In continuing my theme of reviewing federal court cases covering topics of interest to OPBA members, I reviewed several recent cases decided by the Federal Court of Appeals for the Sixth Circuit, which is the federal appeals court with jurisdiction over cases filed in the State of Ohio. Two of these cases were worthy of note.

First, in Morrison, et al. v. Bd. of Trustees of Green Twp., et al., Case No. 08-3051 (October 8, 2009), the Court considered the appeal, by a Police Officer, of the denial of a Motion for Summary Judgment concerning the issue of qualified immunity.

The officer was accused of excessive use of force by a female who alleged that she was tackled by the Officer and then claimed that the handcuffs were applied in a manner that eventually resulted in injury to her because the Officer purportedly refused to loosen them, despite her claim that she informed him that the handcuffs were hurting her on more than one occasion. In addition, the woman alleged that after she was handcuffed, her face was pushed into the ground four or five times to prevent her from communicating with other family members that had arrived on the scene.

The Court upheld the denial of the Officer’s Motion for Summary Judgment and sent the matter back to the District Court for further proceedings by applying the “objective reasonableness” standard first established by the United States Supreme Court in Graham v. Connor, 490 U.S. 386 (1989), which was explained by the Morrison Court, as follows:

This entails “balanc[ing] the consequences to the individual against the government’s interests in effecting the seizure.”  Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing Graham, 490 U.S. at 396).  The assessment involves a fact-specific inquiry based on the totality of the circumstances that “pay[s] particular attention to the ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’”  Kostrzewa, 247 F.3d at 639 (quoting Graham, 490 U.S. at 396).  The Court should judge the lawfulness of the conduct from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Id. (quoting Graham, 490 U.S. at 396).
In issuing its decision, the Court reiterated two points that are worth repeating here:

The Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course of a seizure; and
“This Court has consistently held in light of the reasonableness standard that use of force after a suspect has been incapacitated or neutralized is excessive as a matter of law.”

While there is no doubt that the Court’s hindsight is 20/20 when it comes to second-guessing the level of force that an Officer is required to apply during a critical incident and that it is also impossible for the Court to recreate the exact circumstances that caused the Officer to react in the manner which led to the underlying complaint, it is abundantly clear, after reviewing the Court’s recent decisions, that a prudent Officer should take care with a handcuffed suspect.

In another recent case, decided by the Sixth Circuit, the Court decided the issue of “what happens when an employer runs sick leave concurrently with FMLA leave and the employee violates the more stringent requirements of the paid sick leave policy.”  Allen v. Butler County Commissioners, 2009 U.S. App. Lexis 18773 (6th Cir. August 18, 2009).

In the Allen case, the Court upheld the termination of a public employee who was fired, at least in part, for not complying with the contractual sick leave procedures, while he was off on paid sick leave which also qualified for leave under the FMLA. Specifically, the Employee supposedly failed to comply with the contract provision which required him to call-in daily to report his absence.

The decision by the Sixth Circuit, in this case of first impression, is significant because it seems to be contrary to an express federal regulation interpreting the FMLA.  Namely, 29 CFR 825.207 states, in part, as follows:

Generally, FMLA leave is unpaid leave.  However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave.  If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.  The term “substitute” means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.  Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave.  An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.  When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment.  See § 825.300(c).  If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.  Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.

(Emphasis supplied).

The underlined language above indicates that an Employee who does not satisfy all of the procedural requirements of the Employer’s paid leave policy could be denied paid leave, but would still be entitled to unpaid leave during this time frame under the protection of the FMLA.

Seemingly, the Court disregarded the plain language of 29 CFR 825.207 above when it upheld the termination of the above-mentioned employee for, inter alia, violating one of the procedural requirements for paid sick leave, instead of simply permitting the Employer to deny the paid leave.

In light of the above decision and other recent decisions which seem to further restrict employee rights under the FMLA, it remains as important as ever to consult your OPBA representative if you need assistance in evaluating your rights under the FMLA.