Law Enforcement Personnel Reporter

//Law Enforcement Personnel Reporter

Law Enforcement Personnel Reporter

2016-10-21T10:33:50+00:00September 7th, 2016|Legal Updates|Comments Off on Law Enforcement Personnel Reporter

ISSN 0164-6397

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

Cite this issue as:
2016 FP September

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Monthly Case Digest
Age Discrimination
FLSA – Administrative & Executive Exemptions
Pregnancy Policies and Discrimination
Race Discrimination — In General (3 cases)
Religious Discrimination
Retirement Benefits (2 cases)
Sexual Harassment



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Some of the case digests do not have a link to the full opinion.
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Age Discrimination

A white male terminated county employee claimed that a Hispanic voting block on the County Commissioners Court eliminated his job because of his race, and in retaliation for age-related protected activities while also violating his right to due process. A federal appeals court ruled that he failed to prove his race discrimination claim. He had earlier complained that the county’s health-insurance policy violated the Age Discrimination in Employment Act (ADEA) because it provided dependent health benefit coverage for dependent children of county employees. According to him, older workers were less likely to have children, so the older workers received “fewer County dollars per capita.” This complaint was rejected by the county. The appeals court ruled that the 21 months between his complaint about the health insurance and his termination was too substantial a gap to support an inference of causation. Heggemeier v. Caldwell Cnty., TX, #15-50485, 2016 U.S. App. Lexis 11531, 100 Empl. Prac. Dec. (CCH) P45586, 129 Fair Empl. Prac. Cas. (BNA) 389 (5th Cir.).

FLSA – Administrative & Executive Exemptions

Current and former county fire captains filed suit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-219, claiming that they were entitled to overtime pay. The appeals court rejected an argument that the plaintiffs fell within the FLSA’ s exception for certain executive and administrative employees whose primary duties are management-related. The county failed to submit evidence that would permit reasonable jurors to find by clear and convincing evidence that the plaintiffs’ primary job duties were anything other than first response to emergencies such as fires. The captains, therefore were entitled to overtime compensation. Summary judgment for the plaintiffs was ordered. Morrison v. County of Fairfax, VA, #14-2308, 2016 U.S. App. Lexis 11211, 166 Lab. Cas. (CCH) P36450, 26 Wage & Hour Cas. 2d (BNA) 1103 (4th Cir.).

Pregnancy Policies and Discrimination

****Editor’s Case Alert****

A female corrections officer claimed that she was subjected to a violation of her rights under the Pregnancy Discrimination Act of 1978, 42 U.S.C. 2000e(k),.under the employer’s light duty policy, under which only employees injured on the job were eligible for light duty assignments. Overturning judgment as a matter of law for the defendants, a federal appeals court ruled that a reasonable jury could conclude that it was more likely than not that the policy was motivated by a discriminatory intent, and a reasonable jury could further find that the county’s current explanation, compliance with a state statute concerning light duty for injured employees, was pretextual; Nothing in the state statute prohibited the employer from offering the same light duty accommodation to pregnant employees. Legg v. Ulster Cnty, #14-3636, 820 F.3d 67, 100 Empl. Prac. Dec. (CCH) P45539, 129 Fair Empl. Prac. Cas. (BNA) 37, 94 Fed. R. Serv. 3d (Callaghan) 741 (2nd Cir. 2016).

Race Discrimination — In General

     The state of Texas filed a lawsuit seeking a judicial declaration that an Enforcement Guidance document from the EEOC concerning the hiring of persons with criminal backgrounds violates the Administrative Procedure Act (APA), 5 U.S.C. 701–06. The EEOC enforcement guidance prohibits a categorical ban on hiring convicted felons if the ban had a disparate impact on racial minorities. An appeals court ruled that the Guidance is an agency determination in its final form and is applicable to all employers nation-wide, rather than an intermediate step in a specific enforcement action that may or may not lead to concrete injury. The state had standing to assert its claim. The trial court therefore erred in dismissing the lawsuit, which was ordered reinstated. State of Texas v. EEOC, #14-10949, 2016 U.S. App. Lexis 11735 (5th Cir.).

An African-American employee of the U.S. Department of Labor claimed that the employer engaged in race discrimination when it fired him from his temporary job as a Veterans Employment Specialist. Upholding summary judgment for the employer, a federal appeals court found evidence to support the department’s nondiscriminatory reasons for the termination: that it terminated him because his performance was deficient and his demeanor was argumentative in response to supervisor feedback. No reasonable jury could find that these were not the real reasons, and there was no evidence to support a conclusion that race played a role in the decision. Johnson v. Perez, #15-5034, 823 F.3d 701, 100 Empl. Prac. Dec. (CCH) P45559, 129 Fair Empl. Prac. Cas. (BNA) 237 (D.C. Cir.).

     Various Massachusetts municipal and state employers, in selecting police officers for promotion to sergeant in 2005 and 2008 adapted a test previously developed by a state agency that was an attempt to eliminate race and other improper considerations from employment decisions. Black and Hispanic applicants who were not promoted claimed that the test resulted in an unjustified “disparate impact” in violation of Title VII. Upholding a trial court judgment for the defendants, a federal appeals court ruled that the test was a valid selection tool and that the plaintiffs failed to show that there was an alternative valid selection tool that could have been utilized which would have resulted in a higher percentage of Black and Hispanic officers being promoted. The use of rank ordering furthered the defendants’ interest in eliminating patronage and intentional racism, which was a reasonable enough business need, given that there was no showing that rank order selection itself caused any disparate impact. Lopez v. City of Lawrence, Massachusetts, #14-1952, 823 F.3d 102, 100 Empl. Prac. Dec. (CCH) P45561, 129 Fair Empl. Prac. Cas. (BNA) 182 (1st Cir.).

Religious Discrimination

****Editor’s Case Alert****

A police officer claimed that department officials violated his freedom of religion by allegedly holding a group prayer during an official meeting and subsequently assigning him to non-law enforcement duties as punishment for his non-participation. A federal appeals court ruled that, if the facts were as described by the plaintiff, the defendants were not entitled to qualified immunity on an Establishment Clause claim. It was clearly established law that the prayer was state-sponsored during the official meeting and that ordering the officer, against his will, to stand nearby while his colleagues engaged in a prayer, and then humiliating and punishing him for non-conformance, constituted religious coercion. Marrero-Mendez v. Calixto-Rodriguez, #14-2030, 2016 U.S. App. Lexis 13178 (1st Cir.).

Retirement Benefits

A retired California city manager sued to challenge a decision of the California Public Employees’ Retirement System (CalPERS) that significantly reduced his expected retirement benefit. An intermediate California appeals court agreed with the trial court that the greater base salary in the plaintiff’s March 2007 employment agreement did not qualify as his pay rate for the purpose of calculating the amount of his retirement benefit because that salary was not paid pursuant to a publicly available pay schedule. As a result, the plaintiff had no right to have his retirement benefit calculated based on that greater base salary. Tanner v. CalPERS, #C078458, 248 Cal. App. 4th 743, 2016 Cal. App. Lexis 520.

A man who worked for many years for the Customs and Border Protection service participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He applied for a retirement annuity. By law, his retirement annuity had to reflect his highest average annual pay, calculated on the basis of three consecutive years. Calculations for a customs officer such as the plaintiff should also include overtime pay up to a maximum of $17,500. The Office of Personnel Management (OPM), did not include anything close to $17,500 in overtime pay although the plaintiff claimed that he received more than $17,500 in overtime pay in the years in question. The Merit Systems Protection Board (MSPB) upheld the OPM’s calculation. A federal appeals court vacated the ruling, noting that the record i was internally contradictory about what overtime pay the plaintiff received, but that neither the OPM or the MSPB sought further information, such as pay stubs, that might definitively resolve the issue. Further proceedings were therefore required. Grover v. Office of Pers. Mgmt., #15-3160, 2016 U.S. App. Lexis 12978 (Fed. Cir.).

Sexual Harassment

A female municipal court clerk sued for quid pro quo and hostile environment sexual harassment as well as retaliation. She sought $323,027.35 in damages. A jury found in her favor only on the hostile work environment claim, awarding only $5,000 in damages. The attorneys’ fees were calculated by the court as $94,612.50, but the award of fees to her as a prevailing plaintiff under Title VII were then reduced to $25,000, or five times the amount of damages awarded. The trial court believed that it was constrained by prior case law to reduce the attorneys’ fee award to less than 6.5 times the damage award. The federal appeals court and damages may be considered in determining a reasonable fee, but prior cases did not impose “a per se proportionality requirement” of less than 6.5 times the amount of damages. A new calculation of the appropriate fee award was therefore ordered. Combs v. City of Huntington, #15-40436, 2016 U.S. App. Lexis 13049 (5th Cir.).

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     Computer Security: Growing Risk of Data Sabotage: Protecting Law Enforcement Agencies, by Michael Gregg, FBI Law Enforcement Bulletin (July 2016).

     Spiritual Survival Tools: Value of Spiritual Survival Tools for Law Enforcement Officers, by Cary A. Friedman, FBI Law Enforcement Bulletin (July 2016).

     Statistics: State and Local Law Enforcement Training Academies, 2013, by Brian A. Reaves, Bureau of Justice Statistics (July 21, 2016 NCJ 249784).


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Attorneys’ Fees — See also, Sexual Harassment
Light Duty Assignments — See also, Pregnancy Policies and Discrimination
Promotional Rights, Procedures Performance Appraisals — See also, Race Discrimination — In General (3rd case)
Race Discrimination — In General — See also, Age Discrimination
Retaliatory Personnel Action — See also, Age Discrimination

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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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