11-30-15; Bizarre, Cynical and Unconscionable Collaboration of Illinois Injustice--What Will We Do About It?; Shawn Biery on Important Federal Win for Costco; Kevin Boyle Explains IN WC AWW Puzzle...

Synopsis: A Bizarre, Cynical and Unconscionable Collaboration of Illinois Injustice--What Will We Do About it?


Editor’s comment:We quote the Daily Herald newspaper as part of our headline above. We feel every Illinoisan should pause and consider what should be done at all levels of law enforcement after the untimely passing of one of our citizens at the hands of a rogue former police officer. We want the Illinois claims, legal and police community to stand up and contact our leaders and not let this one go to the wayside. There are so many things wrong with the sixteen rounds of high-speed ammo that were shot into this decedent, we simply can’t ignore it and hope you won’t either.


Why Should the Claims Community Care About This Gross Injustice?


Well, we first found out about what happened as part of settlement of a $5M claim to the family of the deceased. The lawyers for the family accurately forecast the video was shocking and revolting. If you haven’t seen it and you understand discretion is strongly advised, you can take a look at this link—jump to the second half for the important viewing: http://abc7.com/news/warning-dash-cam-video-of-police-shooting-of-laquan-mcdonald/1098640/


If you view the autopsy diagram of Decedent, you will note the first round hit him in the head and knocked him out. The second round hit his neck. The third and fourth rounds were “chest-taps” and, in combination with the first two were almost certainly soon-to-be fatal. Despite those facts, 12 more rounds were shot into a prone and non-moving Decedent. Again, understanding it is shocking and discretion is advised, take a look: http://invisible.institute/news/autopsy-of-laquan-mcdonald


No police officer of a large contingent of reporting officers on the crime scene appeared to provide medical care to the unconscious Decedent and they simply left him to quietly perish. Last we heard, all Chicago patrol cars are outfitted with first aid kits. It is unclear why immediate attention wasn’t offered; perhaps it was immediately deemed futile after 16 high-speed rounds were fired and they all struck Decedent.


The municipal and general liability claims community cannot ignore what keeps coming at us over and over again. There are succinct reasons the City of Chicago was so riddled with criminal police activity during the 1970s, 80s and 90s that in May 2015, the Mayor and City Council found it necessary to set aside $5.5 million to create a fund to pay for the admitted attacks on its citizens during those years. These payments are being made despite the City’s multi-billion-dollar deficits. These payments are being made on top of the what ABC7 in New York reports is more than $100 million already paid in recent judgments and settlements because some sworn police officers were subjecting suspects to beatings, electric shock, suffocation and Russian roulette, according to NPR, which tallied up the settlements.


Why Should The Legal Community Care About Bizarre Police Malfeasance and Citizen Attacks?


Lots of lawyers start out as police officers. Lots of lawyers “supervise” patrol officers in criminal and disciplinary hearings and other related legal matters. Many rulings from the U.S. Supreme Court like Miranda v. Arizona on down were designed to reign in police actions and behavior. We feel the Illinois legal community can’t and shouldn’t sit on our hands to allow this current situation to continue. We can’t keep coughing and looking the other way. We have to start making sense of this situation and grab ahold of these issues and start to set things straight.


We are also concerned about the basic problem of having complaints about police being made to other fellow police officers and union brothers. One obvious and glaring concern about what happened with the McDonald claim is the extended duration and questionable actions of the ensuing police investigation. Various politicians and news sources are now calling for the resignation of Cook County State’s Attorney Anita Alvarez. Our related concern is State’s Attorney Alvarez will take literally no action on the issue of IL workers’ comp fraud. Her staff will receive recommendations for criminal prosecution of WC claimants from the state agency that initially handles such investigations or the IL Dep’t of Financial and Professional Regulation (IDPFR) and the assistant state’s attorneys let them languish and refuse to take any action, no matter how egregious the circumstance. 

In short, the IL WC claim community won’t miss State’s Attorney Alvarez, if she resigns to move on to other pursuits or gets voted out.


How Does the Legal and Claims Community Improve Illinois Law Enforcement?


The vast majority of law enforcement officers are well-trained, dedicated and committed to serving their community and all of its citizens. Our police expose themselves to potential life-threatening situations each time they climb into a patrol car and answer calls involving armed robbery, assault, murder, etc. Decedent McDonald had a knife in his hand, had used it to slash tires and refused to obey police commands—17-year-olds sometimes do dopey things. Facing such erratic behavior, our police officers must make snap decisions in high-pressure and dangerous situations. For that, we have to afford them some level of latitude but shooting sixteen rounds, most of them into a prone, unmoving body clearly appears to be over the top. The badge and respect we provide our sworn police officers cannot be a shield for erratic, even criminal behavior of officers in their own right.  


One solution can be found in modern digital video technology. In short order, some patrol officers may not be held accountable for their actions unless and until they are on video. Similarly, any fraudulent/unfounded claim of officer misconduct can be quickly dismissed if the officer’s sound action and handling of a situation is evidenced on a body camera. 


Everyone is clamoring for body cameras on all patrol officers and dash-cams for cars. We agree with that sentiment and the sooner that happens, the better. If police officers know they may be subject to being videotaped by body cams and dashboard cams, it should stop the rogue officer from acting outside the boundaries of the law. Unfortunately in the recent McDonald case, the dash camera didn’t seem to stop the officer and the video certainly doesn’t provide any evidence that McDonald was aggressive or threatening the officer before 16 rounds were fired. 


First, Should It Be Against the Law to Have Police Officers Block/Avoid/Delete Video Evidence?


Cynics will say police officers may be soon practicing how to surreptitiously block/avoid/erase their body cameras to avoid embarrassment, inconvenience or criminal liability to themselves or fellow officers. If you aren’t sure, police officers and their sympathetic managers sometimes seem to go the extra mile to try to delete, avoid, destroy or block video evidence of their actions. Try to imagine the “Keystone Kops” scenario where a rogue police officer makes an inappropriate decision like this one to then have all of his colleagues turn 45 degrees and walk around sideways to avoid having their front-facing body cams record what the rogue officer is doing.


If you watch the McDonald video at 9:57:36pm, you will note the officer driving the patrol car with the dash-cam taking video of the shooter and suspect, intentionally turned the car to insure the rogue officer who was shooting at the suspect was out of the angle of the camera. There have been suggestions in the media as to why that happened which make absolutely no sense to us at all. One would think the officer driving the car would insure the actions of both the shooter and the suspect were fully depicted. Instead, we see the first round being fired and we are quickly left to see the torso of the suspect taking shot after shot without being able to see the officer rapidly shooting 15 additional rounds into what soon became a prone decedent. 


Second, there was video in a nearby Burger King®restaurant of Decedent minutes prior to the alleged crime. No one questions the fact the Chicago Police Department managers went to the restaurant to view the security video outside the presence of the restaurant’s manager. Subsequent video shows them reviewing the video display and talking about it. At the end of their review, there was now a “magical” gap in the security video of over 85 minutes. At a news conference announcing the charge of tampering with the security tape, State's Attorney Anita Alvarez said “forensic testing” found no evidence that anyone intentionally erased the Burger King® video. Police Superintendent Garry McCarthy called the allegation of erasure "absolutely untrue." Gee whiz, common sense doesn’t appear to fit with these strident denials. We also know of no “forensic test” to confirm a videotape was erased.


Our problem with all of it is very few citizens can believe a word of any of these leaders and every outward indication appears to demonstrate they aren’t telling the truth. There was nothing technically wrong with the restaurant video equipment that accurately photographed everything before this event and everything after it. The police aren’t saying the tape was blocked or jammed or anything else. The only randomizing but certain factor is the lengthy presence of the police department managers and the “magical” gap that ensued.


Please note body cameras do work to limit unreasonable force by police officers. The Wall Street Journal reports a 60% reduction in use of force by patrol officers in first year upon implementation of body cameras: http://www.wsj.com/articles/what-happens-when-police-officers-wear-body-cameras-1408320244 There is also an ACLU article on police body cameras: https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all


From these articles, they indicate there have to be consequences for avoidance/deletion/tampering. When a police officer assigned to wear a body camera fails to record, avoids viewing the crime scene or otherwise interferes with any camera video, three responses should result:


·         Direct disciplinary action against the individual officer.

·         The adoption of rebuttable evidentiary presumptions in favor of criminal defendants who claim exculpatory evidence was not captured or was destroyed.

·         The adoption of rebuttable evidentiary presumptions on behalf of civil plaintiffs suing the government, police department and/or officers for damages based on police misconduct. 


The presumptions should be rebuttable by other, contrary evidence or by proof of exigent circumstances that made compliance impossible. That said, body cameras/dash cameras may be the best tool Illinois citizens have to hold police accountable for their actions. As mentioned above, such cameras will also allow those officers acting within protocol to defend against allegations of wrong-doing. It appears we need a law requiring them to use cameras and not interfere with the intent and purpose of the cameras. 


Second, How Do We Create “Skin-In-The-Game” for All Illinois Police Officers?


Our other issue with what happened with this rogue police officer is the unquestioned fact he already had 18 “CR’s” or citizen complaints recognized against him, prior to the shooting in question. We don’t know the merit behind these prior charges or what discipline was dispensed, if any, for the officer’s alleged wrongdoing. However, with 18 prior complaints, the impression one gets is that of recurrent “slaps on the wrist” for police wrong-doing until a police officer ignores the whole process to snap, go rogue and kill.


Please also note this rogue former officer was sued, along with the City of Chicago and city taxpayers paid a verdict of $350K to the plaintiff. The officer didn’t have to pay a penny and we aren’t aware he suffered any penalty of any kind for his actions. From that lesson, we would hope to see a change in protocol with progressive discipline leading to suspensions and terminations for officers who routinely act outside the bounds of their sworn oath and training. We also feel something has to happen when any City settles a claim brought by a citizen and a jury finds liability and awards substantial damages. If taxpayers have to pay, something needs to be done about the police officers causing the issues.


Our sources tell us that in recent years, the Chicago Police Department has increased the penalties for officer wrongdoing, including longer stretches of unpaid suspension and when appropriate, termination. There is also an independent police review board to examine the more serious cases, such as the one addressed here. We understand the actions of this former patrol officer in this case are not representative of the thousands of good, dedicated and upstanding police officers who carefully adhere to their training and the law. However, such tragedies do sometimes seem to place the entire force in a poor light and weakens the trust a community must have in their police and the folks who manage the police.


We feel there has to be a middle-ground short of criminal charges to fairly and openly discipline all police officers and send the strong message we support them when they follow the rules but they can never take the law into their hands without threatening their careers. We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: Big Winner for the Big Box—FMLA & ADA is for Those in Need, Not Those in Greed! Analysis by Shawn R. Biery, JD, MSCC.


Editor’s comment: U.S. Seventh Circuit confirms summary judgment is appropriate when individual attempted to use FMLA as an avenue to avoid disciplinary demotion with stated goal to secure leave to maintain pay rate.


In Curtis v. Costco Wholesale Corp., (N.D. Ill. Nov. 24, 2015) the federal Seventh Circuit held the District Ct. did not err in granting Defendant-employer Costco's motion for summary judgment in action alleging Defendant violated Plaintiff-employee's FMLA rights when Defendant demoted him even though he had requested leave under FMLA.


The record indicates Costco hired Curtis in 2001 and he was eventually promoted to optical manager at the Orland Park Costco location. The General Manager of that location began monitoring the optical department in May 2011 after learning of customer complaints about the department. Upon doing so, the manager determined Curtis was not sufficiently scheduling workers within his department, in accordance with Defendant Curtis’ duties as optical manager.


In September 2011, Curtis requested and received FMLA due to stress and anxiety and upon his return to work in November 2011, Curtis' work did not improve, so he was counseled numerous times over the following months. Notwithstanding, he was even placed on a 90-day performance improvement plan in April 2012 In early May 2012, an employee working under Curtis advised management of concern that Curtis had advised her he was going to take another leave to secure his managerial rate of pay in the event of demotion. Costco determined that this violated its Manager Standard of Ethics and Curtis was demoted to cashier. He was given a second FMLA leave two days later.


Curtis filed a federal complaint May 7, 2013 alleging both 1) retaliation; 2) interference pursuant to the FMLA; 3) discrimination due to disability; and 4) failure to accommodate, both in violation of ADA.  Summary judgment for Defendant Costco was granted at least in part due to Curtis' failure to comply with the local rules when submitting an insufficient response to Costco’s separate statement of material facts.


The Seventh Circuit also noted Costco diligently submitted undisputed evidence of a plethora of customer complaints, violations of Costco policies and failure to perform managerial duties. They also noted their manager did not act with animus as the manager didn’t issue the demotion until consulting with at least three others in Management and HR and there was no evidence their decision was initiated by the information from the employee regarding the plan to “scam” the managerial pay. It is noted documentation confirmed the 90 day PIP was in place at the time of the comment and the comment did lead Costco to honestly believe Curtis had violated their Manager Standard of Ethics.


The Seventh Circuit also noted Curtis requested and received a transfer to a different Costco location while on his second FMLA leave and noted the failure to reinstate at a time when he was actively on FMLA did not constitute an adverse employment action and therefore could not sustain an FMLA retaliation claim.


For 1) retaliation & 2) interference both with regard to FMLA, the Court noted the very important factors which bear mention in the FMLA claims. To prevail on the FMLA interference claims, the Court noted (quoting from rulings including most specifically Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir. 2010)), Curtis had to establish five factors:


·         Eligibility for FMLA protections

·         Employer was covered by FMLA

·         Curtis was entitled to leave under FMLA

·         Curtis provided sufficient notice of intent to take leave

·         Employer denied FMLA benefits to which he was entitled


The Court also noted the employer has no duty to return an employee to a position if the employee cannot perform an essential functions of the job—and Curtis had not been released to work for the period in which he claimed interference. In fact, once a doctor’s note provided release to work, Costco reinstated him at the new location to which he requested transfer.


For allegations 3) discrimination due to disability & allegation and 4) failure to accommodate, both asserted to be in violation of ADA, the Court noted two types of discrimination claims under the ADA.


1)    Disparate treatment—being treated differently because of disability

2)    Failure to provide reasonable accommodation based upon the statutory elements


a.    Qualified individual with a disability

b.    Employer was aware of disability

c.    Employer failed to reasonably accommodate


With regard to factor 1, Curtis apparently failed to present an argument and with regard to factor 2, the Court noted Curtis was out on FMLA leave and unable to actually work at time his transfer request was made, so Costco’s allowance of the transfer and work immediately after MD clearance was appropriate.


From an “outside looking in” defense standpoint, it appears the strong documentation developed and provided by Costco had a twofold effect in the defense of the claim. Initially, the strong responsive documentation appears to have discouraged Curtis from even presenting detailed arguments for a portion of his allegations. Secondarily, any allegation which may have been supported was more easily refuted by the strong evidentiary documentation resulting in summary judgment being granted and upheld.


In conclusion—without wanting to become known as “Broken Record Biery”—the strongest takeaway from this case is again the strong need to Document, Document, Document whenever taking employment actions within the workplace and maintaining that documentation. If you are not training your middle managers to follow specific guidelines and protocols, and verifying those protocols are being followed in daily practice—you are setting your company up to fail. This article was researched and written by Shawn R. Biery JD, MSCC. If you would like to discuss or obtain free seminar for your company with regard to developing strong protocols, you may contact Shawn at sbiery@keefe-law.com.




Synopsis:Important Point on a Tricky AWW Question for Indiana WC Adjusters from our Hoosier Legal Specialist, Kevin Boyle, J.D.


Editor’s comment: We’ve been getting a few IN WC cases recently where a newly hired, or sporadically employed employee gets injured and TTD issues arise. The employer wants to use the average weekly wage or AWW from what the employees were supposed to get paid, but employees want more than that because they are often just starting out at low wages and sometimes random hours.


We had an in depth pre-trial last week with opposing counsel and the IN WC judge on one of these cases, and the result surprised us; diligent IN WC adjusters might want to read about it.


What’s the AWW for a newly hired and recently injured IN employee? 


Does the adjuster use the specific wage Claimant was hired at, or something else?


What should you do when calculating an employee’s average weekly wage for sporadically employed workers, or newly hired workers, that get injured soon after starting their job? Do you properly use the wage rate the employee was going to be paid at the time of the injury, or some other number? If you said “some other number,” you are correct. 


Surprisingly, there’s a rarely used section of the IN WC statute that actually covers this situation, as explained last week by a judge on a similar case. Indiana Code 22-3-6-1(d)(2) provides appropriate guidance to use similar/comparable employee wages, not the actual wages at the time of the injury.


(d)(2) Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, if results just and fair to both parties will be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of the employee's employer or of the casual nature or terms of the employment it is impracticable to compute the average weekly wages, as defined in this subsection, regard shall be had to the average weekly amount which during the fifty-two (52) weeks previous to the injury was being earned by a person in the same grade employed at the same work by the same employer or, if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.


Please be aware of this statute in accurately calculating the AWW. Most adjusters and WC attorneys rarely use it or understand that it applies. If you have any questions, or you’d like to learn more on this rule, please contact Kevin Boyle at kboyle@keefe-law.com.