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Speech About Firefighter’s Fitness Not Constitutionally Protected

Dr. Nancy King worked under contract for Polk County, Florida and for fifteen years was the primary person responsible for determining whether firefighter applicants were medically qualified. Ordinarily, King would rely on a national standard known as NFPA 1582 to determine if the candidate was capable of performing the tasks of a firefighter. She would then make a recommendation to the County. King’s lawsuit revolved around one applicant, “J,”…

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Deputy Who Accused Sheriff Of Solicitation Of Murder Loses Job

Scott Milliman became a McHenry County, Illinois Sheriff ’s Deputy on March 2, 1998. In December 2001, Milliman was diagnosed with brain cancer. On July 21, 2002, Milliman underwent brain surgery and went on extended medical leave to recover. Dr. Christopher Grote evaluated Milliman and determined that he was fit for duty. Milliman returned to work on November 17, 2003. In November 2010, Milliman gave a deposition in a…

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Court Finds Fitness-For-Duty Evaluations Violate The ADA

The Port Authority of New York and New Jersey is an interstate governmental agency that operates transportation facilities in the New York metropolitan area, including airports, bridges, tunnels, train, bus, and marine terminals, as well as the World Trade Center site. The Authority’s rank-and-file police officers are represented by the Port Authority Police Benevolent Association (PBA). The parties’ collective bargaining agreement, known as a Memorandum of Agreement (MOA), allows…

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Court Upholds Arbitrator’s Far-Ranging Fitness-For-Duty Disciplinary Decision

Matthew Tubaugh is a police officer with the City of Livingston, Montana Police Department. A series of incidents occurred in 2011 and 2012 that led to his discharge. In 2011, he told a judge that he disagreed with a ruling of the Court and later became aggressive and argumentative toward the defendant. Next, on January 6, 2012, Tubaugh disagreed with his supervising officer and attempted to confront the County…

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How The ADA And FMLA Interact In The Fitness-For-Duty Process

Susan White is employed as a Senior District Attorney Investigator with the Los Angeles County District Attorney’s Office (DA). Her job includes personally serving arrest warrants, making arrests, interrogating suspects, and booking prisoners, and requires police officer certification. Beginning in late 2009, around the time of the death of her brother-in-law, White began experiencing emotional difficulties. She was observed acting erratically in the workplace, with very high emotional highs…

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Arbitration Decision Explores Role Of Fitness Evaluations In Disciplinary System

Police Chief Darren Raney of the Livingston, Montana Police Department became concerned that Officer Matt Tubaugh was displaying a tendency for what Raney called “contempt of cop,” perceiving behavior by suspects to be disrespectful or insufficiently deferential, responding with charges such as disorderly conduct, resisting arrest, obstruction, or assaulting an officer. Raney reviewed a number of criteria in which he compared Tubaugh’s performance to that of other police officers…

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Fitness For Duty Evaluations May Not Be Privileged

Oda Poole and Stan North were police officers employed with the Rockford, Illinois Police Department on August 24, 2009 when they fatally shot Mark Barmore. Barmore’s estate sued Poole, North and the City, claiming that Poole and North used excessive force. During depositions, Poole and North refused to answer certain questions about their conversations with mental health professionals based on the psychotherapist-patient privilege. The City also refused to provide…

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Court Finds Arbitrator Should Resolve Firefighter’s Fitness-For-Duty Discharge

Rod Yoder is a firefighter with the City of Stow, Ohio. Yoder was disciplined for an incident involving unprofessional behavior toward a member of the City’s Parks Department. The Fire Chief told Yoder that he would be placed on involuntary paid leave until he completed a fitness-for-duty evaluation. Yoder’s union, Local 1662 of the International Association of Fire Fighters, filed a grievance on his behalf. When the City’s psychologist…

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City Not Required By ADA To Offer Light-Duty Accommodation To Fire Investigator

Public safety employees have been notably unsuccessful in convincing courts that their employers should accommodate disabilities by assigning them light-duty work. As learned by Gary Cremeens, a Fire Investigator for the City of Montgomery, Alabama, courts routinely hold that employers have no obligation under the Americans With Disabilities Act to accommodate disabilities that interfere with the employee’s ability to perform the core functions of the job. Cremeens worked off…

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Court Upholds Arbitrator’s Award Requiring Disciplinary Retraining Of Sheriff, Aides

Jan Bartleson became a Yakima County, Washington sheriff’s deputy in 1995. She generally received positive work reviews until January 2001, when she received a three-day suspension for an on-duty automobile accident. The Yakima County Law Enforcement Officers Guild filed a grievance and the suspension was reduced to one day. Thereafter, Bartleson’s relationship with Sheriff Ken Irwin began to deteriorate. Bartleson exhausted her paid leave due to a combination of…

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Police Department Need Not Wait For Actual Personnel Problems To Order Fitness For Duty Evaluation

Oscar Brownfield began working as a police officer for the Yakima, Washington Police Department in November 1999. Approximately one year later, he suffered a closed head injury in an off-duty car accident. After recovering from symptoms including reduced self-awareness, Brownfield returned to full duty in July 2001. He received positive performance evaluations and was awarded several commendations over the next three years. In June 2004, Brownfield began having problems…

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Fitness For Duty Examinations And The ADA

A recent case from a federal court of appeals examined the issue of how the Americans With Disabilities Act applies when a public safety employer requires one of its employees to submit to a fitness-for-duty examination. The case involved Charlene Wisbey, a dispatcher for the City of Lincoln, Nebraska. During January and February of 2007, Wisbey utilized a significant amount of sick leave due to an upper respiratory infection….

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Placement On Sick Leave Does Not Trigger Bill Of Rights

California's Public Safety Officers Procedural Bill Of Rights Act provides that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer…without providing the public safety officer with an opportunity for an administrative appeal.” The California Court of Appeals recently had to decide whether the involuntary placement of a police officer on sick leave triggers the…

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In Spite Of Brady Rule, Washington Supreme Court Reinstates Arbitrator’s Opinion Overturning Deputy’s Discharge For Untruthfulness

Brian LaFrance worked as a deputy for the Kitsap County, Washington Sheriff's Department for 14 years, during which he was disciplined several times. Beginning in May 2000, LaFrance began to behave unusually. He had been assigned to a child pornography task force, and he became “obsessive” and “fixated” on this work and on “protecting the children.” Despite repeated warnings and reprimands, LaFrance continued to work outside his regular shift…

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Police Department’s Sick Time Policy Violates ADA

The Massachusetts Division of Labor Relations has struck down the sick-time verification policy of the Dracut Police Department, finding that the policy violated several provisions of the applicable collective bargaining agreement. Similar to recent federal court decisions striking down overly intrusive sick-time verification policies, Dracut’s policy was also found to be in violation of the Americans with Disabilities Act (ADA). An arbitrator appointed by the State ordered the Town…

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Court Ducks Firefighter’s ‘Sex Plus Height’ Claim

Tonya Coffman, who is by her own description five feet tall “with shoes on,” began working for the Indianapolis Fire Department in April 2001. Her tenure was unremarkable until late 2003, when two fellow firefighters expressed concern about her driving ability. One lieutenant observed that Coffman “needed to put the bench seat all the way forward in order to reach the pedals and needed to literally hold onto the…

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No ‘Involuntary Disability Exception’ To Bill Of Rights

California’s Public Safety Officers Procedural Bill of Rights Act provides that “no punitive action” shall be undertaken against a public safety officer “without providing the public safety officer with an opportunity for administrative appeal.” The California Court of Appeals recently had to resolve whether the requirement for a hearing applies even to placement on involuntary disability status. The case involved Leisha Fauth, a peace officer with Riverside County, California….

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Reference To ‘Psycho-Bitch’ Can Support Claim For Sexual Harassment

Gina DiPasquale was a corrections officer with the State of New Jersey Department of Corrections. In 2001, DiPasquale became a permanent instructor in the Correctional Staff Training Academy. In January 2002, female recruits complained to DiPasquale that male instructors embarrassed, bullied and demeaned them because they could not keep up in physical training sessions. DiPasquale reported to her supervisor that male instructors were pushing female recruits to the point…

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