By Mark Anderson and Katrina Thornton
In Levy v. Wilkie, an Illinois court of appeals ordered a trial of an African American police officer’s race discrimination lawsuit. Levy worked as a police officer at the Hines VA Hospital. The court found that inconsistent discipline practices raised a jury question on whether Levy had been subject to racial discrimination.
By Mark Anderson and Katrina Thornton
In Smith v. Cook County, an Illinois court dismissed an African American probation officer’s lawsuit claiming the County denied his request for an adjusted schedule because of his race and active participation in his labor union. The court dismissed Officer Jason Smith’s lawsuit, finding that neither Smith’s race nor his union activity was the basis for the employer’s denial of his request to adjust his schedule.
By Mark Anderson and Katrina Thornton
In Bonilla v. City of Philadelphia, a Philadelphia court denied the City of Philadelphia’s request to throw out a Christian tow truck driver’s lawsuit claiming that he had been discriminated against because of his faith. The court held the Department may have created an offensive work environment based on the driver’s religious beliefs.
By Mark Anderson and Beth Touschner
In Anselmo v. City of Philadelphia, a city police officer brought a lawsuit against her employer alleging she was retaliated against by coworkers after she reported gender discrimination. Specifically, Anselmo claimed, after she reported discrimination she was ostracized, lost friends at work, was not invited to social gatherings, coworkers would not sit near her, she was excluded when lunch was ordered, and one of her coworkers called her a rat. The court rejected her retaliation claim because Anselmo failed to show that the employer knew of the harassment and failed to stop it. Indeed, the court noted, Anselmo admitted she had not reported her allegations to anyone and had simply withdrawn.
By Jim Cline and Mark Anderson
In Gregg v. City of Houston, a Texas police officer prevailed on a motion to dismiss his claims for harassment and retaliation after he was sexually harassed by a female coworker for several years, and then ostracized by coworkers after he reported the harassment. The court found that Officer Michael Gregg met each of the required elements to proceed to trial on his Title VII hostile work environment claim and his retaliation claim.
[Read more…]By Jim Cline and Troy Thornton
In Village of Skokie, 2020 BNA LA 1311, Arbitrator Sinclair Kossoff found that the employer did not violate the CBA when it denied an Officer’s bereavement pay request. The Union argued that vacation should be converted to bereavement leave when applicable. But the Arbitrator concluded that the Union position was not supported by CBA language.
[Read more…]By Jim Cline and Troy Thornton
In Tualatin Fire and Rescue District, 2020 BNA 1300, an Oregon Fire District implemented a 42-hour work schedule following failed negotiations with the International Association of Firefighters local representing a group of Oregon firefighters. Because the parties had specific CBA language requiring Union agreement for any schedule changes, Arbitrator Kenneth James Latsch ruled that Management violated the agreement when it implemented the new schedule without doing first gaining Union approval and ordered the payment of overtime as an appropriate remedy.
Beginning with the contract covering 2012 through 2015, the parties’ CBA established two work schedules: a 40-hour workweek, and a shift schedule that consisted of 24 hours on-duty followed by 48 hours off-duty (as well as an off-duty Kelly day every ninth shift). During the negotiation of that CBA, TVFR accepted the Union’s proposal to limit schedule changes without first gaining the approval of the Union. In 2019, the parties agreed to a scheduling MOU due to now requirements posed by a change to Oregon law. Following the implementation of the MOU, Management established a new 42-hour work schedule for certain employees.
The Union argued that the implementation of the new 42-hour work schedule, without first gaining the approval of the Union, violated the CBA between the parties. They relied upon the language negotiated for the 2012-2015 contract, which states that changes to the regular schedules would require “agreement between Labor and Management.” Additionally, the CBA contains language stating that employees working 40-hour schedules are owed overtime after working more than 40 hours in a seven-day stretch.
Management attempted to rely on the plain language of both the CBA and MOU, claiming that they were not prohibited from implementing a 42-hour schedule, and met all of the CBA requirements for doing so. The employer also argued that the Union simply did not meet its burden of proving that their actions violated the CBA, which is typically required of the side claiming that there was a violation.
Arbitrator Latsch examined both the CBA and MOU to determine the “plain meaning” of the language contained in the documents. He found that the CBA language negotiated during the 2012-2015 contract cycle, specifically the language stating that there must be an “agreement between Labor and Management,” established stronger protections for the Union than the standard rule of law requiring bargaining to impasse over such issues.
In most cases, contracts deal with the parties’ mutual obligation to negotiate concerning the mandatory subjects of collective bargaining, wages, hours, and conditions of employment. Article 6.2.2 provides much stronger language, however. Article 6.2.2 specifies that pay and benefit accrual may be converted in an alternative workweek only after “agreement between Labor and Management”. In other words, the parties have recognized that there must be an agreement before changes could be made. This is more than the traditional requirement of bargaining to the point of impasse on a particular issue, and it narrows the Employer’s scope of action on any particular issue concerning alternative shift schedules.
Because that language is clear, Arbitrator Latsch found that Management did in fact violate the CBA. In his ruling, he determined that Management had to discontinue its use of a 42-hour schedule and reinstate the schedule in place prior to the change. Additionally, Arbitrator Latsch ruled that employees must be made whole for any hours worked under the 42-hour schedule, which included overtime for any hours worked over 40 in a given week.
It is noteworthy that the union also had a pending ULP complaint. Normally a unliteral change would be the subject of a ULP and absent clear “waiver” language, they would be successful on such a complaint on these facts. Presenting the issue here to an arbitrator did provide the union one additional remedy that may or may not have been extended from the ULP process — it was able to get overtime for hours worked under the unilaterally implemented schedule that exceeded the default under the CBA. This reflects the principle and practice of arbitrators to always find some type of meaningful remedy for any breach of contract.
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By Mark Anderson and Beth Touschner
In Brady v. Tamburini, a Rhode Island police detective prevailed in his First Amendment free speech lawsuit after being disciplined for speaking with the news media. The court found that the police department’s policy prohibiting officers from speaking to the media ran afoul of First Amendment free speech protections. It also found that several other department policies, for which Detective James Brady was disciplined, were improper as applied to him.
By: Loyd Willaford and Clive Pontusson
In Cobsy v. City of Indianapolis, a federal court dismissed the lawsuit of a police officer who claimed that his repeated discipline was motivated by racial bias in the Indianapolis Police Department. Because Officer Cosby did not present evidence that his multiple suspensions were related to his race, he could not state a claim for racial discrimination.
By: Loyd Willaford and Clive Pontusson
In Jones v. City of Birmingham, a federal court ruled that an Alabama Police Officer had alleged sufficient facts to show he may have been transferred as retaliation for filing a complaint with the Equal Employment Opportunity Commission. The Court dismissed Edwin Jones’ claim for racial discrimination, but it did find that Jones had shown a potential retaliation for his filing a complaint with the EEOC. As a result, the Court determined that his case should be heard by a jury. [Read more…]
