Law Enforcement Personnel Reporter – Feb 2016

//Law Enforcement Personnel Reporter – Feb 2016

Law Enforcement Personnel Reporter – Feb 2016

2017-04-18T08:31:16+00:00February 3rd, 2016|Legal Updates|Comments Off on Law Enforcement Personnel Reporter – Feb 2016

Fire, Police & Corrections Personnel Reporter

ISSN 0164-6397

An employment law publication for law enforcement,
corrections and the fire/EMT services

Cite this issue as:
2016 FP February

Click here to view information on the editor of this publication.

Access the multiyear Employment Law Case Digest

Some links are to PDF files – Adobe Reader™ can be used to view contents.

CONTENTS

Monthly Case Digest
Disciplinary Punishment – In General
Handicap/Abilities Discrimination – Accommodation in General (2 cases)
Race Discrimination – In General
Retaliatory Personnel Action (3 cases)
Whistleblower Requirements and Protection
Workers’ Compensation – Claim Validity
Wrongful Discharge – In General

Resources

Cross_References

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AELE Seminars:

Use of Force:
Lethal and Less Lethal Force and the
Management, Oversight and Monitoring of Use of Force
– Including ECW Operations and Post-Incident Forensics
In two 2-day modules – Orleans Hotel, Las Vegas
April 4-5 and April 6-7, 2016

Public Safety Discipline and Internal Investigations
Oct. 24-26, 2016 – 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
• Some of our links are to cases on the FindLaw website. Registration is required; no fees.

Disciplinary Punishment – In General

A city terminated a police officer after an internal affairs investigation showed that he had violated portions of the department’s policy manual by his participation in an off-duty brawl in a restaurant parking lot. An intermediate California appeals court upheld the firing as justified by substantial evidence and found no violation of due process. Krause v. City of Westminster, #Go5o513, 2015 Cal. App. Lexis 8594.

Handicap/Abilities Discrimination – Accommodation in General

****Editor’s Case Alert****

A patrol officer underwent two brain surgeries to remove non-cancerous brain tumors, and returned to work. There were allegations at one point that he was accompanying a cocaine dealer to drug deals. After he underwent the second surgery, after his surgeon cleared him to return, the department asked for a psychological evaluation. A neuropsychologist said that he might be “a threat to himself and others.” Placed on unpaid leave, a second neuropsychologist found him fit for duty, but a third disagreed. Two others, who reviewed his file but did not examine him, concluded that he could return to work. The officer himself went to see a professor of neuropsychology at a university, who found that if he were to return to work, his safety with the use of weapons and high-speed driving “would be in question.” The officer kept that report to himself and sued for disability discrimination. A federal appeals court upheld summary judgment for the city, ruling that the evidence showed that the plaintiff was not qualified for the job of patrol officer. Michael v. City of Troy Police Dep’t., #14-2478, 2015 U.S. App. Lexis 21546, 2015 Fed. App. 291P (6th Cir.).

An African-American woman was hired by a county detention center as an administrative assistant hearing officer, with duties that included handling juvenile detainee grievance hearings. During a riot, she had a physical altercation with a detainee, injuring her hands, and going on leave, resulting in a workers’ comp settlement. She was released to return to work with a restriction precluding her from interacting with detainees, which her job duties required. Told to apply for disability benefits, she attempted to return to work and had to be taken from work in an ambulance after Physical Restraint Techniques training and De-escalation training. Ultimately, a hearing officer recommended that she be fired due to more than 10 unauthorized absences, and failure to follow instructions. When she was fired, she sued, claiming to have developed an anxiety disorder and asserting that her firing constituted disability, race, and sex discrimination. A federal appeals court upheld summary judgment for the defendant county. The plaintiff failed to show that she was disabled within the meaning of the Americans with Disabilities Act, as her alleged anxiety disorder only prevented her from interaction with juvenile detainees, which was a requirement of the hearing officer position, but would not interfere with her performing other jobs. She also failed to establish race or sex discrimination. Carothers v. County of Cook, #15-1915, 2015 U.S. App. Lexis 22237 (7th Cir.).

Race Discrimination – In General

A woman filed race discrimination claims against a city on behalf of her late father’s estate. She claimed that he faced race discrimination on the job by being disciplined as a black man working as a mechanic for the city for infractions that white employees were not disciplined for and terminated on pretextual grounds when he complained. A federal appeals court ruled that the plaintiff failed to state a claim under 42 U.S.C. Sec. 1983, but had managed to do so under 42 U.S.C. Sec. 1981 protecting against racial discrimination in the making and enforcing of contracts. Additionally, the trial court erroneously imposed an exhaustion of administrative remedies requirement on the Sec. 1981 when no such requirement existed. Buntin v. City of Boston, #15-1667, 2015 U.S. App. Lexis 22771 (1st Cir.).

Retaliatory Personnel Action

****Editor’s Case Alert****

A police officer sued the city, claiming, among other things, that he faced retaliation, including suspension from a prestigious Crime Reduction Unit, because of his father’s prior lawsuit against the department for race discrimination and retaliation, and his own subsequent joining of that lawsuit. There was sufficient evidence to show that the suspension would not have taken place but for the retaliatory motive. The jury awarded $23,000 in past compensatory damages and $127,000 in future compensatory damages. The trial court set aside the future damages award as unsupported by the evidence. A federal appeals court remanded the part of the trial court’s order vacating the jury’s future damages award, since there was sufficient evidence that the plaintiff would suffer future reputational harm from the retaliatory actions. Zamora v. City of Houston, #14-20125, 798 F.3d 326 (5th Cir.).

A Centers for Disease Control (CDC) employee working in a bio-terrorism preparedness plan claimed that he was fired in retaliation for reporting perceived public health threats. A federal appeals court upheld the dismissal of the plaintiff’s claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b) and 2671 et seq., holding that the FTCA claims were barred by the Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq., which was his sole remedy for his claims. Tubesing v. United States, #15-30347, 2016 U.S. App. Lexis 94 (5th Cir.).

A juvenile detention officer terminated after allegedly using excessive force against a juvenile showed evidence that some employees were terminated for excessive force while others were not, and there was substantial evidence of a genuine issue of material fact as to whether her firing would have occurred but for her exercising her protected rights, such as her involvement in two prior lawsuits resulting in her reinstatement. Summary judgment on the retaliatory termination claim, therefore, was improper. Wheat v. Florida Parish Juvenile Justice Comm’n, #14-30788, 2016 U.S. App. Lexis 45(6th Cir.).

Whistleblower Requirements and Protection

A former IRS agent claimed that he was fired in retaliation for whistleblowing about the Exxon oil company allegedly perpetrating a $500 million tax fraud and IRS agents covering it up. A federal appeals court, however, found that the Merit Systems Protection Board properly dismissed his claim under the Whistleblower Protection Act. He failed to make a non-frivolous allegation of government involvement in Exxon’s purported wrongdoing, and disclosures about purely private wrongdoing were not protected under 5 U.S.C.S. 2302(b)(8) of the statute. Aviles v. Merit Sys. Protection Bd., #14-60645, 799 F.3d 457 (5th Cir.).

Workers’ Compensation – Claim Validity

A county medical records technician suffered a cumulative industrial injury to her neck and right shoulder on the job, requiring surgery and resulting in scarring. The Workers’ Compensation Appeals Board awarded her a permanent disability rating of 70 percent. She sought to rebut that, contending that she would have a greater loss of future earnings because the injury rendered her not amenable to rehabilitation. A California intermediate appeals court rejected this argument, finding that she had produced no real evidence that she was incapable of rehabilitation, but only a vocational expert’s opinion for determining her diminished future earnings showed a higher rating of disability, but this did not comply with any approved method for rebutting the determination. Contra Costa County v. Workers’ Comp. Appeals Bd., A141046, 240 Cal. App. 4th 746, 193 Cal. Rptr. 3d 7, 2015 Cal. App. Lexis 828.

Wrongful Discharge – In General

        A man assigned to work as a court security officer was employed by a federal contractor rather than directly by the U.S. Marshals Service, but the Marshals Service had the power to remove him from his position. When he was fired for allegedly leaving his post when ill without obtaining permission or being relieved, he sued, claiming a violation of his due process rights. A federal appeals court held that the plaintiff did not have a private right of action for violation of his due process rights similar to the type of claim recognized under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, #301, 403 U.S. 388 (1971). Nor was he covered by civil service protections. It found, however, that the trial court erroneously found that it did not have jurisdiction over his claim under the Administrative Procedure Act (APA), 5 U.S.C. 702, which allows a person to bring an equitable claim challenging arbitrary and capricious action of an administrative agency in federal district court and waives the government’s sovereign immunity with respect to such claims. He could therefore pursue his claim that the Marshals Service acted arbitrarily and capriciously in removing him. Atterbury v. U.S. Marshals Service, #14-2805, 805 F.3d 398 (D.C. Cir. 2015).

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RESOURCES

     Workplace Diversity: Diversity in the Workplace, by Anni Lon Foster, Police Chief Magazine (June 2015).

Reference:

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CROSS REFERENCES

Civil Service — See also, Retaliatory Personnel Action (2nd case)
Disability Rights and Benefits — See also, Workers’ Compensation – Claim Validity

AELE Seminars:

Use of Force:
Lethal and Less Lethal Force and the
Management, Oversight and Monitoring of Use of Force
– Including ECW Operations and Post-Incident Forensics
In two 2-day modules – Orleans Hotel, Las Vegas
April 4-5 and April 6-7, 2016

Public Safety Discipline and Internal Investigations
Oct. 24-26, 2016 – Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars
Return to the Contents menu.
Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links .

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John Blackmon

A retired law enforcement officer who now serves as the President of the Fraternal Order of Police Tri-County Lodge #3.
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