An employment law publication for law enforcement, corrections, and fire/EMT services
Cite this issue as 2018 FP October
- Age Discrimination
- Disciplinary Punishment
- First Amendment Related
- Handicap/Abilities Discrimination: Accommodation in General
- Race Discrimination: In General
- Retaliatory Personnel Action (2 cases)
- Retirement Right and Benefits
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
The Department of Defense was improperly granted summary judgment in an action brought by the plaintiff, a former instructor at the National Defense University’s College of International Security Affairs, under the Age Discrimination in Employment Act. The appeals court ruled that the Department failed to provide a consistent and sufficient explanation for the plaintiff’s discharge, and he provided evidence that a supervisor directly involved in the decision-making process made repeated discriminatory remarks. On this basis, a reasonable jury could credit the plaintiff’s version of events given the evidence that he used to support his prima facie case, the gaps and variations in the College’s offered explanation for the firing, his ultimate replacement by a younger employee, the hiring of several other younger faculty members within the same year as his budgetary termination, and the comments overtly hostile to older employees made by his front-line supervisor who was directly involved in discussions about his termination. Steele v. Mattis, #16-5236, 2018 U.S. App. Lexis 22398 (D.C. Cir.).
A male employee of the Federal Bureau of Prisons was employed since 2007, and received no disciplinary infractions. His evaluations were all satisfactory or higher. While working as a senior corrections officer in 2012, the Office of the Inspector General (OIG) investigated his relationship with two female inmates. The officer was reassigned to a phone monitor position, and was not allowed to interact with the inmates or to work overtime. After a seven-month investigation, it was concluded that he violated several Bureau policies, placed and failed to report calls on his cell phone to a female inmate’s family, engaged in an inappropriate relationship with one female inmate, and showed preferential treatment toward her and one other female inmate. He was also found to have misused his work computer, failed to properly monitor inmates around computers, failed to properly secure his office, and made derogatory remarks to inmates.
The then-warden told the officer’s union representative that he would be given a 30-day suspension. A new warden testified that during their transition meeting, the former warden referred to the officer as a “potential termination.” The officer’s termination was proposed as consistent with the Bureau’s table of penalties and his lack of remorse. The union filed a grievance, emphasizing that 1,265 days had passed between the investigation’s beginning and the officer’s removal. An arbitrator found the removal justified. A federal appeals court agreed, rejecting due process claims. The officer made no claim of prejudice resulting from the delay, and the new warden properly considered the relevant factors. Villareal v. Bureau of Prisons, #17-2275, 2018 U.S. App. Lexis 23958 (Fed. Cir.).
First Amendment Related
A police chief was not entitled to qualified immunity for her actions in terminating an officer for exercising his First Amendment rights in connection with his efforts to organize a police association of members of the police department. The plaintiff’s association and speech rights to engage in the activities he alleged were clearly protected. Mote v. Walthall, #17-30754, 2018 U.S. App. Lexis 24913 (5th Cir.).
Handicap/Abilities Discrimination: Accommodation in General
A sheriff’s deputy asked for a different squad car model after his doctor said he needed one with more legroom to accommodate a hip condition. The employer denied the request and the deputysubmitted EEOC complaints for discrimination in violation of the Americans with Disabilities Act (ADA). Shortly afterwards, the employer reassigned the deputy to courthouse duty, for which he would not need to drive a squad car.
A federal appeals court upheld the rejection of the claims that the employer violated the ADA when it denied his request for an SUV and then wrongfully retaliated against him for making the EEOC complaint. He did not qualify as “disabled” under the ADA and the employer took no adverse employment actions against him. All he really alleged was that he is unable to drive one model of vehicle, which does not affect a major life activity. The transfer to courthouse duty did not result in a pay decrease, other than his diminished opportunity for overtime pay. The plaintiff did offer some evidence that courthouse duty is considered less prestigious but also conceded he knew the transfer was a way for the employer to accommodate his hip pain, an accommodation he requested. “It is the employer’s prerogative to choose a reasonable accommodation.” Koty v. County of DuPage, #17-3159, 2018 U.S. App. Lexis 22755 (7th Cir.).
A former city employee sued the city and other defendants for alleged violations of the Fair Credit Reporting Act (FCRA), in handling a consumer report that she agreed to provide as part of her application for employment with the City. A federal appeals court ruled that the plaintiff lacked standing to bring her claims in federal court. She failed to plead an intangible injury to her privacy that was sufficient to confer standing and there was no well-pleaded allegation that the city acted beyond the terms of her consent. Additionally, her claims of reputational harm, compromised security, and lost time did not establish standing. Auer v. CBCInnovis, Inc., #17-2413, 2018 U.S. App. Lexis 25364 (8th Cir.).
Race Discrimination: In General
****Editor’s Case Alert****
A black police officer who was a potential witness in a prosecution attended a trial preparation session and listened while the lead prosecutor read racially-offensive letters that could be used for trial. When the prosecutor asked if anyone in the trial preparation room was offended, a black assistant prosecutor left but not the police officer. The prosecutor continued reading, repeating the word “Nigga” over and over again. The officer later indicated his objection to listening to the offensive letters being read. Over the next year, tensions grew between the officer and prosecutor, who had decided not to use the officer as a witness in other cases. He told the city manager that he didn’t trust him and that he was “useless.” The city fired the officer, and he sued for discrimination and retaliation.
The officer subsequently sued for racial discrimination because he had to listen to the offensive letters and was not used as a witness. A federal appeals court noted that the officer brought the offensive letters to the meeting and gave them to the prosecutor to review. While the words were offensive, “context matters,” the court said, and preparing for trial was part of the officer’s job. No reasonable employee could believe that exposure to the most odious racial epithets violates Title VII when it is part of the employee’s job in preparing for trial to listen to potential witness statements being read by a prosecutor. Savage v. State of Maryland, #17-1636, 896 F.3d 260 (4th Cir. 2018).
Retaliatory Personnel Action
A woman worked as a 911 dispatcher for the state police for 17 years before leaving the job to move with her husband, who was on active military duty. While she had “outstanding personnel evaluations,” her supervisors had disagreements with her, arising from her earlier lawsuit. She returned to Pennsylvania two years later and reapplied for her job. She was told that she would be hired subject to a background check but ultimately was not offered employment. She claimed that her two former supervisors caused rejection of her application. She filed an administrative charge of gender discrimination, and then filed her initial civil rights action, alleging retaliation.
A federal appeals court upheld dismissal of the lawsuit. She asserted that she was unable to obtain employment in succeeding years because the defendants gave prospective employers “negative, false, and defamatory” statements in response to reference requests and stated that “[she] was not eligible to return.” The trial court held that most of her claims were barred, having been decided in her prior action, and dismissed her retaliation claim. The federal appeals court reversed as to her First Amendment retaliation claim.
The framework for First Amendment claims brought by government employees against their employers did not apply to her claim, the appeals court reasoned, because the speech which she claimed triggered the retaliation—filing administrative complaints and a lawsuit—occurred after she had left her job. While significant time passed between her earlier complaint and the alleged retaliation, the appeals court noted, there is no “bright-line rule” for the time that may pass between protected speech and actionable retaliation. Conard v. Pennsylvania State Police, #16-3346, 2018 U.S. App. Lexis 24368 (3rd Cir.).
A county correctional officer claimed that other employees discriminated against her during her “tumultuous” tenure at a county detention facility. She twice filed formal personnel grievances, and claimed that she was subsequently the victim of retaliation. She was on paid medical leave from September 2012 until March 2014, and she has remained on unpaid leave ever since. While her claims were pending, she took to Facebook to threaten potential witnesses with legal action if they testified against her. The trial judge sanctioned her $17,000 for the threat and eventually entered summary judgment for the defendants. A federal appeals court upheld this result, reasoning that the plaintiff’s grievance regarding scheduling did not qualify as protected activity under Title VII because it did not allege that the employee who made the schedule targeted her because of her race, sex, or other protected characteristic. She further lacked proof that the scheduler ever knew of her earlier grievance, so she could not establish that they harbored the retaliatory motive that was needed for a Title VII retaliation claim. Emerson v. Dart, #17-2614, 2018 U.S. App. Lexis 22530 (7th Cir.).
Retirement Right and Benefits
Retired employees of a state university research lab claimed that during their employment the university promised to provide them with university-sponsored group health insurance in their retirement and that this promise constituted an implied contract term that the university subsequently impaired. Those who retired before 2007 initially received university-sponsored group health insurance after their retirement, funded by the federal government as part of the university’s contract. In 2007, the federal government transferred the management and operation of the lab to a private entity which transferred the retirees’ coverage to its own plan.
The retirees claimed the private entity’s health plan “has significant disadvantages and no comparable new advantages, when compared with the University-provided retiree medical benefit plan,” After initially certifying a class of retirees, the trial court decertified the class. The state intermediate appeals court reversed, ruling that the trial court erroneously assumed that each class member must prove their personal awareness of the offered retiree health benefits and that economic damages were a necessary element to an impairment claim. The retirees’ theory was that their loss of an entitlement to health insurance—since the private entity’s insurance can be terminated at any time—constitutes “substantial impairment” and this presents a common issue. Moen v. The Regents of the University of California, #A153386, 25 Cal. App. 5th 845, 2018 Cal. App. Lexis 675.
Statistics: Full-Time Employees in Law Enforcement Agencies, 1997-2016 by Shelley Hyland, Bureau of Justice Statistics (August 28, 2018 NCJ 251762).
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