Police Personnel Reporter – August 2018

//Police Personnel Reporter – August 2018

Police Personnel Reporter – August 2018

2018-08-09T11:53:45+00:00August 9th, 2018|Legal Updates|0 Comments

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

ISSN 0164-6397

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

Cite this issue as:2018 FP August

CONTENTS

  • Bill of Rights Laws
  • Collective Bargaining
  • Fair Labor Standards Act
  • First Amendment Related
  • Race Discrimination: In General
  • Retaliatory Personnel Action
  • Sexual Harassment (2 cases)
  • U.S. Supreme Court Labor Decisions
  • Resources
  • Cross References

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

 Bill of Rights Laws

     Under the California Public Safety Officers Procedural Bill of Rights Act (Gov. Code 3300), no punitive action may be taken against a public safety officer for any alleged act unless the investigation is completed within one year of “the public agency’s discovery by a person authorized to initiate an investigation,” subject to exceptions.

     One such exception tolls (extends) the time period while the act is also the “subject” of a pending criminal investigation or prosecution. A criminal corruption investigation of SFPD officers began in 2011; search warrants of cellphone records led to the discovery in December 2012 of racist, sexist, homophobic, and anti-Semitic text messages among SFPD officers. Two were convicted for conspiracy to commit theft, conspiracy against civil rights and wire fraud. Three days later (December 8, 2014), the texts were released to SFPD’s Internal Affairs Division (IAD-Admin). After IAD-Admin completed its investigation, the chief of police issued disciplinary charges against respondents in April 2015.

The trial court concluded that the limitations period began in December 2012 when the misconduct was discovered. The court of appeal reversed, concluding that the limitations period did not begin until the text messages were released to IAD-Admin. Before then, the alleged misconduct could not be discovered by the “person[s] authorized to initiate an investigation” under section 3304(d)(1). The limitations period was also extended until the verdict in the criminal corruption case, because the text messages were the “subject” of the criminal investigation under section 3304. Daugherty v. City and County of San Francisco, #A145863, 2018 Cal. App. Lexis 576.

Collective Bargaining 

    A federal appeals court upheld a judgment in favor of a town on a former employee’s claim that it deprived him of his procedural due process rights when it laid him off because it violated the recall provision in his collective bargaining agreement (CBA). The plaintiff, a police dispatcher for thirty-one years, was laid off after the town moved its police department’s dispatch operations to a county sheriff’s department in another city. The jury returned a verdict in favor of the town. It determined that (1) the CBA conditioned an employee’s recall right on the written submission, after layoff, of the employee’s mailing address and telephone number, and (2) that the plaintiff had not contacted the town manager with his contact details after his layoff. The jury’s determination undid the plaintiff’s case because, without a right to recall, there was no deprivation of a protected property interest and no violation of his due process rights. Clukey v. Town of Camden, Maine , #17-1120, 2018 U.S. App. Lexis 17223 (1st Cr.).

Fair Labor Standards Act

     A federal appeals court rejected claims that former sheriff deputies were entitled to pay under either federal or Florida state minimum wage laws for the time that they spent driving to and from work in marked patrol vehicles or donning and doffing police gear. Llorca v. Sheriff, Collier Count, Fla., #17-10616, 2018 U.S. App. Lexis 17627 (11th Cir.).

First Amendment Related

     A former police officer claimed that he was fired after reporting acts of misconduct by his former supervisor in violation of his First and Fourteenth Amendment rights. A federal appeals court upheld the trial court’s grant of summary judgment for the defendants, holding that the supervisor was entitled to qualified immunity on all properly pleaded claims against him, as he had not violated clearly established law and that the plaintiff’s claims against the City were barred by res judicata because of prior proceedings.Sims v. City of Madisonville, #16-20440, 2018 U.S. App. Lexis 17776 (5th Cir.).

Race Discrimination: In General

    A Hispanic police lieutenant asked a mixed race officer why he did not shave his facial hair in compliance with Department policy. The officer’s doctor’s note was deemed inadequate. He had folliculitis, a painful skin condition that most often occurs in black men who shave.

     In further discussions, the lieutenant told the officer that “We don’t back n‐‐‐‐rs up.” When he asked the lieutenant to look at a second doctor’s report or to look at his scars caused by shaving, he responded, “it must be the n‐‐‐‐r in you.” A grievance resulted in a 20-day suspension of the lieutenant.

     The lieutenant was later found not to have engaged in any wrongdoing and was reassigned to Internal Affairs. The officer was passed over for promotion, received two unwarranted notices of infraction, then was bumped from his watch command.  On a retaliation claim, a jury found against the lieutenant and in favor of the employer, awarding the officer one dollar. The court declined to award Robinson attorneys’ fees. A federal appeals court vacated the defendants’ judgment on the plaintiff’s claim for racial harassment. Spangler v. Perales, #16-2291, 2018 U.S. App. Lexis 18067 (7th Cir.).

Retaliatory Personnel Action

     A city employee plaintiff showed that she engaged in protected activity under Title VII when she complained about what she reasonably believed to be a hostile environment and showed that engagement in protected activity caused the city to fire her. In this case, a reasonable jury could find that the city knew or should have known that the plaintiff was complaining about a Title VII violation and that her complaints caused her termination. Therefore, the plaintiff had established a prima facie case of unlawful retaliation, and the trial court’s grant of summary judgment to the city was improper. Strothers v. City of Laurel, Maryland, #17-1237, 2018 U.S. App. Lexis 18417 (4th Cir.). Sexual Harassment      A part-time secretary to the director of a county’s Department of Veteran’s Affairs, claimed that her boss made unwanted sexual advances to her for a period of years. She never reported this conduct because her young daughter had cancer and she depended on the income.     She later learned that on two prior occasions, the Chief County Clerk became aware of her boss’s inappropriate behavior toward other women and reprimanded him.  After both incidents, there was no further action nor was any notation placed in his personnel file. The county terminated her boss when the persistent nature of his behavior toward her was revealed.     She sought to hold her boss liable for sexual harassment, and her former employer, the county, vicariously liable. holding that, in this case, the availability of a defense regarding both elements–whether the county took reasonable care to detect and eliminate the harassment and whether the plaintiff acted reasonably in not availing herself of the county’s anti-harassment safeguards–should be decided by a jury, overturning judgment for the county. Minarsky v. Susquehanna County, #17-2646, 2018 U.S. App. Lexis 18189 (3rd Cir.).

     A corrections officer at a privately run correction facility claimed that a male coworker slapped her on the buttocks. She filed a formal complaint with the company that operates the facility. In the days that followed, he repeatedly rolled his eyes at her and once punched a metal machine in her presence to intimidate her.

She submitted a second complaint, adding that she was afraid he would touch her again, that this was not the first time that he had touched her, and that he stated he could touch her if he wanted to. She conceded that he had never touched her or made any inappropriate comments to her after her complaint. The company’s outside investigator submitted a report finding that he had sexually harassed the plaintiff and other coworkers, and fired him.

     A jury returned a verdict for the plaintiff of $4,000 in actual damages and $100,000 in punitive damages. A federal appeals court upheld the entry of judgment as a matter of law in favor of the company, ruling that the company’s prompt remedial action in response to the plaintiff’s complaints barred liability. Wilcox v. Corrections Corp. of America, #14-11258, 2018 U.S. App. Lexis 17242 (11th Cir.).U.S. Supreme Court Labor Decisions

****Editor’s Case Alert****

     When a union was designated as the collective bargaining agent for a group of Illinois public sector workers, it represented even those employees who did not join the union and was empowered to collect an agency fee from nonmember employees, a percentage of the full union dues to cover union expenditures attributable to activities “germane” to the union’s collective bargaining activities, but which may not cover the union’s political and ideological projects. A non-member of the union that represented him and his fellow public employees, the plaintiff challenged the constitutionality of the state law authorizing agency fees

     The U.S. Supreme Court overruling its holding, in Abood v. Detroit Board of Education #75-1153, 431 U.S. 209 (1977) as inconsistent with First Amendment principles. It ruled that Illinois law compelled non-consenting workers to subsidize the speech of other private speakers and could not be justified by asserted interests in “labor peace,” which can readily be achieved through less restrictive means, or in avoiding “the risk of free riders,” because unions are willing to represent nonmembers without agency fees.

Interests in bargaining with an adequately funded agent and improving the efficiency of the workforce also did not suffice to justify the fee. Unions can be effective without agency fees, the Court found. The union speech at issue did not cover only matters of private concern but covered critically important public matters such as the state’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. The government’s stated interests must, therefore, justify the heavy burden of agency fees on nonmembers’ First Amendment interests. They do not, the Court ruled. States and public-sector unions may no longer extract agency fees from non-consenting employees. Janus v. State, County, and Municipal Employees, #16-1466,  2018 U.S. Lexis 4028

      Cybercrime: Police Chief—Special issue on Cybercrime & Computer-Enabled Crime (June 2018).

 Retaliatory Personnel Action – See also, First Amendment Related

Union Activity – See also, U.S. Supreme Court Labor Decisions

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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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