AELE Seminars:
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
Orleans Hotel, Las Vegas
Investigation, Management, and Use
of Lethal and Less Lethal Force
May 4-7, 2020 - Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
© Copyright, 2019 by A.E.L.E., Inc.
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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:
2019 FP October
Click here to view information on the editor of this publication.
Access the multiyear Employment Law Case Digest
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Damages, Remedies, and
Enforcement of Settlements
Equal Employment
Guidelines & Regulations
Family and Medical Leave
First Amendment
Pensions
Race Discrimination (2 cases)
Retirement Rights and Benefits
U.S. Supreme Court
Labor and Employment Cases
Wrongful Discharge
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Report non-working links here
AELE Seminars:
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
Orleans Hotel, Las Vegas
Investigation, Management, and Use
of Lethal and Less Lethal Force
May 4-7, 2020 - 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.
• 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.
Damages, Remedies, and Enforcement of
Settlements
****Editor's Case Alert****
An ATF agent assigned to undercover work
infiltrated the Hells Angels motorcycle gang, and assisted in the indictment of
36 people for racketeering and murder. During the prosecutions, the disclosure
of his identity resulted in threats against him and his family. The ATF’s
alleged failure to appropriately respond to the threats and to adequately
conceal his identity during an emergency relocation, led him to seek
compensation. Subsequently, the ATF reached a settlement agreement and agreed
to pay him a lump sum. It then withdrew his and his family’s fictitious
identities despite a recent threat assessment. An arson attack substantially
damaged his home, but his family escaped without injury.
The ATF pursued the agent as a suspect. But
the ATF’s Internal Affairs Division found that there was no valid reason for
the withdrawal of the fictitious identities, that risks to the family had been
ignored, and that the response to the arson had been mismanaged. He sued, claiming
breach of the settlement agreement. The U.S. Court of Federal Claims ruled that
there was no breach of any express provision of the agreement but that he was
entitled to emotional distress damages of $173,000 for breach of the implied
duty of good faith and fair dealing.
He alleged misconduct by the Justice
Department during the litigation and asked to set aside the judgment, and award
additional remedies. The court determined that none of the alleged misconduct
warranted relief because, even if they occurred, there was no showing that
these acts could have affected the case. A federal appeals court overturned the
judgment as to the breach of the implied duties because the United States Court of Federal Claims failed to
ground the supposed duties (ensuring the plaintiff’s security and not
discriminating against him) in the specific provisions of the settlement
agreement contract, and upheld the rest of the decision. Dobyns
v. U.S., #15-5020, 915 F.3d 733
(Fed. Cir. 2019).
Equal Employment Guidelines
& Regulations
****Editor's Case Alert****
In April 2012, the EEOC issued “Enforcement
Guidance on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII.” Citing data suggesting that blanket bans on
hiring individuals with criminal records disproportionately impact minorities,
the Guidance declared: “With respect to
criminal records, there is Title VII disparate impact liability where the
evidence shows that a covered employer’s criminal record screening policy or
practice disproportionately screens out a Title VII-protected group and the
employer does not demonstrate that the policy or practice is job related for
the positions in question and consistent with business necessity.” The Guidance
further provided that “[a]n employer’s evidence of a racially balanced
workforce will not be enough to disprove disparate impact.” It specifies that the Guidance applies to
federal, state, and local government, as well as to private employers.
The state of Texas sued the EEOC and the U.S. Attorney General,
challenging the EEOC’s guidance on employers’ use of criminal records in
hiring. The trial court enjoined the defendants from enforcing the guidance
against Texas until the EEOC complied with the notice-and-comment rulemaking
requirements of the Administrative Procedure Act (APA). A federal appeals court
ruled that the Guidance was a reviewable final agency action that the court had
jurisdiction to review. The state of Texas had standing to challenge the
legality of the Guidance.
On the merits, the appeals court found
that the Guidance was a substantive rule subject to the APA's
notice-and-comment requirement and that EEOC overstepped its statutory
authority in issuing the Guidance. Since the Guidance is a substantive rule,
and the text of Title VII and precedent confirmed that EEOC lacked authority to
promulgate substantive rules implementing Title VII, the court modified the
injunction by striking the clause “until the EEOC has complied with the notice
and comment requirements under the APA for promulgating an enforceable
substantive rule.” The court also modified the injunction to clarify that EEOC
and the Attorney General may not treat the Guidance as binding in any respect. Texas v.
EEOC, #18-10638, 2019
U.S. App. Lexis 23498, 2019 WL 3559629 (5th Cir.).
Family and Medical Leave
The plaintiff, a former employee of the federal Office
of the Director of National Intelligence, asserted claims against her former
employer for disability discrimination under the Rehabilitation Act, 29 U.S.C.
701 et seq., and retaliation under and violation of the Family and Medical
Leave Act (FLMA), 29 U.S.C. 2601, et seq. She argued that the defendant
discriminated against her and violated the FMLA by not hiring her for a
permanent position following her completion of a five-year term.
A federal appeals court ruled that summary judgment was properly granted
to the employer on the Rehabilitation Act and FMLA retaliation claims. The
evidence showed that the employer provided a reasonable accommodation
for her depression and when the employee failed to follow the plan, her
supervisors attempted a new accommodation, but the employee's attendance
problems persisted, and the agency collaborated with the employee in
establishing the first accommodation and only acted unilaterally when the accommodation
did not work.
But the plaintiff could proceed with her FMLA
interference claim because a genuine issue of material fact existed as to
whether she provided sufficient notice of her disability of depression and
interest in taking FMLA leave to trigger the defendant’s duty to inquire as to
whether she was in fact seeking to take FMLA leave. Hannah
P. v. Coats, #17-1943, 916
F.3d 327 (4th Cir. 2019).
First Amendment
After his involvement in a high-speed
chase, a city patrol officer complained to the police chief about his vehicle’s
tires and seatbelts. He repeated his complaints to the assistant police chief,
to the city administrator, and then to a city council member. The month after he attempted to schedule a
meeting with the mayor, the city council, on recommendations from the police
chief and city administrator, voted to fire him. A federal appeals court ruled
that the defendants were entitled to qualified immunity on a First Amendment
retaliation claim since it
was not “clearly established” that his speech about patrol vehicle safety was
constitutionally protected as the defendants could reasonably conclude that he
was speaking solely as an aggrieved police officer, and not on a matter of
public interest.
He further failed to present a viable due
process claim because there was no evidence in the record that the officials
made official or intentional public statements about the employee's
termination. The plaintiff did not show that he was stigmatized by the stated reasons
for his discharge and that the statements were made public. Finally, because
plaintiff failed to demonstrate a deprivation of a property or liberty
interest, his due process claims against the city also failed. However, this
ruling did not necessarily resolve the city’s liability in the retaliation
claim, and the city had no qualified immunity defense. Mogard
v. City of Milbank, #18-2730, 2019 U.S. App. Lexis
23696 (8th Cir.).
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Pensions An association
of retired police and firefights obtained a court order that a city’s master
police officer-terrorism pay (MPO pay) be included in the calculation of
police pension benefits. Under the retirement system, a retiree’s pension is
calculated based a fixed percentage of the compensation currently “attached
to the average rank” achieved by the retiree at the time of retirement. An
intermediate California appeals court overturned the ruling, finding that the
trial judge erroneously concluded that MPO pay was “compensation attached to
. . . rank” as required by the city charter for inclusion in pension
benefits. During the years 2009-2015, MPO pay was paid to all officers who had completed 20 years of service in the Department, maintained fully effective overall performance appraisals during the assignment, attended and completed an approved anti-terrorism/law enforcement response course, and been assigned to the patrol division. The requirement that an officer be assigned to the patrol division to receive MPO pay compelled the conclusion that MPO pay was not attached to the officer’s rank in any way. The agreement that added MPO pay did not restructure the relevant ranks nor create an additional step within an existing rank. Retired Oakland Police Officers Association v. Oakland Police and Fire Retirement System, #A148987, 33 Cal. App. 5th 158, 244 Cal. Rptr. 3d 785, 2019 Cal. App. Lexis 231, 2019 WL 1275346. Race Discrimination In Lewis
v. Union City, Georgia, #15-11362, 877 F.3d 1000 (11th Cir. 2017), previously reported here,
a female African-American police detective who had a heart condition was
placed on administrative leave after she and her doctor raised concerns about
her being required to be subjected to a Taser shock during training
exercises. Ultimately, she was terminated. A federal appeals court
reversed summary judgment for the defendants in a lawsuit claiming that the
plaintiff was unlawfully discharged from the police department based on
disability and/or racial or gender discrimination. A jury could find that the
stated reason for terminating her—that she was absent without leave—was a
pretext for one or more other motives.
The trial court
correctly concluded that the detective did not produce sufficient evidence to
permit a conclusion that she was actually disabled, within the meaning of the
American with Disabilities Act. But she did produce evidence sufficient
to raise a genuine issue of fact on whether she was “regarded as” disabled
and that her employer regarded her heart condition as a physical impairment
and took adverse action—placing her on leave—because of the impairment. A
jury would be justified in concluding that receiving a Taser shock was not an
essential function of the detective’s job, in which case it would follow that
she was a “qualified individual.”
The federal appeals court subsequently
granted a rehearing en banc. Without discussing the “regarded as disabled”
disability discrimination claim, it vacated the ruling as to the race and
gender discrimination claims. The plaintiff was attempting to make a claim
for intentional race and/or gender discrimination under the test established
by the U.S. Supreme Court in McDonnell
Douglas Corp. v. Green, #72-490, 411 U.S. 792 (1973). Under that framework, the plaintiff bears
the initial burden of establishing a prima facie case of discrimination by
proving, among other things, that she was treated differently from another
“similarly situated” individual, a “comparator.”
The appeals court
ruled with regard to the McDonnell
Douglas standard, the proper test for evaluating comparator evidence
is neither plain-old “same or similar” nor “nearly identical,” as the court’s
past cases had inconsistently indicated. Instead, it held that a plaintiff
attempting to make an intentional-discrimination claim under McDonnell Douglas must show
that she and her proffered comparators were “similarly situated in all
material respects.” Because the plaintiff in this case failed to do that, the
full appeals court ordered further proceeding before the three-judge appeals
court panel. Lewis
v. City of Union City, #15-11362, 918 F.3d
1213 (11th Cir. 2019). A police
sergeant sued a California city, claiming race discrimination and retaliation
under state law. He rejected a $7,000 offer to compromise made by the city
under a state statutory provision, Code of Civil Procedure section 9981 and
proceeded to trial, where the city emerged victorious. The trial court
awarded the city a total of $51,946.96 in costs incurred after it made its
compromise served offer, even though the trial court had found that
plaintiff’s claims were not frivolous. While an appeal
of this result was pending, the California legislature amended the state
law’s cost provision statute to specifically state that, despite the
compromise settlement offer provision, a prevailing defendant cannot recover
attorney fees and costs against a plaintiff asserting non-frivolous race
discrimination claims. An intermediate state appeals court ruled that this
amendment was an attempt to clarify existing law, rather than to change it.
“A statute that merely clarifies, rather than changes, existing law,” the
court stated, “ is properly applied to transactions predating its enactment.
The amended statute therefore applied in this case, and the trial court’s
award of costs to the city was reversed. Scott
v. City of San Diego, #D074061, 2019 Cal. App. Lexis 705, 2019
WL 3491428. Retirement
Rights and Benefits
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U.S. Supreme Court Labor and Employment
Cases A federal appeals
court judge died on March 29, 2018. The court on which he sat, the U.S. Court
of Appeals for the Ninth Circuit, listed him as the author of an en banc
decision issued on April 9, 2018. Counting his vote made his opinion a
majority ruling that constituted binding precedent. Without his vote, the
opinion would have been approved by only five of the 10 members of the en
banc panel who were still living when the decision was filed. The voting was
completed before the judge’s death. The case involved a claim by a county
employee that her employer was violating the Equal Pay Act of 1963. The U.S.
Supreme Court vacated the decision. The Court noted that a judge generally
may change his position up to the moment when a decision is released. When
the appeals issued its opinion in this case, the deceased judge was neither
an active judge nor a senior judge. By federal law, 28 U.S.C. 46, he was
without power to participate in the court’s decision at the time it was
released. The appeals court “effectively allowed a deceased judge to exercise
the judicial power of the United States after his death. But federal judges
are appointed for life, not for eternity.” Yovino
v. Rizo, #18-272, 139 S. Ct. 706, 2019 U.S.
Lexis 1354, 2019 WL 886486. |
Wrongful Discharge
The plaintiff had worked as a county sheriff’s office correctional officer
for 14 years before he was arrested for DUI, striking a vehicle, and leaving
the scene of an accident. When he reported the arrest to his employer, the
sheriff suspended him without pay and began termination proceedings. A Merit
Board had exclusive authority to terminate sheriff’s office employees. While
the proceedings were ongoing, a state court granted the employee’s motion to
suppress and quashed his arrest. The Board then voted to fire him. A state
trial court vacated that decision as too vague to allow for judicial review and
remanded. The Board again voted to fire him, and the trial court again remanded
based on a defect in the Board’s composition. It had then been almost seven
years since the sheriff suspended the employee without pay.
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