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.
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:
2019 FP November
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.
Attorneys’ Fees
First Amendment
FLSA -- Overtime -- in General
Handicap/Abilities Discrimination: Constitutionality
Handicap/Abilities Discrimination -- Obesity
Mental Examinations
Retirement Rights and Benefits
Whistleblower Protection (2 cases)
Workers’ Compensation
|
|
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.
Attorneys’ Fees
|
A
man employed by a city’s fire department as a firefighter/EMT since 1995 took
an engineer
promotional exam and then wrote a letter to the fire chief criticizing what
he called the “subjective” nature of the test. Subsequently, he failed the
interview portion of the exam. He complained to the Alaska State Commission
for Human Rights, claiming that he had been discriminated against on the
basis of his Korean race and age of 48. He prevailed in a later lawsuit
against the city for breach of contract and breach of the implied covenant of
good faith and fair dealing. He was awarded partial attorney’s fees under
Alaska Civil Rule 82(b)(1). He asserted on appeal that he should have
received full attorneys’ fees and litigation costs pursuant to his union’s
collective bargaining agreement. The Alaska
Supreme Court ruled that the attorneys’ fee recovery provision in the union
contract did not apply to his civil lawsuit, but only to enforcement of an
arbitration decision between the union and the city, so the order denying him
recovery of full attorneys’ fees and costs was upheld. Graham
v. Municipality of Anchorage, #S-16905, 2019 Alas. Lexis 159 First Amendment ****Editor's Case Alert**** A man who was a combat veteran had a job
in the county’s administration building as superintendent for the county’s
Veterans Assistance Commission. County officials, however, indefinitely
barred him from the building after he suffered a Post-Traumatic Stress
Disorder (PTSD) episode during which he threatened a police officer and
kicked out the windows of a police vehicle. He was kept out of the building
for 20 months in total. While he retained his job, he was forced to work
remotely. He previously had resisted attempts to use money from the
Commission’s budget for other county needs. Before the ban was lifted, he
sued the county officials. A federal appeals court upheld summary
judgment for the defendants. It ruled that his First Amendment right to
assemble on government property was not violated, because the ban on his
presence in the building was “viewpoint-neutral” and reasonably motivated by
legitimate safety concerns. None of the evidence supported a reasonable inference
of causation between the ban imposed on him and his objections, two years
earlier, to attempts to redirect some of the Veteran’s Commission’s money to
unrelated projects. As the plaintiff also was not deprived of a liberty or
property interest, he failed to establish a violation of due process. Lavite
v. Dunstan, #18-3465, 2019
U.S. App. Lexis 23592, 2019 WL 3713888 (7th Cir.). FLSA -- Overtime -- in General A group of U.S. Border Patrol agents
sought overtime for activities they claimed to have performed during “hours
of work” while attending a voluntary canine instructor course outside of
usual working hours. They argued that they were entitled to such pay under
the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(a)(1). Those agents who
did not attempt to receive canine instructor certification by attending the course
did not face any adverse consequences concerning their existing jobs. Those
motivated to attend the course could potentially seek new positions based on
their new skills and certification.
The U.S. Claims Court granted the federal government summary judgment
on the overtime claims and a federal appeals court upheld this result. .
Attending the course didn’t constitute “hours of work” under applicable
regulations. They were not “directed to participate” in off-hours studying.
The primary purpose for enrolling in the course was for voluntary career
advancement. Almanza
v. United States, #18-1803, 2019 U.S. App. Lexis 24877 (Fed. Cir.). Handicap/Abilities Discrimination: Constitutionality A
former Virginia State Police special agent sued, asserting claims against the
state under both the Americans with
Disabilities Act (ADA) for disability discrimination based on Post-Traumatic
Stress Disorder and Title VII of the Civil Rights Act for national origin
discrimination because he is Italian-American. He claimed that disciplinary
actions taken against him for failing to follow proper procedures and
adequately manage his caseload were discriminatory. He sought remedies that
included compensatory damages, reinstatement, and back pay. A federal appeals
court upheld the dismissal of the ADA claim, because Virginia has not waived
its sovereign immunity from the ADA. But it overturned the ruling that claim
preclusion barred the Title VII claims, because Virginia’s grievance process was the only mechanism by which a
Virginia state employee could have disciplinary action overturned for
violating internal policies of the state agency that employed him, and a
Title VII action offered compensatory damages that were unavailable through
the grievance process. Passaro
v. Commonwealth of Virginia, #18-1789, 2019
U.S. App. Lexis 24466, 2019 WL 3849555 (4th Cir.). Handicap/Abilities Discrimination -- Obesity An employee claimed that he had been fired based on a disability of morbid obesity, weighing 370 pounds. The trial court found that, whether or not he had been, morbid obesity was not a physical impairment under the relevant EEOC regulations and interpretive guidance. Upholding this result, a federal appeals court determined that it was unnecessary to decide whether morbid obesity itself was an impairment under the Americans with Disabilities Act (ADA), and affirmed the judgment for the employer on alternative grounds. Even assuming that morbid obesity was impairment, or that the plaintiff suffered from a disabling knee condition that the trial court could have considered, he would have to show some causal relationship between these impairments and his firing. There was no basis in the record for concluding that he was terminated for any reason other than the stated ground that he falsified records to show he had completed work assignments that had not been finished. He could not show that he had been singled out for firing because of his extreme weight as there was no evidence that other employees had been accused of similar misconduct. While the case involved a private employer, the reasoning would also apply to a public employee. Failing to do your work, and lying about it, is an adequate ground for termination. Valtierra v. Medtronic Inc., #17-15282, 2019 U.S. App. Lexis 24738, 2019 WL 3917531 (9th Cir.). Mental
Examinations
|
|||||||||