This article demonstrates how arbitrators might view similar free speech claims differently. In Elko County, a sergeant's discussion about the sheriff's proposed staff reorganization was allowed to circumvent the chain of command since the speech was protected by the First Amendment. However, in City of Wapakoneta, a fire captain’s speech was required to go up the chain of command because the speech was not protected.
In Primas v. District of Columbia, the D.C. Court of Appeals overruled the lower trial court for dismissing a female, African-American Police Commander claims of sex and race discrimination, and remanded them for trial. The Court ruled that the Plaintiff’s complex theories on a manipulated retirement had sufficient merit to survive a summary judgment motion
In Minnick v. County of Currituck, the Fourth Circuit Court of Appeals dismissed a firefighter’s First Amendment claim because there was no link between his speech and the “adverse employment action.” Although Firefighter Minnick had attempted to organize a union and had engaged in arguably protected speech by complaining about equipment and safety issues, the court found no proof that his speech was a “substantial factor” in his forced transfer and later discharge.
In Parrott v. Krasicky, the court denied a female police chief’s motion to dismiss a female police officer’s gender discrimination claim based on a hostile work environment.
A District of Columbia federal court dismissed a Capitol Police Officer’s FMLA interference and retaliation claims in Gordon v. U.S. Capitol Police, 20 WH Cases2d 453 (D.D.C. 2013), when she could provide no evidence that her employer denied her FMLA benefits (interference) and no evidence that she experienced and adverse employment action because of her use of her FMLA rights (retaliation). Despite an angry supervisor’s response to her request, the court found insufficient evidence of an “adverse action.”
In Part One of this two-part series, we identified the growing problems associated with the Internet and its connected social media. Chiefly, we identified the problem associated with the new opportunities presented to public safety employees to be "stupid" in what they say or do on a much grander and more public scale. As we discussed, previous discipline cases addressed how to discipline officers and firefighters for misplaced communications to a narrow audience, such as the gathering of coworkers off-duty at the neighborhood bar. Now the Internet allows employees to event to the world.
As we all know, "social media" are becoming prevalent. The ubiquity of the Internet and the rapid expansion of other social media such as Twitter and social media pages such as Facebook, create opportunities for communication of astonishing proportions. With that ability to communicate on a larger stage comes one very directly associated problem — the ability to say something incredibly stupid to a much greater number of people on that "larger stage." Or as one law enforcement blogger described the problem — police agencies now need to develop policies to address the problems associated with "when stupid strikes."
In Maraschiello v. City of Buffalo Police Dep’t, 117 FEP Cases 665 (2d Cir. 2013), the Federal Second Circuit Court of Appeals agreed that summary judgment was proper when a white Buffalo Police captain was denied a promotion after he refused to take the new aptitude test, which he claimed was implemented to give an unfair advantage to minorities. The court found that because the employer instituted the new aptitude test in a racially neutral manner, and the new test was designed to eliminate previous racial bias, the new test could not be considered to have an adverse racial impact.
In Lee v. District of Columbia, 27 AD Cases 895 (D.D.C. 2013), a District of Columbia Federal District Court found that a diabetic corrections worker had valid claim under the ADA when he was fired for falling asleep on the job, but had been denied a regular meal break and therefore could not manage the symptoms of the disease. These symptoms included dizziness, fainting or sudden fatigue resulting in falling asleep. The court found that because an employer accommodation was necessary for Lee to be able to perform the essential functions of the job, he was in fact disabled in the meaning of the ADA.
In Moore v. Maryland Dep’t of Public Safety & Correctional Services, 27 AD Cases 849 (D. Md. 2013), a Maryland Federal District Court found no claim could be made under the ADA when Arlene Moore, a corrections officer recovering from breast cancer, was terminated following an extended period of sick leave and there was no indication that she would be able to return to work. The Officer had 8 months of leave and her doctor indicated that she either “would” or “might” be able to return after an additional 7 months of leave. The court concluded that this prolonged leave especially in the absence of a certain return date was not a reasonable accommodation.
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