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Fire and Police Personnel Reporter
An employment law publication for law enforcement,
corrections and the fire/EMT services
,

ISSN 0164-6397

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2002 FP Dec (web edit.)

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CONTENTS

Featured Cases with Links

Disciplinary Offenses - Sufficiency of Proof
Disciplinary Punishment
Family, Medical & Personal Leave
First Amendment Related
Handicap Laws / Abilities Discrimination - Specific Disabilities
Health Insurance & Benefits
Homosexual & Transgendered Employee Rights
Injuries to Employees
Light Duty Assignments
Pay Disputes - In General
Physical Fitness Requirements, Agility Tests and Standards
Religious Discrimination
Sexual Harassment - Same Gender

Noted in Brief

Applicant Rejections
Civilian Review
Damages, Remedies and Enforcement of Settlements
Disability Rights and Benefits- Line of Duty Related/Disputed
Disability Rights and Benefits - Continuing Eligibility
Disciplinary Offenses - Insubordination
Handicap Laws/Abilities Discrimination - In General
Health Insurance & Benefits
Hearing (Audio) Impairment
Injuries to Employees
National Origin Discrimination
Pay Disputes - In General
Pensions
Privacy Rights
Race: Affirmative Action & Quotas
Race Discrimination - In General
Race or Sex Discrimination - Disparate Discipline (2 cases)
Retirement Rights and Benefits
Sex Discrimination - Reverse Discrimination
Sexual Harassment - In General
Shift Rotation and Work Schedules
Taxation
Uniforms, Clothing and Equipment
Union and Associational Activity (2 cases)
Whistleblower Requirements and Protection (2 cases)
Wrongful Discharge - In General

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENTS

EDITOR'S CASE ALERT

Disciplinary Offenses - Sufficiency of Proof

Arbitrator reverses the termination of an officer accused of brutality. The only impartial evidence came from a fellow officer who was threatened with termination if he did not implicate the grievant. The threats violated the grievant's right to Due Process.

     In its brief, management claimed that the grievant police officer punched a citizen in the face during an arrest, failed to report the use of force, convinced another police officer not to report the punch, and subsequently lied about this incident to the Internal Investigation Unit.

     A month later he allegedly punched another citizen in the face, while working security detail at a bar, and failed to report the incident. That incident was caught on videotape.

     However, the termination under arbitration involved only the first incident. The arbitrator said he was "compelled to focus upon the facts before him rather than those pertaining to that later incident."

     The arbitrator noted that an I-A lieutenant conducted an interview of an officer who was with the grievant at the time. That officer purportedly was told that the grievant was "going to go down" and that it was up to him whether "you want to go down with him." The witness-officer then said the grievant hit the complainant.

     The arbitrator said:

      The arbitrator noted that the grievanct "may be a pugnacious individual unworthy of his badge, but that will have to be determined at a time when he is afforded due process of law. That did not occur in this case."

     He said that without the "improperly procured statement" of the accompanying officer, the City's case against the grievant collapses.

     The City was directed to reinstate the grievant with full back pay and benefits. City of Cincinnati and Queen City L-69 FOP, AAA Case No. 52-390-00481-1, 117 LA (BNA) 637 (Duff, 2002).

      Click here to read the award on the AELE website.

      Return to the Contents menu.

Disciplinary Punishment

Arbitrator sustains an 84-hour disciplinary suspension for a corrections officer who refused to fully participate in a training course.

     A state corrections officer was told that he had to attend a "Training for Trainers" class and was subject him to disciplinary action if he did not. The grievant had to adjust his work schedule to do so, at a partial loss of salary.

     Prior to the class, the grievant said that he would observe, but not to participate. A sergeant warned him that a failure to participate would subject him to disciplinary action.

     When the class began, all in attendance were told to make a short presentation; the grievant refused. He was later given an 84-hour disciplinary suspension, and denied a merit wage increase. The union appealed.

     The arbitrator sustained the penalty, saying:

     In closing, the arbitrator said that management "had full justification" to order this suspension and the "standards" of progressive discipline were not violated. Alaska Dept. of Corrections and the Public Safety Employees Assn., 117 LA (BNA) 674, Alaska Case #01-C327, PSEA Case #01-01C (Henner,2002).

      Click here to read the award on the AELE website.

      Return to the Contents menu.

Family, Medical & Personal Leave

California enacts the country's first paid family leave law.

     S.B. 1661 provides up to six weeks of partial income for family leave to care for a newborn, newly adopted child, or foster child, or to care for a seriously ill spouse, domestic partner, parent, or child.

     Paid leave is funded by employee contributions to the state's Disability Insurance Fund. For an employee earning $35,000 per year, the contribution would be about $2 per month. The first payments from the fund will be after July 1, 2004, to allow it to build up necessary reserves.

     An employee who earns $35,000 a year would receive about 55 percent of his or her income in benefits. Employers will be able to require workers to use up to two weeks of any accrued leave time before using paid family leave.

     The new law applies to all employers, regardless of size, and includes no minimum term of service before an employee can take paid family leave. S.B. 1661 is codified as Deering's California Unemployment Insurance Code Sections 984, 2601 2613, 2708, 3254, and 3300-3305. The law also applies to domestic partners, and was introduced by Senator Shiela Kuehl of Los Angeles, an openly lesbian law professor and a former teenage actress.

      Click here to view S.B. 1661 on the AELE website.

      Return to the Contents menu.

First Amendment Related

Federal appeals court reinstates a damage action brought by a firefighter who was subjected to an I-A investigation and transferred to an undesirable assignment after criticizing firefighter safety gear.

     In 1996 a San Francisco Airport firefighter requested funding to replace the protective gear, which he believed was in poor condition. He hired an outside consultant to confirm his opinion.

     He was subjected to an investigative interview where he was accused of exercising poor judgment and not informing his superiors of the consultant's inspection. He then filed an EEO national origin discrimination complaint.

     The firefighter was involuntarily transferred to what he called menial duties with support services units. He was asked to "keep busy, answer telephones, empty the trash can, or just read."

     He sued in federal court, alleging retaliation because of his Cal-OSHA complaints regarding fire safety, the filing of a complaint of national origin discrimination, and his testimony at a hearing. As a result of his protected activities, he said he was demoted, transferred, given a ten-day disciplinary suspension and assigned to undesirable tasks.

     The trial judge granted a judgment for the City, but the Ninth Circuit reversed in part. A three-judge panel said that the plaintiff, a Director of Firefighters Local 798, "presented sufficient circumstantial evidence that he was subjected to an investigation and disciplinary hearings in retaliation for his protected activities."

     He also presented testimony that the manner in which the investigation and disciplinary proceedings were conducted violated Department rules and procedures. The panel said that "a jury could reasonably infer that the Department was acting in retaliation for [his] protected activities."

     The panel noted that his post-transfer assignments led to a succession of menial and stressful work. Darmanin v. S.F. Fire Dept., #00-16102, 2002 U.S. App. Lexis 19676 (Unpub. 9th Cir. 2002), reversing #C 97-4703, 2000 U.S. Dist. Lexis 6780 (N.D.Cal.).

      Click here to view the panel's unpublished opinion on the AELE website.

      Return to the Contents menu.

Handicap Laws / Abilities Discrimination - Specific Disabilities

Officer with an injured finger was not "disabled" under the ADA.

     An Oregon police officer was medically separated after he injured a finger in a duty-related incident. He sued under the ADA, but the District Court found he was not disabled.

     On appeal, he unsuccessfully argued that the injury to his finger substantially limited him in the major life activity of working.

     A three-judge panel said his injury precludes him from performing those law enforcement jobs that require him to make forcible arrests or to engage in combative situations. That is not a broad class of jobs.

     The city requires all patrol officers to be able to perform in combative situations. Because he is not disabled under the ADA, he is not entitled to a reasonable accommodation.

     Fultz v. City of Salem, #01-35355, 2002 U.S. App. Lexis 19678 (Unpub. 9th Cir. 2002).

      Click here to read the case on the AELE website.

      Return to the Contents menu.

Health Insurance & Benefits

Arbitrator holds that a Township violated the bargaining agreement when it raised drug prescription costs from three dollars to $15 per prescription for generics and $30 for brand name drugs.

     The employer claimed that the new health care plan is "superior to the previous coverage." It allows open access to a much larger physician and hospital network, with access to care on a 24 hour basis. It also provides vision and other benefits not included in the coverage under the prior program.

      The arbitrator agreed that the employer did not have to subscribe to an identical health care program, only an equivalent program. However, the grievant paid more for prescription drugs essential to her health under the new plan, and the vision care benefits or more extensive physician network "were of insufficient benefit to offset the increased cost of her medication."

     The employer was directed to compensate the grievant for all documented prescription drug costs in excess of the prior co-payment amounts. Olmstead Twp. and Frat. Order of Police, 117 LA (BNA) 540, FMCS Case #00120/00854-6 (Van Pelt, 2002).

      Click here to view the award on the AELE's website.

      Return to the Contents menu.

Homosexual & Transgendered Employee Rights

Washington appeals court allows a lesbian hospital worker to sue for a biased discharge under §1983 and the Equal Protection Clause.

     The plaintiff claims she was fired from a state hospital because she is a lesbian. In her suit against the hospital and a medical director, she asserted that public employment discrimination based solely on sexual orientation is actionable under 42 U.S. Code §1983 and the Equal Protection Clause of the Federal Constitution.

     A superior court dismissed the suit and she appealed. A three-judge panel unanimously reversed. Although her dismissal did not violate "a clear mandate of Washington public policy," she stated a claim under §1983 and the Equal Protection Clause.

     The panel said:

     The hospital claims that it terminated the plaintiff for rule violations and because she was a disruptive employee. However, the plaintiff is entitled to offer proof that the reasons were pretextual to mask a discriminatory animus.

     Miguel v. Guess, #20699-8-III, 112 Wn.App. 536, 51 P.3d 89, 2002 Wash. App. Lexis 1706, 89 FEP Cases (BNA) 990 (Wash.App. 2002).

      Click here to view the decision on the Internet.

     Editor's Note: In the Nassau County case (cited by the panel) a federal court awarded a gay male police officer $380,000 for enduring nine years of harassing conduct by his fellow officers. Quinn v. Nassau Co. Police Dept., #97-CV-3310, 1999 U.S. Dist. Lexis 9902, 53 F.Supp.2d 347, 80 FEP Cases (BNA) 286 (E.D.N.Y.); verdict reported at 37 (1820) G.E.R.R. (BNA) 851.

      Return to the Contents menu.

EDITOR'S CASE ALERT

Injuries to Employees

Louisiana affirms an over-million dollar award to a corrections officer who was injured during a baton training exercise.

     A correctional officer with seven years experience was a member of the tactical unit used to control inmate riots and disturbances.

     In 1995 he participated in training with other tactical units. In one scenario, an "angry crowd exercise," several officers played the role of inmates while others played officers. During this exercise unpadded batons were used and officers playing inmates were protected only by helmets.

     The officer was hit repeatedly during the exercise although he shouted "red" -- a code word which was supposed to stop the session. He was taken subsequently to the emergency room, with pain in his left arm, shoulder, and neck.

     He filed suit against the state, and the trial court found that he had suffered serious injuries, including brain trauma and neck injuries.

     He was awarded $675,000 in general damages, $157,000 in future medical damages, and $914,390 in lost wages, subject to credit for workers' compensation payments. The trial court also awarded $110,000 in damages for loss of consortium to the plaintiff's wife and daughter.

     The Court of Appeals affirmed the trial court's decision in an unpublished opinion, and management appealed to the state Supreme Court.

     Ordinarily, Workers Compensation is the sole and exclusive remedy for a workplace injury, even if the trauma is caused by a coworker who acts in a reckless manner. However, intentional battery by a coworker is an exception to the exclusive remedy provisions of state compensation laws.

     To commit an intentional battery, the assailant must intend to harm a coworker, or know that injury is substantially certain to result from his conduct. An actionable tort occurs if the batterer intends to inflict either a "harmful or offensive contact" without the victim's consent.

     The Supreme Court split 4-to-3. The majority rejected the state's argument that the plaintiff had consented to the battery by volunteering for the tactical unit and receiving premium pay.

     Even if the plaintiff had consented to receiving a battery during training, his consent was voided by the unnecessary and unanticipated force used during the training session.

     Although the majority court affirmed the trial court's finding of liability, the damages awarded for the plaintiff's closed head injury was defective. The majority found there was insufficient evidence to support the lower courts' findings that the plaintiff suffered severe closed head trauma as a result of the battery.

     A closed head injury is one in which the scalp and the mucous membranes (of the mouth and nose) remain intact. It is caused by an external blow to the cranium that may or may not be sufficient to fracture the skull. Head injuries are generally classified as either mild, moderate, or severe.

     The majority noted that even in mild head injury cases, there is a transient loss of consciousness. In moderate head injuries, the period of unconsciousness may last up to an hour. A patient suffering from a severe brain injury may suffer unconsciousness for several hours, and recovery is slow; the return to consciousness could take from days to weeks. In cases of extremely severe brain injury, the patient suffers trauma to parts of the brain essential to life and shows severe neurological abnormalities - and sometimes dies within a few hours.

     Here, the officer did not mention a blow to the head or complain of any headaches or dizziness in his first report of injury. Nor did he have any complaints of head injury when he was examined in the emergency room.

     The majority remanded the case for a recalculation of damages. Cole v. State, #01-C-2123, 2002 La. Lexis 2454 (2002).

      Click here to read the case on the court's website. [PDF]

      Return to the Contents menu.

Light Duty Assignments

Arbitrator overturns a termination when an injured employee refused to return to work. There were no light duty positions in the police dept.

     A 13-year police officer, on job-related injury leave, was terminated for her "failure or inability to return to either full or restricted duty" based on three-member medical panel report of fitness for duty. She declined to do so and was fired; the union appealed to arbitration.

     At the hearing, the union president testified that there were no light duty assignments in the police dept. at the time the grievant was offered a light duty position.

     Management testified it offered the grievant a dispatcher position, which she declined because the bargaining agreement did not permit the management to substitute restricted work for job-related injury leave.

     The arbitrator said that there was no light duty police officer position, and "in the absence of a formal offer of light duty work, there is no room here for the application of the principle, "obey now, grieve later."

     No "arrangement" with an individual officer can avoid the duties of the employer under a valid bargaining agreement. The arbitrator said:

     "Any informal negotiations with grievant concerning light duty were preempted by the collective bargaining process, and that process included a ratification vote by the Union's members on agreements reached by the Town and the Union."

     In terminating grievant, management "was understandably acting in the interests of staffing its police department in a manner consistent with the needs of the public it serves."

     But it did so "in conflict with grievant's right, as provided in the parties' collective bargaining agreement, to protection from being discharged except for just cause."

     Town of Harwich and IBPO L-392, 116 LA (BNA) 1461, AAA Case #11-309-00999-1 (Alleyne, 2001-Released 2002).

      Click here to view the award on AELE's website.

      Return to the Contents menu.

Pay Disputes - In General

Arbitrator declines to impose wage increases based on years of service, where there is no history of seniority differentials.

     It is not uncommon to find wage rise schedules based on years of continuous service. But there was no history of seniority differentials in Mason City, Iowa.

     An independent arbitrator, empowered to resolve a bargaining impasse, declined to impose such a schedule. The union sought 0.5% for each year of service.

     Although a mere 10% supplement for 20 years of service is not unreasonable, the union failed to offer evidence that comparable agencies had a seniority differential system. Mason City and IBOT L-828, 117 LA (BNA) 472 (Feldman, 2002).

      Click here to view the award on AELE's website.

      Return to the Contents menu.

Physical Fitness Requirements, Agility Tests and Standards

A divided federal appeals court, in its second opinion, upholds a 1.5 mile-12 minute run requirement that disqualified most women candidates for transit police officer.

     This is our fifth article on this important case in the last five years! Twice the District Court upheld a transit authority's pre-employment agility exam for police officer applicants (1998 and 2001). In 1999 the 3rd Circuit set aside the first District Court decision. Now, the 3rd Circuit, in a 2-to-1 decision, has upheld the District Court's second opinion.

     Initially, the trial court issued a 162-page opinion detailing 378 findings of fact and 107 conclusions of law.

     Transit police officers call for assistance; an "assist" requires officers to respond immediately and another officer must run between stations -- five to eight city blocks. The agency averages about 380 running assists per year.

     "Backups" are not as critical as "assists," so officers generally use a "paced jog." There are about 1,920 "backups" annually.

     The agency adopted a minimum pre-employment aerobic test of 42.5 ml/kg/min, which had a disparate impact on female candidates. A lawsuit was filed by rejected women applicants, and they were joined by the Justice Dept. Later, the Justice Dept. abandoned its position, leaving the women to fend on their own.

     The majority said that "Although there is some dispute over the precise percentage of arrests that have required substantial aerobic exertion, the evidence shows that, at the very least, around one in ten arrests, or ten percent, have so required."

     The dissenting judge noted that the aerobic test is not required for veteran officers. He said that management's failure to require officers to meet the standard after has had "no demonstrable impact on public safety."

     Lanning v. SEPTA, #01-1040, 2002 U.S. App. Lexis 21506 (3rd Cir. 10/15/2002).

      Click here to view the 3rd Circuit's opinion on FindLaw's website. [PDF]

     Legal research note: Prior decisions are at 1998 U.S. Dist. Lexis 9388, 1998 WL 341605 (E.D.Pa. 1998); 1999 U.S. App. Lexis 14607, 181 F.3d 478, 80 FEP Cases (BNA) 221 (3rd Cir. 1999); certiorari denied, 120 S.Ct. 970, 2000 U.S. Lexis 820; and rehearing, on remand: 2000 U.S. Dist. Lexis 17612, 84 FEP Cases (BNA) 1012 (E.D.Pa. 12/7/2000). Our prior articles on this case are at: 1998 FP 138-140 (print edit.); 1999 FP 137-8; 2001 FP 9-10 (print edit.) and 2001 FP Jan (web edit.); 2001 FP 154-5 and 2001 FP Oct (web edit.).

      Return to the Contents menu.

Religious Discrimination

Federal appeals court affirms a damage suit for the constructive discharge of a police counselor, because she observed the tenets of Native American spirituality, instead of Christianity.

     A police dept. crisis counselor alleged she was mistreated after she disclosed that she observed the tenets of Native American spirituality rather than Christianity.

     She was passed over for a promotion and was told that she "was not a good role model and that she needed to find a good Christian boyfriend to teach her to be submissive." She resigned and filed suit in federal court.

     A jury awarded her $79,200 in back pay and compensatory damages, $90,556 in attorney's fees and $11,825 in expenses. The city appealed.

     A three-judge panel has affirmed, noting:

     Campos v. City of Blue Springs, Mo., #01-2814, 289 F.3d 546, 2002 U.S. App. Lexis 9831, 88 FEP Cases (BNA) 1441 (8th Cir. 2002).

      Click here to view the award on the FindLaw website. [PDF]

      Return to the Contents menu.

Sexual Harassment - Same Gender

Ninth Circuit allows a gay worker to sue his employer for a hostile work environment.

     The plaintiff claimed that male co-workers and his supervisor created a hostile work environment by calling him derogatory names and subjecting him to pranks because of his homosexuality.

     The trial court dismissed the suit because the conduct was based on plaintiff's sexual orientation, not his gender. Title VII does not include sexual orientation discrimination.

     A three-judge panel affirmed in 2001, and the plaintiff asked for an en banc rehearing. The court agreed, and reversed, 8-to-3. The majority said that:

     Rene v. MGM Grand Hotel, #98-16924, 305 F.3d 1061, 89 FEP Cases (BNA) 1569, 2002 U.S. App. Lexis 20098 (9th Cir. 2002).

      Click here to view the decision on the FindLaw website. [PDF]

      Return to the Contents menu.

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NOTED IN BRIEF
(SOME WITH LINKS)

Applicant Rejections

     A former police officer was not temperamentally disqualified from reemployment under the Veterans' Reemployment Rights Act. Lapine v. Town of Wellesley, #01-2054, 304 F.3d 90, 2002 U.S. App. Lexis 18172, 170 LRRM (BNA) 2965 (1st Cir. 2002).

Civilian Review

     A California county civil service commission can not require police officers to assume the burden of refuting a civilian review board's findings of misconduct. Caloca v. Co. of San Diego, #D038059, 2002 Cal. App. Lexis 4694 (Cal. App. 4th Dist. 2002). [PDF]

Damages, Remedies and Enforcement of Settlements

     Fourth Circuit affirms an award of $410,000 in back pay and interest to a wrongfully demoted employee, and a punitive damages award of $100,000. Although there was no award of compensatory damages, punitive damages are allowed to complement a back-pay award. Corti v. Storage Technology Corp., #01-1833, 304 F.3d 336, 2002 U.S. App. Lexis 19228, 89 FEP Cases (BNA) 1477 (4th Cir. 2002).

Disability Rights and Benefits - Line of Duty Related/Disputed

     Pension board trustees had a rational basis for concluding that state law does not cover testicular cancer, and the denial of an accident disability pension to a firefighter was proper. Albano v. Bd. of Tr. of F.D.N.Y., 2 No. 112, 2002 N.Y. Lexis 3141, 2002 N.Y. Int. 0114 (N.Y. Oct. 15, 2002). [PDF]

Disability Rights and Benefits - Continuing Eligibility/ Testing

     Appellate court upholds a decision to terminate a former police officer's non duty disability pension because a single medical expert concluded that she was no longer suffering from depression and could return to work. "A procedure that requires only one medical examination to conclude that the plaintiff is no longer disabled, but three evaluations to entitle her to the disability pension, is not inherently unfair and certainly does not infringe upon any constitutional rights." Trettenero v. Police Pension Fund of Aurora, #2-01-0544, 2002 Ill. App. Lexis 819 (Ill.App. 2nd Dist. 2002).

Disciplinary Offenses - Insubordination

     Federal appeals court upholds the Navy's termination of two civilians who worked on a naval ship, after they disobeyed an order to be vaccinated against anthrax. Mazares v. Dept. of the Navy, #01-3337/8, 302 F.3d 1382, 2002 U.S. App. Lexis 18684 (Fed Cir. 2002)

Handicap Laws/Abilities Discrimination - In General

     The correct causation standard in a Rehabilitation Act claim is whether discrimination is "solely by reason of" claimant's disability, not whether discrimination is simply a motivating factor. Soledad v. U.S. Dept. of Treasury, #00-51300, 304 F.3d 500, 13 AD Cases (BNA) 865, 2002 U.S. App. Lexis 18710 (5th Cir. 2002). [PDF]

Health Insurance & Benefits

     Arbitrator sustains a grievance that a new health plan, which allowed the employer's premium payments to remain constant, but caused employees' out-of-pocket expenses to skyrocket, was not an equivalent program. Coles County 911 Board and IL FOP Labor Council, FMCS Case #010502/10114-A, 117 LA (BNA) 462 (Petersen, 2002).

Hearing (Audio) Impairment

     Honolulu Police Dept. settles with the DoJ regarding applicants for employment who use hearing aids. U.S. v. Honolulu, (Unpub., D. Haw. 2002).

Injuries to Employees

     Louisiana appellate court holds that a deputy sheriff, who was injured after slipping on a wet terrazzo floor in the Sheriff's Office, was entitled to $451,230 in damages from the Sheriff. Gorton v. Ouachita Parish Police Jury, #35,432-CA, 814 So.2d 95, 2002 La. App. Lexis 920 (La.App. 2d Cir. 2002). [PDF]

National Origin Discrimination

     Federal court dismisses an Hispanic probation officer's Title VII discrimination claim; a lateral transfer is not an "adverse action" and other conduct was not severe or pervasive enough to create a hostile work environment. Vasquez v. Co. of Los Ang., #00-56803, 2002 U.S. App. Lexis 20664, 89 FEP Cases (BNA) 1705 (9th Cir. 2002). [PDF]

Pay Disputes - In General

     Arbitrator finds that a city did not violate the bargaining contract when it refused to give officers extra pay for transporting a prisoner to court during times when the officers are required to appear at court hearings. City of Amherst and Ohio P.B.A., 117 LA (BNA) 572 (Adamson, 2002).

Pensions

     In two cases, Illinois appellate courts hold that a convicted police officer and a judge were only entitled to a refund of their pension contributions, less the amounts paid to them prior to their convictions. In the case of the officer, the prior benefits paid had exceeded the amount of his contributions. Shields v. Bd. of Tr. of Judge's Retirement System, #1-00-4133, 329 Ill.App.3d 27, 768 N.E.2d 26, 2001 Ill. App. Lexis 826 and Phelan v. LaGrange Park Police Pension Fund, #1-01-1226, 327 Ill.App.3d 527, 763 N.E.2d 343, 2001 Ill. App. Lexis 1483 (Released 2002). An appeal before the IL Supreme Court is pending in the Shields case, Docket # 94029 (10/01/2002).

Privacy Rights

     Ninth Circuit holds that an employee could sue his employer for violation of the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (2000). He alleged that his superiors accessed his personal website without authorization. 18 U.S. Code § 2710(a)(1) makes it an offense to access, intentionally and without authorization, any wire or electronic communication while it is in storage. Konop v. Hawaiian Airlines, 9th Cir., #99-55106, 302 F.3d 868, 2002 U.S. App. Lexis 17586, 170 LRRM (BNA) 2906 (9th Cir. 2002). [PDF]

Race: Affirmative Action & Quotas

     White police officer applicant, who was denied an opportunity to compete on equal footing in police department's hiring process because of his race, has standing to seek equitable relief against the city's race-conscious consent decree issued in Castro v. Beecher, 365 F.Supp. 655 (D. Mass. 1973), since he would have been hired if he was a minority applicant. Donahue v. City of Boston, 02-1027, 304 F.3d 110, 89 FEP Cases (BNA) 1495, 2002 U.S. App. Lexis 18265 (1st Cir. 2002).

Race Discrimination - In General

     The Congress had authority to extend Title VII to States under Sec. 5 of 14th Amendment because it was responding to a pattern of race and sex discrimination by state governments. Nanda v. Bd. of Tr. of the Univ. of Illinois, #01-3448, 303 F.3d 817, 89 FEP Cases (BNA) 1616, 2002 U.S. App. Lexis 19105 (7th Cir. 2002). [PDF]

Race or Sex Discrimination - Disparate Discipline

     Black former police officer was unable to show that similarly situated non-black employees were treated differently and the city presented legitimate, nondiscriminatory reasons for its decision to terminate him. Henry v. City of Tallahassee, #4:01-cv-62, 216 F.Supp.2d 1299, 2002 U.S. Dist. Lexis 15207, 89 FEP Cases (BNA) 548 (N.D. Fla. 2002).

     A probationary officer was not similarly situated to a police captain, and differences in their punishment did not create an equal protection violation. There was a legitimate, non-discriminatory basis for the officer's termination, which was not a pretext for gender bias. Mercer v. City of Cedar Rapids, #01-1135, 2002 U.S. App. Lexis 21480 (8th Cir. October 15, 2002). [PDF]

Retirement Rights and Benefits

     Although a 1989 divorce decree provided that a public employee's first wife would receive 60 percent of his retirement benefits, his surviving second spouse was the statutory beneficiary of all of his survivor benefits, and the courts were powerless to apportion those benefits. Cosby v. Cosby, #2001-0659, 96 Ohio St.3d 228, 2002 Ohio 4170, 773 N.E.2d 516, 2002 Ohio Lexis 1997 (2002).

Sex Discrimination - Reverse Discrimination

     Federal appeals court rejects a discrimination suit filed by males who complained that a woman coworker was treated more favorably because of her sexually suggestive behavior. Schobert v. IL Dept. of Transp., #01-1598, 304 F.3d 725, 2002 U.S. App. Lexis 18839, 89 FEP Cases (BNA) 1420 (7th Cir. 2002). [PDF]

Sexual Harassment - In General

     Federal appeals court rejects a sexual harassment action where the plaintiff failed to show that her gender motivated male coworkers' sexually explicit conduct and conversations; she would have been exposed to the same offensive behavior were she a man. Ocheltree v. Scollon, 01-1648, 2002 U.S. App. Lexis 21145 (4th Cir. 2002).

Shift Rotation and Work Schedules

     Arbitrator finds that repeatedly scheduling the grievant to work a split shift violated an established past practice. Town of McCandless, Penn. and McCandless P.O.A., FMCS Case #02/04412, 117 LA (BNA) 456 (Parkinson, 2002).

Taxation

     Effective Jan. 1, 2003, the optional standard mileage rate for taxpayers to use in deducting vehicle costs will decrease from 36.5 cents a mile to 36.0 cents a mile, due to lower gasoline prices in the past year. IRS Rev. Proc. 2002-61 (Sep. 18, 2002).

Uniforms, Clothing and Equipment

     Arbitrator annuls a new dress code for the Prison health service. A physician's assistant could continue to wear "hospital scrubs" while on duty; this was a mandatory bargaining issue. Federal Bur. of Prisons and Council of Prison Locals, AFGE L-992, FMCS Case #01/030L6, 117 LA (BNA) 515 (Neas, 2002).

Union and Associational Activity

     Federal appeals court affirms a holding that township officials were not entitled to qualified immunity for laying off an employee who advocated union representation and had filed for a representation election. Supreme Court denies review. Wershing v. Hinckley Township, #01-3365, 36 Fed. Appx. 179; 2002 U.S. App. Lexis 9617 (Unpub., 6th Cir. 2002); cert. den., #02-282, 2002 U.S. Lexis 5377 (2002).

     A contract in which a municipal employees union agreed to indemnify the city for any legal challenge to fair-share fees deducted from the pay of nonunion employees was void. The broad scope of the indemnity also protected the city's liability for its mistakes. Wessel v. City of Albuquerque, #01-2155, 299 F.3d 1186, 2002 U.S. App. Lexis 16369, 170 LRRM (BNA) 2718 (10th Cir. 2002).

Whistleblower Requirements and Protection

     Federal appeals court allows a California corrections officer to bring a delayed whistleblower and retaliation suit against the state. The officer's filing of workers' compensation claim, based on stress injuries resulting from a punitive job reassignment, extended the filing time for his lawsuit. Rigg v. California, #00-17371, 32 Fed. Appx. 398, 2002 U.S. App. Lexis 4702 (Unpub. 9th Cir. 2002); cert. denied sub nom Smith v. Rigg, 2002 U.S. Lexis 6570.

     A parole officer who wrote a memo to her supervisor complaining that her case load exceeded work limits set by a collective bargaining agreement was engaged in protected activity under the state's whistleblower law. Hutson v. Wisconsin Personnel Cmsn., #01-2959, 2002 Wisc. App. Lexis 1003 (2002).

Wrongful Discharge - In General

     Former police officer could sue for retaliatory discharge; he was terminated after he filed a worker's comp. claim. Hidalgo County v. Parker, #13-01-835-CV, 83 S.W.3d 362, 2002 Tex. App. Lexis 5633, 18 IER Cases (BNA) 1674 (Tex. Civ. App. 2002).

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RESOURCES

     Online book: "The Polygraph and Lie Detection (2002)," by the National Academies Press. ISBN 0-309-08605-1 (2002).

Online compilation: Bureau of Justice Statistics data: Race and sex of personnel in agencies with 100+ police officers, including expenditures and pay, operations, equipment, computers and information systems, policies and programs, and community policing. NCJ 171861.

Online report: Collective Bargaining Rights: Information on the Number of Workers with and without Bargaining Rights, GAO-02-835, U.S. General Accounting Office (48 pp. Sept. 2002). [PDF]

CROSS REFERENCES

Featured Cases:

Homosexual Employee Rights - see: Sexual Harassment-Same Gender
Impasse Arbitration - see: Pay Disputes
Workers' Comp. - Exclusive Remedy - see: Injuries to Employees
Disciplinary Offenses - see: Light Duty Assignments
Transfers - Disciplinary or Punitive - see: First Amendment Related

Noted in Brief:

Employee Harassment - Nonsexual - see: Sexual Harassment - Same Gender
Military Leave - see: Applicant Rejections
Past Practices Clauses - see: Shift Rotation and Work Schedules
Workers' Compensation - see: Wrongful Discharge - In General

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