CASE UPDATES

By: Martin J. Mayer

RIDE-ALONG POLICY VIOLATES FOURTH AMENDMENT BY ALLOWING NON-POLICE TO ENTER RESIDENCE

WILSON v. LAYNE 119 S.Ct. 1692

During the execution of an arrest warrant for Dominic Wilson, at his parents home, deputy federal marshals and local sheriff's deputies invited a newspaper reporter and a photographer to accompany them. The warrant made no mention of, or included, a ride-along.

The early morning entry into the home prompted a confrontation with the parents, and a protective sweep revealed that the son was not in the house. The reporters who observed and photographed the incident were not involved in the execution of the warrant, and the newspaper did not publish any of the photographs.

The Wilson's sued the officers in their personal capacities contending that the officers' actions in bringing the media to observe and record the attempted execution of the arrest warrant violated their Fourth Amendment rights. The district court rejected the officer's defense of qualified immunity. The Fourth Circuit Court of Appeals reversed, finding that since no court had held that media presence violated the Fourth Amendment, the right was not "clearly established" and, therefore, the police were entitled to the defense of qualified immunity.

The court opined that when police bring members of the media or other third parties into homes during the execution of a warrant, when the presence of the third parties in the home was not in aid of the warrant's execution, there is a Fourth Amendment violation. In this scenario, the court pointed out, it was not a case in which the presence of the third parties directly aided in the execution of the warrant. The court observed that there may be situations where the presence of third persons would not violate the Fourth Amendment i.e., the police entering a home under the authority of a warrant to search for stolen property. The presence of third parties for the purpose of identifying the stolen property had long been approved by the courts and common-law tradition.

/ What effect does this have on your agency?

Departments should have their legal advisor review the ride-along policy, including a review on how the agency utilizes , for example, Police Explorers and other's, who do not directly assist or have a direct police function. Once again, because the court has specifically addressed this issue, it will be virtually impossible to raise the defense of qualified immunity, regarding this issue, in the future.

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CITIZEN REVIEW BOARD FINDINGS OF MISCONDUCT CONSTITUTE PUNITIVE ACTION TRIGGERING RIGHT TO ADMINISTRATIVE APPEAL

CALOCA, et al. v. COUNTY OF SAN DIEGO 72 Cal.App.4th 1209

The San Diego County Citizens Law Enforcement Review Board reviewed citizen complaints and issued findings of serious misconduct against Sheriff Deputies Victor Caloca, Ronald Cuevas, Rick Simica, and William Smith. The deputies, together with the San Diego County Deputy Sheriffs Association, brought a petition for writ of mandate to compel San Diego County and the San Diego County Civil Service Commission to conduct liberty interest hearings or alternatively an administrative appeal of the Review Board's findings pursuant to the Public Safety Officers Procedural Bill of Rights Act.

The trial court denied the petition finding (1) the deputies were not entitled to a liberty interest hearing because they had failed to show a present deprivation of liberty interests, and (2) the deputies were not entitled to an administrative appeal because they failed to show punitive action.

The Fourth Appellate District, Division One, determined that the trial court properly ruled that the deputies were not entitled to liberty interest hearings since the deputies failed to show deprivation of a constitutionally protected liberty interest. However, the court held that the Citizens Law Enforcement Review Board's findings of misconduct by the deputies constituted punitive action against them within the meaning of Government Code sections 3303 and 3304, subdivision (b). Therefore the deputies were entitled to an administrative appeal pursuant to the Public Safety Officers Procedural Bill of Rights Act.

/ What effect does this have on your agency?

As the establishment of "Citizen Review Boards" are once again being touted as necessary to stem what some groups see as a proliferation of unnecessary force being used by law enforcement, the holding in this case makes it necessary that departments faced with the prospect of having such a review body be prepared to budget for and implement an appeal process.

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REFUSAL TO HIRE BASED ON UNCORRECTED VISUAL ACUITY DOES NOT VIOLATE THE AMERICANS WITH DISABILITIES ACT

DUTTON, et al. v. UNITED AIR LINES, INC. 119 S.Ct. 2139

The Dutton's are severely myopic twin sisters who have uncorrected visual acuity of 20/200 or worse, however, with corrective measures, both function identically to individuals without impairments. They applied for employment as commercial airline pilots but were rejected because they did not meet United's minimum requirement of uncorrected visual acuity of 20/100 or better. Consequently they filed suit under the Americans with Disabilities Act (ADA).

The District Court dismissed the complaint for failure to state a claim, holding that the sisters were not actually disabled under subsection (A) of the disability definition because they could fully correct their visual impairments. The Court also determined that they were not "regarded" by United as disabled under subsection (C) of the definition. The Duttons had alleged only that United regarded them as unable to satisfy the requirements of a particular job, global airline pilot. These allegations were insufficient to state a claim that the Dutton's were regarded as substantially limited in the major life activity of working. The Tenth Circuit Court of Appeals affirmed.

The United States Supreme Court, in a 7 - 2 decision, affirmed the Tenth Circuit's holding, finding that three separate ADA provisions, read in concert, lead to the conclusion that the determination of whether an individual is disabled should be made with reference to measures, such as eyeglasses and contact lenses, that mitigate the individual's impairment, and that the approach adopted by the EEOC guidelines was an impermissible interpretation of the ADA.

The Dutton's alleged that United had an impermissible vision requirement that was based on myth and stereotype and that United mistakenly believed that, due to their poor vision, they were unable to work as "global airline pilots" and were thus substantially limited in the major life activity of working.

The Supreme Court stated that creating physical criteria for a job, without more, does not violate the ADA. The ADA allows employers to prefer some physical attributes over others, so long as those attributes do not rise to the level of substantially limiting impairments. An employer is free to decide that physical characteristics or medical conditions that are not impairments are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.

The Court pointed out that when the major life activity under consideration is that of working, the ADA requires, at least, that one's ability to work be significantly reduced. The EEOC regulations similarly define "substantially limits" to mean significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, as compared to the average person having comparable training, skills and abilities.

Assuming work was a major life activity, the Court found that the Dutton's allegations were insufficient because the position of global airline pilot was a single job. A number of other positions utilizing the Dutton's skills, such as regional pilot and pilot instructor, were available to them.

/ What effect does this have on your agency?

When considering an applicant for employment it is incumbent upon those making the decision to strictly adhere to validated and established hiring criteria. Allowing personal feelings about a real or perceived impairment to influence the process will place the agency in conflict with the Supreme Court's holding in this case.

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TERMINATION FOR FAILING TO MEET PHYSICAL REQUIREMENTS NOT A VIOLATION OF AMERICANS WITH DISABILITIES ACT

MURPHY v. UNITED PARCEL SERVICE, INC. 119S.Ct. 2133

United Parcel Service, Inc. hired Murphy as a mechanic, a position that required him to drive commercial vehicles. Murphy had to satisfy certain Department of Transportation health certification requirements, including having "no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial vehicle safely." Despite Murphy's high blood pressure, he was erroneously granted certification and commenced work. After the error was discovered, United Parcel fired Murphy on the belief that his blood pressure exceeded the DOT's requirements.

Murphy brought suit under Title I of the Americans with Disabilities Act. The District Court granted United Parcel summary judgement and the Tenth Circuit Court of Appeals affirmed, holding that UPS did not terminate him on an unsubstantiated fear that he would suffer a heart attack or stroke, but because his blood pressure exceeded the DOT's requirements for commercial vehicle drivers.

The United States Supreme Court, in a 7-2 decision, affirmed. The Court held that the determination whether Murphy's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. Citing its decision in Dutton, et al. v. United Air Lines, supra, the Court restated that a person is "regarded as" disabled within the ADA's meaning if, among other things, a covered entity mistakenly believes that the person's actual, non-limiting impairment substantially limits one or more major life activities.

Here, UPS argued that it did not regard Murphy as substantially limited in the major life activity of working, but rather, regarded him as unqualified to work as a UPS mechanic because he was unable to obtain a DOT health certification. The Court pointed out that EEOC defined "substantially limits" as "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, as compared to the average person having comparable training, skills and abilities." Thus, the Court opined one must be regarded as precluded from more than a particular job.

At most, Murphy had shown that he is regarded as unable to perform the job of mechanic only when that job requires driving a commercial motor vehicle - a specific type of vehicle used on a highway in interstate commerce. He had put forward no evidence that he was regarded as unable to perform any mechanic job that does not call for driving a commercial motor vehicle and thus did not require DOT certification. It was undisputed that Murphy was generally employable as a mechanic, and there was incontrovertible evidence that he could perform a number of mechanic jobs.

/ What effect does this have on your agency?

The release of an employee who medically fails to meet state or federal certification requirements will not subject the employer to liability for violation of the Americans with Disabilities Act.

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FLSA WINDOW OF OPPORTUNITY PROVISION MAY BE INVOKED TO AVOID LIABILITY

PARESI, et al. v. CITY OF PORTLAND 99 DAR 6113

Two groups of Portland City employees, 43 commanding officers in the Portland Police Bureau and 19 managerial employees from several other City Bureaus, filed suit seeking overtime compensation, alleging that the City violated the overtime pay provisions of the Fair Labor Standards Act, and that the City was not entitled to correct the violations under the FLSA's "window of correction." The district court granted the City's motion for summary judgment, holding that while there was a material issue of fact as to whether the City had violated the FLSA's overtime pay provisions, the City was entitled to invoke the window of correction to avoid liability.

The Ninth District Court of Appeals affirmed, stating that under the FLSA covered employers are required to compensate their employees at a rate of at least time and one-half for all hours worked in excess of forty per week, unless the employee works in an "executive, administrative, or professional capacity." To be an executive, administrator or professional, and therefore exempt from overtime, an employee must work "on a salary basis."

Under the so called "salary basis test" the employee must "receive his full salary for any week in which he performs any work" and his salary may "not[be] subject to reduction because of variations in the quality or quantity of the work performed." If an employer subjects a salaried employee to an impermissible reduction in his weekly pay, the employee ceases to be overtime-exempt. The employer will then have to pay overtime unless the employer corrects the impermissible deduction through the so called "window of correction" provided for in the regulations.

The employees contended that the window of correction was not available when the employer maintained a "pattern ... or policy of impermissible disciplinary deductions." The Ninth Circuit opined that the text of the regulation contained no such limitation, holding "the plain language of the regulation sets out 'inadverten[ce]' and 'made for reasons other than lack of work' as alternative grounds permitting corrective action."

/ What effect does this have on your agency?

Good faith mistakes will trigger, without liability, an agency's ability to correct the "inadvertent" mistake. It therefore becomes paramount that departments insure that all policies regarding employees classified in "exempt" categories be thoroughly reviewed by the agency legal advisor.

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PUBLIC EMPLOYER MUST ACCOMMODATE EMPLOYEE'S RELIGIOUS OBSERVANCE

BALINT v. CARSON CITY, NEVADA (Sheriff Rod Banister) 99 DAR 5914

After completing employment testing, Balint was instructed to report to work for a swing shift in the detention department of the Carson City Sheriff's Department. Balint, a member of the Worldwide Church of God with a central tenet of strict observance of the Sabbath from sundown Friday to sundown Saturday, informed the department of her religious beliefs and that she could not work during the Sabbath. Balint requested her schedule be adjusted to accommodate her religious practice and when informed there could be no accommodation withdrew her application. Balint claimed religious discrimination in violation of Title VII and the Nevada state anti-discrimination statue.

The department's contention was that it had a long standing, unwritten, seniority based, shift bidding system therefore was not required to accommodate Balint. The trial court granted summary judgment for the department ruling that it had a neutral shift bidding system.

The United States Court of Appeals, Ninth Circuit reversed and remanded, holding that the mere existence of a seniority system does not relieve an employer of the duty to attempt reasonable accommodation of its employees' religious practices, if such an accommodation can be accomplished without modification of the seniority system and with no more than a deminimus cost.

Since the department admitted that Balint was not hired due to her refusal to work on the Sabbath, Balint established a prima facie case of discrimination. Title VII, section 2000e-2(h) permits seniority systems as long as they are not the result of an intention to discriminate based on race, religion, sex, or national origin. The statute does not exempt employers with seniority systems from the other requirements of Title VII.

/ What effect does this have on your agency?

This, as well as prior holdings, emphasizes the need for public employers to examine more than just the fact that there is a seniority bidding system in place. The agency must assess the accommodations impact on that system and the financial impact. Where the accommodations impact on the seniority system does not require complete modification of that system and the cost factor is minor the agency has a duty to attempt a reasonable accommodation.

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EMPLOYER VICARIOUSLY LIABLE FOR HARASSMENT BY SUPERVISOR

PACHECO v. NEW LIFE BAKERY, INC. 99 DAR 7625

Margaret Pacheco, a receptionist, informed her supervisor Kim Walters that Richard Marson, a New Life officer, sexually harassed her for seven weeks by making inappropriate comments and touching her in a manner inappropriate for the workplace. Walters informed the president of New Life about the allegations. The president and officers of the corporation, all of whom were related to Marson, concluded that no sexual harassment occurred.

Shortly after her complaining, Walters informed Pacheco that she was being laid off. Pacheco sued, alleging a hostile work environment due to sexual harassment and retaliatory discharge.

The United States Court of Appeals, Ninth Circuit, in reversing the trial court's summary judgment for New Life, held that an employer is vicariously liable to an employee where the employee is subjected to a hostile work environment created by a supervisor with immediate authority over the employee. The court found that New Life was aware of Pacheco's complaint and Marson, as an officer of the company, had supervisory authority over Pacheco. It was irrelevant that Marson did not personally fire Pacheco since New Life, not Marson, was her employer. Pacheco was allegedly laid off due to lack of work however was not rehired when New Life starting hiring again.

/ What effect does this have on your agency?

The court again emphasizes the need for swift and affirmative action on the part of employers, as well as a proper independent investigation. There was an implication that since all parties to the decision-making process were related it may have effected their ability to rebut Pacheco's retaliatory claim. We would recommend that where there is any meaningful conflict between the investigator and the subject employee, or any decision maker and the subject employee, or complainant, that individual be removed from the process.

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9-1-1 DOMESTIC VIOLENCE CALLS SHOULD BE TREATED AS "IN PROGRESS" LIKELY TO CAUSE SEVERE INJURY OR DEATH

FAJARDO v. CO. OF LOS ANGELES (SO) 179 F.3d 698

This case was first decided in 1995, Navarro v. Block, 72 F.3d 712 (9thCir. 1995), where summary judgment was reversed and the case remanded because genuine issues of material fact remained as to whether the County of Los Angeles had a custom of not classifying domestic violence 9-1-1 calls as "emergencies."

The district court determined that it did not need to decide whether a custom or policy existed because it had previously found that such a policy met the rational basis test, and granted the County's motion for judgment on the pleadings. The trial court found it rational to limit emergency response to in-progress calls and that, unlike non-domestic violence calls, domestic violence calls rarely reached the level of severe injury or near death.

The United States Court of Appeal, Ninth Circuit, once again reversed and remanded. The court opined that regardless of frequency, domestic violence crimes can result in severe injury or death. The court found no evidence supporting the trial court's assumption that non-domestic violence crimes involved a greater likelihood of severe injury or death and concluded that the trial court erred by comparing domestic violence 9-1-1 calls to those "not-in-progress" and other emergency calls with "in-progress" calls.

/ What effect does this have on your agency?

Those agencies that are not classifying domestic violence calls with the same dispatch priority as "in-progress" calls that are likely to cause severe injury or death are unnecessarily exposing themselves to violation of civil rights liability. Department's would be well advised to re-evaluate all priority response calls and place "domestic violence" in the top classification.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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