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CONTENTS

Featured Cases with Links

Applicant Rejections
Disciplinary Investigations
Disciplinary Punishment
Disciplinary Searches
Drug Abuse and Rehabilitation
Fair Labor Standards Act - 7K Exemption
Handicap Laws / Abilities Discrimination - Psychiatric
Homosexual & Transgendered Employee Rights
Jurisdictional/Multiunion Disputes & Work Erosion
Pay Disputes - In General
Sex Discrimination- In General
Sexual Harassment - Verdicts, Settlements & Indemnity
Stress Related Claims and Defenses

Noted in Brief

Arbitration Procedures
Attorneys' Fees and Legal Defense Rights
Defamation
Disciplinary Punishment
Fair Labor Standards - Constitutionality
Fair Labor Standards - Canine
Handicap Laws - Abilities Discrimination / Accommodation - Teleworking
Handicap Laws - Abilities Discrimination - Specific Disabilities
Homosexual & Transgendered Employee Rights
Moonlighting (Secondary Employment)
Privacy Rights
Probationary Employment
Religious Discrimination
Seniority
Sexual Harassment - In General

Resources
Military Leave (OPM)
Teleworking (OPM)

Cross_References
 

FEATURED CASES
WITH LINKS TO THE OPINIONS

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Applicant Rejections

Federal appeals court dismisses a suit filed by a NYPD applicant who was rejected as psychologically unfit.

A three-time rejected applicant with the NYPD filed suit in federal court and also brought an action for state judicial review (which is still pending).

He alleged that the NYPD violated his constitutional rights to procedural and substantive due process "by arbitrarily and capriciously determining that he was psychologically unfit for hire as an officer" and by making "derogatory, stigmatizing, defamatory, and untrue statements to other prospective employers."

The federal trial court dismissed the action, and a three-judge appeals panels has summarily affirmed.

First, he lacks a property interest to a prospective job. "As an applicant, he has only an unprotected unilateral expectation of employment."

Second, the state provides a statutory review of public employment rejections. Article 78 of the N.Y. Civil Practice Law provides a meaningful post-deprivation remedy.

Third, he has no factual evidence indicating specifically what the NYPD's statements were, and speculates only that his failure to find other work was a consequence of NYPD actions.

Johnson v. N. Y. City Police Dept., #01-7247, 2001 U.S. App. Lexis 26167 (Unpublished, 2nd Cir.).

Click here to view the court's decision on the AELE website.

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Disciplinary Investigations


Alabama Supreme Court rejects a lawsuit against a city because of an allegedly improper I-A investigation conducted by a private detective agency. Firm was an "independent contractor."

A city employee in Alabama was investigated for his outside business activities by a private investigation firm, hired by the mayor. Surveillances continued for almost two years until his suspension, based on that investigation.

An administrative hearing officer held in favor of the employee. In a lawsuit filed against the investigation firm and the mayor, the employee alleged fraud, misrepresentation, negligence, and wantonness.

He claimed that the city failed to "properly supervise and review" the actions of the investigation, causing him to suffer humiliation, embarrassment, and financial expense. He also claimed the city provided false information at the hearing.

The city successfully argued that the investigation firm was not an agent of the city, but an independent contractor. The trial court dismissed the action.

On appeal, the Alabama Supreme Court agreed, 5-to-0. "The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent."

In determining whether a person is an independent contractor, the court used a four factors "right-of-control" test:

(1) direct evidence of the right or exercise of control;

(2) the method of payment used;

(3) whether the alleged principal had the right to terminate employment; and

(4) the right to control another's time.

The justices said that the employee "failed to present any evidence of an agency relationship." Agency cannot be presumed, they said, and the trial court properly found the investigation firm was an independent contractor.

Dickinson v. City of Huntsville, #1001271, 2001 Ala. Lexis 426, 18 IER Cases (BNA) 84 (2001).

To view the opinion on the findlaw website, click here.

Editor's Note: Not all states would agree with this decision. A California appellate court has held that an overly intrusive investigation can give rise to an action for invasion of privacy and that the person or entity which hired the investigator can be vicariously liable for his intentional torts. Noble v. Sears, Roebuck & Co., 33 Cal. App.3d 654, 1973 Cal. App. Lexis 922, 109 Cal.Rptr. 269 (1973).

Sears employed lawyers in a personal injury matter, who retained the services of an overzealous licensed private investigator. The "independent contractor" defense was rejected, although the California court noted that other states have ruled differently.

» For a comparison of jurisdictions, see ALR Annotation: "Liability of one hiring private investigator or detective for tortious acts committed in course of investigation," 73 A.L.R.3d 1175, §§ 2-7, 7.

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Federal court rejects most of a detective's lawsuit challenging a disciplinary investigation, suspension and arrest, because he failed to file a grievance under the mechanism established in the bargaining agreement. A parallel claim against the union for inadequate representation was allowed to stand.

A police detective in Connecticut was disarmed, ordered to submit to a drug test, reassigned to limited duty. He was arrested for forgery and unlawful possession of a controlled substance; he was suspended from pay and duty.

The charges were subsequently dropped and he sued his superiors for an intrusive I-A investigation. He also named the union and officials, alleging a breach of the duty of fair representation because they did not defend him through the ordeal.

The federal court allowed some of his pleadings to stand; others were dismissed. The defendants argued that the detective was a member of the bargaining unit, and the CBA provides for grievance and arbitration procedures to settling disputes. He failed to use the grievance process, and thus did not avail himself of his administrative remedies.

The court noted that a plaintiff in a civil rights case usually is not required to exhaust his administrative remedies before bringing suit. Patsy v. Board of Regents of Florida, 457 U.S. 496, 515, 102 S.Ct. 2557 (1982).

The court went on to say that the Patsy holding does not apply in a procedural due process suit if the plaintiff is an employee; Aronson v. Hall, 707 F.2d 693, 694 (2d Cir. 1983).

The fact that he also is suing the union does not excuse this omission. The court granted the defendants' motion to dismiss as to the procedural due process claim, as well as a breach of contract claim.

A claim for emotional distress was rejected, because he failed to allege extreme and outrageous conduct in support of that allegation. A First Amendment claim also was rejected because he failed to allege that he petitioned the government as a citizen on a matter of public concern.

He also complained that I-A investigators illegally seized records of his prescription drug transactions from various pharmacies without a search warrant, arrested him without probable cause and maliciously prosecuted him for criminal offenses.

The court said, even if a state court has found the searches to be unlawful, defendants can still avoid liability under the doctrine of qualified immunity.

The police union was sued because it did not challenge the detective's suspension or take action to effectuate his reinstatement at any time. The union responded that it was not liable because the detective failed to exhaust his administrative remedies available under the bargaining agreement.

The detective responded that the law does not require him to exhaust intra-union remedies, prior to bringing suit against the union, because doing so would be unreasonable and futile.

The court allowed this count to stand. It is unnecessary to exhaust administrative remedies or contract remedies, "if the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance." Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903 (1967); Johnson v. General Motors, 641 F.2d 1075 (2d Cir. 1981).

Russo v. City of Hartford, #3-97-CV-2380, 158 F.Supp.2d 214, 2001 U.S. Dist. Lexis 14297 (D. Conn. 2001).

Click here to view the court's rulings on the AELE website.

Editor's Note: Unlike a general arbitration clause, the right to file a grievance and proceed to arbitration can only provide partial relief, such as restoration of lost pay and assignment rights. Unless the bargaining agreement so provides, the arbitrator cannot award compensatory or punitive damages for constitutional violations. An aggrieved member of the bargaining unit would still have to file suit, but much later.

Unions may want to overcome this hurdle by seeking to incorporate language into the CBA allowing direct access to the courts for civil rights violations.

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Disciplinary Punishment

Arbitrator sustains a charge of repeatedly failing to attend mandatory staff meetings, but reduces the punishment to an 11-month suspension.

A corrections officer was fired for his failure to attend required staff and safety meetings, a failure to properly complete time reports, and minor unprofessional conduct. The union claimed the punishment was excessive.

The arbitrator found that the grievant had accumulated an unsatisfactory record during his two years of employment. However, the deficiencies were insufficient to meet the standard of just cause.

He ordered management to conditionally reinstate the officer without back pay or benefits. An eleven-month disciplinary lay-off was warranted.

Montana Dept. of Corr. and Montana Pub. Empl. Assn., 116 LA (BNA) 410 (Prayzich, 2001).

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

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Disciplinary Searches

Federal appeals court upholds a multi-step search of the computer issued to a state employee, who was later demoted for loading tax returns related to his secondary occupation.

A New York state employee, who moonlighted as a tax preparer, was the subject of an I-A investigation for misuse of official time. After informing the employee that he was under investigation and that the computer in his office would be examined, he was observed deleting items from the computer's directories.

He was then interrogated, and admitted to improperly sharing single-user tax software and printing personal income tax returns from the state-issued computer.

After a transfer and demotion, he sued in federal court, alleging Fourth Amendment and due process claims. The trial judge noted that allegations in an anonymous letter were sufficient to give rise to the reasonable suspicion that the plaintiff was engaging in his private tax preparation business during work hours, using a state computer for that business, and that an examination of the computer would produce evidence of work-related misconduct.

On appeal, a three-judge panel concluded that the plaintiff had a reasonable expectation of privacy because:

     1. He occupied a private office with a door. He had exclusive use of the desk, filing cabinet, and computer and did not share the computer with other employees.

     2. Management did not have a general practice of routinely conducting searches of office computers. It had not placed employees on notice that they lacked an expectation of privacy in the contents of state-issued computers.

     3. A policy prohibiting theft did not apply. State policy did not prohibit the storage of personal materials in employee's offices or computers. The policy prohibited "using" state equipment "for personal business" without defining the term.

However, an I-A search to identify whether he was using non-standard software was reasonably related to the investigation of the allegations of workplace misconduct. Although the anonymous letter did not specifically allege a misuse of a computer, it did allege that the he spent a significant amount of time on non government business.

The panel found that the scope of the initial search was not excessively intrusive in light of the nature of the misconduct. Investigators only printed out a list of file names found on his computer. They did not open any files.

After the first search had established the computer contained an unauthorized tax program, they reexamined the computer several times. There is no evidence that investigators examined files containing individual tax returns that may have been saved on the computer.

The panel affirmed the trial court's summary judgment in favor of the state.

Leventhal v. Knapek, #00-9306, 266 F.3d 64. 2001 U.S. App. Lexis 21303, 17 IER Cases (BNA) 1697 (2nd Cir.).

Click here to view the decision on the FindLaw website.

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Drug Abuse and Rehabilitation

Arbitrator reinstates a firefighter who was terminated for unlawful drug use, because he was placed in a diversion program, which will remove the conviction. Back pay was disallowed; the city can test him for drug use and discharge him if he fails to complete the diversion program or tests positive for drug use.

The grievant and his girlfriend were parked in a car outside a bowling alley, apparently engaged in sexual activity. Sheriff's deputies were called, and the grievant signed a "Consent to Search" form. He then identified himself as a fire captain, admitted to possession of methamphetamine, and said that he had been using the drug for approximately ten years.

He was later placed in an 18-month diversionary program, which will likely prevent a criminal conviction. However, management conducted an internal investigation and the captain was terminated. The union grieved in his behalf, and the matter went to binding arbitration.

The arbitrator said he was bound by California Labor Code §432.7, which prevents employers from utilizing, in a termination, any record of arrest that does not result in a conviction.

In light of the grievant's long history of good service, and the city's failure to show that the off-duty drug use impaired his work during the working time, a conditional reinstatement was proper.

Noting that it is still possible the grievant could be convicted if he fails to complete the drug diversion program, full reinstatement would not be appropriate. Further, the city should be allowed to test him for drug use during the diversion period.

Finally, the arbitrator noted that "the grievant's improper behavior gave rise to events leading to his termination" and he "must bear responsibility for his actions." He denied him over 8 months of back pay and benefits.

Stockton (City of) and Stockton Firefighters L-1229, CSMCS Case #ARB-00-0413, 116 LA (BNA) 390 (Staudohar, 2001)

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

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Fair Labor Standards Act - 7K Exemption

Federal appeals court concludes that cross-trained firefighter-EMS personnel were still employees engaged in fire protection services for overtime purposes.

In Norfolk, Virginia, both fire and EMS units respond to fire emergencies. If an EMS unit is the first on the fire scene, it may fight the fire, leaving medical services to be performed by a back-up rescue unit.

If a fire unit is first to the scene, the EMS unit performs medical services if it is not otherwise needed.

Firefighters who were cross-trained as EMS personnel sued for overtime, claiming that the § 207(k) exemption did not apply to them.

A three-judge appellate panel held that all of their tasks were exempt, as either fire protection activities per se or as tasks performed "incident to or in conjunction with their fire protection activities." When cross-trained EMS personnel fight fires, whether on duty with a fire unit or with an EMS unit, they are engaged in fire protection activities.

Even when performing medical services at non-fire emergencies, EMS-firefighters are included in the FLSA's exemption from overtime pay requirements.

Adams v. City of Norfolk, #00-2269, 2001 U.S. App. Lexis 26034 (4th Cir.).

Click here to view the decision on the FindLaw site.

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Handicap Laws / Abilities Discrimination - Psychiatric

Divided appeals panel opens the door for mentally disabled former employees to sue, under the ADA, if their benefits are less than those disabled for physical reasons.

A panel of the 11th Circuit has split 2-to-1, holding that an ex-employee is entitled to enforce an ADA claim against his former employer. The employer had argued that the ADA was enacted to help disabled people get and keep jobs, and not to help persons who are no longer able to work to collect disability pay.

The court went on to decide whether an employer can sponsor a disability plan that pays different benefits for physical and mental illness. The employer's Long Term Disability Plan provided benefits, for a maximum of 24 months, to employees who were totally disabled from mental illness. The same disability benefits are available to employees with physical illnesses until they reach age 65.

The panel looked at the statute, legislative history and the "safe harbor" provisions; the majority concluded that if an employer had differing disability benefits for mental and physical disabilities prior to the enactment of the ADA, the pre-existing plan is lawful.

If, as here, an employer adopts the mental health cap following the passage of the ADA, the plaintiff can offer evidence that the cap was an intentional subterfuge to evade the purposes of the law.

The EEOC's position was, that to justify differing benefits, an employer must show increased costs that are "demonstrably attributable" to that disability.

Johnson v. K Mart Corp., #99-14563, 2001 U.S. App. Lexis 24923 (11th Cir.).

Click here to view the court's divided opinions on the FindLaw website.

Editor's Note: Three other circuits have held that the ADA is not violated when a private or public employer varies benefits or coverage based on the type of disability. Ford v. Schering-Plough Corp., 145 F.3d 601, 608 (3d Cir. 1998), cert. den., 119 S.Ct. 850 (1999); Lewis v. K Mart Corp., 180 F.3d 166, 170 and Rogers v. Dept. of Health, 174 F.3d 431, 436 (both 4th Cir. 1999); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1019 (6th Cir. en banc 1997), cert. den., 118 S.Ct. 871 (1998); EEOC v. CNA Ins., 96 F.3d 1039, 1045 (7th Cir. 1996).

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Homosexual & Transgendered Employee Rights

California judge sets aside a $945,000 awarded to a lesbian police officer who claimed discriminatory discipline and termination.

In 1995, the plaintiff complained to supervisors about her discomfort with strip searches of female arrestees. Instead of getting advice from her supervisors for the problem, she was given a letter of reprimand.

She then filed a bias complaint with the California Dept. of Fair Employment in 1996 and sued the city in 1997.

She complained of depression and stress from being shunned and called a dyke by her coworkers. After taking two sick leaves, totaling 10 months in 1998, management terminated her employment.

After rendering the large verdict last August, the jury forewoman said that termination was too severe and that management's failure to stem gossip about her was shameful. The verdict was 10 to 2.

The judge concluded that the jury was more interested in sending a message about sexual orientation discrimination, than they were in thoughtfully considering the evidence. In granting a motion for a new trial, he found that the verdict was not supported by evidence and that the $945,000 award was to punish the city for sexual orientation bias. In California, punitive damages are not recoverable against government entities.

Dawn Goodman v. City of San Jose, Santa Clara Co. Super. Ct. (11-9-2001).

Sources: San Fran. Recorder, 11-15-2001; Law.com Empl. Law Practice Alert, 11-16-2001; San Fran. Chronicle/AP, 8-30-2001; KTVU/Fox2; Bay City News. The text of the unpublished order is not available.

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Jurisdictional/Multiunion Disputes & Work Erosion

Arbitrator denies a grievance that management at a correctional facility improperly assigned a supervisor to monitor inmates when no bargaining-unit employees were at work. There was no language in the agreement suggesting that duties normally performed by unit employees are exclusively theirs.

In this case, a corrections officers' union grieved because a supervisor monitored inmates, without the presence of a member of the bargaining unit.

The parties previously had settled a food service dispute when management agreed to pay overtime because a supervisor had performed bargaining unit work. The Supreme Court has said that the obligations of labor and management are to be determined by the bargaining agreement and past practices.

An issue was, did the settlement modify the agreement or create a past practice? The arbitrator noted the agreement did not have a work erosion clause.

He noted that the Federal Labor Relations Authority has established in the private-sector, there is a presumption that bargaining-unit work belongs exclusively to members of the bargaining unit. No such presumption exists in the public sector.

The prior settlement pertained to food services. "There is nothing in writing to support the Union's contention that this settlement was intended to have broader and/or lasting applicability to other situations arising in other departments in the future."

He further ruled that it was irrelevant whether management was motivated by a desire to avoid paying overtime or whether that would be an improper motivation.

Fed. Bur. of Prisons and AFGE L-801, FMCS Case 01/05628, 116 LA (BNA) 324 (Neigh, 2001).

To view the arbitrator's award on the AELE website, click here.

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Pay Disputes - In General

Arbitrator upholds a grievance that a city improperly hired a new firefighter at 10% more than the contract minimum wage. Although allowed under an ordinance, the bargaining history between the city and firefighters' union prevented this action.

Every firefighter in the department, except one, had been hired at the minimum wage specified in the bargaining agreement. Management hired one recruit at a 10% premium because he was cross-certified as a police officer and firefighter.

The union grieved the pay differential because it lowered morale of those who had not received the increment. It asked that the differential be provided to everyone or be rescinded for the recent appointee.

The arbitrator noted it was within the power of the city manager to offer the supplement, which was done in a number of cases involving other city departments. However, 160 firefighters had been hired at the minimum, and there was no history of granting such increases to new firefighters.

Under the bargaining agreement, which was adopted by the city council, when there is a conflict with an ord
inance, the agreement prevails. To hold otherwise would render the agreement a nullity, he said.

He rejected a 10% raise for other newly appointed firefighters. The duty of an arbitrator in such cases, is to put the parties back to their original positions.

He ordered the city to readjust the salary of the firefighter who was paid a premium. However, there was "no basis for having him return any of that extra compensation. He did nothing wrong."

Boca Raton (City of) and I.A.F.F. Local 1560, FMCS #05454-3, 116 LA (BNA) 328 (Abrams, 2001).

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

Editor's note: Another way of accomplishing the same objective, is to offer premium pay to all members of the fire and police departments that are cross-trained.

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Sex Discrimination - In General

Michigan appeals court sustains norming of physical tests results between men and women police applicants.

The Michigan Cmsn. on Law Enforcement Standards establishes minimum fitness levels for appointment and certification of law enforcement officers. Using a psychometrician, an industrial psychologist, and an exercise physiologist, it developed a six-part test to measure physical fitness versus dynamic strength, explosive strength, speed, agility, and aerobic capacity.

To account for the relative differences in strength between men and women due to the physiological differences between genders the commission created different performance standards for males and females.

The method chosen to accomplish this, was to "norm" the candidates' performance by gender, so that females are compared with females and males are compared with males. The most physically fit candidates from each group are then placed into a pool of those individuals eligible to attend the police academy.

Two male corrections deputy sheriffs were rejected; they sued, alleging gender and age discrimination, under state and federal law.

The trial court dismissed their action, and a three-judge appeals panel has affirmed. Ignoring the physiological differences between males and females "would disproportionately exclude female candidates from that pool of individuals eligible for certification as police officers."

Gender norming ensures that the most physically fit female candidates are placed into the larger pool of qualified applicants from which different agencies may hire.

The "practice of gender-norming the performance skills test is an act of inclusion rather than exclusion." The test was not intended to identify the minimum requirements to become a police officer. It was designed to ensure that the most physically fit from each gender would be eligible for certification as police officers.

Although there are physiological differences between older candidates and younger ones, it would not be appropriate to engage in age norming. While there is a disparity in pass rates, older candidates were not a class of applicants.

Alspaugh v. Cmsn. on Law Enf. Stds., #220156, 246 Mich. App. 547, 634 N.W.2d 161, 2001 Mich. App. Lexis 137 (2001).

Click here to view the decision on the court's website.

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Sexual Harassment - Verdicts, Settlements & Indemnity

Chicago federal jury awards a county police officer $3 million against the department for tolerating sexual harassment and retaliation.

A woman joined the Cook County Forest Preserve Police in 1993. She found pornographic photos in her mailbox and was the subject of gossip. She complained to superiors and the internal affairs division.

Although her allegations were investigated, the inquiry was terminated and fellow officers shunned her for breaking the code of silence, including the lack of a back up and slashed tires.

She called as an expert, former Portland (Ore.) police chief Penny Harrington, the founder of the National Center for Women in Policing. She confirmed the mistrust and resentment that male officers have of women who complain.

Additional women officers on the force testified that although sexual harassment was rampant, the agency did not have a written harassment policy until 1997.


A jury of five women and three men awarded her $3 million against the county, which is $1 million more than she asked. The county had offered her $500,000, which she had rejected.

A second jury was to consider damages against various superiors, but a mistrial was declared when one of the jurors on that panel heard of the large verdict reached by the panel considering only the employer's liability.

Spina v. Forest Preserve of Cook Co., #98-C-1393 (Verdict, N.D. Ill. 12-13-2001). Interim rulings at: 2001 U.S. Dist. Lexis 19146 (11-22-2001; 2001 U.S. Dist. Lexis 11670, 86 FEP Cases (BNA) 1099 (8-6-2001); 1999 U.S. Dist. Lexis 18832 (11-29-1999). Verdict details: Chicago Tribune P.1 Sec. 2 (12-13-01) and Chicago Sun-Times P. 6 (12-13-01).

Click here to view the interim rulings.

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Second Circuit allows juries to award punitive damages without awarding compensatory damages in sexual harassment and discrimination cases.

When the Congress amended the Civil Rights Acts in 1991, they added a sliding-scale maximum on punitive damages from $50,000 to $300,000, depending on the number of employees of the defendant employer. Although government agencies are statutorily exempt from punitive damage verdicts in federal courts, some juries have assessed them against supervisory personnel.

Punitive damages are sometimes awarded in cases where the plaintiff recovers compensatory damages. The Second Circuit has now held, that punitive damages are proper even if the jury has declined to award compensatory damages.

In this case, the panel sustained punitive damages of $100,000 in a sexual harassment case. A probationary employee was requested to have sex by her supervisor. Although disputed, the jury found that she reported the conduct to management, and that it waited over a year before taking remedial action.

Cush-Crawford v. Adchem Corp., 00-7617, 2001 U.S. App. Lexis 24806 (2nd Cir.).

Click here to view the court's opinion on the FindLaw website.

Editor's Note: A number of state courts and some state human rights commissions have the power to award punitive damages against supervisors. Federal courts also can award damages provided under state discrimination and harassment laws.

In 1998, a Texas jury awarded a woman deputy sheriff $200,000 in punitive damages for sexual harassment and retaliation. McKenzie v. San Patricio County, No. C-97-131, 36 G.E.R.R. (BNA) No. 1757 (S.D.Tex. 1998).

In 1997, a Missouri jury awarded a woman fire captain $100,000 in punitive damages for a sexually hostile environment and $150,000 in punitive damages for discriminatory treatment. Kline v. City of Kansas City, #94-0723-CV-W-3, 35 (1743) G.E.R.R. (BNA) 1567 (W.D.Mo. 1997).

The federal statute reads: "A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual."

The caps are 15-100 employees: $50,000; 101-200: $100,000; 201-500: $200,000; more than 500: $300,000. Employers with less than 15 employees are exempt from Title VII. The number of employees is counted for 20 or more calendar weeks in the current or preceding calendar year; §1981a(b)(3).

One circuit has found that supervisors are personally liable for sexual harassment under Title VII: Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989) vac. other grounds, 900 F.2d 27 (4th Cir. 1990).

Most circuits have held there is no personal liability for sexual harassment under federal civil rights legislation, and only the employer can be held liable: Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1399 (D.C. Cir.), cert. denied, (1995); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); Wathen v. GE, 115 F.3d 400, 1997 U.S. App. Lexis 13586 (6th Cir.); EEOC v. AIC Security Invest., 55 F.3d 1276, 1282 (7th Cir. 1995); Lenhardt v. Basic Inst. of Tech., 55 F.3d 377, 381 (8th Cir. 1995); Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 588 (9th Cir. 1993); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993); and Smith v. Lomax, 45 F.3d 402, 403 (11th Cir. 1995).

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Stress Related Claims and Defenses

Federal appeals court rejects the stress defense by a terminated firefighter, who claimed an inability to successfully work with various fellow firefighters.

A civilian firefighter for the U.S. Army was ordered to report to another fire station because of a staffing shortage. He refused to use his personal car and insisted on using a government vehicle, although none was available.

He was fired for insubordination; this was the third time he had been charged with this offense. He contested his dismissal, raising a disability claim. He alleged that he suffered from depression caused by "the stress and anxiety of having to work with certain employees" at the Ft. Sam Houston fire station.

The Merit Systems Protection Board and a U.S. District Court confirmed his termination. He then appealed to the Fifth Circuit.

The appellate court noted that if true, his defense "would merely tend to show that he was unable to perform any job at one specific location, and is not evidence of [his] general inability to perform a broad class of jobs.

The three-judge panel noted that the appellant had filed 51 EEO complaints in 15 years, none if which resulted in a finding of discrimination.

Aldrup v. Caldera, #01-50369, 2001 U.S. App. Lexis 26347 (5th Cir. 2001).

Click here to view the court's opinion on the FindLaw website.

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NOTED IN BRIEF

Arbitration Procedures

If a bargaining agreement leaves the determination of the arbitrability of a grievance to an arbitrator, the issue of whether disciplinary action can be overturned by arbitration is not usually a question for the courts, and doubt must be resolved in favor of arbitration. Union Twp. v. Firefighters 1981A, #A.L.R.3D, 142 Ohio App.3d 542, 756 N.E.2d 204 2001 Ohio App. Lexis 1758.

Attorneys' Fees and Legal Defense Rights

Federal appeals court affirms an award of attorneys fees of $277,900 given to a woman fire dept. employee who had sued for disparate treatment. In an earlier ruling the court upheld compensatory damages of $47,100. Kline v. City of Kansas City Fire Dept., 1981A/1208, 245 F.3d 707, 2001 U.S. App. Lexis 10972 (8th Cir.); prior opin. at 175 F.3d 660, 1999 U.S. App. Lexis 8500; cert den., 2000 U.S. Lexis 1040.

Defamation

Court dismisses a suit of a former FBI agent who was involved the "Travelgate" investigation of White House staff, brought against a "media commentator," who made various statements regarding the agent in 1996. The agent was unable to show that the commentator acted with malice and the federal agent was a limited public figure. The commentator was entitled to a qualified privilege because there was a reasonable basis for his statements. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 8, 2001 U.S. Dist. Lexis 12307 (D.D.C. 2001).

Disciplinary Punishment

FBI officials could not be sued by an ex-agent. The agent's sole remedy was under the Civil Service Reform Act. His claims against various non-supervisory employees were not separable from his employment, because his position as a federal employee was central to his claims that they had forced his early retirement. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 1, 2001 U.S. Dist. Lexis 12308 (D.D.C. 2001).

Fair Labor Standards Act - Constitutionality

Four state appellate courts have now ruled that state governments are immune from overtime suits under the FLSA, unless the state has waived its immunity. Anthony v. Iowa Dept. Public Sfty., #223/99-0515, 632 N.W.2d 897, 2001 Iowa Sup. Lexis 152, 7 WH Cases (BNA) 389 (2001); King v. State, 260 Neb. 14, 614 N.W.2d 341, 347 (Neb. 2000); Allen v. Fauver, 327 N.J. Super. 14, 742 A.2d 594, 598 (N.J. App. 1999); Commonwealth v. Luzik, 259 Va. 198, 524 S.E.2d 871, 877 (Va. 2000).

Fair Labor Standards Act - Canine

Federal appeals court concludes that the trial court erroneously dismissed an overtime suit because the city had followed the terms of the union-negotiated bargaining agreement. The FLSA, not the contract, controls overtime. Howard v. City of Springfield, #00-1834, 2001 U.S. App. Lexis 26414 (7th Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - Teleworking

The California Attorney General has determined that a public agency is not required under the ADA to provide, as an accommodation for a disabled member of a council or board, a teleconferencing connection at the disabled person's place of residence. A.G. Opinion #00-1210, 01 C.D.O.S. 9764 (11-14-2001).

Handicap Laws / Abilities Discrimination - Specific Disabilities

A restriction on lifting heavy objects is not a "disability" within the meaning of the ADA. Mason v. UAL, #01-10218, 2001 U.S. App. Lexis 26418 (5th Cir. 2001).

Homosexual & Transgendered Employee Rights

In a wrongful termination action, six isolated incidents in which homophobic statements or gestures were made in presence of a gay male employee over two-year period did not create a hostile work environment. Lane v. Collins #00 Civ. 3241, 2001 U.S. Dist. Lexis 17757 (S.D.N.Y.).

Moonlighting (Secondary Employment)

Illinois appellate court affirms the suspension of a police officer for a year who failed to inform his superiors about criminal activity of an alderman, who was his client in his off-duty private law practice. Police general order 89-8 specifically prohibits engaging in secondary employment which "would result at any time in a conflict of interest" and prevents police officers who are attorneys from representing individuals who are targets of criminal investigations. Holden v. Police Bd. of Chicago, #1-00-1117, 324 Ill.App.3d 862, 755 N.E.2d 67, 2001 Ill. App. Lexis 618.

Privacy Rights

Thwarting a suit by a former FBI agent who sought White House records, a U.S. District Court rules that the President is not subject to the Privacy Act 5 U.S. Code §552(f) or the Freedom of Information Act. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 26, 2001 U.S. Dist. Lexis 12309 (D.D.C. 2001).

Probationary Employment

An Ohio city and the police union can agree, in a bargaining agreement, to extend the probationary period (from 6 to 9 months), and if the agreement is otherwise valid, an officer with more than 6 but less than 9 months service can be terminated without cause. Ste. Marie v. City of Dayton, #C-3-99-513, 162 F.Supp.2d 766, 2001 U.S. Dist. Lexis 14624 (S.D. Ohio 2001).

Religious Discrimination

Federal appeals court upholds disciplinary action against two health care workers who preached religious beliefs to public aid recipients. A public employer may require its workers to abstain from discussing religion with citizens they meet on the job. Knight v. Connecticut, #00-9131, 2001 U.S. App. Lexis 26430 (2nd Cir. 2001).

Seniority

Overtime policy based on shift seniority rather than tenure with the employer does not discriminate against older workers. Casteel v. Exec. Bd. of L-703, #01-1643, 2001 U.S. App. Lexis 24511 (7th Cir. 2001).

Sexual Harassment - in General

California Court of Appeal holds that employers are strictly liable under state law for sexual harassment by supervisors; a federal defense available to employers that take steps to address harassment claims does not apply. Dept. of Health Services v. The Superior Court of Sacramento County (McGinnis) #C034163, 2001 Cal. App. Lexis 2675, 01 C.D.O.S. 9999.


RESOURCES

Military Leave
U.S. Office of Personnel Management sites:
(1) Military Leave Fact Sheet (Nov. 2001)
(2) Frequently Asked Questions on Military Leave (Oct. 2001)

Teleworking
U.S. Office of Personnel Management site
Links to Telework/Telecommuting sites

CROSS REFERENCES

Collective Bargaining - in General - see Noted in Brief: Probationary Employment.
Damages and Remedies - see Featured Cases: Sexual Harassment - Verdicts.
Disciplinary Publicity - see Noted in Brief: Defamation.
Disciplinary Punishment - see Featured Cases: Drug Abuse and Rehabilitation.
Psychological Exams and Standards - see Featured Cases: Applicant Rejections.
Union's Duty of Fair Representation - see Featured Cases: Disciplinary Investigations.


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