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CHAPTER 6 – EMPLOYMENT LITIGATION

Article 6-30

FED: AGE DISCRIMINATION – REQUIREMENT THAT ALL DEA SPECIAL AGENTS BE 37 OR YOUNGER WHEN HIRED DOES NOT VIOLATE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

On

Oct. 20, 2009, in Paula Albert, et. al v. Eric Holder, Attorney General of the United States, 2009 U.S. Dist. LEXIS 96770, a U.S. District Court Judge for the Eastern District of Michigan, dismissed the lawsuit by seven Drug Enforcement Agency employees who had applied to become Special Agents, but were rejected because they were each over the age of 37 when they applied. They are employed as inspectors and other non-law enforcement positions.

The Court described the special status of Law Enforcement Officers (LEOs) in the Drug Enforcement Administration:

"Special Agents, because of their LEO status, are entitled to enhanced benefits that Diversion Investigators are not. For example, Special Agents are eligible for retirement at age 50 with 20 years of service, 5 U.S.C. § 8336(c), and supplemental pay, 5 U.S.C. § 5305. Special Agents, as LEOs, are also subject to a maximum initial entry age authorized by statute. See 5 U.S.C. § 3307. The maximum initial entry age statute, however, does not apply to Diversion Investigators, as they are not LEOs. DEA employees' classification as LEO or non-LEO is, thus, determinative of significant employment conditions and benefits. *** The Department of Justice (DOJ) established a maximum age of 37 for initial entry into LEO positions within the DEA, including the Special Agent position. (Def.'s Mot., Ex. E.) Because Plaintiffs were older than the maximum initial entry age, their applications for Special Agent were denied."

The ADEA was enacted to protect employees age 40 for age discrimination:

"Congress passed the ADEA in 1967 to combat improper treatment of federal employees on the basis of age. The statute currently states, in part, that ‘[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a)."

However, Congress enacted other legislation that allows Federal agencies to impose an age limit on new hires of law enforcement officers:

"In 1974, Congress enacted Public Law 93-350 amending 5 U.S.C. § 3301 et seq. with respect to the retirement of certain law enforcement personnel. This statute was a ‘major piece of legislation designed to enhance the "youth and vigor" of federal law enforcement.’ Stewart v. Smith, 673 F.2d 485, 487 (D.C. Cir. 1982). Along with provisions on mandatory retirement, 5 U.S.C. § 8335(b), and incentives for early retirement, 5 U.S.C. § 8339(d), Public Law 93-350 provided federal agencies employing LEOs the authority to set maximum initial entry ages for appointment to those law enforcement positions. Specifically, 5 U.S.C. § 3307 provides:

(d) The head of any agency may determine and fix the ... maximum limits of age within which an original appointment may be made to a position as a law enforcement officer ..., as defined by section 8331 (20) [CSRS] ...

(e) The head of an agency may determine and fix the maximum age limit for an original appointment to a position as a ... law enforcement officer, as defined by section 8401(17) [FERS] …5 U.S.C. § 3307 (emphasis added)."

Congress has subsequently lifted most mandatory retirement ages, but it did not alter mandatory retirement ages for law enforcement officers (LEOs), nor did it alter the authority of agencies to have age limits on hiring law enforcement agents:

"In 1978, Congress amended the ADEA when it enacted the Age Discrimination in Employment Act Amendments of 1978. The 1978 amendments eliminated most federal maximum age limits, however, it left untouched the mandatory maximum retirement age limits for LEOs. The amendments also left, undisturbed, federal agencies' authority, under 5 U.S.C. § 3307, to set maximum initial entry age limits for LEO positions."

Plaintiffs also claimed they were misclassified by the DEA, and that they should have been classified as LEOs. The Court rejected this claim, and referred them to the Office of Personnel Management appeal process.

Legal Lessons Learned: Many states have also enacted statutes imposed minimum age for hiring of career firefighters who will be in the state pension program. Increasingly, such statutes have come under attack. For example, the Montana Supreme Court, on Aug. 11, 2009 in Steven Jaksha v. Butte-Silver Bow County held that the Montana statute which disqualified those over 34 from original appointment as a County firefighter was unconstitutional. The Court held unanimously that the statute violated the Equal Protection Clause of the Montana Constitution, particularly in light of the fact that in 1985 the State Legislature repealed the mandatory retirement age of firefighters. The Court wrote, "While the working life of a firefighter who begins work at age 35 or later may be shorter than that of an individual who begins at an earlier age, this does not in any way imply or demonstrate that public or firefighter safety would be compromised." http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/sll_fn_home.html; see also www.firehouse.com, Aug. 13, 2009, "Montana Court Overturns Firefighter Age Limit."

Article 6-29

PA: AMERICAN FLAG PATCHES ON FD LOCKERS - U.S. CODE SPECIFICALLY ALLOWS FLAG PATCH ON FIREFIGHTER UNIFORMS

On October 19, 2009, a Chester City, PA firefighter was reinstated after his suspension for two day without pay for refusing to remove all postings on his locker, including an American flag patch. The Fire Commissioner and the IAFF reached a sensible resolution; they would follow the U.S. Code provisions on display of the flag.

http://cms.firehouse.com/content/article/printer.jsp?id=66218;

According to an Oct. 24, 2009 story in the Philadelphia Enquirer, the Fire Commissioner, who is an African American, had earlier ordered all items removed from the lockers in response to a racially charged cartoon that had been posted by an African-American FF on his own locker.

"Over the summer, Robert Butler, 48, a 15-year veteran, posted a cartoon on his locker that depicted two black minstrel characters and included a racial slur. Butler, who is black, said he posted the cartoon as a protest against the department's union leadership, who he says have targeted him for discipline."

http://cms.firehouse.com/content/article/article.jsp?id=66320§ionId=46.

The U.S. Code, Title 36, Section 176, "Respect for flag"provides in part:

"No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart."

http://www.usflag.org/uscode36.html#176 .

Although the U.S. Code does not include does not specifically include a firefighter’s locker, in many stations these lockers can be observed by members of the public touring a fire station. Putting a flag patch on a locker, properly aligned, appears to be in keeping with the "spirit"of the 1942 statute. The opening sentence of Section 176 provides:

"No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor."

Legal Lessons Learned: It is appropriate to have a FD policy which regulates items placed on FD lockers, particularly items that are racially charged. An American flag patch, however, does not appear to violate the spirit of the U.S. Code provision on "Respect for the flag."

Article 6-28

NEW YORK: TWO FORMER VOLUNTEER FIREFIGHTERS MAY SUE FOR RETALIATION – MADE COMPLAINTS TO OSHA AND STATE SAFETY AGENCY – FEDERAL JUDGE COMMENTS ABOUT FD ACTING LIKE "FIVE YEAR OLDS"

On Sept. 2, 2009, in Joel Shanks and Ricky Shanks v. Village of Catskill Board of Trustees, et al,

a federal judge on the U.S. District Court for the North District of New York, 2009 U.S. Dist. LEXIS 79018, denied the FD’s motion to dismiss the lawsuit. Former volunteer firefighters Joel Shanks and Ricky Shanks may proceed to trial on their First Amendment retaliation claim that the Village of Catskill FD terminated them because they reported safety violations to OSHA and to the NYS Public Employee Safety & Health Bureau (PESH).

The Court made the following unusual comment in its opening sentence:

"This First Amendment retaliation action presents another example of what happens when grown men act like five year olds."

On Oct. 4, 2005, Joel Shanks made an anonymous report to OSHA and PESH of multiple safety violations, including:
• Outdated aerial ladder inspection;
• Lack of safety equipment;
• Firefighters with facial hair wearing SCBAs;
• Outdated equipment;
• Lack of training and standards;
• Failure to follow OSHA standards.

Thereafter the plaintiffs allege they suffered immediate retaliation, including comments by a Village Board member and a Fire Department Chairperson – if they find out who filed the complaint, they were "going to take care of business." Oct. 26, 2005 investigation by PESH, a Lieutenant said that whoever made the complaint would be fired. The volunteer Fire Chief allegedly said if he became a paid village fire chief, he would "throw out the scumbag Shanks boys."

Joel Shanks filed a harassment complaint with PESH in Jan. 2006; he also filed another anonymous complaint with PESH, alleging additional safety violations:
• Improper vehicle maintenance;
• Unqualified operators;
• Unrepaired equipment;
• Falsification of paperwork;
• Outdated aerial ladder inspections.

Harassment: Joel Shanks alleges that firefighters would park outside his home and yell insults, and blast air horns and sirens late at night. [Numerous other alleged acts of retaliation are described by the Court. Since these are mere allegations, they are not reported here.]

Court refuses to dismiss the lawsuit – First Amendment Retaliation – "Balancing test"by U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968).

A. First Amendment Retaliation Standard

"[A] public employee may establish a First Amendment retaliation claim against his governmental employer under 42 U.S.C. § 1983 upon proof that: (1) his or her speech was constitutionally protected; (2) he or she suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action."

If these three factors are satisfied, the government may still avoid liability if it makes one of two showings. The government may either (1) demonstrate by a preponderance of the evidence that it would have taken the same adverse action regardless of the protected speech, or (2) show that the plaintiff's expression was likely to disrupt the government's activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First Amendment expression." [Footnotes and case citations deleted.]

***

1. Protected Speech

"The First Amendment protects a public employee's speech only when it is made as a citizen on matters of public concern rather than as an employee on matters of personal interest.

In the present case, Joel Shanks reported various Company safety violations to OSHA and PESH in October of 2005, as described above. Ricky Shanks did the same in January of 2006. Defendants concede that these complaints clearly qualify as speech on matters of public concern under the First Amendment."

2. Adverse Employment Action

"In the present instance, the verified complaint paints a picture wherein plaintiffs have been subjected to a sustained, systematic course of verbal harassment, threats, ostracism and generally demeaning behavior in order to drive them out of the Company. Further, each of the firefighter defendants, and many of the Company and Village Board defendants, allegedly took part in or failed to stop this behavior."

3. Causation

"The last showing which must be made for a plaintiff to establish a First Amendment retaliation claim is a causal relationship between the protected speech and the adverse employment action. *** Accordingly, plaintiffs have adduced sufficient evidence to allow a jury to reasonably find that defendants' adverse actions were motivated by retaliatory animus."

4. Government Justification

"Under the Pickering test, a government employer may fire an employee for speaking on a matter of public concern if (1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech."

"In applying this balancing test, courts may consider whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.

***

"Here, defendants invoke the Pickering balancing test and rely on two cases - Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17 (2d Cir. 1979) and McClernon v. Beaver Dams Volunteer Fire Dept., Inc., 489 F. Supp. 2d 291 (W.D.N.Y. 2007) - in contending that their actions were justified due to their interest in maintaining an "esprit de corps" among the Company firefighters. The court cannot agree."

"In Janusaitis, the volunteer firefighter plaintiff was terminated after he threatened to inform the IRS of accounting irregularities within the fire department, indicated he would sue after such threats led to his suspension, threatened to run a negative newspaper article on the department, and eventually did publish such an article. See Janusaitis, 607 F.2d at 18-19. Subsequently, the plaintiff filed a First Amendment retaliation claim, which the district court dismissed. Id. at 25. On appeal, the Second Circuit affirmed, finding that "[t]he appellant's use of threats and his impatience with the process of investigation and correction threatened institutional efficiency by the manner, time and place in which it was delivered." Id. at 26."

"Similarly, in McClernon, the volunteer fire chief plaintiff sent a letter to various government officials, agencies and surrounding departments complaining that those departments had received grants despite the fact that they didn't need the money or had misappropriated funds. See McClernon, 489 F. Supp. 2d at 292-94. Thereafter, the plaintiff was terminated upon a finding that his letter had a "detrimental impact" on the department and its relationship with neighboring departments, and a First Amendment retaliation claim was correspondingly filed. Id. at 295. In dismissing such claim, the district court found defendants' termination of the plaintiff was justified "on grounds that the plaintiff's speech was damaging to the Department and detrimental to the functioning of the Department," and because "the purpose of the letter was not to expose public wrongdoing or corruption, but instead, served as a vehicle for [the plaintiff] to express his frustration that his department had again been passed over for receipt of grant money." Id. at 296-97."

"The facts of this case differ greatly from those present in McClernon and Janusaitis. Here, defendants point to no evidence indicating plaintiffs made openly abrasive complaints or threats to members of the Company or other departments. Rather, plaintiffs' safety complaints were made anonymously to OSHA and PESH, which indicates a desire to maintain harmony within the Company. This weighs heavily against the defendants. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (finding firefighter's complaints about gender discrimination and closed department meetings were not so abrasive or disruptive as to justify termination). Further, insofar as plaintiffs' speech addressed the adequacy of Company training and the integrity of Company equipment, it touched on matters of far greater public concern than complaints about accounting practices or the disbursement of grant money. Indeed, plaintiffs' complaints went to the very heart of the Company's ability to effectively and safely perform its public function. Finally, while there is certainly evidence that plaintiffs would not be welcomed back into the Company, defendants have presented no evidence that the regular operation of the Company was significantly disrupted by plaintiffs' speech. See id. at 58-59."

"Thus, given the great public concern of plaintiffs' speech, the non-abrasive manner in which it was made, and the relatively slim evidence of Company disruption resulting there from, the court finds that defendants' interest in maintaining an esprit de corps did not outweigh plaintiffs' exercise of free speech. Additionally, even if the court were to assume that plaintiffs' speech caused a significant disruption in the functioning of the Company, there is, as discussed above, a plethora of evidence indicating that defendants' adverse action was not in response to such disruption, but rather in retaliation for plaintiffs' speech. See Locurto, 264 F.3d at 166-67 (stating "even if the Pickering balance is resolved in the employer's favor, the employee may still demonstrate liability by proving that the employer disciplined the employee in retaliation for the speech, rather than out of fear of the disruption’ (internal citations and quotation marks omitted).’ Accordingly, defendants' motion for summary judgment on plaintiffs' First Amendment retaliation claim is denied." [Citations and footnotes omitted.]

Legal Lessons Learned: FDs must be very cautious when disciplining a member who has made an OSHA or other safety complaint. Firefighters should also be cautious in their public criticism of their FD; in 2006 the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S 410 (2006) held that when public employees make statements pursuant to their official duties, the Constitution does not insulate their communication from employer discipline.

Article 6-27

PA – SUBROGRATION - CITY POLICE OFFICER WAS OUT OF WORK FOR 9 YEARS AFTER ON DUTY COLLISION WITH COUNTY VEHICLE – OFFICER REACHED SETTLEMENT IN LAWSUIT AGAINST THE COUNTY - CITY HAS A RIGHT TO REIMBURSEMENT FOR WAGES AND MEDICAL EXPENSES PAID TO OFFICER

On April 23, 2009 in George V. Cole v. City of Wilke-Barre, 323 F.3d Appx. 109, 2009 U.S. App. LEXIS 8777, the U.S. Court of Appeals held that the City does have a right of subrogation under PA statutes.

The Court described the facts:

"Cole was severely injured in 1996 when a Luzerne County vehicle struck his police cruiser. He was unable to return to work for nine years. During those nine years, the City paid Cole HLA [PA Heart & Lung Act; effective replaced workers comp with continuing wages and medical coverage] benefits totaling $425,945.69. Meanwhile, Cole also sued Luzerne County for the injuries he had suffered. While Cole's personal injury action was pending, he filed a voluntary petition for Chapter 7 bankruptcy. Robert Sheils, Jr., the appellee, was appointed trustee for Cole's bankruptcy estate. In 2005, the United States Bankruptcy Court for the Middle District of Pennsylvania approved a settlement of Cole's personal injury action according to which the trustee received $ 495,000."

The Court described the purpose of subrogation:

"We agree ... with the purpose of subrogation as stated in Pennsylvania case law:

"[T]he rationale for the right of subrogation is threefold: to prevent double recovery for the same injury by the claimant, to insure that the employer is not compelled to make compensation payments made necessary by the negligence of a third party, and to prevent a third party from escaping liability for his negligence . . . . [S]ubrogation is just, because the party who caused the injury bears the full burden; the employee is made 'whole,' but does not recover more than what he requires to be made whole; and the employer, innocent of negligence, in the end pays nothing.’ Hannigan v. Workers' Comp. Appeal Bd. (O'Brien Ultra Serv. Station), 860 A.2d 632, 635 (Pa. Commw. Ct. 2004) (internal quotations omitted).

Legal Lessons Learned: Firefighters and EMS, prior to filing a lawsuit against a motorist who injured them, should discuss with their attorney whether their public employer may have a right of subrogation.

Article 6-26

OHIO: RESIDENCY - SUPREME COURT OF OHIO AGAIN RULES AGAINST CITIES WITH FIREFIGHTER / POLICE RESIDENCY REQUIREMENTS

On August 20, 2009, the Supreme Court of Ohio struck down the residency requirements for firefighters and police in Toledo (Slip Opinion No. 2009-Ohio-4117), Cleveland (Slip Opinion No. 2009-Ohio-4118, and Dayton (Slip Opinion No. 2009-Ohip 4119).

This is consistent with the Court’s June 10, 2009 opinion striking down City of Lima and City of Akron residency requirements in Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-259. The Court in those cases held:

"We conclude that R.C. 9.481 is constitutional and, therefore, that municipalities may not require their employees to reside in a particular municipality, other than as provided in R.C. 9.481(B)(2)(b)."

The Ohio General Assembly had the authority to enact legislation that overturned the ordinances of 125 cities and 13 villages requiring police & firefighter to reside in that political subdivision. The statute provides:

9.481 Residency requirements prohibited for certain employees.

(A) As used in this section:

(1) "Political subdivision" has the same meaning as in section 2743.01 of the Revised Code.
(2) "Volunteer" means a person who is not paid for service or who is employed on less than a permanent full-time basis.

(B)(1) Except as otherwise provided in division (B)(2) of this section, no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.

(2)(a) Division (B)(1) of this section does not apply to a volunteer.

(b) To ensure adequate response times by certain employees of political subdivisions to emergencies or disasters while ensuring that those employees generally are free to reside throughout the state, the electors of any political subdivision may file an initiative petition to submit a local law to the electorate, or the legislative authority of the political subdivision may adopt an ordinance or resolution, that requires any individual employed by that political subdivision, as a condition of employment, to reside either in the county where the political subdivision is located or in any adjacent county in this state. For the purposes of this section, an initiative petition shall be filed and considered as provided in sections 731.28 and 731.31 of the Revised Code, except that the fiscal officer of the political subdivision shall take the actions prescribed for the auditor or clerk if the political subdivision has no auditor or clerk, and except that references to a municipal corporation shall be considered to be references to the applicable political subdivision.

(C) Except as otherwise provided in division (B)(2) of this section, employees of political subdivisions of this state have the right to reside any place they desire.

Effective Date: 05-01-2006

Legal Lessons Learned: Firefighter residency requirements in Ohio must now be in compliance with this 2006 statute.

Article 6-25

OHIO: OHIO ATTORNEY GENERAL – COUNTY EMA DIRECTOR CAN ALSO SERVE AS MEMBER OF CITY COUNCIL

On March 23, 2009, the Ohio AG issued opinion 2009-010 to the Butler County Prosecutor. The full opinion can be read: http://www.ag.state.oh.us/legal/opinions/2009/2009-010.pdf.

The facts are as follows:

"You have requested an opinion whether the positions of director of a countywide emergency management agency (CEMA) and member of a charter city legislative authority are compatible. For the reasons that follow, a person may serve simultaneously in these two positions, provided no local charter provision, resolution, ordinance, or departmental regulation prohibits such simultaneous service and the person, as a member of the legislative authority, abstains from participating in any deliberations, discussions, negotiations, or votes concerning the making of contributions of public moneys to the CEMA."

Ohio General Assembly has authorized this:

"Although conflicts of interest may arise between the positions in question, the General Assembly has authorized a member of a city legislative authority to serve as the director of a CEMA. R.C. 5502.26(A) states, in part, that ‘[t]he director/coordinator of emergency management may be an official or employee of any political subdivision entering into the countywide agreement, except that the director/coordinator shall not be the chief executive of any such political subdivision.’ "

Legal Lessons Learned: This Ohio AG opinion is helpful to EMS Directors.

Article 6-24

OHIO: ATTORNEY GENERAL OPINION – TOWNSHIP FIRE CHIEF DOES NOT HAVE AUTHORITY TO SIGN CONTRACT OR MOU FOR MOBILE COMMUNICATIONS EQUIPMENT TO BE PUT ON CITY OWNED VEHICLE – TOWNSHIP TRUSTEES MUST APPROVE

On May 13, 2009, the Ohio AG issued an opinion letter to the Greene County prosecutor concerning mobile communications equipment. Full opinion can be read:

http://www.ag.state.oh.us/legal/opinions/2009/2009-013.pdf.

The facts are as follows:

"[T]he fire chief proposes to enter into a memorandum of understanding with the fire chief of an adjacent municipality which would result in a township owned generator and radio equipment being installed in a vehicle provided by the other jurisdiction. This memo of understanding, which would be signed by the township fire chief without the specific approval of the board of township trustees, provides that the township would retain all ownership interest in all of the township’s equipment which could be removed by the township upon termination of the agreement. The city-owned vehicle would be housed by the township and made available to the municipality owing the vehicle and to other local jurisdictions upon request as a mobile communication center. Both the municipality contributing the vehicle and the township would share in the cost of the maintenance of the radio equipment, generator and vehicle."

Regarding a contract, the Ohio AG concluded:

"Therefore, R.C. 505.37(B) does not authorize a township fire chief and the legislative authority of a municipal corporation to take joint action to establish a mobile communication center for fire-fighting purposes."

Regarding a MOU, the AG concluded:

"Therefore, in response to your final question, a township fire chief may not enter into a memorandum of understanding with officials from a municipal corporation whereby township fire equipment is installed in a motor vehicle of the municipal corporation. A township fire chief may, however, participate in the preparation of such a memorandum of understanding."

Legal Lessons Learned: Township Fire Chief needs approval of Township Trustees to establish a mobile communications center with a nearby municipality.

Article 6-23

U. S. SUPREME COURT: IDAHO CAN LAWFULLY ENACT A STATUTE PROHIBITING PUBLIC EMPLOYEES FROM ATHORIZING PAYROLL DEDUCTIONS FOR UNION POLITICAL ACTIVITIES

On Feb. 24, 2009, in Ysursa, Secretary of State Of Idaho v. Pocatello Education Association, the U.S. Supreme Court held (6 to 3), http://www.supremecourtus.gov, that Idaho’s "Right To Work Act" which permits public employees to authorize payroll deductions for general union dues, but prohibit such deductions for union political activities, does not violate the unions’ First Amendment rights.

The Idaho "Right To Work" statute was amended in 2003. Prior to 2003, employees could authorize a payroll deduction for both general union dues and for union political activities. Violations of the 2003 statute were punishable by a fine of up to $1000 or up to 90 days in imprisonment, or both.

The federal district judge upheld the ban at the Idaho state-level of government for state employees, but held it was unconstitutional regarding local-level of government employees. The U.S. Court of Appeals agreed. The U.S. Supreme Court reversed, and upheld the Idaho statute at all levels of public employees.

Chief Justice Roberts wrote the majority opinion, holding:

"The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote the speech by allowing employee checkoffs for political activities. Such a decision is reasonable in light of the State’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity."

Legal Lessons Learned: This decision may encourage other states to enact similar legislation.

Article 6-22

U.S. SUPREME COURT: ARBITRATIONS – COLLECTIVE BARGAINING AGREEMENT WHICH REQUIRED ALL CLAIMS OF DISCRIMINATION GO TO ARBITRATION IS CONSTITUTION - BUILDING GUARDS WHO WERE DISPLACED BY LICENSED SECURITY PERSONNEL CANNOT FILE LAWSUITS CLAIMING AGE DISCRIMINATION

On April 1, 2009, in 14 Penn Plaza LLC v. Pyett, the U.S. Supreme Court held (5 to 4), http://www.supremecourtus.gov., that if an employer and union enter into a Collective Bargaining Agreement (CBA) that clearly and unmistakably require all union members to arbitrate claims of discrimination, including claims of age discrimination arising under the ADEA [Age Discrimination in Employment Act of 1967], then these employees may not file age lawsuits in federal court.

Justice Thomas wrote the majority opinion. He wrote that the New York City union for the building-services industry, Service Employees International Union, Local 32BJ, includes building cleaners, porters and door persons. Since the 1930s, they have negotiated industry-wide CBAs with the Realty Advisory Board on Labor Relations. The CBA requires all claims of discrimination be submitted to the CBA’s grievance and arbitration provisions.

14 Penn Plaza LLC is a member of the Realty Advisory Board. In August 2003, with Local 32BJ’s concurrence, Penn Plaza retained Spartan Security Company to supply licensed security guards for the lobbies of their many office buildings. The former unlicensed night guards were reassigned as night porters and light duty cleaners – and they claim this led to a loss of income and caused them emotional distress. Local 32BJ filed grievances on their behalf, and when the grievances were denied, Local 32BJ initially asked for binding arbitrations. The Local then withdrew these requests:

"Because it had consented to the contract for the new security personnel at 14 Penn Plaza, the Union believed it could not legitimately object to [the unlicensed night guards’] reassignments as discriminatory."

Arbitrations did proceed on claims of breach of seniority rights and overtime, but these claims were denied after several arbitrations. In May, 2004, these non-licensed security personnel then filed a claim with the federal Equal Employment Opportunity Commission (EEOC). The EEOC found no violate of the ADEA and issued them a 90-day right to sue letter. A lawsuit was then filed in U.S. District Court in New York. Penn Plaza filed a motion to dismiss the lawsuit and compel arbitration. The trial court refused to do this, and the Board filed an appeal to the U.S. Court of Appeals in New York, which confirmed it could not compel arbitration since the ADEA provides all the right to sue in federal court. Penn Plaza then sought an appeal to the U.S. Supreme Court, which agreed to hear the case.

The majority held that these non-licensed night guards were bound by the CBA – there sole remedy was through the CBA grievance / arbitration process. The employees claimed that the arbitration clause in the CBA is unenforceable and should not have been in the CBA because it affects the employees’ "individual, non-economic statutory rights."

Justice Thomas, writing for the majority, flatly rejected that argument:

"We disagree. Parties generally favor arbitration precisely because of the economics of dispute resolution…. As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer."

Legal Lessons Learned: In the Fire Service, unions must be very careful about language in a CBA regarding arbitration as the sole remedy for claims of discrimination.

Article 6-21

OH: OHIO SUPREME COURT DISMISSES CINCINNATI POLICE UNION APPEAL – ASSISTANT POLICE CHIEFS CAN NOW BE HIRED FROM ANYWHERE IN COUNTRY BASED ON AMENDED CITY CHARTER PASSED BY VOTE OF CITY RESIDENTS

On Jan. 28, 2009 in Queen City Lodge No. 69, Fraternal Order of Police v. State Employment Relations Board, the Ohio Supreme Court (7 to 0) issued a one-line order, "Appeal dismissed as improvidently accepted."

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-20

WV: RESIDENCY – ORDINANCE REQUIRING "IMMEDIATE" TERMINATION OF FIREFIGHTERS AND POLICE – LAWFUL BECAUSE CITY MUST ALSO PROVIDE PRE-DISCIPLINARY HEARING

On Sept. 30, 2008, in Jason Eastham v. City of Huntington, 2008 W. Va. LEXIS 72, the Supreme Court of Appeals of West Virginia, upheld the residency requirement since no civil service employee may be terminated without a pre-disciplinary hearing.

Jason Eastham is a firefighter with the City of Huntington.  On Dec. 13, 2006, he and a police officer filed a lawsuit seeking a declaratory judgment that the residency ordinance was a breach of the West Virginia code for civil service employees. The city’s Charter, as modified in 2002, requires all employees to reside in the city within ninety days of their appointment.  Violations "shall result in immediate discharge from the City service."

On Jan. 22, 2007, a Circuit Court judge declared the residency provision void and unenforceable because it violates the rights of civil service employees to a pre-disciplinary hearing.

The city filed an appeal, and asserted that its residency requirement should be read as preserving the right to a pre-disciplinary hearing.   

The Supreme Court agreed:    Municipalities in West Virginia may enact residency requirements pursuant to West Virginia Code 8-5-11 (1969).      The court concluded that in reviewing the City of Huntington’s residency ordinance, "we believe that it is reasonable to construe the ordinance as preserving the pre-disciplinary hearing guaranteed by our laws.  Although the ordinance provides for ‘immediate discharge,’ it contains no language that expressly or unambiguously precludes a pre-disciplinary hearing for those employees who fail t prove residency."

Legal Lesson Learned:  Unlike Ohio, where the General Assembly has removed residency requirements, in West Virginia municipalities may establish residency requirements.  The West Virginia court had little difficulty in "reading into" the ordinance a due process requirement.

Article 6-19

OHIO – RESIDENCY - CITY OF DAYTON ORDINANCE UNENFORCEABLE - FIREFIGHTERS AND POLICE MAY LIVE IN THE COUNTY OR IN NEIGNBORING COUNTIES

On May 30, 2008,  in Dayton v. The State of Ohio, et. al, 176 Ohio App.3d 469, 2008-Ohio-2589, the Ohio Court of Appeals for Montgomery County, held (2 to 1) that the City of Dayton cannot require its full time employees, including firefighters, to reside in the city limits.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-18

Larry's Legal Lessons: Retaliation Suits by Employees Expected to Increase
Recent court decisions open the door - 08-14-2008

Article 6-17

MICHIGAN – CITY OF DETROIT - MANAGEMENT HAS RIGHT TO PROCEED WITH LAYOFFS, DEMOTE BATTALION CHIEFS AND RESTRUCTURE THE FIRE DEPARTMENT WITHOUT COLLECTIVE BARGAINING - UNLESS THERE IS PROOF OF SERIOUS SAFETY RISK - CASE REMANDED TO CIRCUIT COURT JUDGE FOR SAFETY HEARING

On July 23, 2008, the Michigan Supreme Court in Detroit Fire Fighters Association IAFF Local 344 v. City of Detroit, 2008 Mich. LEXIS 1404, held (6 to 1) held that a preliminary injunction was improperly issued by a Circuit Court judge preventing the City from implementing a layoff in 2005 of 65 firefighters, demotion of 10 battalion chiefs, reduction of number of battalions from 8 to 5, and shut down engine / ladder companies in a restructuring plan. The Michigan Supreme Court ruled, “Here, not only did the circuit court fail to resolve the safety claims on the merits, it entered what amounted to a permanent injunction without applying the traditional injunctive standards.”

The Collective Bargaining Agreement in effect from 1998 – 2001 specifically provided that “ the City reserves the right to lay off personnel for lack of work or funds….” When the CBA expired in 2001, the parties were unable to reach agreement on a new contract. In Dec. 2002, the Local invoked compulsory arbitration under Michigan Act 312 (MCL 423.236). The statute requires that an arbitrator hold a hearing within 15 days, conclude the hearing within 30 days, and then issue a written opinion within 30 days. The Local and the City waived the expedited procedures, and the “binding” arbitration process has been on going for the past 5 years.

The City of Detroit’s serious budget shortfalls resulted in Detroit announcing in September, 2005 layoffs of 65 FF, and demotion of 10 battalion chiefs, and deactivation of five engine and ladder companies. Local 344 filed suit in Wayne Circuit Court on September 12, 2005, seeking a preliminary injunction. The Local argued that this was a safety issue, and also that the City’s unilateral implementation of the restructuring plan violated Michigan law (under Article 312 of Michigan law, parties are required to maintain the “status quo” during binding arbitration).

The circuit judge held a series of hearings, and issued an injunction on Oct. 17, 2005, based on the concern for the safety of the FF. The judge directed the arbitrator in the binding arbitration proceedings to determine if safety concerns were meritorious. The arbitrator on October 27, 2005 reported to the trial judge that he lacked jurisdiction to make such a decision. The judge on Oct. 30, 2005, following another hearing, granted another preliminary injunction, ruling that there continues to be “a serious question of fact as to whether or not [the restructuring plan] would have an impact on fire fighter’s safety, or indeed upon working conditions or working hours.”

The City filed an appeal to the Michigan Court of Appeals, which ruled in 2006 for Local 344, holding that the layoffs would affect the “safety of working conditions for firefighters” and therefore the proposed layoffs and restructuring plan “are mandatory subjects of bargaining.”

The City filed an appeal to the Michigan Supreme Court, which agreed to hear the appeal. Following oral argument before the Court by attorneys for both sides, the Court ordered the parties to file supplemental briefs. The Court then ordered second round of oral arguments.

The Michigan Supreme Court reversed the Court of Appeals, and vacated the preliminary injunction of the Circuit Court judge. The majority held that the Circuit Court judge failed to make any findings about whether firefighter safety was in fact at risk. “Given the magnitude of a decision to restrain an employer’s exercise of a management prerogative [to layoff personnel], this level of uncertainty in a circuit court ruling is untenable.” The case has therefore been sent back to the circuit judge for further hearing on the safety issue.

LEGAL LESSONS LEARNED: This decision will be closely read by municipalities facing budget problems throughout the nation.

Article 6-16

MICHIGAN – CITY OF PONTIAC MAY PROCEED WITH LAYOFFS- MICHIGAN SUPREME COURT HOLDS THAT JUDGE IMPROPERLY GRANTED PRELIMINARY INJUNCTION WITHOUT PROOF OF IMMEDIATE RISK OF SAFETY

 On July 23, 2008, the Michigan Supreme Court held in Pontiac Fire Fighters Union Local 376 v. City of Pontiac (4 to 3), 2008 Mich. LEXIS 1403, that a Michigan Circuit Court judge “abused [his] discretion” when he issued a preliminary injunction on June 30, 2006, preventing the City from laying off firefighters.

The city planned to layoff 28 of 117 firefighters (Associated Press, July 23, 2008). The Michigan Supreme Court held that Local 376 failed to introduce sufficient evidence when seeking a preliminary injunction in 2006 showing “irreparable harm.” The trial judge issued the injunction based on the affidavits filed by Local 376, and the contrary affidavits filed by the city, and oral argument; the judge did not conduct a hearing where witnesses testified.

 The Michigan Supreme Court held that the Local’s affidavits did not justify an injunction. “There exists an adequate legal remedy for laid-off firefighters. If the layoffs violated the CBA [Collective Bargaining Agreement] or constituted an unfair labor practice, MERC [Michigan Employment Relations Commission] or a grievance arbitrator can award back pay, order reinstatement, or provide another remedy to make the laid-off firefighters whole.”

The Michigan Supreme Court also found Local 376’s safety argument unconvincing. The union offered evidence at the preliminary injunction hearing that the layoffs would lengthen their response time, which in turn would require firefighters to fight larger, more intense fires. The Court wrote, “while plaintiff’s argument that staffing decisions might affect firefighter safety is appealing as a general proposition, upon closer scrutiny, plaintiff alleged nothing more than an apprehension of future injury or damage.” The Court concluded, “Neither plaintiff nor the circuit court detailed how the remaining firefighters faced real and imminent danger from the layoffs rather than future, speculative harm.” [Emphasis by the Court.]

The Court stressed that its decision did not “trivialize the dangers accompanying firefighting.” However, “because firefighting is a dangerous job, every managerial decision in the abstract might touch on a safety issue. A mere apprehension of reduced safety by the union is insufficient grounds for a court to grant equitable relief.”

The Court also referenced the affidavit of Fire Chief McAdams, who stated that the number of firefighters present at a fire would not be reduced by the layoffs and that the number of firefighters in each rig would increase from three to four. And McAdams averred that additional, outside support was available, if needed. For instance, because the ‘great majority’ of calls to which the fire department responded were medical runs, private ambulance services, rather than firefighters, would be used to respond to those calls if the department was functioning at its minimum daily staffing level.”

Fire Chief McAdams also stated in his affidavit that “the department’s remaining 89 firefighters would continue to adhere to basic safety protocols such as the ‘incident command system’ and the ‘two in, two out’ rule.” [Court’s footnotes omitted.]

LEGAL LESSONS LEARNED: This opinion may be of great interest to municipalities nationwide considering layoffs.

Article 6-15

OHIO - LANDMARK OHIO SUPREME COURT DECISION - FIRE CHIEF TERMINATED – LAWSUIT ALLEGING VIOLATION OF OHIO DISABILITY LAWS MAY BE FILED WITHOUT FIRST APPEALING TO CITY’S CIVIL SERVICE COMMISSION

 On July 8, 2002, the Ohio Supreme Court in Dworning v. City of Euclid, slip opinion No. 2008-Ohio-3318, http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3318.pdf, the Court held 7 to 0, that “The protection of an individual’s right to pursue private remedies is too central an aspect of Ohio’s commitment to nondiscrimination to be limited to, or delayed by, an administrative process. We hold that a public employee alleging employment discrimination in violation of R.C. Chapter 4112 need not exhaust the administrative remedy of appeal to a civil service commission” before file a lawsuit.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-14

Invasion Of Privacy – Text-Messaging - City And Wireless Service Provider Improperly Transcribed Personal Messages Sent By Police Sergeant On Department’s Pager

 On June 18, 2008, in Quon v. Arch Wireless, the U.S. Court of Appeals for the 9 th Circuit (based in San Francisco) held 3 to 0, that the City of Ontario, California and Arch Wireless Operating Company may be sued for damages for breach of privacy. The text-message transcripts included personal messages sent by Sergeant Jeff Quon to his wife, some with sexually suggestive comments. The 9 th Circuit held he had reasonable expectation of privacy because the PD’s Administrative Bureau commander had verbally assured all police officers that their would be no audits of text messages so long as they reimbursed the city each month they exceeded the 25,000 character limit. See opinion: http://www.ca9.uscourts.gov/ca9/newopinions.

In 2001, the city contracted with Arch Wireless to provide wireless text-messaging services for police officers, and purchased twenty-two (22) pagers. Lt. Steve Duke, Commandeer of the Administration Bureau, was responsible for collecting payments from officers who exceeded the 25,000 characters / month limit.

Sergeant Quon, a member of the Ontario Police Department SWAT Team, had exceeded the 25,000 character limit on three or four occasions. Duke reminded Sergeant Quon about their payback obligation and his promise of no audits. He testified that he told Quon:

He had to pay for his overage, that I did not want to determine

if the overage was personal or business unless they wanted me to,

because if they said, “Its all business, I’m not paying for it,” then

I would do an audit to confirm that. And I didn’t want to get

into the bill collecting thing, so he needed to pay for his personal

messages so we didn’t – pay for the overage so we didn’t do an

audit. And he needed to cut down on his transmissions.

In August, 2002, Sergeant Quon, and another officer had again exceeded their 25,000 character limit. Lt. Duke was getting tired of being a bill collector, so he suggested to Police Chief Lloyd Scharf that the PD conduct an audit. If all these text messages of these two officers were for official purposes, then the Police Department should consider increasing the 25,000 character limit.

An e-mail was sent to Arch Wireless, requesting transcripts of the text-messages of these two officers. Arch Wireless confirmed the pagers were owned by PD, and they promptly prepared transcripts and delivered to them to the PD. The transcripts included personal messages to his wife, to Police Dispatcher April Florio, and to Sergeant Steve Trujillo. Police Chief Scharf then ordered an Internal Affairs investigation be launched “to determine if someone was wasting … City time not doing when they should be.”

Sergeant Quon learned of these text-message transcripts during an internal affairs interview by Sergeant Debbie Glenn. He filed a lawsuit, along with his wife, Jerilyn Quon, dispatcher April Florio and Sergeant Trujillo, in U.S. District Court against the city, and the police chief and Sergeant Glenn. They alleged violation of their right of privacy under 4 th Amendment of U.S. Constitution, and under California Constitution. They also sued Arch Wireless; alleging violation of the federal “Electronic Communications Privacy Act” as amended in 1986 by the “Stored Communications Act.”

The U.S. District Judge impaneled a jury to resolve the factual question of whether Police Chief Scharf was acting in his official capacity when he requested the transcripts. The jury found in the Police Chief’s favor, and the judge ordered him dismissed from the lawsuit on the basis of “qualified immunity.” The judge also dismissed Arch Wireless, holding that they were merely a “remote computing service” and not an “electronic computing service” that would be liable under the Stored Communications Act.

The plaintiffs appealed. The 9 th Circuit reversed, holding that the plaintiffs may proceed to trial for damages against Arch Wireless, the city and Sergeant Glenn. The 9 th Circuit held that Arch Wireless provided an “electronic communication service” to the city, and therefore may be sued for breach of the Electronic Communications Privacy Act, 18 U.S.C. 2702(a), by knowingly turning over text-messaging transcripts to the city, which was not an “addressee or intended recipient” on any of the text-messages.

The 9 th Circuit also held that the plaintiffs may proceed to trial against the City of Ontario and Sergeant Glenn, for violation of their 4 th Amendment right of privacy. The Court held that Sergeant Quon had a reasonable expectation of privacy in his text-messages, in light of the verbal assurances of Lt. Duke that audits would not be performed if overages were paid. The Court wrote:

Quon had exceeded the 25,000 character limit ‘three or four times,’

and had paid for the overages every time without anyone reviewing

the text messages. This demonstrated that the OPD [Ontario Police

Department] followed its “informal policy” and that Quon reasonably

relied on it. Nevertheless, without warning, his text messages were

audited by the Department. Under these circumstances, Quon had a

reasonable expectation of privacy in the text messages archived on

Arch Wireless’s server. [Opinion, page 7023.]

The Court also noted that the Police Department could have avoided this apparent breach of privacy by simply warning Sergeant Quon that for one month “he was forbidden from using his pager for personal communications, and that the contents of all of his messages would be reviewed to ensure the pager was used only for work-related purposes during this time frame. Alternatively, if the Department wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to the Department to review the redacted transcripts.” (Opinion, page 7027.)

The Court also noted that while Sergeant Jeff Quon had signed in 2000 the city’s “Computer Usage, Internet and E-Mail Policy” that stated “users should have no expectation of privacy or confidentiality when using these resources,” this policy was issued prior to the city acquiring the text-messaging pagers, and the policy was never formally amended to cover text-messaging on pagers.

Legal Lessons Learned: While this opinion only applies to California and the other Western states in the 9 th Circuit, it does illustrate that employee privacy is a “hot” topic. Fire and EMS departments need clearly written policies concerning audits of computers and other electronic devices, including text-messaging. Similar to the administrative steps taken by fire & EMS departments under HIPAA to protect patient privacy, departments must also be very cautious about use of personal electronic messages.

Article 6-13

State And Local Government Employees Suing In Federal Court – U.S. Supreme Court Restricts Claims Of Denial Of Equal Protection - Must Be Evidence Of Race, Sex, Age, or National Origin Discrimination - Rejects “Class-Of-One” Theory

 On June 9, 2008, in Enhquist v. Oregon Department of Agriculture, the U.S. Supreme Court (6 to 3) held that a government employee cannot sue in Federal court under the Equal Protection Clause of the 14 th Amendment by simply alleging that she was treated differently from other similarly situated employees; the lawsuit should be dismissed as contrary to the “at will” doctrine unless it is alleged that the different treatment was based on mistreating of a protected class of employees (class of race, sex or age). The Court flatly rejects a “class-of-one” theory of equal protection; it “has no place” in the public employment context. See opinion: http://www.supremecourtus.gov/opinions/07pdf/07-474.pdf.

Anup Engquist was employed since 1992 by the Oregon Department of Agriculture as an “international food standard specialist.” She had made repeated complaints about another employee, Joseph Hyatt, who was ordered to take diversity and anger management training. In 2001, a new Assistant Director, John Szczepanski, was assigned to supervise the unit, and he told others he could not “control” Ms. Engquist, and he intended to “get rid” of her. When a management position opened up, both Ms. Engquist and Joseph Hyatt applied – he promoted Hyatt.

Because of a state-wide budge cut, the Assistant Director in 2002 decided to eliminate several positions, including Engquist’s. Under the collective bargaining agreement, she was given an opportunity to “bump” to another position at her pay level for which she was qualified, or take a demotion. She applied for another position, but was found not qualified. She refused a demotion and was laid off.

She then filed a lawsuit in U.S. District Court in Oregon against the Oregon Department of Agriculture, the Assistant Director and Joseph Hyatt. She claims she was fired not because she was a member of an identified class (race, sex and national origin) but simply because of “arbitrary, vindictive, and malicious reasons” by her Assistant Director - under the “class-of-one” legal theory. The case was tried to a jury, which rejected her claims of discrimination based on her race, sex or national origin. The jury, however, did find for her on the “class-of-one” theory because the Assistant Director intentionally treated her differently that others similarly situated. The jury awarded her $175,000 in compensatory damages, and $250,000 in punitive damages.

The State of Oregon appealed, and the U.S. Court of Appeals for the 9 th Circuit reversed, concluding that extending the “class-of-one” theory to state employee decisions would lead to undue federal court interference in state employment practices, and completely invalidate the practice of “at will” employment for government employees.

The majority of the U.S. Supreme Court, in a decision by Chief Justice Roberts, held for the employer:

Our traditional view of the core concern of the Equal

Protection Clause as a shield against arbitrary classifications,

combined with unique considerations applicable when

the government acts as employers as opposed to sovereign,

lead us to conclude that the class-of-one theory of equal

protection does not apply in the public employment contexts.

(Opinion, p. 5.)

The Chief Justice explained, “we have often recognized that government has significantly greater leeway in its dealings with citizen employees that it does when it brings it sovereign power to bear on citizens at large. ” The Chief Justice then refers to a prior decision, “Given the ‘common- sense’ realization that government offices could not function if every employment decision became a constitutional matter … constitutional review of government employment decisions must rest on different principles that review of … restraints imposed by the government as sovereign.” (Opinion, p. 6.)

Legal Lessons Learned: This opinion is good news forgovernment employers, including Fire & EMS departments. The Supreme Court has again restricted state and local employee access to federal courts. This is consistent with the Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410, where the court restricted the right of state and local government employees to sue in federal court for alleged violations of their First Amendment “freedom of speech” rights (California prosecutor was demoted after his public comments about a search warrant affidavit with false information).

Article 6-12

Retaliation – U.S. Supreme Court - Two Decisions Uphold Right Of Employees To Sue Their Employer For Retaliation After Making Complaint Of Discrimination - “Hot” Employment Law Issue

 On May 27, 2008, the Court in CBOCS West, Inc. v. Humphries (7 to 2) and in Gomez-Perez v. Potter (6 to 3), upheld the right of employees who have made internal claims of discrimination, to sue in federal court if an employer takes retaliatory action. See opinions: Humphries at http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf ; and see Potter decision at http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf.

See my full article on theses cases in www.firehouse.com, July, 2008 (or search “Bennett).

Legal Lessons Learned: Given the increased risk of retaliation lawsuits, Fire & EMS department need to conduct refresher training for supervisors. Supervisors must thoroughly document the factual basis for new discipline of any employee who has previously complained of discrimination.

Article 6-11 - www.firehouse.com

September 2007

Larry's Legal Lessons: Hiring Firefighters Who are in the National Guard (09-25-2007)
Let applicants know why they have been rated poorly, and document the specific reasons.

Article 6-10

OHIO - DEFAMATION - POLICE CHIEF MAY SUE PUBLIC SAFETY DIRECTOR AND CITY – PUBLICATION OF UNSUBSTANTIATED RUMOR

 On March 13, 2008, the Ohio Supreme Court held (vote 4 to 3) in Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, that former Columbus Police Chief James Jackson is entitled to proceed to trial in his defamation action against the former Public Safety Director, and the city, after an internal investigation report of gambling in the police department included an unsubstantiated allegation by an inmate that the police chief had impregnated a teenage prostitute and he was secretly paying child support. The prisoner had failed a lie detector, and no one interviewed the police chief (who had a vasectomy prior the alleged act).

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-19

Ohio - “At Will” Employee Injured At Work, Receiving TTD, Can Still Be Terminated For Failure To Return To Work (8 years in this case) - Supreme Court Clarifies Prior Decision - Dissent By Chief Justice Moyer

On Dec. 20, 2007, in Bickers v. Western & Southern Life Insurance Company, 116 Ohio St.3d 351, 2007-Ohio-6751, the Ohio Supreme Court held (5 to 2) that Shelley Bickers, who was injured at work and was receiving temporary total disability benefits, could be terminated for her failure to return to work without restrictions for eight years. Chief Justice Thomas Moyer filed a dissenting opinion to this very controversial holding.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-8

New York: Retaliation For Freedom of Speech – NYPD Police Sergeant Can Not Sue City - Wrote Report On Health Affects Of Leaking Fuel Tanks Under His Precinct In Official Capacity As Safety Officer For Precinct - Not As A Matter Of Public Concern.

 On Feb. 6, 2008, in Angelo Ruotolo v. City of New York, the U.S. Court of Appeals for the 1 st Circuit, 514 F.3d 184, 2008 U.S. App. LEXIS 2551, affirmed the dismissal of Sergeant Ruotolo’s lawsuit for retaliation. The court held that he was speaking as a public employee, in the course of his employment duties, and it was not on a matter of public concern. It was therefore “unprotected speech” under the U.S. Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410 (2006).

Underground Fuel Tanks: Sergeant Ruotolo was on the NYPD for 20 years. In Oct. 1999 he was serving as the Training And Safety Officer for the 50 th Precinct in the Bronx. A local newspaper ran a story about possible health risks from leaking underground gasoline storage tanks at the precinct.

Sergeant Ruotolo was directed by his Commanding Officer to review employee illness and death reports. He wrote a two page memo, dated Oct. 28, 1999, which he titled “Survey Pursuant to Request,” His memo identified a large number of cancers, miscarriages, birth defects and other health problems of police officers and others working at the 50 th Precinct. He recommended that an environmental study be conducted.

The City of New York retained environmental experts, who confirmed gasoline leakage from the fuel tanks, and found contamination of soil and air at levels above OSHA and EPA safety standards. The city, at great expense, took months to abate the hazard.

In April, 2000, the Patrolmen’s Benefit Association (“PBA”) came to the 50 th Precinct to sign up potential plaintiffs for a personal injury lawsuit. With the prior knowledge of his Commanding Officer, Sergeant Ruotolo met with the PBA and answered their questions. When the PBA told him about their plans to file a lawsuit, he declined to be a plaintiff, and he did not tell anyone else about the planned lawsuit.

Retaliation allegations:Sergeant Ruotolo claims that the retaliation started right after his Oct. 1999 report, and continued until his retirement in 2004. His allegations included: transfer to a less desirable precinct; frequent reassignments to undesirable shits, to duties he considered beneath his rank and tenure; denial of requests for leave time; and discipline for trivial or fabricated reasons.

Lawsuit: In July, 2003, he filed a lawsuit in U.S. District Court, claiming still more acts of retaliation: the first negative performance review of his career; verbal harassment by superior officers; denial of overtime; discipline, including being placed on “modified duty” and stripped of his badge, shield, identification card and firearm. When he retired on July 26, 2004, he was still on “modified duty” and therefore he lost the privilege of carrying a firearm after retiring (therefore reducing his prospects of working in the private security field).

Pre-trial discovery lasted for three years. Just two weeks prior to his scheduled civil trial, the U.S. Supreme Court rendered its landmark decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). The federal district judge dismissed his lawsuit based on the new decision.

The U.S. Supreme Court in Garcetti v. Ceballos reviewed a memo written by a Deputy District Attorney to his supervisors concerning irregularities in a search warrant affidavit. The Deputy DA was transferred, and he sued claim First Amendment retaliation. The majority of the U.S. Supreme Court held that the Deputy DA could not sue, holding “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from public discipline.”

The U.S. Court of Appeals agreed with the dismissal of Sergeant Ruotolo’s lawsuit. “We hold that Ruotolo’s claim based on his lawsuit must fail because his lawsuit did not address a matter of public concern.”

Legal Lessons Learned: First Amendment retaliation claims by firefighters, police, and other public employees have become extremely difficult to survive under U.S. Supreme Court precedence.

Article 6-7

Ohio – Residency – Court Of Appeals Upholds City of Lima Residency Requirements For Firefighters – Ohio Supreme Court Will Have Final Word

OnDec. 3, 2007 in City of Lima v. State of Ohio, the Ohio Court of Appeals for 3 rd District, Case No. 1-07-21 (full decision can be read on the Court’s web site at http://www.third.courts.state.oh.us), held that Ohio Rev. Code 9.481, effective May 1, 2006, giving employees of political subdivisions the freedom to choose to live in the county or neighboring county, is a violation of the “home rule” authority of Ohio cities under the Ohio Constitution.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-6

OH – CINCINNATI POLICE CHIEF AND ASSISTANT POLICE CHIEFS CAN BE HIRED FROM OUTSIDE CITY (AS CAN FIRE CHIEF / ASSISTANT CHIEFS) – CHARTER AMENDMENT DROPPING CIVIL SERVICE PROTECTION WAS PASSED BY VOTE OF RESIDENTS

On October 26, 2007, in State Employment Relations Board and City of Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, the Ohio Court of Appeals for Hamilton County (2 to 1 decision), held that the city’s Charter Amendment, voted into law by the majority of residents on November 6, 2001, “trumped” the FOP’s collective bargaining agreement of Dec. 10, 2000 – 2002.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-5

OHIO - WORKERS’ COMP – TERMINATING AN EMPLOYEE WHILE OUT ON MEDICAL LEAVE IS BREACH OF PUBLIC POLICY DOCTRINE

On April 23, 2007, in Klopfenstein v. NK Parts Industries, Inc, 117 Ohio App.3d 286, 2007-Ohio-1916, the Ohio Court of Appeals for Shelby County held that David Klopfenstein, an “at will” laborer in the warehouse of NK Parts Industries who was injured on the job and fired 10 months later when he could not return to work, can sue the company for wrongful discharge for breach of the “public policy doctrine.” A jury can now hear the case and possibly award him substantial damages.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-4

GA - FIREFIGHTERS CAN SERVE AS JURORS IN MURDER CASE

On Jan. 31, 2007, the Court of Appeals of Georgia in Banegas v. The State, 283 Ga. App. 346, 2007 Ga. App. LEXIS 56, held that a firefighter may serve on a criminal case, and is not automatically removable for cause. Mr. Bengas was convicted of murdering his girlfriend by shooting her in her head while she lay in bed. On appeal, one of the legal issues raised is whether the trail judge properly allowed a firefighter to serve on the jury.

The Court wrote, “Banegas asserts that the trial court erred in denying his challenge to a prospective juror named Watson. During voir dire, Watson testified that he was employed by the Gwinnett County Fire Department, had worked with police and the district attorney's office in investigations, and is a friend of the chief assistant district attorney. Banegas challenged Watson for cause, arguing that, because of his investigative role with the fire department, he was the equivalent of a sworn law enforcement officer. The challenge was denied by the trial court.

The Court further wrote, “ We will not overturn a trial court's refusal to strike a juror for cause unless there has been a manifest abuse of discretion. A person employed in law enforcement is not automatically subject to dismissal for cause unless he is ‘a full-time sworn police officer with arrest powers.’ Banegas points to no evidence that Watson satisfied these criteria. Although Watson stated that as a firefighter he had worked with the police and district attorney's office on ‘numerous different types of incidents,’ such as looking for a body in a well and providing information to an arson investigator, he also testified he could be impartial and would not give deference to the testimony of police officers. He had no knowledge of the incident for which Banegas was on trial. Because as a firefighter he was not automatically disqualified from jury service, and because he stated that he could be fair and impartial, the trial court did not abuse its discretion in refusing to strike Watson for cause.” [Footnotes omitted.]

Legal Lessons Learned: In most states, including Georgia, firefighters can serve as jurors unless they were involved in the case, or personally know one of the witnesses or attorneys.

Article 6-3

OHIO – PUBLIC RECORDS – LIEUTENANT AND CAPTAIN PROMOTIONAL EXAM DOCUMENTS - CITY OF AKRON PROPERLY DELETED NAME, ADDRESS AND SOCIAL SECURITY NUMBER OF ALL CANDIDATES, ASSESSORS AND SUBJECT MATTER EXPERTS

 On Dec. 28, 2006, the Ohio Supreme Court in State ex. rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714 (vote of 6 to 1), refused to issue a writ of mandamus against the City of Akron since most of the documents were voluntarily disclosed.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 6-2

ILLINIOS – VIOLATION OF CONSTITUTION RIGHT OF PRIVACY – FIREFIGHTER INJURED IN FALL AT WORK WAS REQUIRED TO DROP PANTS SO POLICE COULD TAKE PHOTOS OF INJURY

On Jan. 23, 2007, the U.S. District Court in Leonard Janda v. Ron Kwiattkowski, et al , 2007 U.S. Dist. LEXIS 5427, held that a firefighter is entitled to a jury trial on whether the City of Berwyn violated his constitutional rights by ordering him to drop his pants so police could photograph his injury to his buttock.

Firefighter Leonard Janda fell on some steps at the firehouse and injured his back on October 1, 2004. He was driven to the hospital, treated and released. He was driven back to the firehouse to pick up his belongings, and gave a doctor’s note to his supervisor. On his way home, a co-worker called and was told to return to the firehouse so that two police officers can take photos of his injuries.

His union President, Sam Molinaro, was in the firehouse. He spoke to Fire Chief Kalivoda, who confirmed the city was implementing a new policy requiring police to photograph injuries that occur on city property. The Fire Chief was asked to give a direct order to FF Janda, and the order was given.

FF Janda went to a private area of the fire station, removed his shirt and pulled down his pants to expose his injuries. The police officers took several photos. Union President Molinaro told the police officers to stop taking photos, and instructed FF Janda to get dressed.

FF Janda filed a lawsuit in U.S. District Court under 42 U.S.C. 1983, claiming violation of U.S. Constitution, including 4 th Amendment right to be free from unreasonable searches, and also state claims, including false arrest, conspiracy and invasion of privacy. The city filed a motion for summary judgment, but trial judge refused to dismiss the case. Judge Ronald A. Guzman ruled, “Defendants did not need photographs of plaintiff partially clad to document the accident, prepare for potential litigation or otherwise protect the City’s interests. Consequently, the Court cannot find that the search was reasonable.”

Legal Lessons Learned: Unless a FD has reason to suspect workers’ comp fraud, it is inappropriate to require a firefighter to drop his pants so police can photograph his injuries.

Article 6-1

DEFAMATION – POLICE OFFICER IS “PUBLIC FIGURE” WHO CAN SUE NEWSPAPER FOR DEFAMATION, BUT CAN ONLY COLLECT DAMAGES IF PROVES “ACTUAL MALICE”

 On August 12, 2005, the Ohio Court of Appeals for the First District (located in Cincinnati) held in Clarence Daryl Williams v. Gannett Satellite Network, Inc., d/b/a The Cincinnati Enquirer, 162 Ohio App.3d 596, 2005-Ohio-4141, that the former president of the Sentinels black-police officer group may sue, but he has the difficult hurdle of provision actual malice (evil intent) by defendants.

The story appeared in the newspaper on September 28, 2002, about the arrest of two adults and two juveniles. The story said one of the adults was the plaintiff’s son. He “is the son of former Cincinnati officer, Clarence Williams, a former president of the Sentinels black-officers group. He is legally prohibited from having a gun because he has a previous conviction for selling drugs.” Williams filed suit for defamation and intentional infliction of emotional distress against The Cincinnati Enquirer, the newspaper reporter, the City of Cincinnati and “five unnamed police officers” who spoke to the reporter

The trial judge in the Hamilton County Court of Common Pleas had dismissed the lawsuit, finding that the plaintiff did not allege any injury or damages because of the story. The Court of Appeals, 3-judge panel, disagreed. “A statement that a police officer’s son is a criminal reflects negatively on the police officer’s professional ability. That William’s son was arrested carrying a weapon while under a disability and that his son had a previous conviction for selling drugs would tend to affect Williams’ opportunity for advancement.”

In Ohio, there are two types of defamation, “defamation per quod” (where defamation is by the interpretation of the listener; plaintiff must allege “special” or personal damages), and “defamation per se” (it is defamation on its face; damages are presumed). The Court of Appeals said the article was defamation per se, and damage to plaintiff’s career can be presumed.

In 1976, the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964) held that “ public officials” must not only prove defamation, but also “actual malice” in order to get a jury verdict. The Ohio Supreme Court in 1994 held that police officers are public officials, and likewise cannot collect money judgments without proof of “actual malice.”

Legal Lessons Learned: Police officers (and presumably fire & EMS officials) have a very difficult burden to prove “actual malice” in a defamation lawsuit.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE; Posted by UC solely as information and for the benefit of students.

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