Public Safety Labor News

Transcription

1 Public Safety Labor News Index Affirmative Action DESCRIPTION CASE CITATION ISSUE Court reduces Miami s liability for illegal affirmative action plan. Age Discrimination Supreme Court holds state employees cannot bring private age discrimination lawsuits. Americans With Disabilities Act United States v. City of Miami, 195 F.3d 1292 (11th Cir. Kimel v. Florida Board of Regents, 528 U.S. 62 ( Successful ADA plaintiff loses claim for attorney fees. Barnes v. Broward County Sheriff s Office, 9 AD Cases 1341 (11th Cir. Federal appeals court holds that sex, sleeping, and McAlindin v. County of San Diego, 192 F.3d 1226 (9th interacting with others are major life activities. Cir., amended 201 F.3d 1211 (9th Cir. The need for a disability to limit major life activities. Bey v. City of New York, 1999 WL (S.D.N.Y. Burden is on employee to request reasonable Stukey v. City of Naperville, 2000 WL (N.D.III. accommodation under the ADA. Injured firefighter not regarded as disabled for Shipley v. City of University City, 195 F.3d 1020 (8th purposes of ADA. Cir. Appeals court strikes down ability to sue state Stevens v. Illinois Department of Transportation, 210 governments in federal court for ADA violations. F.3d 732 (7th Cir. Inappropriate to disqualify police applicant solely on Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. HIV status. Reasonable accommodation under ADA cannot Rehling v. City of Chicago, 10 AD Cases 589 (7th Cir. supercede collective bargaining agreement. Court holds multiple sclerosis not a disability. Frazier v. Simmons, 90 F.Supp.2d 1221 (D.Kan. Poor judgment is not a disability under the ADA. Bone v. City of Louisville, 215 F.3d 1325 (6th Cir. Employers win more than 95% of ADA cases. No case citation Whither the ADA and the FMLA? The lower courts Kilcullen v. New York State Department of Labor, 205 respond to the new rules on federalism. F.3d 77 (2nd Cir. ; Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir. ; Dare v. California, 191 F.3d 1120 (10th Cir. ; Amos v. Maryland, 178 F.3d 430 (4th Cir. ; Coolbaugh v. Louisiana, 136 F.3d 212 (5th Cir. 1998); Clark v. California, 123 F.3d 1267 (9th Cir. 1997); Lavia v. Commonwealth of Pennsylvania, 224 F.3d 190 (3rd Cir. ; Erikson v. Board of Governors, 207 F.3d 945 (7th Cir. ; Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. No need to convert temporary assignment to permanent job as reasonable accommodation under ADA. Stinson v. City of Baltimore, 2000 WL (D.Md. No right to permanent assignment to rotating position as reasonable accommodation under ADA. Arbitration Decisions City not entitled to treat suspended firefighter as new employee for vacation and sick leave accrual purposes. Hoskins v. Oakland County Sheriff s Department, 227 F.3d 719 (6th Cir. City of Philadelphia, Pennsylvania and Local 22, International Association of Fire Fighters, LAIG 5628 (Spilker,

2 City not allowed to end probation of fire lieutenant who rubbed chief the wrong way. Arbitrator has authority to determine what just cause means. State labor board upholds police arbitration wage award. Bill Of Rights New York s Fire Department Bill of Rights does not apply to criminal investigations conducted by other city agencies. Complaint filed by member of mayor s cabinet subject to police officer bill of rights. Civil Lawsuits Police chief and police officer lose lawsuit against prosecutor. Firefighter has no right to sue employer for faulty equipment. Civil Rights Employees filing civil rights claims do not need to give notice under local tort claim laws. Civil Service Commissions Civil service whacked in Texas, Washington. Collective Bargaining Arbitrator holds City of Portland has no right to open negotiations on certain contract articles. The difficulty in obtaining a waiver of bargaining rights under a contract. Pennsylvania Supreme Court clarifies status of regional police departments. Florida may be poised to reverse long-standing rule forbidding county deputies from bargaining. Union has no right to obtain copy of police chief s employment contract. Court upholds arbitrator s opinion prohibiting City from assigning firefighters to inspect City fire hydrants. Retired firefighters may have claim under collective bargaining agreement. Wisconsin Employment Commission rules that Racine Police Department patrol sergeants are supervisors. Pennsylvania Township ordered to pay interest on the wages awarded by an arbitrator dating back to date of award.. Michigan Employment Relations Commission rules that City of Springfield bargained in bad faith. Wage data not too confusing to union; employer required to produce salary survey. When can a collective bargaining agreement waive an employee s federal right to bring a lawsuit? Bargaining rights for Florida deputy sheriffs heads for Florida Supreme Court. Reasonable accommodation under ADA cannot supercede collective bargaining agreement. City of Wayne, Michigan and Wayne Professional Firefighters Union, Local 1620, LAIG 5612 (Brown, Union Township v. Union Township Professional Firefighters Local 3412, 17 OPER P 1236 (OhioApp. Eugene Police Employee s Association v. City of Eugene, Case No. UP-8-00 (Or. ERB City of New York v. Uniformed Fire Officers Association, 1999 N.Y. Slip Op (A.D. Cleveland Police Patrolmen s Association v. City of Cleveland, 17 OPER P 1237 (OhioApp. van Engelen v. O Leary, 732 A.2d 540 (A.D. Petendree v. City of Yonkers, 704 N.Y.S.2d 646 (A.D. Ford v. Jefferson County, 2000 WL (Ala.App. City of Spokane v. Spokane Civil Service Commission, No III (Wash.App. 21, Wilson v. Andrews, No (Tex. 23, City of Portland and Portland Police Association, (Boedecker, City of Boston v. Labor Relations Commission, No. 97-P (Mass.App. Fraternal Order of Police v. Delaware River Port Authority, 733 A.2d 545 (N.J.App. Service Employees International Union v. Public Employees Relations Commission, 26 FPER P (Fla. Robinson Township Police Association v. Robinson Township, 31 PPER P (Pa. LRB ALJ I.A.F.F. Local 92 v. City of Toledo, 17 OPER P 1190 (OhioApp. Trentacost v. City of Passaic, 26 NJPER P (N.J. Super. Racine Police Association, No (Wis. ERC Cass Township Police Department v. Cass Township, 31 PPER P (Pa. LRB ALJ City of Springfield, 13 MPER P (Mich. ERC Local 382 v. Trempealeau County, Wisconsin, No B (Wis. PERC Alexander v. Gardener-Denver Company, 415 U.S. 36 (1974); Wright v. Universal Maritime Service Corporation, 525 U.S. 70 (1998) Williams v. Coastal Florida Police Benevolent Association, 2000 WL (Fla.App. Rehling v. City of Chicago, 10 AD Cases 589 (7th Cir. 2

3 Composition Of Bargaining Unit Court refuses to sever patrol deputies from bargaining unit which included corrections officers. Constructive Discharge Fire inspector voluntarily resigned from job; not constructively discharged. Discipline Ocean County Sheriff, 26 NJPER P (N.J. Sup. Tipton v. City of Hutchison, Kansas, 68 F.Supp.2d 1239 (D.Kan. Police captain has no standing to challenge discipline in Padovano v. Borough of East Newark, 26 NJPER P arbitration (N.J. Sup. Informant not required to testify against police officers. Boston Police Department v. Mojabi, 2000 WL (Mass. Sup. Discrimination Bilingual deputies allowed to proceed with discrimination lawsuit. Aleman v. Milwaukee County, 35 F.Supp.2d 710 (E.D.Wis. Statement that race and gender taken into account on Herendeen v. Michigan State Police, 39 F.Supp.2d 899 promotions used to support lawsuit. (W.D.Mich. Officer assigned to sweep floor of property room can Boykin v. City of Mobile, 2000 WL (S.D.Ala. bring race discrimination claim. Court upholds police certification examination which Bew v. City of Chicago, 2000 WL (N.D.III. has disparate impact on race. Discrimination cases become a bit easier to prove. Reeves v. Sanderson Plumbing Products, Inc., No (U.S. Appeals court allows unusual reverse discrimination Hunt v. City of Markham, No (7th Cir. case to proceed against police department. Deputy sheriff s lawsuit violates two basic principles of Aratari v. Genesee County Sheriff s Office, 2000 WL discrimination law (W.D.N.Y. San Francisco Jewish police sergeant loses religious Zimmerman v. City and County of San Francisco, 2000 discrimination claim. WL (N.D.Cal Refusing to hire police applicant because of his/her Jones v. City of Mt. Vernon, 114 F.Supp.2d 274 weight is not gender discrimination. (S.D.N.Y. Drug Testing Employer can deny promotion to firefighter who fails random drug test. Due Process City of Corpus Christi, 113 LA 329 (Allen, Weingarten rights do not apply to officers working Pawlowski v. Northeast Illinois Regional Commuter under the Railway Labor Act. Railroad Corporation, 162 LRRM 2037 (7th Cir. Ohio Police Officers Entitled To Attorneys During In The Matter of Civil Service Charges And Walk-Throughs. Specifications Against Piper, 725 N.E.2d 659 (Ohio Sup.Ct. At-will police officers in Tennessee have no right to due Brown v. City of Niota, Tennessee, 214 F.3d 718 (6th Cir. process before losing jobs. National Labor Relations Board extends Weingarten Epilepsy Foundation of Northeast Ohio, 331 NLRB No. rule to non-union employers. 92 ( 10, Officer fails to make case for Garrity violation. State v. Stinson, 2000 WL (Ga.App. No violation of substantive due process when one officer Neal v. Saint Louis County Board of Police accidentally shoots another. Commissioners, 217 F.3d 955 (8th Cir. Due process requires written findings from Civil Service Harrison v. Neumann, 760 So.2d 1015 (Fla.App Board. When is a union representative off duty? Utica Professional Firefighters Association, Local 32, IAFF, 33 NYPER P 3039 (N.Y. PERB Duty Of Fair Representation Police union has duty of fair representation towards probationary employees. Police Officers Labor Council, 12 MPER P (Mich. ERC 3

4 The nature of the duty of fair representation. Duty of fair representation does not extend to civil service hearings. Possible expansion of union s DFR liability for not processing sexual harassment cases. Employment Contracts No obligation of good faith and dealing in employment contract. Equal Protection 21 years later, Court resolves Baltimore Police Department lawsuits over National Guard enlistment policies. Smith v. Local 2928, IAFF, 26 FPER P (Fla. PERC Gen. Counsel ; Huff v. International Union of Operating Engineers, Local 501, 23 PERC P (Cal. PERC ALJ ; Detroit Police Officers Association, 13 MPER P (Mich. ERC Hopkins v. City of Kenosha, Dec C (Wis. ERC Agosto v. Correctional Officers Benevolent Association, 107 F.Supp.2d 294 (S.D.N.Y. City of Midland v. O Bryant, 16 IER Cases 244 (Tex. Fox v. Baltimore Police Department, 201 F.3d 526 (4th Cir. Overweight firefighter loses equal protection claim. Powell v. City of Montgomery, 56 F.Supp.2d 1328 (M.D.Ala. Deputy loses duty of fair representation claim against Oneida County Deputy Sheriff s Benevolent Association, union. 33 NYPER P 3037 (N.Y. PERB Fair Labor Standards Act Mobile, Alabama FLSA case marches on. Freeman v. City of Mobile, Alabama, 193 F.3d 1179 (11th Cir. Supreme Court elects not to overrule Garcia decision in Christensen v. Harris County, 529 U.S. 576 ( deciding comp time case in favor of Texas County. Court rules department allowed to use separate formulas Arnold v. City of Columbia, Missouri, 197 F.3d 1217 to determine overtime rate for police and non-police (8th Cir. employees. Federal claims court issues split ruling in case involving Adams v. United States, 44 Fed.Cl. 772 (Fed.Cl. supervisory Border Patrol agents and the U.S. Border Patrol. Family And Medical Leave Act Whither the ADA and the FMLA? The lower courts respond to the new rules on federalism. Chrittister v. Department of Community and Economic Development, 226 F.3d 223 (3rd Cir. ; Kazimer v. Widmann, 225 F.3d 519 (5th Cir. ; Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. ; Hale v. Mann, 219 F.3d 61 (2nd Cir. ; Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir. ; Cooley v. Mississippi Department of Transportation, 96 F.Supp.2d 565 (S.D.Miss. ; Jolliffe v. Mitchell, 986 F.Supp. 339 (W.D.Va. 1997); Knussman v. Maryland, 935 F.Supp. 659 (D.Md. 1996) Stage is set for Supreme Court to review FMLA issue. Ragsdale v. Wolverine Worldwide, Inc., 218 F.3d 933 (8th Cir. Firefighter s Rule Wisconsin extends firefighter s rule to scenes of automobile accidents. Freedom Of Information Act Assistant fire chief suing fire union allowed to make Freedom Of Information Act request for departmental harassment complaints. Freedom Of Speech Public revelation of firefighter s traumatic childhood and personal relationships not sufficient to trigger First Amendment rights. City potentially subject to First Amendment liability for abolishing entire police department. Pinter v. American family Mutual Insurance Company, 613 N.W.2d 137 (Wis. City of Hartford v. Freedom of Information Commission, 1999 WL (Conn. Sup. Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. Morris v. Lindau, 196 F.3d 102 (2nd Cir. 4

5 Terminated Pomona police officer has right to bring free speech claim. Complaint about racial discrimination protected by First Amendment. Firefighter s speech on local television show protected by First Amendment. Statement by deputy city manager to firefighter that I should just shoot you was not threat, intimidation or coercion. First Amendment protects statements made by prison hearing officer about inmates guilt rate. Speech about manpower shortages and low police morale protected by First Amendment. First Amendment protects police commander s statements that Chief was misusing telecommunications system for his personal use. Corrections department grooming code violates religious freedom rights. Grievance Procedure Challenge to rule prohibiting working on personal property during firefighters work hours held untimely. Grooming Codes Corrections department grooming code violates religious freedom rights. Hostile Work Environment Blair v. City of Pomona, 206 F.3d 938 (9th Cir. Perry v. McGinnis, 209 F.3d 597 (6th Cir. Benson v. Daniels, 89 F.Supp.2d 212 (D.Conn. Cignetti v. Healy, 89 F.Supp.2d 106 (D.Mass. Perry v. McGuinnis, 209 F.3d 597 (6th Cir. Beach v. Olathe, 97 F.Supp.2d 1065 (D.Kan. Bunker v. City of Olathe, Kansas, 97 F.Supp.2d 1241 (D.Kan. Humphrey v. Lane, 728 N.E.2d 1039 (Ohio City of Anadarko, 113 LA 559 (Baroni, Humphrey v. Lane, 728 N.E.2d 1039 (Ohio Gay officer wins hostile work environment case. Quinn v. Nassau County Police Department, 80 FEP Cases 286 (E.D.N.Y. Toilet paper joke not sufficient to establish harassment. Collins v. Maryland state Police, 2000 WL (D.Md. Four relationships between police officers and Sheffield Village, Ohio v. Ohio Civil Rights Commission, dispatchers not enough to establish sexual favoritism WL (OhioApp. Insurance Firefighter not entitled to accidental disability benefits for gradual knee injury. Oregon police officers entitled to uninsured motorist coverage. Legislation California false complaint law only applies to citizen complaints of police misconduct. Light Duty Fire department may not change past practice of allowing extended light-duty to pregnant firefighters. Management Rights Duty to share information does not apply to management rights. Military Service Military leave case yields significant benefits for Minnesota firefighters. Overtime Corrections officer entitled to compensation for time spent in FTO program to become road deputy. Past Practice Fire department may not change past practice of allowing extended light-duty to pregnant firefighters. Branson v. Municipal Fire and Police Retirement System of Iowa, 591 N.W.2d 193 (Iowa City of Salem v. Salisbury, 5 P.3d 1131 (Or.App. San Diego Police Officers Association v. City of San Diego, No. D (Cal.App. City of Rockford, Illinois and IAff, Local 413, LAIG 5651 (Nathan, City of Philadelphia 30 PPER (Pa. LRB Boelter v. City of Coon Rapids, 67 F.Supp2.d 1040 (D.Minn. Farmer v. Ottawa County, 2000 WL (6th Cir. City of Rockford, Illinois and IAFF, Local 413, LAIG 5651 (Nathan, 5

6 Pay Practices Ninth Circuit flip-flops on salary test. City required to pay detective responding to callout from time initial call was made. Pensions Firefighters rights to disability pension do not vest until disability occurs. Employer not entitled to offset pension by safety violation fine. Political Activity Clem v. County of Santa Clara, California, 208 F.3d 1085 (9th Cir. City of Middleton, New York, LAIG 5610 (Douglas, Nonnenmacher v. City of Warwick, 722 A.2d 1199 (R.I. Marquardt v. Milwaukee County, 610 N.W.2.d 496 (Wis.App. Maryland deputy sheriffs may be fired for political Mills v. Meadows, 187 F.3d 630 (4th Cir. affiliation. Virginia deputy sheriff allowed to serve on city council. Bray v. Brown, 521 S.E.2d 526 (Va. Political allegiance not proper job requirement for jailer; attendance at bean dinners not mandatory. Knight v. Vernon, 214 F.3d 544 (4th Cir. Promotional Examinations Court bars disclosure of fire lieutenant oral examination interviews. Probationary employees not entitled to performance evaluations. Public Records Investigation conducted by attorney shielded from public information act. Disciplinary records not purged pursuant to contract can be disclosed under public records law. Performance evaluations not exempt from disclosure under public records law. Public Safety Officers Benefit Program Over 200 families received one-time payment of $146,000 in 1999 through the Justice Department s Public Safety Officers Benefits Program. Retaliation Claims Washington v. Freedom of Information Commission, 1999 WL (Conn. Sup. Clark v. State of Idaho, 5 P.3d 988 (Idaho Harlandale Independent School District v. Cornyn, 25 S.W.3d 328 (Tex.App. State ex rel Dispatch Printing Company v. City of Columbus, 734 N.E.2d 797 (Ohio Town of Ridgefield v. freedom of Information Commission, 758 A.2d 429 (Conn.App. No case citation. For retaliation claim, officer must prove different Turner v. City of University Heights, 1999 WL treatment after filing discrimination complaint. (6th Cir. Police officers lose $8 million judgment on appeal. Breaux v. City of Garland, 205 F.3d 150 (5th Cir. Interference with and retaliation because of union activities. County of Onondaga, 33 NYPER P 4599 (N.Y. PERB ALJ Right To Privacy No privacy violation in observing firefighters urination. When can police compel alcohol test from off-duty officers? Sexual Harassment Court upholds $100,000 sexual harassment verdict in favor of D.C. police officer. Court refuses to dismiss claim that officer committed suicide in response to sexual harassment. Referring to prison psychologist as castrating bitch may not be sexual harassment. Possible expansion of union s DFR liability for not processing sexual harassment cases. Wilcher v. City of Wilmington, Delaware, 60 F.Supp.2d 298 (D.Del. Grow v. City of Milwaukee, 84 F.Supp.2d 990 (E.D.Wis. Cynthia Curry v. District of Columbia, 195 F.3d 654 (D.C.App. Collins v. City of Woodbridge, 96 F.Supp.2d 744 (N.D.III. Kortan v. California Youth Authority, 217 F.3d 1104 (9th Cir. Agosto v. Correctional Officers Benevolent Association, 107 F.Supp.2d 294 (S.D.N.Y. 6

7 Staffing Fire department violates staffing agreement. Fire department fails to comply with manning requirements. Supreme Court Cases Two labor cases on Supreme Court s plate early in term. Termination Police Chief granted all rights of police officer loses job. Officer allowed to attack chief s credibility in disciplinary hearing. Time Off Town required to give extra day off to police officers. Transfers City of Scranton, Pennsylvania and International Association of Fire Fighters, Local 669, LAIG 5639 (Price, City of Leominster, Massachusetts and Leominster Fire Fighters Union, Local 1841, LAIG 5655 (Williams, No case citation Liff v. City of Cocoa, 26 FPER P (Fla.App. Jones v. City of Jennings, 23 S.W.3d 801 (Mo.App. Town of Madison v. International Brotherhood of Police Officers, Local 456, 1999 WL (Conn.Sup. No right to a hearing before transfer. Dobbins v. Count of San Diego, 89 Cal. Rptr. 39 (Cal.App. Tuition Reimbursement Human resources management unrelated to law enforcement Duties. Unfair Labor Practice Union commits illegal end run by sending letter to city council. Refusal to volunteer does not amount to an illegal job action. Pennsylvania State Police held to unlawfully threaten trooper. Threatening litigation in response to grievance amounts to unfair labor practice. Employer has no right to information given by union members to police union president. Employer cannot refuse to meet with police union except in presence of employer s attorney. Court requires City of Philadelphia to assign reinstated officers to full duties and to reissue badges and guns. Uniforms NY Officers win right to parade in uniform. Vacation Leave Illinois Fraternal Order Of Police Labor Council and City of Waterloo, 99-2 ARB 3053 (Eglit, Mentor Patrolmen s Association, 16 OPER P 1486 (Ohio SERB Appeal of the City of Manchester, No (N.H. Pennsylvania State Troopers Association, 30 PPER (Pa. LRB ALJ Fairbanks Firefighters Association, Local 1234, I.A.F.F. v. City of Fairbanks, Case# (Alaska LRA Tacoma Police Union, Local 6 v. City of Tacoma, Decision 6793-A-PECB (Wash. PERC AFSCME, District Council 85 v. Millcreek Township, 31 PPER P (Pa. LRB City of Philadelphia v. Pennsylvania Labor Relations Board, 2000 WL (Pa.Cmwlth. Latino Officers Association, New York, Inc. v. City of New York, No (2nd Cir. What is a day for firefighters? Kenner Fire Fighters Association v. City of Kenner, 742 So.2d 989 (La.App. Appellate Court gives vacation and longevity victories to New Orleans Firefighters Local 632 v. City of New New Orleans Firefighters. Orleans, So.2d (La.App. Wages Conservation officers with $1,883,194 in suit for pay parity with state police. Divided Court rules in City s favor in continuing saga of Fresno wage formula. State v. Hensley, 716 N.E.2d 71 (Ind.App. City of Fresno v. Fresno Firefighters et al, 23 PERC P (Cal.App. 7

8 Workers Compensation Firefighter s workers compensation benefits not offset Green v. City of Wichita, 977 P.2d 283 (Kan.App. by pension. Wyoming police officer not entitled to blood test after Williams v. State of Wyoming, 2 P.3d 543 (Wyo. exposure to suspect s blood. Divided Pennsylvania Supreme Court rejects posttraumatic Davis v. Workmen s Compensation Appeal Board, 751 stress claim filed by police officer. A.2d 168 (Pa. Officer wins battle on definition of stress; loses case. Shealy v. Aiken County, 2000 WL (S.C. The statute of limitations on stress claims. Lexington-Fayette Urban County Government v. West, 2000 WL (Ky.App. The heavy burden of rebutting the presumption that heart disease is job-related. Robertson v. North Dakota Workers Compensation Bureau, 616 N.W.2d 844 (N.D. 8