show that she had complained to anyone about disability discrimination and had suffered retaliation as a result. Scheidler v. Indiana, #17-2543, 2019 U.S. App. Lexis 2616, 2019 WL 324687 (7th Cir.).
National Origin Discrimination
An 11-year-old boy came to the U.S. with his parents from Mexico. Five years later, in 1995, he used a false Social Security number to gain employment. In 2007, he got a real Social Security number. Finally, in 2011, he became a U.S. citizen. After applying to become a California state correctional officer, he passed both written tests and physical examinations and gained a place on an eligibility list. During a required background investigation, he answered yes to the question “Have you ever had or used a social security number other than the one you used on this questionnaire?” Based on that information, he was informed that he was no longer eligible to become a correctional officer.
After the State Personnel Board upheld that determination, he filed a federal lawsuit claiming national origin discrimination under federal and state law. The trial court dismissed the state law claims on Eleventh Amendment grounds, which effectively limited potential money recovery to back pay. The federal case ended with an order that he be reinstated to the correctional officer hiring process, $140,362 in back pay contingent on his completing the training academy, plus an award of $1,237,024.82 in prevailing party attorney fees and $166,541.87 in costs on a federal equal protection claim.
Attempting to recover additional damages after the dismissal of his state law claims in federal court, the plaintiff filed suit in state court, which was stayed pending the end of the federal case. After he won his judgment in the federal lawsuit, the state court dismissed his state claims under California claim preclusion principles. An intermediate state appeals court reversed, reasoning that federal law, not California law, governs the preclusive effect of the federal judgment, and provides an exception to claim preclusion where only jurisdictional limitations in a prior suit blocked a request for complete relief. Guerrero v. California Department of Corrections and Rehabilitations, #A147507, 28 Cal. App. 5th 1091, 239 Cal. Rptr. 3d 726, 2018 Cal. App. Lexis 1010, 2018 WL 5816727.
Race Discrimination – In General
An African-American employee of a county sheriff’s department who worked in a narcotics squad, along with a number of co-workers, was transferred to positions in the corrections department which the sheriff believed were less likely to result in arrests. The transfers occurred after an internal affairs investigation into the injury of an arrestee was conducted. He had reported that a white fellow deputy had struck the arrestee. The employee decided to quit rather than accept the transfer, and never applied to resume work. He sued for racial discrimination. A federal appeals court upheld summary judgment for the defendant sheriff. It found that the plaintiff failed to create a genuine issue of material fact as to whether he was treated less favorably than other similarly situated employees outside the protected group and as to whether he was replaced with someone outside his protected class. On a retaliation claim, the court held that the plaintiff failed to produce evidence creating a genuine issue of material fact showing that his employer took an adverse employment action against him and that a causal connection existed between any protected activity and the adverse employment action. Thomas v. Tregre, #18-30577, 2019 U.S. App. Lexis 947, 2019 WL 156852 (5th Cir.).
Retirement Rights and Benefits
Two Massachusetts police officers were entitled to retirement allowances under Mass. Gen. Laws Ch, 32, 15(4) despite their respective criminal convictions. One claimant, a town police sergeant, was on administrative leave when he was charged with crimes related to the discharge of his personal firearm. The second claimant, a state police sergeant, was charged with the federal crime of using the Internet to entice a minor to engage in unlawful sexual activity. The two boards in these cases each ruled that the officers’ convictions violated the fundamental tenets of their positions as law enforcement officials and denied them a retirement allowance. The highest court in Massachusetts reversed, holding that section 15(4) did not require the forfeiture of the officers’ pension allowances because their off-duty crimes were not factually connected to their positions as police officers, nor did the laws under which they were convicted expressly apply to public officials or employees. Essex Regional Retirement Board v. Swallow, #SJC-12458, 481 Mass. 241, 2019 Mass. Lexis 9, 2019 WL 254801.
Workers’ Compensation
An employee of a state child welfare agency suffered injuries while working at one of its facilities. A Workers’ Compensation Law Judge (WCLJ) found that the claimant had suffered a 50% loss of use of his left arm and was, therefore, entitled to a 156-week "schedule loss of use" award under the statutory schedule providing wage-based compensation for permanent partial disability arising from injury to certain body parts and for serious facial or head disfigurement. He did not return to his position but completed a rehabilitation program and ultimately found different employment. The highest court in New York held that he was entitled to 275 weeks of additional compensation under Workers' Compensation Law (WCL) § 15(3)(v) which permits certain permanently partially disabled workers who have exhausted their schedule awards to apply for “additional compensation.” It rejected the claimant’s argument that durational limits contained in another section of the statute did not apply to such awards of additional compensation. Mancini v. Services, 2018 NY Slip Op 08425, 2018 N.Y. Lexis 3477.
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Computer Security: Leadership Spotlight - Importance of Cybersecurity, by Nathaniel B. White, FBI Law Enforcement Bulletin (Feb. 5, 2019).
Training: Perspective: Value Your Training Program, by Michael VanMeter, FBI Law Enforcement Bulletin (Dec. 14, 2018).
Websites: Caselaw Access Project API, also known as CAPAPI, is a website offered by Harvard University Law School which provides free access to all official U.S. court cases published in books from 1658 to 2018 in multiple text formats. While occasional use requires no registration, free registration may be required for regular heavy use.
Reference:
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
Arbitration Procedures – See also, Collective Bargaining – Duty to Bargain
Retaliatory Personnel Action — See also, First Amendment Related
Retaliatory Personnel Action — See also, Handicap/Abilities Discrimination (second case)
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