|
Annual
Employment Law Update |
October, 2003
IACP Legal Officers Section
Chief Assistant
City Attorney
• First Amendment
• Title VII
• ADA
• FLSA
Bennett v. City of Holyoke, 230 F.Supp.2d 207 (D. Mass. 2002) –
Plaintiff police officer, quoted in a local newspaper alleging departmental
abuses in overtime, grant appropriation, treatment of minority workers and
theft, disciplined for violating departmental rule prohibiting public criticism
of department. Plaintiff’s subsequent
submission of a notice to retire was accepted, he was not allowed to withdraw
it on reconsideration and subsequently he sued. Plaintiff’s statements on corruption and discrimination found to
be “public speech” and claim allowed to proceed. See also, Wagner v. City of Holyoke, 241 F. Supp.2d
78 (D.Mass. 2003).
Herts v. Smith, 2003 WL 22283371, 345 F.3d 581, 2003 U.S.
App. Lexis 20339 (8th Cir. 2003) – Subpoenaed testimony in
desegregation case by school system “Director of Equity” (whose contract was
subsequently not renewed) about effect of proposed reorganization on her
position was protected speech under the First Amendment.
Skaarup v. North
Las Vegas, 320 F.3d 1040 (9th Cir. 2003) – Court upheld suspension and
subsequent demotion of Fire Marshal, disciplined for making comments in his
office to two employees to the effect that the Union has sold another employee
“down the river” and further commenting on the deputy city manager’s antipathy
toward women. The Court held on
balance, these comments were more private than public and in any event, the
employer’s desire for good working relationships with the Union and interest in
protecting the good name and reputation of the deputy city manager and the City
itself outweighed any public interest in “bureaucratic infighting.”
Williams v. Seniff, 342 F.3d
774 (7th Cir. 2003) –
African American Assistant Chief was terminated after making a comment in the
media questioning the guilt of a defendant convicted of killing a police
officer. The Court dismissed his First
Amendment claim, finding on balance that any protected interest the speech had
was outweighed by the police department’s need to maintain “appropriate order
and discipline.”
Meaney v. Dever, 326 F.3d 283 (1st
Cir. 2003) – Police officer’s two day suspension for disturbing the peace and
insubordination, following an incident in which the officer, while off-duty,
disrupted the Mayor’s inaugural address by driving a large truck around City
Hall and repeatedly blowing its air horn during the speech, held not to violate
the First Amendment.
Rossignol
v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) – Off-duty sheriff’s deputies,
on election day, purchased 1379 copies of local community newspaper critical of
Sheriff who was up for reelection. The
off-duty deputies used money contributed by the Sheriff and others. The Court held there to be state action and
allowed s. 1983 suit to proceed.
Abrams
v. Walker, 307 F.3d 650 (7th Cir. 2002) – Lawyer stopped for
traffic violation had no constitutionally protected right to dilatory and
disobedient conduct.
Eddings
v. City of Hot Springs, 323 F.3d 596 (8th Cir. 2003) – Exotic
dancer, married to a police officer, sued claiming that her husband’s
co-worker’s visits to the night club where she danced, which had a chilling
effect on her earnings, and her husband’s ultimate termination based on
gambling charges violated her first amendment rights. The Court dismissed her case finding no evidence of injury or
causation.
Dixon
v. Coburg Dairy, 330 F.3d 250 (4th Cir. 2003) – Employee
fired after refusing to remove two confederate flags from toolbox after an
African-American co-worker complained.
Employer first offered to buy him a new toolbox and suggested he express
his flag related views during non-work hours.
Court granted summary judgment to employer and stated that “a state
employer need not go farther than a private employer, however, and provide its
employees with an unrestrained forum for political discourse in the work
environment.”
Title VII
Race
Cotter v. City of Boston, 193 F.Supp.2d 323
(D. Mass. 2002), aff’d in part, rev’d in part, 323 F.3d 160 (1st
Cir. 2003) – Court upheld race-based selection criteria in promotional process
for rank of sergeant. Applying a strict
scrutiny analysis, the Court held that a desire for diversity to assist in
operational objectives did not constitute a compelling interest, but that in
this case, the department was able to justify its promotional decisions based
on a compelling interest in remedying past discrimination.
Cotter v. City of Boston, 322 F.3d 160 (1st Cir. 2003) – Upheld promotion of three
African American police officers to sergeant based on the compelling state
interests of remedying past discrimination.
Reynolds v. City of Chicago, 296 F.3d 524 (7th
Cir. 2002) – Upheld the affirmative-action promotions of black and female
officers to the ranks of lieutenant and captain based on remedying past
discrimination. Also upheld the
affirmative-action promotion of one Hispanic officer based on nonremedial
operational justifications.
Petit v. City of Chicago, 239 F.Supp.2d 761
(N.D. Ill. 2002) – Court upheld police department’s affirmative action
promotions of African-American and Hispanic officers to sergeant on the basis
of the department’s “operational need for diversity.”
Cloud v. Chicago, 2002 WL 1160930, 2002 U.S.
Dist. Lexis 9817 (N.D. Ill. 2002) - $2.3 million award to nine white
firefighters passed over for promotion because of City’s race norming by using
a formula to boost the scores of minority test takers. Previous jury award of $2.2 million to ten
white firefighters with similar complaints.
PBA of New York v. New York City, 310 F.3d
43 (2d Cir. 2002) – Court held that
race-based transfers of police officers into the precinct where Abner Louima
was assaulted violated the Equal Protection Clause of the Constitution,
although suggesting that operational necessity may in some cases constitute a
compelling state interest.
Grutter v. Bollinger, 123 S.Ct. 2325 (2003) –
The Supreme Court upheld the University of Michigan Law School’s “narrowly
tailored use of race in admissions decisions to further a compelling interest
in obtaining the educational benefits that flow from a diverse student body….”
Gratz v. Bollinger, 123 S.Ct. 2411 (2003) –
The Supreme Court held that the University of Michigan undergraduate admissions
policy, which gave every “underrepresented minority” applicant 20 points, or
1/5 of the points necessary to guarantee admission, not to be sufficiently
narrowly tailored to withstand constitutional strict scrutiny.
Altizer v. Roanoke, 2003 WL 1456514, 2003 U.S.
Dist. Lexis 4303, 91 FEP Cases (BNA) 660 (W.D. Va. 2003) – Three white
officers’ case asserting discrimination based on the promotion of lower ranking
black candidate fails based on evidence that they had previously been passed
over for promotion in favor of lower-ranking white candidates.
Williams v. Consolidated City of Jacksonville,
341 F.3d 1261, 2003 U.S. App. Lexis 16678, 92 FEP Cases (BNA) 914 (11th
Cir. 2003) – The Court held that a decision not to create new positions, based
solely upon the race and gender of the next eligible candidates for promotion,
in the absence of a valid affirmative action plan, violates the Equal
Protection Clause.
Williams v. Hansen, 326 F.3d 569 (4th
Cir. 2003) – Police Chief, upon receiving complaints of racial discrimination
against blacks within the department, ordered two high ranking officers to
interview all 68 black officers to determine the existence of any
discrimination. Sued by two of the
black officers interviewed, the Court ultimately reversed the lower court’s
denial of summary judgment for the Chief.
Bell v. Clackamas County, 341 F.3d 858, 2003
U.S. App. Lexis 17041, 92 FEP Cases (BNA) 879 (9th Cir. 2003) –
Black officer, terminated during field training sued for racial discrimination
and retaliation. Proving that his
scores decreased after he complained of discrimination, he prevailed before
jury, which awarded over $1,000,000. A
remittitur ordered by the District Court was reversed by the Court of Appeals.
Mandell v. County of Suffolk, 316 F.2d 368
(2003) – Plaintiff allowed to proceed on his claim that he was denied promotion
based on the police chief’s pro-Christian and anti-Semitic bias.
Endres v. Indiana State Police, 334 F.3d 618
(7th Cir. 2003) – States enjoy 11th Amendment immunity
from suit in federal court for religious discrimination claims, the court held
in two consolidated cases. In one case,
involving a police officer whose religion prohibited gambling, the court held
that the officer’s request to avoid having to work in any casinos “unreasonable
on its face.”
Sex
Durkin v. City of Chicago, 199 F.Supp.2d 836
(N.D.Ill. 2002), aff’d, 341 F.3d 606 (7th Cir. 2003) – Despite
egregious conduct toward female trainee, her failure to utilize the City’s
complaint procedure doomed her claim against her former employer.
Johnson v. Rice, 237 F.Supp.2d 1330 (M.D.
Fla. 2002) – Court granted summary
judgment to Sheriff in sexual harassment case, finding first that the jokes
forming the basis of the complaint did not create an abusive working
environment and secondly that the Sheriff had in place a comprehensive
anti-harassment program constituting a defense under Faragher.
Rogers v. Chicago, 320 F.3d 748 (7th
Cir. 2003) – Female police officer failed to show her work environment was
objectively offensive, the court held, stating that occasional vulgar banter,
tinged with sexual innuendo, of course or boorish workers not sufficiently
egregious to actionable.
Mercer v. City of Cedar Rapids, 308 F.3d 840
(2002) – Court upheld termination of female probationary police officer for engaging
in an adulterous relationship with a permanent police captain, who was not
terminated.
Americans with
Disabilities Act
Doner v. City of Rockford, No. 03-1643, 2003 U.S. App. Lexis 20761,
2003 WL 262514 (N.D. Ill. 2003) –
Police detective, who used a wheel chair for transportation after becoming
afflicted with multiple sclerosis, denied ADA protection. The Court held that the fact that the
officer may not need to engage in physical altercations in his day to day
duties did not diminish the need to possess the ability to do so in the event
of an emergency, and found this ability an essential function of the job of a
police officer.
Shannon v. Sheahan, 2003 WL 366584, 2003 U.S. Dist. Lexis 2468 (N.D.
Ill. 2003) – Courtroom deputy who was unable to walk because of arthritis and a
debilitated knee cannot perform the essential functions of her position and was
therefore not a qualified individual under the ADA.
Brown v. City of Tucson, 336 F.3d 1181 (9th
Cir 2003) – Police detective excused from night time call-out duty as an
accommodation for her depression.
Supervisor’s alleged threat that she stop taking medications and perform
night time call-out or face demotion or forced retirement would, if proven, violate
ADA.
Fountain v. New York State Dept. of Correctional
Services, 333 F.3d 88 (2d Cir. 2003) – Sick leave policy that allows
supervisors to require medical documentation, including a diagnosis for certain
absences must be justified by “business necessity” or it violates the ADA.
Note: The
EEOC has stated in an advisory letter dated 4/15/03 that an employer does not
violate the ADA by requiring a doctor’s clearance for all employees absent
because of illness for three or more consecutive days.
Hernandez v. Hughes Missile Systems Company,
292 F.3d 1038, amended, 298 F.3d 1030 (9th Cir. 2002), cert. granted,
123 S.Ct. 1255 (2003) – Employer’s unwritten policy against rehiring former
employees terminated for misconduct violates the ADA as applied to rehabilitated
drug addicts terminated based on a positive drug screen while employed.
Dent v. City of Chicago, 2003 WL 21801163,
2003 U.S. Dist. Lexis 13417 (N.D.Ill. 2003) – Probationary police officer, who
became ill and almost fainted at the firing range, explaining his illness was a
result of his allergy to pregnant women, was terminated. Plaintiff’s 27 count pro-se complaint
dismissed on summary judgment motion, the Court holding that Plaintiff had not
shown that being allergic to pregnant women significantly restricted a major
life activity.
Family and Medical Leave Act
Nevada Department of Human Resources v. Hibbs, 123 S.Ct.1972 (May 27, 2003) – State may be liable for money damages for
violation of FMLA.
Cavin v. Honda of America Manufacturing, Inc.,
2003 WL 22316812, 2003 U.S. App. Lexis 20722, 2003 FED App. 0366P (6th Cir. 2003) – Denial of FMLA
for failure to comply with internal leave policies provided the employee gave
timely notice violates the FMLA (conflict with the 7th and 10th
Circuits).
Fair Labor
Standards Act
Raper v. State of Iowa, 115 F.3d 623 (1997) –
Federal court held that FLSA action against the state barred by the 11th
Amendment. State court upheld FLSA
exempt status for highway patrol sergeants and lieutenants, but held improper
disciplinary deductions from wages compromised that exempt status during the
period it was improperly applied. Total
liability for state for all FLSA violations may exceed $5 million.
Houston Police Officers’ Union v. Houston, 330
F.3d 298 (2003) – The Court held that
the FLSA does not require a public employer to authorize comp. time usage as
specifically requested by the employee, but does require permission “within a
reasonable time,” upholding a departmental system limiting the number of
officers who could be off at any one time.
Lee v. City of New Orleans, 2003 WL21243567,
2003 U.S. Dist. Lexis 8985 (E.D. La. 2003) - Officer assigned to K-9 unit,
which received one hour off each day for canine care, brought action before the
Civil Service Commission for extra compensation. Three days later, he was transferred to the Tactical Unit. Court held that the one hour of compensation
was inadequate for K-9 care, ordered one extra half hour per day of
compensation, but held that transfer from one specialized unit to another was
not an “adverse employment action”.
Sehie v. City of Aurora, 2003 WL 21730120,
2003 U.S. Dist. Lexis 13051, 8 WH Cases 2d (BNA) 1663 (N.D. Ill. 2003) – Time
spent by a police dispatcher is attending counseling session with a
psychologist required as a condition of retaining her job treated as
compensable (summary judgment denied).
Whitten v. City of Easley, 62 Fed. Appx. 477,
2003 U.S. App. Lexis 6739, 2003 WL 1826672 (4th Cir. 2003) –
Firefighters’ on-call policy not so restrictive as to require payment under the
FLSA as hours worked. Firefighters
carried pagers, were “encouraged” to respond to 80% of the call outs, received
an average of 6 calls per month and were free during their on-call time to
engage in personal pursuits, including dining, shopping, imbibing, and working
part-time jobs.
Harris v. City of Boston, 253 F.Supp.2d 136
(D. Mass. 2003) – Half hour meal break provided to detectives not included as
hours worked for purposes of the FLSA.
Court applied “primary benefit” test and concluded that although
detectives were on call during their lunch breaks, they were rarely called out
during that time (and, if so, were compensated or allowed to reschedule the
lunch). Note that the 9th
and 11th Circuits apply the “completely relieved from duty”
standard, which may produce different results.