An employment law publication for law enforcement, corrections and the fire/EMT services
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2017 FP April
Drug Screening and Specimen Testing
First Amendment Related (3 cases)
Handicap/Ability Discrimination: Accommodation in General (2 cases)
Retaliatory Personnel Action
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MONTHLY CASE DIGEST
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Drug Screening and Specimen Testing
****Editor’s Case Alert****
A lieutenant at a county juvenile detention center was fired for testing positive for cocaine during a random drug test. In a lawsuit against the county, he and a number of his co-workers claimed that the drug test was an illegal search violative of the Fourth and Fourteenth Amendments, as well as breaching their employment contracts. A federal appeals court upheld summary judgment for the defendants, ruling that the drug testing furthered the county’s interest in ensuring the welfare and safety of the detained juveniles, and did not violate any of the plaintiffs’ rights. Their expectation of privacy was diminished as correctional employees and the drug test was minimally invasive, Their Fourteenth Amendment procedural due process claim based on deprivation of property failed because the sheriff’s practices and the county’s personnel policies did not show that they had a protected property interest in continued employment. Washington v. Unified Gov’t of Wyandotte Co., #15-3181. 847 F.3d 1192 (10th Cir. 2017).
First Amendment Related
A former police officer claimed that he was fired for engaging in protected speech at a village board meeting concerning a proposal to lay off up to seven full-time officers. He was the secretary of the local police union, and in his comments presented three alternatives to the layoffs. He asserted that the defendants retaliated by accusing, interrogating, and ultimately firing him under the pretext of unsubstantiated violations of department policy. The defendants denied knowing that the plaintiff even attended the board meeting. They argued that he was legitimately fired because of a number of acts of misconduct. These included an improper traffic stop, two unauthorized, unnecessary, dangerous high‐speed chases, his behavior at and after an awards banquet, alleged reckless driving while off-duty, and violation of a no-contact order during the following investigation. He also allegedly lied when questioned about each of those incidents. A federal appeals court upheld the dismissal of the lawsuit, ruling that the plaintiff had presented no admissible evidence that his termination had been based on retaliation for his exercise of his free speech rights, McGreal v. McCarthy. #16-2365, 2017 U.S. App. 3944 (7th Cir.).
A woman who was fired as a litigation attorney for a county attorney’s office sued the county and a number of its officials. She was terminated after she made a comment to a newspaper reporter about settlement offers in certain lawsuits against the county. Her tortious interference with contract claim failed because the county was the client, and county risk management officials had a legally protected interest in ensuring that the county attorney’s office provided quality legal services to the county. Her First Amendment retaliation claim was rejected by the appeals court, overturning a jury verdict for the plaintiff, because her speech to the reporter fell under the broad set of official duties she owed the county as its attorney since she was “inevitably speaking” as a lawyer representing the county. Her public statements touched on the very matter on which she represented the county, and she did not make any allegation of corruption or other serious misconduct. She did not speak as a private citizen and her comments were not protected speech. Brandon v. Maricopa County, #14-16910, 2017 U.S. App. Lexis 3259 (9th Cir.).
Two police officers claimed that their termination (forced resignation) was retaliation for their exercise of their First Amendment rights after they went to an arrestee’s house and encouraged him to file an excessive force complaint against a supervisor who had made the arrest. A federal appeals court ruled that the police chief was entitled to qualified immunity on this claim. He could reasonably have believed that the officers were acting as police officers rather than private citizens and that their conversation with the arrestee was “surreptitious” conduct intended to foment complaints and litigation against a supervisor with whom they did not get along. The defendant police chief viewed this behavior as a serious threat to the smooth running of the police department and to his own ability to maintain operational control. The court found that he could reasonably have viewed the department’s interest in maintaining discipline as vital, outbalancing any free speech rights. In any event, as the law was not clearly established here, the chief was entitled to qualified immunity, and the appeals court found it unnecessary to decide whether a constitutional violation actually occurred. Crouse v. Town of Moncks Corner, #16-1039, 2017 U.S. App. Lexis 2659 (4th Cir.).
Handicap/Ability Discrimination: Accommodation in General
An employee of a state Department of Health Services had a job answering phones and processing benefit applications. When she filed a form notifying her employer of her chronic back pain, she obtained permission to stand and stretch for five minutes every half hour at work. She later took several leaves of absence, sometimes stating that it was because of her disability, but sometimes giving no reason. She was fired after she failed to return to work when her unpaid contractual and statutory medical leave was exhausted.
Her lawsuit claimed that the employer failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act, 29 U.S.C. 794. A federal appeals court upheld the termination, ruling that she had not shown that she was an “otherwise qualified” employee, as required by the Rehabilitation Act. She had only supplied two terse doctor notes, stating “medical leave of absence until 11/17/10” and “medical leave of absence until 12/17/10,” which did not explain whether she was receiving treatment or the likely effectiveness of any treatment. The plaintiff was not capable of performing the essential functions of her job, because she failed to attend work, and failed to show that she would be able to return to work on a regular basis. Whitaker v. Wisconsin Department of Health Services, #16-1807, 2017 U.S. App. Lexis 3446 (7th Cir.).
Five Los Angeles injured police recruit officers sued the city after they were either fired or constructively discharged when they were unable to get the necessary medical clearances to return to the police academy. A jury decided that the city had unlawfully discriminated against them because of physical disabilities, and failed to provide them reasonable accommodations. An intermediate California appeals court ruled that the plaintiffs could not prevail on a disability discrimination claim under a state statute because they could not meet the fitness standards for peace officers and therefore were not qualified to perform the essential functions of police recruits.
But substantial evidence supported the jury’s verdict that the city’s refusal of temporary reassignment to light duty assignments was a failure to make reasonable accommodations under state law because of the city’s past practice of doing so before the city changed its policy. The city policy of assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled ended while the plaintiffs were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the Department asked them to resign or the Department would terminate them, unless they could get immediate medical clearance to return to the Academy. Past damages were awardable for this failure to reasonably accommodate, but the appeals court agreed with the city that an award of future economic losses based on projected lifetime earnings as police officers was unreasonably speculative, considering the fact that they had completed only hours or weeks of their training. Therefore, the court vacated that portion of the damages award and the trial court’s award of attorneys’ fees and costs. Atkins v. City of Los Angeles, #B257890. 8 Cal. App. 5th 696, 2017 Cal. App. Lexis 115.
An assistant county attorney was fired after she was elected to the city council in a municipality in the county. She sued, claiming that this violated her protection against political discrimination under the First Amendment as well as state law and a county ordinance. Rejecting the First Amendment argument, the federal appeals court stated that prior U.S. Supreme Court rulings make it plain that public employers may prohibit their employees from participating in a wide array of political activities, including running for elective office. The record in the case showed multiple potential points of conflict that could face the plaintiff as a member of the city council and an attorney in the county attorney’s Office. Therefore, the court rejected plaintiff’s First Amendment arguments. Because plaintiff’s termination did not violate the First Amendment, her section 1983 claim was also properly dismissed. The appeals court also held that the state law and county law claims were also properly dismissed, since neither created a private right of action, and neither protected the holding of a public office by a public employee. Loftus v. Bobzien, #15-2164, 848 F.3d 278 (4th Cir. 2017).
An African American female employee of an Arkansas state agency claimed disparate treatment on account of race, and retaliation in terminating her in violation of Title VII, 42 U.S.C. 2000e-2 and 2000e-3(a) six weeks after she filed an Equal Employment Opportunity Commission charge of racial discrimination. On the disparate treatment claim, she argued that she was improperly “disciplined [given a written warning] for something that a Caucasian female employee [who she supervised] did not accomplish.” The appeals court found that this did not allege that the Caucasian employee was not disciplined or received less discipline, thus failing to show disparate racial treatment, so this claim failed. The appeals court concluded, however, that the dismissal of the retaliation claim for having complained of alleged racial discrimination was erroneous where the plaintiff alleged “but-for” causation of her termination. While the factual allegations may also have been consistent with termination for poor performance, they were not an “obvious alternative explanation” that made her retaliation claim “implausible.” Wilson v. Arkansas DHS, #16-1174, 2017 U.S. App. Lexis 3683 (8th Cir.).
Retaliatory Personnel Action
A county forest preserve district police officer, while off-duty, brought champagne to a police station to engage in a New Year celebration. He claimed to have received permission from a sergeant to do so. The next month, the employer initiated disciplinary action against him for this action. According to the plaintiff, he resigned his job after he saw the “handwriting on the wall” when a hearing officer allegedly “upheld the charges” against him. In reality, he claimed, the discipline for involvement in the party was a pretext for retaliating against him because he had previously reported official misconduct within the department including an incident involved racial profiling, and another incident in which he believed a fellow officer had been unjustly disciplined.
The federal appeals court upheld dismissal of his retaliation action under 42 U.S.C. 1983, finding that he did not show that he was disciplined for engaging in constitutionally protected speech, or that he was deprived of a constitutionally protected liberty or property interest without due process. He did not plausibly allege that he made these complaints about official misconduct as a citizen rather than as a public employee speaking pursuant to his official duties since he shared the complaints only with his employer. Roake v. Forest Preserve District of Cook County, #16-2976, 2017 U.S. App. Lexis 2781 (7th Cir.).
****Editor’s Case Alert****
A female county correctional officer claimed that the county sheriff created a sexually hostile work environment by such things as greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12-year period. The trial granted summary judgment for the sheriff and the county.
Reversing the summary judgment, the appeals court found that the sexual harassment claim survived because a reasonable juror could find, from the frequency of the hugs, that the sheriff’s conduct was out of proportion to “ordinary workplace socializing” and had, instead, become abusive. The trial court also completely overlooked legal recognition of the potentially greater impact of harassment from a supervisor, and disregard evidence that the sheriff hugged and kissed other female employees. Even if the sheriff also hugged men on occasion, there were “qualitative and quantitative differences” in the hugging conduct toward the two genders. Accordingly, the court reversed and remanded. Zetwick v. County of Yolo, #14-17341, 2017 U.S. App. Lexis 3260 (9th Cir.).
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Fitness for Duty: Physical and Medical Standards for Newly Hired Correctional Employees, Bureau of Prisons Program Statement 3906.24 (Feb. 24, 2017).
Labor-Management Relations: Police Unions, by Catherine Fisk and L. Song Richardson, George Washington Law Review, Vol. 85, 2017, Forthcoming, UC Irvine School of Law Research Paper No. 2016-47.
Police Management: Embracing the Spiritual Dimension of Law Enforcement, by Cary A. Friedman, FBI Law Enforcement Bulletin (March 2017).
Supreme Court Cases: Supreme Court Cases: 2015-2016 Term, FBI Law Enforcement Bulletin (March 2017),
- Abbreviations of laws, law reports and agencies used in our publications.
- AELE’s list of employment law resources
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First Amendment Related – See also, Political Activity
First Amendment Related – See also, Retaliatory Personnel Action
Retaliatory Personnel Action – See also, First Amendment (1st and 3rd cases)
Retaliatory Personnel Action – See also, Race Discrimination
Search and Seizure – See also, Drug Screening and Specimen Testing