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Employment & Labor Law for Public Safety Agencies


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Transfers - Non Disciplinary/Punitive

     A male homosexual city emergency management employee claimed that co-workers "mocked" him. His alleged romantic relationship with a male co-worker ended when the co-worker started an involvement with a co-worker. He then told his supervisor that he wanted to not have to work together with his ex-boyfriend, and that he feared a possible physical attack. He was transferred to a "graveyard" shift, and later also transferred to administrative duties at a cemetery. He sued the city and its mayor, claiming that his transfers and the ridicule of his co-workers amounted to sex discrimination, a hostile work environment and unlawful retaliation in violation of his equal protection rights. He sought damages for violation of his federal civil rights. The supposed mocking was not shown to be significant enough or pervasive enough to create a hostile work environment, and the transfer, even if not what he desired, had no impact on his rank, duties, or pay. Ayala-Sepulveda v. Municipality of San German, #10–2123, 2012 U.S. App. Lexis 947; 114 Fair Empl. Prac. Cas. (BNA) 234 (1st Cir.).
     Tenth Circuit rejects a deputy sheriff's claim that he had been demoted and constructively discharged in violation of due process. He was laterally transferred to another division at the same pay grade. He failed to report for work at his new assignment and did not attend a hearing he had requested. Lauck v. Campbell Co., #09-8085, 2010 U.S. App. Lexis 25352 (10th Cir.).
     Although a police union argued that a grievant was subject to ridicule by other officers as a result of his transfer from the detective bureau to patrol, “the subjective opinions of co-workers expressed in casual office banter do not demonstrate that the transfer at issue was adverse within the meaning of the Law.” City of Holyoke and IBPO L-388, #MUP-05-4503 (Mass. Emp. Rel. Bd. 2009).
     Federal appeals court rejects the constructive discharge suit filed by a sheriff’s officer who quit, following his reinstatement (after challenging his termination). He was reassigned to court security duties instead of patrol duties, and lost the opportunity to earn differential pay. He was not entitled to be restored to his former assignment as a patrol officer or to receive preferential pay. Potts v. Davis County, #07-4139, 2009 U.S. App. Lexis 40 (10th Cir.).
     Supreme Court declines to hear the appeal of a black prison chaplain who was laterally transferred to a facility more than 200 miles from his residence. Transfers were made according to seniority, not race. Broussard v. Texas Dept. of Crim. Justice, #07-54007-540, 2008 U.S. Lexis 196 (2008); #06-20663, 2007 U.S. App. Lexis 17209 (Unpub. 5th Cir. 2007).
     Fifth Circuit revives a sex discrimination action filed by a woman sergeant that unsuccessfully sought a transfer to the Texas Rangers. Although the denial of a purely lateral transfer is not an adverse employment action redressible under Title VII, Texas Rangers "are an elite unit within DPS and have a unique and illustrious history." Rangers "have greater job responsibilities, including being the primary investigators of homicides and handling other major high-profile and sensitive cases. A "reasonable juror could find that [the plaintiff] suffered an adverse employment action. Alvarado v. Texas Rangers, #05-51064, 2007 U.S. App. Lexis 16928 (5th Cir.).
     Although assigned to the sheriff's aviation unit as part of a litigation settlement agreement, management was not obligated to keep the plaintiff in that assignment permanently. His transfer to other duties was neither disciplinary nor punitive. "... it was never contemplated that the agreement constituted a commitment by the Department for the remainder of [the plaintiff's] career." Benach v. Co. of Los Angeles, #B189151, 149 Cal.App.4th 836, 2007 Cal. App. Lexis 545 (2d App. Dist.).
     Appellate court rejects a claim that a postal worker was forced to retire because the agency gave him a choice of either being reassigned to a different city or retiring. DeMaggio v. USPS, #06-3247, 2006 U.S. App. Lexis 30251 (Fed. Cir. 2006) affirming 2006 MSPB Lexis 1158 (2006). [N/R]
     The involuntary reassignment of a U.S. Customs technician from temporary duty on a forfeiture fund team back to her regular assignment was not an adverse job action. This action was unlike the employee in Burlington Northern v. White, #05-259, 126 S. Ct. 2405 (2006) that was reassigned to a position with substantially less desirable duties. Jordan v. Chertoff, #05-1788, 2006 U.S. App. Lexis 30903 (7th Cir. 2006). [N/R]
     Seventh Circuit concludes that managerial officials were entitled to qualified immunity; the plaintiff, a state investigator, failed to show that an employee who is reassigned to lesser but meaningful duties pending an investigation of alleged wrongdoing, suffered a harm. The investigator retained both his pay and his job classification status. "While some might consider themselves lucky to be able to perform easier work for the same amount of pay, [the plaintiff] did not." Atterberry v. Sherman, #04-4115, 2006 U.S. App. Lexis 16962 (7th Cir. 2006). {N/R}
     Seventh Circuit affirms a summary judgment for the State of Illinois in a discrimination and retaliation suit. The employee failed to present evidence that his internal complaint led to his transfer. Treadwell v. Illinois Sec'y of State, #05-1524, 2006 U.S. App. Lexis 18789 (7th Cir. 2006). {N/R}
     Involuntary transfer of a GS-6 firefighter to a GS-6 pharmacy technician was not a demotion, even though the reassignment resulted in less pay because of hours scheduled and overtime. Beckman v. Dept. of Veterans Affairs, #04-3291, 005 U.S. App. Lexis 9207 (Fed. Cir. 2005). {N/R}
     California appellate court rules that a lateral transfer and a disciplinary suspension that was never implemented were not adverse personnel actions entitling a prison employee to sue for retaliation or civil rights violations. McRae v. Dept. of Corr., #A098073, 127 Cal.App.4th 779, 25 Cal.Rptr.3d 911, 2005 Cal. App. Lexis 384 (1st Dist. 2005). {N/R}
     Federal court finds that a chief of police failed to follow civil service requirements under state law and city rules when filling vacancies, and that transfer policies and eligibility lists were circumvented or ignored, subjecting the city to liability under §1983. However, "hurt feelings, anger and frustration are a part of life and are not themselves sufficient to establish one's entitlement to compensatory damages." Cox v. City of Jackson, #3:94-cv-623, 343 F.Supp.2d 546, 2004 U.S. Dist. Lexis 23591 (S.D.Miss. 2004). {N/R}
     Seventh Circuit holds that the transfer of a police sergeant from the narcotics unit to a beat supervisor position was not an adverse employment action, despite the loss of flexibility and overtime opportunities. "To sustain a federal employment discrimination suit, a plaintiff must show something more than the ordinary difficulties associated with a job transfer." O'Neal v. City of Chicago, #04-1402, 392 F.3d 909, 2004 U.S. App. Lexis 26448 (7th Cir. 2004). {N/R}
     Seventh Circuit says that "a transfer does not become an adverse employment action solely because the employee subjectively prefers one position over another." The plaintiff's transfer out of the detective division was at the same pay and benefits. McKenzie v. Milwaukee Co., #03-4136, 2004 U.S. App. Lexis 17866 (7th Cir.2004). {N/R}
     Management did not violate the bargaining agreement when it involuntarily transferred an officer, with the most seniority in the north sector, to the south sector. The CBA provided that seniority should be considered only for unusual shift assignments. City of Laredo and Laredo POA, 119 LA (BNA) 1651, AAA #70-390-00787-03 (Moore, 2004). [2004 FP Nov]
     New York court enjoins the transfer of a NYPD union representative pending determination of an unfair labor practice charge. His transfer to another borough undercut his status as Precinct representative and his candidacy as a borough official. P.B.A. (Anthony) v. City of New York, 196 Misc.2d 396, 765 N.Y.S.2d 152, 2003 N.Y. Misc. Lexis 774 (2003). [2004 FP Jul]
     Pennsylvania appellate court affirms an arbitration award that a state trooper's involuntary transfer from a desired assignment was disciplinary and arbitrable. Penn. State Police v. Penn. State Troopers Assn., #1815 C.D. 2003, 840 A.2d 1059, 2004 Pa. Commw. Lexis 18, 174 LRRM (BNA) 2154 (2004) -- citing Philadelphia v. FOP L-5, #J-134-2000, 768 A.2d 291 (2001) and Fairview Twp. v. F.T. Police Assn., 1694 C.D. 2001, 795 A.2d 463 (Pa. Cmwlth. 2002). [2004 FP Jun]
     Management did not violate a minimum staffing requirement of six detectives, when it reassigned a uniform officer serving as the bureau's identification officer, from that unit, and replaced him with one of the detectives. The function was still in the same bureau. Hamtramck (City of) and Hamtramck FOP, AAA #54-390-00625-00 115 LA (BNA) 1192 (Daniel, 2001). {N/R}
     The NYPD could force black officers to accept a transfer to a precinct with a bad reputation, following the mistreatment of black citizen by white officers. Community hostility compromised the goal of effective law enforcement and race-based transfers could restore that goal. PBA-NY v. New York, #97 Civ. 7895 (SAS), 2000 U.S. Dist. Lexis 15179; prior decis. at 74 F.Supp.2d 321, 1999 U.S. Dist. Lexis 14428, 80 FEP Cases (BNA) 1701 (S.D.N.Y.). {N/R}
     Denying a transfer because the worker is "aggressive" could be proof of retaliation, because her superiors viewed her constant complaints of discrimination as insubordinate and aggressive, the court observes. EEOC v. St. Michael Hosp., #96-C-1428, 77 FEP Cases (BNA) 86 (E.D.Wis. 1998). {N/R}
     New police chief could transfer his confidential secretary because she was married to a sergeant. McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994). [1994 FP 109]
     Federal appeals court concludes that a nondisciplinary transfer, which causes economic losses to secondary employment, can be compensable if the transfer was motivated by a desire to punish the employee for exercise of his right of free speech. Walsh v. Ward, #92-1680 (7th Cir. 1993). See also: McGill v. Bd. of Educ., 602 F.2d 774 (7th Cir. 1979); Simpson v. Weeks, 570 F.2d 240 (8th Cir. 1978) cert.den. 99 S.Ct. 3101 (1979). [1993 FP 121-2]
     Appeals court rejects claim that notice was required before ordered a non-disciplinary transfer, even though the new assignment paid less. Prudhomme v. Dept. of Police, 568 So.2d 595 (La. App. 1990).
     Federal court concludes it is bound by a state court finding that a transfer of a state police sergeant to a distant city was "non disciplinary." Court would not intervene, even though transfer was issued the same day the sergeant requested a grievance panel to decide an employment dispute. Leonard v. Suthard, 737 F.Supp. 921 (W.D. Va. 1990).
     Police chief could block transfer of officer who sought position as firefighter, even though fire chief agreed to transfer. Cilley v. Lamphere, 535 A.2d 1305, 206 Conn. 6 (1988).
     Federal appeals court affirms rotation policy for drug enforcement agents, provided their transfers are not induced by racial considerations. Fong v. Lawn, 47 FEP Cases (BNA) 614 (9th Cir. 7/21/88).
     Court refuses to interfere with denied transfer request, even though city violated its own regulations. Alford v. City of Dallas, 738 S.W.2d 312 (Tex.App. 1987).
     Police union and official who caused sergeant's transfer and loss of benefits lose suit for emotional distress; $770,000 awarded. Hughes v. Patrolmen's Ben. Assn., U.S. Dist. Ct., 25 G.E.R.R. (BNA) 554 (S.D.N.Y. 4/4/87).
     Dept. need not prove grounds to transfer an employee; no property right to retain an assigned position. Rossi v. Comm. of Penna. State Police, 515 A.2d 120 (Pa. Cmwlth. 1986).
     Duty to bargain: a union demand to require the rotation of police officers throughout all units of the agency "would prevent the [management] from permanently assigning patrol officers to particular assignments for which an individual officer may be best suited." Twp. of So. Brunswick and P.B.A. L-166, NJ-PERC #86-115 (1986), 12 NJPER (LRP) ¶ 17,138 [Lexis]. {N/R}
     Transfer of detective to patrol, with loss of pay, was not punitive but to remove him from sensitive and confidential position. Morgan v. City of Warwick, 510 A.2d 1297 (R.I. 1986).
     Transfer of officer without regard to his seniority rights violated "long standing past practice'; grievance upheld. Duluth Police Union v. City of Duluth, 360 N.W.2d 367 (Minn. App. 1985).
     Transfer of officer for attitudinal problems in youth services assignment and his performance warranted his transfer by the chief; transfer was within managerial authority and was not punitive. Officer could seek judicial review under Police Bill of Rights without filing grievance. Chief, Baltimore Co. v. Marchsteiner, 461 A.2d 28 (Md. App. 1983).
     Policy which allows female employees to refuse transfers but requires males to accept is found non-discriminatory. Greenholdt v. Illinois Bell Telephone Co., 107 Ill.App.3rd 748, 438 N.E.2d 245 (1982).
     No hearing required to transfer motorcycle officers to patrol cars for "poor productivity', even with pay loss. Montgomery Co. Dept. of Police v. Lumpkin, 444 A.2d 469 (Md. App. 1982).
     Seniority not determinative for transfer in absence of law or contract. Hunt v. Dunn, 439 A.2d 240 (Pa. Cmwlth. 1982).
     State police could refuse transfer request to a smaller station due to numerous absences. Hartman v. Connelie, 421 N.Y.S.2d 31 (Misc. 1979).
     See also: Demotions; First Amendment Related; and Transfers - Disciplinary Reasons.
     

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