2000 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police


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WHAT'S NEW IN THE
WORLD OF
EMPLOYMENT LAW

Legal Officers Section
Annual Conference
International Association of Chiefs of Police

By Jody M. Litchford
Chief Assistant City Attorney
Past Chair, IACP-LOS
Orlando, Florida
November 12, 2000



FIRST AMENDMENT

Mullen v. Port Authority of New York and New Jersey, 100 F.Supp.2d 249 (D.N.J. 1999) - Port Authority regulations provide that "no employee shall commit any act or neglect any duty which in any way is prejudicial to good order, discipline, or efficiency, or reflects unfavorably upon the good name or reputation of the Port Authority or those of the general public, whether or not such act or neglect is specifically mentioned in these rules." Mullen, a police officer with the Port Authority, was criminally charged with several counts related to sexual contact with a child. He ultimately plead guilty to one count of child endangerment and was sentenced to probation. He was then terminated for violation of the cited departmental regulation. Mullen sued the Port Authority claiming the regulation was vague and overbroad. The Court granted summary judgment to the Port Authority, finding that "given the egregious nature of the plaintiff's conduct, there is simply no room for a reasonable person to find that [the regulation] was vague or overbroad as applied to the plaintiff's actions."

Wieland v. City of Arnold, 100 F.Supp.2d 984 (E.D. Mo. 2000) - The City of Arnold Police Department has a regulation prohibiting, "Knowingly associating, on or off duty, with convicted criminals or lawbreakers under circumstances which could bring discredit upon the Department or impair an Officer in the performance of his duty." Lieutenant Wieland had an on-going, off-duty relationship with a woman who was at the time on probation for the felony offense of receiving stolen property. The acting Chief issued Wieland a written order to terminate his relationship with the probationer. Wieland filed suit alleging the order violated his First Amendment associational rights and was unconstitutionally vague and requested a declaratory judgment on that basis. The District Court entered judgment in favor of the City, finding that the order to terminate a dating relationship was "rationally related to the department's legitimate interest in developing discipline among the ranks and respect within the community."

Mercure v. Van Buren Township, 81 F.Supp.2d 814 (E.D. MI 2000) - Plaintiff, a police officer, engaged in a sexual relationship with the wife of his sergeant (the rest of the story: the sergeant and his wife subsequently divorced and the former wife married the Plaintiff). The relationship became known throughout the police department. The Director of Public Safety spoke to the Plaintiff, asking him to end the relationship. Plaintiff refused and was ultimately terminated for violation of the department's conduct unbecoming regulation. He sued alleging a violation of his constitutional rights to free association and privacy. The District Court held that Plaintiff's conduct in the relationship was not constitutionally protected and, moreover, that the decision to discharge him was neither arbitrary, irrational or unreasonable. The Court granted summary judgment in favor of the Township on all federal claims.

Bunker v. City of Olathe, Kansas, 97 F.Supp.2d 1241 (D. Kan. 2000) - Plaintiff, a police captain, received complaints from a multi-state intelligence network telecommunications system regarding his police chief's possible misuse of that system. Plaintiff reported those complaints to the acting City Manager. Subsequently, Plaintiff was disciplined for engaging in open and disrespectful conversations with fellow employees about the Chief. He received a year's probation and was reassigned. He retired early and sued, alleging that his report to the acting City Manager was protected speech for which he had been retaliated against. The District Court held that the report of potential misconduct constituted speech on a matter of public concern. The Court further found that the balancing of interests favored the Plaintiff and denied the Defendant's Motion for Summary Judgment.

Beach v. City of Olathe, 97 F.Supp.2d 1065 (D.Kan. 2000) - Beach, a police officer with the City of Olathe, began providing information to the City Council, the acting City Manager, the District Attorney, other city officials and members of the media concerning police manpower shortages, rumors of theft and corruption, and low morale within the department. The department then began an investigation into Officer Bench's disruption of working conditions and open and disrespectful criticism of other officers. Ultimately, Bench was suspended, and allegedly transferred to a less attractive work assignment, denied career advancement and pay increases, subjected to unjustified disciplinary actions and an overall hostile work environment. He sued the City of Olathe, alleging that these actions occurred in retaliation for his exercise of his free speech rights. The District Court, finding that Bench's speech touched upon matters of public concern, denied the City's motion for summary judgment, and left to trial the balancing of Bench's interest in free speech versus the City's interest in regulating the speech to maintain an effective and efficient working environment.

Cochran v. City of Los Angeles, 222 F.3d 1195 (9th Cir. 2000) - Plaintiffs, two white male officers within LAPD, had a series of problems with a black female lieutenant in their Division. They made complaints to senior department officials. Ultimately, both officers were transferred with negative comments on the paperwork related to the transfers. Both officers sued, claiming career damage because of the exercise of their First Amendment rights. The Court of Appeals overturned jury verdicts of $100,000 and $75,000, finding as a matter of law, although the speech "did concern matters which are relevant to the public's evaluation of its police department" hence protected to some degree by the First Amendment, the LAPD's interest in maintaining discipline by superiors and harmony among co-workers outweighed the officer's interests.

Moorer v. Copley Township, 98 F.Supp.2d 838 (N.D. Ohio 2000) - Plaintiff, a police officer for Copley Township, published an open letter in the local newspaper complaining about the Police Chief's decision to send an officer other than himself to a training school and accusing the Chief of lying. Plaintiff was ultimately given a 60 day suspension and filed suit, alleging the suspension was in retaliation for the exercise of First Amendment Rights. The District Court concluded that the speech was on a personal matter, not a matter of public concern, and hence not protected by the First Amendment. Moreover, the Court held that even had the speech constituted protected speech, on a balancing of interests, the First Amendment interest in calling the Chief a liar is minimal and the Chief's interest in preventing disruption and disharmony outweighs that interest. Summary judgment was granted to the City.

Blair v. City of Pomona, 223 F.3d 1074 (9th Cir. 2000) - After Plaintiff, a police officer, advised his superiors in the department about potential misconduct of fellow officers, and was thereafter subjected to numerous acts of harassment which the department allegedly made little or no effort to curtail. The court allowed the case to proceed to trial, holding that an officer has "the right under the First Amendment to inform his superiors of misconduct in the police department."

McGlone v. Fannin, 98 F.Supp.2d 801 (E.D.Ky. 2000) - After Officer McGlone arrested a friend of the Mayor, he was transferred to day shift. McGlone thereafter made disparaging remarks about the Mayor and was subsequently terminated. The District Court granted summary judgment in favor of the City, finding that the plaintiff's "comments concerned the personal impact that the Mayor's decision had on the Plaintiff. This issue was not a matter of public concern." The Plaintiff's speech was therefore not protected by the First Amendment.

Kuchenreuther v. City of Milwaukee, 221 F.3d 967 (7th Cir. 2000) - The Court of Appeals upheld the District Court's grant of summary judgment to the City, finding that neither the Plaintiff's writing of disparaging comments about a United Arts fundraising campaign on the employee bulletin board nor her critical comments about handcuffing equipment made in a staff meeting addressed matters of public concern.

AMERICANS WITH DISABILITIES ACT

Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) - Plaintiff, a police officer with the Tennessee Capitol Police, applied to the City of Chattanooga to be a police officer. He received a conditional offer of employment which was subsequently withdrawn after Plaintiff revealed during his pre-employment physical that he was HIV positive. The District Court granted summary judgment in the City's favor because the City had relied on the recommendation of their physician in withdrawing the offer. The Court of Appeals reversed on the basis that there was no record evidence that the physician had made an individualized assessment of Plaintiff's ability to perform the functions of a police officer, finding that "a jury could conclude that the City refused to hire him as a police officer because of its unsubstantiated fears of HIV transmission, despite the absence of objective medical evidence that he was physically incapable of performing the essential functions of the position."

Rehling v. City of Chicago, 207 F.3d 1009 (7th Cir. 2000) - Plaintiff, a police officer for the City of Chicago, was injured in an automobile accident resulting in the amputation of one leg. After approximately one year of rehabilitation, Plaintiff requested to return to limited duty in his previously assigned police district. He was initially placed in that unit to help with some clerical functions, however, there was no vacant desk job available for a police officer in that office. Plaintiff was therefore offered one of two assignments in different stations. He failed to accept either, applied for a disability pension and sued the City, challenging among other things, the City's failure to engage in an interactive process to find a reasonable accommodation, as suggested by the EEOC regulations. The Court granted partial summary judgment to the City on the issue of reasonable accommodation. Because the offer of the two desk positions constituted a reasonable accommodation, the Court held that "a plaintiff cannot base a reasonable accommodation claim solely on the allegation that the employer failed to engage in an interactive process…."

Hoskins v. Oakland County Sheriff's Department, 227 F.3d 719 (6th Cir. 2000) - Plaintiff, a corrections deputy, suffered severe injuries in a non-work related accident. Following her recovery, she was permanently unable to restrain inmates. She was terminated from her position, was offered dispatcher or clerical jobs, but turned them down, and sued alleging ADA violations. The Court held that the ability to restrain inmates was an essential function of the corrections deputy position and further that allowing Plaintiff to rely on others to assist her if necessary or assigning her to a position that was normally assigned only on a rotating basis were not reasonable accommodations. Summary judgment was granted to the Sheriff's Department.

EEOC v. Humiston-Keeling, Inc., 54 F.Supp.2d 798 (N.D.IL 1999), aff'd., ____F.3d____(7th Cir. 2000) - Complainant worked in a pharmaceutical company packing items for customer orders. She suffered an injury at work which limited her ability to lift with her right arm. She was accommodated in various fashions, but ultimately was reassigned to a modified version of her old job, which she was convinced she could not perform. She took an extended leave and meanwhile applied for several vacancies within the company. Other candidates were hired for each and after six months, in accordance with company policy, she was terminated. The EEOC sued on her behalf, alleging that the company was obligated under the ADA to reassign complainant to a vacant position so long as she had the minimum qualifications, regardless of whether she was the most qualified applicant. The Defendant, and ultimately the Court disagreed, holding that the ADA is not a "mandatory preference statute."

Ditullio v. Village of Massena, 81 F.Supp.2d 397 (N.D.N.Y. 2000) - Plaintiff, a police officer, permanently injured an eye in an auto accident. Because of these injuries, Plaintiff was returned to work on a desk position. His request to return to patrol duties was denied, and he filed suit. The Court found that the "inability to work as a patrolman pertains to a single, particular job that is insufficient to constitute a substantial limitation in the ability to work." Summary judgment was granted to Defendant on the ADA disability claims (summary judgment was denied on remaining issues of retaliation and state law claims).

TITLE VII (DISCRIMINATION AND HARASSMENT)

Thigpen v. Bibb County, Georgia Sheriff's Department, 223 F.3d 1231 (11th Cir. 2000) - Since 1979, the Bibb County Sheriff's Office had operated under a court approved consent decree requiring 50% of all promotions to be awarded to qualified black candidates. Plaintiffs, two white male police officers, filed a s.1983 action, alleging that continued adherence to this consent decree violated their equal protection rights. The Court of Appeals held that Plaintiffs could assert this claim and further that the standard to be applied to any promotional system based on race is the Croson strict scrutiny standard. Finally, the Court of Appeals held that the District Court's entry and continued supervision of promotions under the consent decree did not shield the Sheriff from liability.

Patrolmen's Benevolent Association of the City of New York v. City of New York, 74 F.3d 321 (S.D. N.Y. 1999) - This case grew from facts originating with the beating and torture of a Haitian, Abner Louima, at the police station for the 70th Precinct in Brooklyn. The 70th Precinct community was then approximately 40% black, 38% white, 14.3% Hispanic and 6.9% Asian. As a result of media attention and citizen demonstrations, the white executive officers in the 70th Precinct were replaced with Black and Hispanic commanders and 35 police officers were transferred to the Precinct, 27 black, 6 hispanic and 2 white. Plaintiffs, 22 black or black/Hispanic officers involuntarily transferred, sued. Race based governmental decisions must meet the strict scrutiny standard (compelling state interest and narrowly tailored remedy). Here, the Court held that "the need for effective law enforcement", even in the absence of prior discrimination, can be a compelling state interest. Case remanded to trial for determination of compelling state interest and narrowly tailored issues on equal protection claims and whether the transfers constituted "adverse employment action" on the Title VII claims (whether Plaintiffs were treated less favorably than others on the basis of their race). The Court specifically held that no BFOQ defense was available to the City in a race-based case.

Garcia v. City of Houston, 201 F.3d 672 (5th Cir. 2000) - In this case, on appeal over attorneys fees issues, the Court of Appeals discusses with approval the lower court finding that testimony of Houston Police Department SWAT supervisors that when considering candidates for transfer to the SWAT team, black race was considered a "bonus" established that race was unlawfully considered in the transfer process. The Defendant prevailed in the case on a mixed-motive defense, but Plaintiff was awarded attorneys fees for the illegal discrimination (by using race as a factor in transfers) part of the case.

Vela v. Village of Sauk Village, 218 F.3d 661 (7th Cir. 2000) - Plaintiff, a female police officer, filed an EEOC complaint alleging sexual discrimination and listing three instances of disparate treatment. After receiving a "right to sue letter", she filed a complaint alleging repeated sexual harassment. The court granted summary judgment, which was upheld by the Court of Appeals, on the grounds that "sexual harassment" of the nature Plaintiff described in the complaint was not encompassed by the "sexual discrimination" charge with only three discrete instances detailed therein.

Desmarteau v. City of Wichita, 64 F.Supp.2d 1067 (D. Kan. 1999) - Summary judgment granted to the City in a sexual harassment case filed by a female police officer who was allegedly harassed by her supervisor, based on the City's anti-harassment policy and prompt action upon receiving Plaintiff's complaint.

FAIR LABOR STANDARDS ACT

Kelly v. City of New York, 2000 WL 1154062 (S.D.N.Y. August 15, 2000) - In three cases, mid level supervisors in the City of New York police and corrections departments filed suit claiming that they were in fact not salaried employees and were therefore entitled to overtime. Basically, the supervisors argued that their pay had been subject to disciplinary deductions for infractions that did not amount to major safety rule violations, the threshold for allowable deductions from exempt employees' salary under the FLSA. The Court identified major safety rules as those involving violations which would pose a danger to the employer's property or to the safety of co-workers. Violations which would create a danger to the public do not fall within the definition. Following this rule, the Court identified the following as major safety rule violations by police officers:

-misclassifying crime reports in a way that made crimes appear less serious

-being absent from an assigned post while on duty

-failing to follow orders or to perform assigned duties, including patrolling in a marked car and responding to radio calls

-using illegal drugs

-reporting to duty while intoxicated

-sleeping while on duty

-threatening, harassing or assaulting a fellow officer

-engaging in certain "corrupt" activities which would endanger fellow officers (such as attempting to coerce a fellow officer into "fixing" tickets)

-losing a service weapon and failing to report it

-interfering with policy authority--in particular, interfering with an attempt to apprehend a suspect

-misusing a service weapon to threaten on-duty officers

-engaging, along with subordinates, in criminal activity while on duty

The Court identified the following as not constituting major safety rule violations by police officers:

-violating responsibilities in the firearms licensing division--i.e. giving some persons preferential treatment

-soliciting bribes or accepting free merchandise

-fraternizing with police recruits

-committing insurance fraud

-driving while intoxicated while off duty

-failing to notify a supervisor when sick

-soliciting a prostitute while off duty

-running an illegal gambling establishment

-cheating on the sergeant's exam

-unauthorized off-duty employment

-arrest for petit theft

The Court found the following to constitute major safety rule violations when committed by a Corrections captain:

-using illegal drugs

-using excessive force against inmates

-denying medical attention to inmates

-improperly discharging inmates

-taking improper security precautions with regard to inmates

-assaulting or harassing other employees

-failing to follow directions, thus undermining the paramilitary structure of the department, necessary to maintain a safe environment

-failing to accurately record arrival and departure time

The Court found the following not to constitute major safety rule violations when committed by a Corrections captain:

-cursing at a superior officer

-filing false tax returns

-being arrested for fraud and assault committed while off duty

-driving while intoxicated while off duty

-violation of sick leave policy

Administrative Letter Ruling, January 29, 1999, Department of Labor, Wage and Hour Division A police department proposed a program whereby officers who wished to work with a youth "Urban Scouting Program" would be allowed, within each 28 day pay cycle, to spend 8 hours of on-duty time in program activities and spend an additional 8 hours in such activities in exchange for compensatory time, which would be treated as "hours worked" for calculation of overtime. The officers would be permitted, but not required, to spend additional "volunteer" time in program activities without further compensation. The DOL opined that any additional hours would not have to be compensated as "hours worked", provided they are truly voluntary and not the result of any departmental coercion or pressure.

Administrative Letter Ruling, April 1, 1999,

Department of Labor, Wage and Hour Division

A City inquired whether its "Parks and Community Services Department" could hire off-duty police officers to provide general security services without having to combine all hours worked (police and security) for purposes of calculating "hours worked" and overtime due. The DOL opined that all hours worked for the City, including hours worked for either department, would have to be combined for overtime purposes. The DOL concluded that security work is not sufficiently different from the officers' regular work to qualify for the "occasional or sporadic" exception applicable when the work is in a different capacity. The DOL went on to note that the rule is different where the off-duty work is for a separate, independent employer.

MISCELLANEOUS

Jordan v. City of New London, 2000 U.S. App. LEXIS 22195 (1st Cir. 8/23/2000) - Plaintiff, a 46 year old male, applied to be a police officer in the City of New London. He scored a 33 on the Wonderlic test, given pre-employment by the department. This test score correlates with an IQ of 120-125. Based on information provided by the test designer, the City disqualified applicants who scored over a 27, on the basis that they would be overqualified and hence become dissatisfied in their job. Despite the fact that statistical evidence showed that this premise was not necessarily true, the Court found the City's belief in the premise not to be "irrational." The Court therefore found that the City's rejection of Plaintiff not to constitute an equal protection violation (based on his age, as alleged in the complaint) and granted summary judgment to the City.

U.S. SUPREME COURT

Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000) - The Court held that Congress exceeded its authority when it subjected States to monetary damages in suits by employees under the ADEA.

Christensen v. Harris County, 120 S.Ct. 1655 (2000) - A county could require deputy sheriffs to use their compensatory time without violating the FLSA.

Reeves v. Sanderson Plumbing Products Inc., 68 U.S.L.W. 4480 (2000) - In an age discrimination case, the Court rejected the "pretext plus" rule, holding that in order to sustain a claim, plaintiff must only establish a prima facie case along with evidence that the employer's asserted reason for taking the action is false. Theoretically, this decision will make it easier for plaintiffs to defeat summary judgment motions and ultimately to prevail in ADEA cases.

Pending Supreme Court cases (cited to ruling below)

University of Alabama at Birmingham v. Garrett, 193 F.3d 1214 (11th Cir. 1999) - Whether state employers can be sued under Titles I and II of the ADA (whether Congress validly abrogated 11th Amendment immunity of the states in passing the ADA).

Circuit City Stores Inc. v. Ahmed, 194 F.3d 1070 (9th Cir. 1999) - Whether the Federal Arbitration Act, which requires the enforcement of valid arbitration agreements, applies to employment contracts.

© 2000, by Jody Litchford. May be reproduced for law enforcement instructional purposes, but not for commercial profit.