Light duty assignments involving law enforcement personnel

Light duty assignments involving law enforcement personnel

Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.

Employee terminated for forging superior’s signature on an official document

Employee terminated for forging superior’s signature on an official document

Dep’t of Education v. Bermel (in PDF) -  OATH Index No. 1332/11

A custodian was charged with forging a principal’s signature on an annual operation plan for cleaning a City school. 

OATH Administrative Law Judge John Spooner found that testimony from the principal and from a Department official proved the forgery and that the custodian filed the plan without permitting the principal to review it. 

The NYC Chancellor of Education adopted Judge Spooner’s recommended that the individual be dismissed.

Proposed Respect for Marriage Act of 2011 introduced in Congress

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On Tuesday, July 19, 2011, the White House announced President Obama's support for repeal of the Defense of Marriage Act (DOMA).  The DOMA defines marriage for purposes of federal benefits, including FMLA leave, as a union between one man and one woman.  DOMA limited the availability of FMLA leave to care for a spouse to heterosexual marriages, thereby excluding same sex marriages and civil unions.  In February of this year the Obama administration announced that it would not longer defend the constitutionality of the DOMA. The recent announcement would repeal the DOMA altogether.

The repeal of the DOMA is contained in the Respect for Marriage Act of 2011, S. 598 and H.R. 1116.  The House and Senate bills are identical. Both would repeal the section of the DOMA defining marriage as the union of one man and one woman.  In its place, the legislation propose the following language:

For purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individuals marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State. 

The proposed legislation defines a "State" to include the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

Mr. Bosland Comments: If enacted, the Respect for Marriage Act would require covered employers to permit FMLA leave to care for a same sex spouse, provided that the marriage was legally recognized in the State where the marriage was entered.  The Respect for Marriage Act does not set a national standard stating that same sex marriages are valid for purposes of the FMLA.  Rather, the Respect for Marriage Act requires employers to look to State law to determine if a marriage is valid.  Currently, a few states recognize same sex marriage.  Many states outlaw same sex marriage.  Some states recognize same sex civil unions or domestic partners, but not same sex marriages.  Because they do not have the same status as marriage, the Respect for Marriage Act as currently written would not require employers to grant FMLA leave to an employee to care for a domestic partner or spouse in a civil union.   

Combined with the Full Faith and Credit Clause of the Constitution, the Respect for Marriage Act requires covered employers with operations in states that do not recognize same sex marriage to nevertheless recognize those marriages as valid for FMLA leave purposes if the marriage was valid in the state where the marriage was entered.  

For example, a same sex couple were legitimately married in New York, a State that recognizes same sex marriage.  The couple thereafter moves to Mississippi for a job opportunity.  Lets assume that Mississippi does not authorize same sex marriages.  All things being equal (e.g., company is covered by the FMLA, employee is eligible for leave, condition meets one or more serious health condition definitions, proper notice and certifications provided, etc.), if the employee of this same sex marriage requests FMLA leave to care for their spouse with a serious health condition, the employer could not deny the leave simply because Mississippi does not recognize same sex marriages.  Because the marriage arose in New York, where it was valid when entered, the couple are married for purposes of FMLA leave.  The Company would process the leave request as it would any other FMLA leave request by an employee to care for a spouse.

Passage of the legislation in the Democrat controlled Senate is likely, even with their thin majority.   During the run-up to the Presidential election, it will be interesting to see how the legislation fares in the Republican-controlled House.  The framing of the bill as something of a States-rights issue may peel some Republicans off their otherwise expected rejection of the proposed legislation.  The Obama Administration's support of the repeal of the DOMA will also require the Republican Presidential hopefuls to state their position, which may also result in a few surprises.

Stay tuned!     

Senate bill is posted on the Internet at:

http://thomas.loc.gov/cgi-bin/query/C?c112:./temp/~c1120x92ET

Concerning the Doctrine of Primary Jurisdiction

Concerning the Doctrine of Primary Jurisdiction

Donato v Plainview-Old Bethpage CSD, 286 AD2d 388

The Doctrine of Primary Jurisdiction was the underpinning of a decision by a State Supreme Court justice in the Donato case -- a case involving an educator's claim that she was eligible for reinstatement from a preferred list.

As the Appellate Division noted, the Doctrine of Primary Jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”*

In other words, although the court has original jurisdiction, questions involving the exercise of an administrative body's special competence or expertise is to be referred to that body for an initial determination.

The doctrine of primary jurisdiction, the court explained, is intended to coordinate the relationship between courts and administrative agencies so that, among other things, the agency's views on factual and technical issues can be made available to the courts where the matter before the court concerns issues that are within the agency's specialized field.

According to the ruling, in 1991 Linda Donato's position at the District's Mattlin Middle School -- Social Studies Chairperson, Grades 5-8 -- was abolished for budgetary reasons. The district placed Donato's name on a preferred eligible list “for reappointment to a similar position” in accordance with Section 3013(3)(a) of the Education Law.

In 1997 the District created a new position -- District-wide Social Studies Chairperson, Grades K-12. Donato asked to be appointed to this new position from the Social Studies Chairperson, Grades 5-8, preferred list. The District, contending that the preferred list was not appropriate because the duties of the position, which it had abolished, were not similar to those of the new position, refused to use the preferred list to appoint Donato to the vacancy.

Donato, claiming that the two positions were, indeed, similar for the purposes of the certification of the preferred list, initiated an Article 78 action to compel the District to use the preferred list. If the preferred list were appropriate for filling the new position, the District would have to either appoint Donato to the new position or elect to keep it vacant.**

The Supreme Court dismissed the Donato's petition after concluding that the doctrine of primary jurisdiction was applicable. The court said that in this instance the Commissioner of Education should resolve the issue of whether or not the positions are similar for the purposes of certifying the preferred list.

The Appellate Division affirmed the lower court's ruling that the doctrine of primary jurisdiction applied in this case. Citing Hessney v Public Schools of Tarrytowns, 228 AD2d 954, the court pointed out that “the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether [Donato's] former position and the new position are similar within the meaning of Education Law Section 3013(3)(a).”

Another procedural wrinkle to consider: A statute sometimes allows an individual to file his or her complaint or appeal either (a) with a court or (b) with an administrative body. Examples of such “election” of jurisdiction opportunities:

1. Section 76 of the Civil Service Law provides that an individual may file his or her appeal from a Section 75 disciplinary determination by an appointing authority initially with the civil service commission having jurisdiction within thirty days of the decision or with the court pursuant to Article 78 of the Civil Practice Law and Rules.

2. Section 297.9 of the Executive Law, New York's Human Rights Law, allows a human rights complaint to be initially filed with a court or with the State Division of Human Rights.

* Another doctrine frequently cited in cases challenging an administrative decision is the doctrine of the exhaustion of administrative remedies. In contrast to the doctrine of primary jurisdiction, the “exhaustion doctrine” involves satisfying a condition precedent to initiating litigation where there is an administrative appeal procedure in place. Typically courts will decline to assume jurisdiction if the complaining party has failed to exhaust his or her available administrative remedy.

** As a general rule, reinstatement from a preferred list does not require that the individual serve a probationary period in contrast to all other types of permanent appointment, which typically require that the individual satisfactorily complete a probationary period in order to attain tenure in the title.