Police Personnel Reporter – December 2018

//Police Personnel Reporter – December 2018

Police Personnel Reporter – December 2018

2018-12-17T12:10:08+00:00December 19th, 2018|Legal Updates|Comments Off on Police Personnel Reporter – December 2018

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

Cite this issue as:2018 FP December

CONTENTS

  • Age Discrimination – General
  • Bill of Rights Laws
  • Handicap/Abilities Discrimination – Accommodation in General
  • Pay Disputes
  • Privacy
  • Race Discrimination
  • Religious Discrimination
  • Retaliatory Personnel Actions
  • Sex Discrimination

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

Age Discrimination – General

****Editor’s Case Alert****

       The U.S. Supreme Court has ruled that the federal Age Discrimination in Employment Act (ADEA) applies to employers who are a state or a political subdivision of a state regardless of the number of employees the employer has. The case was brought by two firefighters (46 and 56 years old respectively) who were the oldest in their department. They claimed that their termination after a budget shortfall was based on their age, in violation of the statute. The trial court ruled that the employing fire district was too small to qualify as an employer under the statute, which defines employer as “a person engaged in an industry affecting commerce who has twenty or more employees.” The U.S. Supreme Court, however, noted that the statute also includes as an employer “(1) any agent of such a person, and (2) a State or political subdivision of a State” 29 U.S.C. 630(b).

The Court acknowledged that reading section 630(b) to apply to states and political subdivisions regardless of size gives the ADEA broader reach than Title VII, but this disparity is a “consequence of the different language” Congress chose to use. The Equal Employment Opportunity Commission (EEOC) has for 30 years interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the states, the Court stated, also impose age discrimination bans on political subdivisions with no numerical threshold. Mount Lemmon Fire District v. Guido, #17-587, 2018 U.S. Lexis 6639, 2018 WL 5794639.

 

Bill of Rights Laws

      The plaintiff held a career executive assignment (CEA) position as chief of the Criminal Intelligence Bureau, part of the California Department of Justice (DOJ). Assignment by appointment to CEA jobs in the state did not confer any rights or status in the position other than provided in Article 9 of the Government Code, Chapter 2.5 of Part 2.6. The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.” CEA positions are part of the general civil service system, but an employee has no tenure.

The plaintiff’s job was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. However, he had “not good” relationships with state and federal decision makers. The director and deputy director of the state Office of Homeland Security refused to work with him. His superior decided to terminate his CEA position because of his “dysfunctional relationship” with federal and state representatives, and because of the employee’s hostility toward him. After his firing, the plaintiff sued, reciting a long list of grievances, as well as claiming that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by California whistleblower statutes. The Court of Appeal concluded that the Public Safety Officers Procedural Bill of Rights Act (POBRA) protections concerning investigation, interrogation, and administrative appeal did not apply to the termination and that he was not protected as a whistleblower as he did not disclose or report a violation of law. Manavian v. Dept. of Justice, #CO77843, 2018 Cal. App. Lexis 1012.

 

Handicap/Abilities Discrimination – Accommodation In General

A 56-year-old woman worked as a correctional officer until she became injured during fights with inmates. After she worked the maximum number of days of light duty provided for under the terms of a collective bargaining agreement, she was fired because no other suitable position was found for her.  A federal appeals court found that the plaintiff’s prima facie evidence of bad faith supporting her claim of failure to accommodate/disability discrimination was rebutted by the “incontrovertible” evidence that she could not have been reasonably accommodated, as she could not perform the essential duties of her prior job and no other suitable job was available. She similarly failed to show evidence of sex discrimination, and her age discrimination claim also failed because she did not produce evidence of a similarly situated younger person who was treated differently. Faulkner v. Douglas County, #17-1387, 2018 U.S. App. Lexis 28743 (8th Cir.).

 

Pay Disputes

Employees who retired or were separated from positions with the Veterans’ Administration in 1993-99 with accrued but unused leave sued the federal government. They received lump-sum payments for their accrued and unused annual leave and later received supplemental lump-sum payments that reflected statutory pay increases and general system-wide pay increases that became effective before the expiration of their accrued annual leave, as required by the Lump Sum Pay Act (LSPA), 5 U.S.C. 5551-5552

Their lawsuit claimed that the VA omitted increases included Cost of Living Adjustments (COLAs) and Locality Pay Adjustments and that payments made to certain plaintiffs improperly omitted non-overtime Sunday premium pay or evening and weekend “additional pay” that they would have received had they remained on the job. They sought pre-judgment interest under the Back Pay Act, 5 U.S.C. 5596. The claims for additional COLAs, Locality Pay Adjustments, and non-overtime Sunday premium pay were subsequently resolved. A federal appeals court upheld a Claims Court decision that the plaintiffs were not entitled to have evening and weekend “additional pay” included in their payments. They were also not entitled to receive pre-judgment interest on amounts improperly withheld from their lump sum payments.  Athey v. United States, #17-2277, (Fed. Cir.).

 

Privacy

      The plaintiffs, applicants for jobs operating vehicles with a public transportation authority, had each been convicted of drug offenses between 1997 and 2007.  Each of them disclosed their criminal history while applying, as well as authorizing the employer to obtain a background check. They were each denied employment and the employer did not send them copies of their background checks before it decided not to hire them, nor did it send them notices of their rights under the Fair Credit Reporting Act (FCRA), which required the employer to send both before it denied them employment, 15 U.S.C. 1681b(b)(3).

     A federal appeals court upheld the dismissal of claims based on failure to provide notice of FCRA rights. The plaintiffs became aware of their FCRA rights and were able to file the lawsuit within the statute of limitations period, so they were not injured. The court reversed, however, the dismissal of the claim based on failure to provide copies of the consumer reports. The FCRA clearly expresses Congress’s “intent to make [the] injury redressable.” Long v. Southeastern Pennsylvania Transportation Authority, #17-1889,  903 F.3d 312 (3rd Cir. 2018).

 

Race Discrimination

       An employee of a state agency who worked as a rehabilitation counselor claimed that she was denied a promotion to district supervisor because of her African-American race in violation of Title VII. A federal appeals court upheld summary judgment for the employer. While it acknowledged that the plaintiff successfully established a prima facie case of employment discrimination, the employer asserted a justification that was not pretextual. There was no evidence in the record of any discrimination in the promotion decision. The court stated that any difference in qualifications between the two candidates for the job did not create a genuine issue of fact that plaintiff was clearly better qualified for the position. The decision to value the other candidate’s credentials over the plaintiff’s strengths was within the realm of reasonable business judgments. Roberson-King v. Louisiana Workforce Commission, #17-30899, 904 F.3d 377 (5th Cir. 2018).

 

Religious Discrimination

      A county employee claimed that a director of her agency had sexually harassed and assaulted her. After an investigation, the director resigned. After that, the employee’s supervisor, a friend of the resigned director, allegedly retaliated against the employee, who had stated that she could not work on a specific Sunday because she had promised to attend a special church service. The supervisor did not approve the absence, but the employee was not at work that day and instead attended the service, after which she was fired. A federal appeals court rejected her Title VII unlawful retaliation claim, but allowed her religious discrimination claim to move forward, finding genuine disputes of material fact as to whether she held a bona fide religious belief that she needed to attend the service and whether the county would have suffered an undue hardship in accommodating this religious observance. The U.S. Supreme Court denied review of that ruling.

On remand, the defendant county for the first time argued that the plaintiff had failed to exhaust available administrative remedies before suing. The federal appeals court rejected the argument that this alleged failure was jurisdictional, requiring dismissal of the lawsuit, and held that the county had forfeited this defense. Davis v. Fort Bend County, #16-20640, 893 F.3d 300 (5th Cir.).

 

Retaliatory Personnel Actions

An employee of a county probation department sued her employer for discrimination and retaliation. She claimed that two coworkers reacted by threatening her life.  In a new lawsuit, she asserted that a colleague overheard the human-resources director tell the deputy chief “to figure out a way to get [the employee] alone and away from her partner.”

The deputy chief radioed for the employee to join him and another supervisor at an Adult Probation facility to question a probationer. After the questioning, the deputy chief and the probationer left through the back door. The other supervisor then locked the front door and escorted the employee toward the back. Near the back door, the employee claimed to have heard the deputy chief say to someone “Do it to her when she gets out the door,” but nothing happened. After she filed another EEOC charge based on these events, the deputy chief allegedly approached her in the employee parking lot and warned her that “I could hit you and nobody would give a fuck.” The federal appeals court upheld summary judgment for the defendants, finding that the alleged threat to the plaintiff was “too oblique” to support a jury concluding that she was subjected to severe or pervasive harassment. Flanagan v. Office of the Chief Judge of the Circuit Court of Cook County, #16-1927, 893 F.3d 372 (7th Cir.).

 

Sex Discrimination

     A female employee of a juvenile court claimed that her request for a higher salary was rejected on the basis of her gender and race. She sued for wage and sex discrimination based on the Equal Protection Clause and the Equal Pay Act (EPA), and retaliation based on her gender in violation of the EPA, as incorporated into the Fair Labor Standards Act. She was also terminated. A federal appeals court upheld summary judgment for the defendants, holding that the employee had not been able to point to any evidence that showed that the interim county manager’s stated reasons for denying her higher salary request were false and a pretext for racial or gender discrimination. Her direct supervisor’s reason for terminating her was because she was no longer a “good fit” and lacked the leadership skills necessary to successfully implement proposed changes in the juvenile court clerk’s office. She did not show that this was a pretext. Hornsby-Culpepper v. Ware, #17-14301, 2018 U.S. App. Lexis 29532 (11th Cir.).

 

RESOURCES

     Law Enforcement Management: Managing a Changing Workforceby Karen Dietrich, FBI Law Enforcement Bulletin (Oct. 15, 2018).

     Website: Law Enforcement and Corrections Commons. Links to 3,066 full text articles, indexed by topic.

Reference:

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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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