Vol. 2, No. 1 | April 2007

by Elizabeth Dillon
Guynn, Memmer & Dillon, P.C.
Roanoke, Virginia
E-mail:  elizabeth.dillon@g-mpc.com

Qualified Immunity – Gender Discrimination

The Fourth Circuit court of Appeals recently confirmed that qualified immunity is available in a gender discrimination case under § 1983 brought against a person in his or her individual capacity.  In Johnson v. Caudill, __ F.3d __, 2007 WL 291396 (4th Cir. 2/2/07), the Sheriff of Tazewell County was sued by a former narcotics detective when she was terminated.  The detective was part of a drug task force led by the Virginia State Police.  The Virginia State Police notified the Sheriff that they would no longer work with the detective on the task force.  Following notification of that fact, the Sheriff terminated the detective.

The trial court denied summary judgment finding that issues of fact were in dispute.  Those issues, however, were not set forth in the opinion.  On appeal, the Fourth Circuit reversed the lower court’s denial of summary judgment on the basis of qualified immunity.  It was not sufficient for the detective to argue that gender discrimination was clearly established as unconstitutional.  The Court examined the specific, undisputed facts and held that a reasonable Sheriff under the circumstances would believe that he could legitimately fire the detective given the circumstances.

FLSA Update

Since training on the Fair Labor Standards Act was recently provided at the meeting in Chesterfield, we are provided a list of some state statutes regarding wage and hour provisions of which you should be aware.

Virginia Code § 40.1 – 2.1 provides that the provisions of Title 40.1, Labor & Employment, do not apply to the Commonwealth of Virginia, its agencies, its political subdivisions or any public body unless coverage is extended by specific regulation of the Commissioner of Labor & Industry or the Safety & Health Codes Board.  Title 40.1 covers issues such as withholding wages, agreements to forfeit wages, assignment of wages, and safety and health matters.

Virginia Code §§ 9.1-700 et seq. provide that a law enforcement officer who is paid on an hourly basis shall have paid leave counted as hours of work for FLSA purposes in an amount no greater than the numbers of hours counted for other law enforcement employees working on the same schedule who are paid on a salaried basis in that jurisdiction.  All hours that an employee works or is in a paid leave status during regularly scheduled work hours are to be counted as hours of work.  For example, a non-exempt law enforcement employee who takes paid leave for all regularly scheduled work hours in a work period and also comes in to work for 3 hours in addition to that paid leave, would be entitled to 3 hours at the overtime rate.

The provisions of 9.1-701 et seq. only apply if you have 100 or more law enforcement employees.  Additionally, the provisions do not apply to the Commonwealth of Virginia or its agencies.  Va. Code section 9.1-706 and Va. Atty. Gen. Op. 05-056.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.