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

ISSN 0164-6397

Cite this issue as:2018 FP November

CONTENTS

  • Monthly Case Digest
    • Age Discrimination – General
    • Arbitration Procedures (3 cases)
    • Collective Bargaining
    • Fair Labor Standards Act – Overtime in General
    • Handicap/Abilities Discrimination – In General
    • Handicap/Abilities Discrimination – “Regarded as” Disabled
    • Retaliatory Personnel Actions
    • Union Activity
  • 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

      The issue in this case initiated by the EEOC was whether the contribution rates of the county’s age-based employee retirement benefit plan were permissible based on financial considerations or whether they violated the Age Discrimination in Employment Act. The trial court found that the county violated the ADEA by imposing disparate plan contribution rates based on age. A federal appeals court vacated an order denying the EEOC’s request for retroactive monetary relief from the county. The court ruled that retroactive monetary awards, such as the back pay sought here, were mandatory legal remedies under the ADEA upon a finding of liability. The court’s conclusion was not altered by the county’s contention that the EEOC unduly delayed the investigation. Therefore, the court ordered a determination of the amount of back pay to which the affected employees were entitled under the ADEA. EEOC v. Baltimore County, #16-2216, 2018 U.S. App. Lexis 26644 (4th Cir.).

Arbitration Procedures

       After a police officer was fired for making false statements, his union filed a grievance under a collective bargaining agreement.  An arbitrator determined that there was not just cause for termination and reinstated the officer. The city went to court to commence an action to vacate the arbitrator’s award, arguing that it was contrary to public policy. A trial court judge confirmed the arbitration award. The highest court in Massachusetts upheld this result, ruling that where the arbitrator found that the officer’s statements were not intentionally false and did not lead to a wrongful arrest or prosecution or result in any deprivation of liberty or denial of civil rights, the arbitrator’s award of reinstatement did not violate public policy. City of Pittsfield v. Local 447 International Brotherhood of Police Officers, #SJC-12350, 480 Mass. 634, 2018 Mass. Lexis 688, 2018 WL 4762406 (Mass.).

A deputy county constable who was fired went to court to try to compel the county to participate in a binding arbitration under the terms of a collective bargaining agreement between the county and its deputy constables’ bargaining association. An intermediate Texas state appeals court dismissed the case, ruling that deputy constables were not “police officers” under a state statute and therefore have no right to bargain collectively with their public employers. The Texas Supreme Court reversed, holding that its prior decision in Jefferson County v. Jefferson County Constables Ass’n, #16-0498, 2018 Tex. Lexis 598, in which it held that the Texas Fire and Police Employee Relations Act applies to deputy constables because they qualify as “police officers” under the Act’s definition of that term, resolved the issue presented in this case and required reversal of the court of appeals’ judgment. Stines v. Jefferson County, Texas, #17-0623, 550 S.W.3d 178, 2018 Tex. Lexis 555, 2018 WL 2992605 (Tex.).

An agreement between an association representing San Francisco Police Department (SFPD) officers and the Police Commission gives the Association the right to notice and an opportunity to meet and confer regarding “any proposed change in general orders or other matters within the scope of representation.” The Commission announced that it planned to revise the SFPD’s use of force policy. In response to the Association’s request that the city confer regarding the proposed policy, the city stated that “the policy is a managerial right outside the scope of bargaining” but agreed to meet once the new policy was approved, “to consider negotiable impacts.” A draft policy was prepared. Disagreement remained regarding provisions that prohibited police use of the carotid restraint and strictly prohibiting officers from shooting at moving vehicles.

The Commission adopted the policy. The city met nine times with the Association and then declared an impasse. The Association the filed a grievance, alleging failure to negotiate in good faith. The city concluded that remaining areas of disagreement were management rights, outside the scope of representation, including the prohibition against shooting at moving vehicles and the ban on carotid restraint. The court of appeal affirmed denial of the Association’s motion to compel arbitration. The parties did not agree to subject the city’s determinations regarding the revised use of force policy to arbitration, the court ruled.  San Francisco Police Officers’ Association v. San Francisco Police Commission, #A151654, 2018 Cal. App. Lexis 860, 2018 WL 4611595.

Collective Bargaining

      A federal appeals court granted an employer’s review of an NLRB order finding that it had committed an unfair labor practice by failing to bargain with a union before terminating five correctional employees. The NLRB held that the employer was liable for a substantially longer period of back pay after the parties bargained over the effects of an impasse and then held the impasse was unlawful. The federal appeals court held that the order was not supported by substantial evidence because there was no substantial evidence to support the finding that the parties did not reach a lawful impasse. Therefore, the court remanded to the NLRB to assess more carefully whether the employer’s offer to the union exceeded the required amount. On remand, the Board may find that the employer reached a lawful impasse and therefore owed each employee only two weeks of back pay. Pennsylvania State Corrections Officers Association v. NLRB, #16-1328,  894 F.3d 370 (D.C. Cir. 2018).

 Fair Labor Standards Act: Overtime in General

A federal appeals court upheld the decertification of two related class actions brought under the Fair Labor Standards Act (FLSA) by LAPD officers, alleging a pervasive, unwritten policy discouraging the reporting of overtime. The court held that the officers can appeal a decertification order when they were dismissed from the collective action before final judgment and without prejudice to their individual FLSA claims. The court ruled that opt-in plaintiffs are parties to the collective action, and an order of decertification and dismissal disposes of their statutory right to proceed collectively. Therefore, they had standing to appeal and may do so after the interlocutory decertification order to which they are adverse merges with final judgment. The court also held that the collective actions in this case were properly decertified and the officers properly dismissed for failure to satisfy the “similarly situated” requirement of the FLSA. The court’s review of the record demonstrated that the officers failed, as a matter of law, to create a triable question of fact regarding the existence of a department-wide policy or practice. Campbell v. City of Los Angeles, #15-56990, 2018 U.S. App. Lexis 25951, 2018 WL 4354379 (9th Cir.).

 

Handicap/Abilities Discrimination – In General

  ****Editor’s Case Alert****

A woman worked as a dispatcher for a county sheriff for more than eight years. During that time, she had Hodgkin’s Lymphoma, a form of cancer, which she treated with chemotherapy. The chemotherapy caused neuropathy and scar tissue in her lungs, requiring additional treatment. Because of her diagnosis and treatment, she claimed that her employer treated her differently than the other employees. She sued, claiming violations of constitutional rights under the Fourteenth Amendment to be free from discrimination and retaliation, that the county violated her constitutional rights by not providing adequate supervision and training, violations of the Tennessee Human Rights Act, and violations of the Americans with Disabilities Act (ADA). A federal appeals court ruled that the ADA disability discrimination claim was properly dismissed, since the plaintiff failed to file a claim with the EEOC and therefore did not meet the requirement of exhausting administrative remedies. But the trial court improperly dismissed her claims under 42 U.S.C. 1983. In enacting the ADA, the appeals court held, Congress did not intend to abandon the rights and remedies set forth in Fourteenth Amendment equal protection law, even if disability discrimination was involved. Bullington v. Bedford County, #17-5647,  2018 U.S. App. Lexis 27359, 2018 WL 4579692 (6th Cir.).

Handicap/Abilities Discrimination: Regarded as Disabled

Under the ADA Amendments Act (ADAAA) of 2008, the scope of the ADA’s “regarded as” definition of disability was expanded. Now a plaintiff must show, under the ADAAA, that he or she has been subjected to prohibited discrimination because of an actual or perceived physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In this case, the plaintiff filed a lawsuit against his former employer claiming disability discrimination under the ADA and state law. He asserted that he was fired because of his shoulder injury.  A federal appeals court ruled that the plaintiff established a genuine issue of material fact as to whether his employer regarded him as having a disability. The appeals court also found that the trial court erroneously concluded, as a matter of law, that the plaintiff was not regarded as disabled, and that the plaintiff did not meet the “physical” definition of disability under the ADA. Nunies v. HIE, #16-16494, 2018 U.S. App. Lexis 26221, 2018 WL 4390791 (9th Cir.). While this case involved a private employer, the reasoning would also apply to a public employer under similar circumstances in which the employee was “regarded as” being disabled.

Retaliatory Personnel Action

****Editor’s Case Alert****

       A woman claimed that she was unlawfully retaliated against while employed as a Community Service Officer for the police department. A federal appeals court found that she was fulfilling her professional duty for the police when she spoke at a City Club event about alleged racial profiling. Therefore, because she spoke there as a public employee, and not as a private citizen, her speech was unprotected, and her First Amendment retaliation claim failed. The court also ruled, however, that an amended Last Chance Agreement which plaintiff was required to sign before returning to work was an unconstitutional prior restraint. Paragraph 5(g) of the amended Agreement barred plaintiff from saying or writing anything negative about the Department, the City or its employees. The Amended Agreement by its terms restricted private citizen speech on matters of public concern and therefore failed the Pickering balancing test. Therefore, the amended Agreement restrained the plaintiff’s speech as a private citizen on matters of public concern and the defendants failed to present justifications sufficient to warrant the overbroad restrictions. Therefore, the prospective restriction violated the First Amendment and claims relating to this could continue.  Barone v. City of Springfield, #17-35355, 2018 U.S. App. Lexis 25156,  2018 WL 4211169 (9th Cir.). 

 Union Activity

A police officer involved in union leadership participated in contract negotiations and disciplinary hearings for other officers. Other officers allegedly told him that a man in charge of the township’s personnel matters repeatedly disparaged his union activities. When the township was without a chief, the plaintiff was the department’s senior lieutenant, next in line to become captain.

The township had previously routinely selected its chief from among its captains, and the plaintiff believed that he could be promoted to captain for a short time and then be promoted to chief. Someone else was promoted to chief, however, and the plaintiff stepped down as union president because he “knew” that the man in charge of the township’s personnel issues had a “problem” with his union activities. While the new chief was scheduled to retire shortly, the plaintiff believed that he would never become chief, so he retired.

Suing the township and the personnel manager for discrimination and retaliation, all his claims were rejected. A federal appeals court, however, ruled that the trial court should have analyzed his speech and association claims separately, since his union association deserved constitutional protection. His free speech claim must fail, since he asserted that he was retaliated against because of his union membership, not because of his advocacy on any particular issue.  Palardy v. Township of Millburn, #17-2597, 2018 U.S. App. Leis 26637, 2018 WL 4472957 (3rd Cir.).

RESOURCES

      Federal Prison Policies: Staff Personal Weapons Storage, Program Statement #5575.01, Federal Bureau of Prisons (Sept. 5, 2018).

Reference:

CROSS REFERENCES

First Amendment Related—See also, Retaliatory Personnel Actions

Retirement Rights and Benefits – 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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