June 6, 2013 by

California Corrections Lieutenant Who Fails Baton Handling Test Not Owed a Transfer to an Administrative Position

By David Worley

In Furtado v. State Personnel Board, 34 IER Cases 1585 (Cal. Ct. App. 2013), the court upheld a medical demotion of a California Correctional Lieutenant to a support position who was deemed unable to perform the physical aspects of the peace officer job after he failed the baton handling test.  A California Government Code barred waiving physical requirements of peace officer jobs, the court held that, and the Lieutenant’s request to be transferred to an “Administrative Lieutenant” position was functionally a request to have those requirements waived, as all corrections officers must be able to perform the physical requirements.

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Filed Under: Disability Discrimination, Discrimination
May 31, 2013 by

Former Corrections Officer Has No Recourse against Thin-Skinned Supervisor Who Wanted to “Take This Outside” and Fired Him over “Absolut Corruption” Parody Ad

By Mitchel Wilson

In Singer v. Ferro, 35 IER Cases 614 (2013), the court affirmed summary judgment for the defendants and dismissed Singer’s first amendment retaliation claim.  Singer had alleged retaliation in the form of baseless disciplinary actions and wrongful termination.

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Filed Under: Constitutional Rights, Free Speech Rights, Legal Rights
May 17, 2013 by

Transfer of Sergeant for Purely Organizational Reasons Upheld by Arbitrator When No Clear Exception to Management Transfer Rights is Stated in the CBA

By David E. Worley

In Jackson County Sheriff’s Dep’t, 131 LA 433 (Pratte, 2013), a non-disciplinary transfer was upheld when a Sergeant who had been in the same unit for 21 years was transferred by the Sheriff and there was no change in seniority or rate of pay.  Noting that this grievance  involved a nondisciplinary transfer, the Arbitrator found that the Union had the burden to prove the transfer violated a specific provision in the CBA. The arbitrator held that there was no clear exception to the management rights clause in the CBA, and the restrictive language cited by the union did not apply. 

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Filed Under: Contract Interpretation
May 10, 2013 by

Recent Blog Articles of Note

By Jim Cline

We are following other Labor and Employment Law Blogs on the Web and will bring to your attention some other articles worth reading. Here are some other articles we think are worth a look: [Read more…]

Filed Under: Legal Rights
May 3, 2013 by

Flatulence is No Joke: EMT Demoted for Joke-Farting, Loses Discrimination and Retaliation Claims in Federal Court

By Kate Acheson and Jim Cline

In Cain v. Montgomery County, the Federal Court in Tennessee dismissed the discrimination and retaliation claims of a lieutenant Emergency Medical Technician (“EMT”) who was demoted for passing gas loudly.  A Montgomery County Emergency Medical Services employee, Rita Cain, was hired on as an EMT in 1992 and was later promoted her to the supervisory position of lieutenant EMT in 1996.  On March 29, 2010, Cain was present during an EMT’s call to dispatch about a patient’s transport.  During that incident, Cain was upset that dispatch had not notified EMS of the transport and stated: “You all don’t tell me shit.” Then, Cain passed gas loudly enough for the dispatcher to hear over the telephone.  When the dispatcher complained, Cain dismissed her flatulence as a joke.

[Read more…]

Filed Under: Discrimination, Legal Rights
May 3, 2013 by

Social Security Administration Reprimands Flatulent Federal Worker: Uncontrolled Odiferous Emissions Deemed “Unbecoming a Federal Employee”

By Jim Cline and Mitchel Riese

 A recent news story that garnered national attention concerned the discipline of a Social Security employee by the Social Security Administration, who reprimanded the employee for excessive workplace flatulence.  The reprimand was delivered to the employee in a five-page letter that included a log of representative dates and times when the employee was recorded, “releasing the awful and unpleasant odor” in his Baltimore office. After the employee filed a grievance over the reprimand, the Social Security Administration withdrew it.

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Filed Under: Disability Discrimination, Discrimination, Legal Rights
April 19, 2013 by

Oregon Supreme Court Upholds ERB Ruling That Broad Management Rights Clause Does Not Waive Union’s Right to Bargain over Mandatory Subjects of Bargaining

By David Worley

In Ass’n of Oregon Corrections Employees v. Oregon, 194 LRRM 3250 (Or. 2013), the Oregon Supreme Court affirmed the Oregon Employment Relations Board’s (ERB) decision, and overruled the Appeals Court, when it found that a broad management rights clause does not satisfy the burden of proof to prove that the union waived its statutorily guaranteed rights to bargain on mandatory subjects.  The Court found that the lower Court had applied the wrong standard in overturning the decision of the ERB.

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Filed Under: Contract Interpretation
April 3, 2013 by

Female Officer Told That Her Husband Was Not “Taking Care of Her in Bed” Presents Valid Sexual Harassment Claim but Retaliatory Discharge Claim Dismissed

By Mitchel Wilson

The Federal 2nd Circuit Court of Appeals, in Desarduoin v. City of Rochester, 117 FEP Cases 778 (2d Cir. 2013) reestablished a fired female police security officer’s sexual harassment/discrimination claim against the City of Rochester, New York under Title VII, while affirming the dismissal of her retaliation and state law claims.  The court concluded the lower court erred in granting summary judgment on the employee’s gender discrimination claim when she alleged her supervisor made unsolicited sexual advances from May to July of 2007, but correctly dismissed her retaliation and state law claims. The employer was able to defeat her retaliation claim when it showed that it acted for a legitimate, non-discriminatory reason, when it fired her for secretly recording fellow officers, a felony and violation of department policy.

[Read more…]

Filed Under: Discrimination, Gender/Pregnancy Discrimination
March 29, 2013 by

Forced Retirement of Police Officer for Anxiety Disorder Improper

By David E. Worley

In Keseker v. Marin Community College District (27 AD Cases 421 (N.D. Cal. 2012)), the California Federal District Court refused to dismiss a lawsuit brought by a former police officer who claimed he was unfairly forced to retire because of an anxiety disorder that made him not fit for duty.  He claimed the employer violated the ADA in failing to provide him with reasonable accommodations, failing to engage in the interactive process, wrongful termination, and discriminating against him based on his disability.  [Read more…]

Filed Under: Disability Discrimination, Discrimination
March 27, 2013 by

One Obscenity Does Not Equal One Day Suspension for Police Officer

By David Worley

In City of Pasadena, 131 LA 132 (Jennings 2012), the arbitrator found the City of Pasadena, Texas did not meet its burden in proving the grievant engaged in vulgar, disruptive, or obscene conduct despite the exchange of F-Bombs.  The standard here, which was “substantial evidence” as prescribed by the Texas State Supreme Court, the arbitrator ruled was clearly not met by the City.  The only evidence that put the grievant in any fault, apart from a single F-Bomb, was a suspect account by the other party involved, who all witnesses described as the aggressor.

[Read more…]

Filed Under: Arbitration Rulings, Discipline
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