CONTENTS

FEATURED CASES

WITH LINKS TO THE OPINIONS

Arbitration Procedures

Minnesota appellate court overturns an arbitral award that reinstated a police officer that had a long history of harassing women.

In 1993 a woman police employee accused an officer of criminal sexual conduct against her. The county attorney declined to prosecute because the statute of limitations had expired. The city fired the officer, but an arbitrator ordered his reinstatement.

In 1997 a citizen accused a police officer of harassing and stalking her.  A jury found him not guilty.

An internal investigation concluded that he followed women he saw, made sexually suggestive comments to women he encountered on duty, ran license plate numbers of women he wanted to date, intimidated women who complained about unwanted telephone calls and similar misconduct. He was fired, and again grieved.

The arbitrator found a pattern of conduct going back over ten years that was offensive, inconsistent with a proper public image, and a violation of various rules, regulations, statutes, and orders.

Nevertheless, he concluded that most of the conduct was time-barred for disciplinary purposes and that the remaining conduct, while serious, did not warrant dismissal. He reinstated the grievant without back pay.  The city challenged the award in court.

An appeals court noted that arbitration awards are routinely affirmed by the courts, unless they violate a clear public policy.  The panel found a “well-defined and dominant public policy that imposes upon governmental units an affirmative duty to take action to prevent and to sanction sexual harassment and sexual misconduct by law enforcement officers.”

The three-judge panel said an employer has a duty to prevent sexual harassment in the workplace under federal and state law.  “We hold that the arbitrator's decision under the extreme facts of this case violated public policy and must be vacated.”  City of Brooklyn Center v. Law Enf. Labor Serv., #C5-01-414, 635 N.W.2d 236, 2001 Minn. App. LEXIS 1146, 168 LRRM (BNA) 2593 (Minn. App. 2001).

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

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Federal appeals court rejects a federal suit, filed by an ex-officer, challenging her termination on retaliatory grounds.  Because her dismissal had been affirmed by a state court, it could not be relitigated.

Three patrol officers with the troubled East St. Louis, Illinois, police dept. were engaged in on-duty horseplay. After tit-for-tat pranks, the woman officer was handcuffed to a fence and radioed for help.

Two male officers were disciplined; the woman officer was not. She filed a complaint contending that the discipline of the male officers should have been more severe. This led to an investigation of all three – and in the course of that investigation management learned that the woman officer had concealed a criminal record.

She was suspended and then fired for falsifying her employment application. A state court declined to overturn the termination decision.  She then sued in federal court, contending that her discharge was retaliation for her complaint about the discipline of her fellow officers – in violation of her constitutional right of free speech.

A jury awarded her $175,000 in damages, to which the court added attorneys’ fees and an injunction requiring the city to reinstate her -- notwithstanding the outcome of the state litigation.

A three-judge appellate court has reversed.  Resume fraud is not protected speech.  An employer that learns during an investigation (or during litigation) that it should not have hired the employee in the first place may fire the worker.  See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879 (1995).

Secondly, a party may not relitigate his or her termination in federal court after unsuccessfully contesting the dismissal in state court. See Manley v. Chicago, #99-3785, 236 F.3d 392 (7th Cir. 2001) -- also noted below.

Durgins v. City of East St. Louis, #00-3271, 2001 U.S. App. LEXIS 24566 (7th Cir.).

Click here to view the Durgins decision on the court’s website.

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Disciplinary Offenses

Arbitrator upholds a five-day disciplinary suspension of an academy instructor who used inflammatory language to describe a student’s husband.

A federal training center firearms instructor grieved a five-day disciplinary suspension for, along with two minor infractions, using inflammatory words about a student.  He said, he knew her husband and was surprised that he was married because he was “a fucking homosexual.”

The grievant claimed that it was within the scope of his duties to create stress, to better to enable students to cope with a real-life emergency.  He also noted he had been cleared of the charges by an internal affairs investigation and the discipline was the result of a “personal vendetta” against him by a superior.

As to the first defense, the arbitrator conceded that a firing range is not a pristine environment, but the remarks “were derogatory, inflammatory, and when you consider they were made to someone with a loaded gun, stupid.”

The Bureau of Prison's Standards of Employee Conduct specifically provide:

 “An employee may not use profane, obscene, or otherwise abusive language when communicating with inmates, fellow employees or others. Employees shall conduct themselves in a manner which will not be demeaning to inmates, fellow employees or others.”

The arbitrator added that “firing under stress may indeed be a valuable lesson, it should be confined to more advanced training.”

As to the vendetta charge, the arbitrator noted that the remarks were reported by another student, not the woman he was speaking about. “I can discern no motive why a student would make such an allegation if not true,” he said.

The results of an internal affairs investigation are not binding on the courts. “There was no confrontation of witnesses and no opportunity for cross-examination.”  A review of the disciplinary log showed similar discipline for similar offenses in the past.  The five-day suspension was lenient and more than likely the result of the grievant’s good record.

Federal Bur. of Prisons and AFGE L-33, FMCS #01/00294, 116 LA (BNA) 255 (Cocalis, 2001).

Click here to view the arbitration award on the AELE website.

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Federal court rejects the privacy and wrongful termination claim of an ex-trooper who had been videotaped at a pot party before he had been hired.

Massachusetts State Police came into possession of a videotape which showed a probationary trooper smoking what appeared to be marijuana.  He was fired for making false statements about drug use in his application and pre-employment interview.

He sued in federal court, claiming violations of the state’s privacy law and the state and federal civil rights act.

As for the privacy claim, the court said he could not claim that the tape was highly personal or intimate.  He allowed himself to be videotaped, with multiple participants, any one of whom might have either talked to his superiors or voluntarily disclosed the tape to another third party.

Moreover, police agencies have a compelling interest in determining whether officers use drugs, which outweighs an officer’s privacy interests under state law.  “Drug use by police officers has the obvious potential, inimical to public safety of fellow officers, to impair the perception, judgment, physical fitness, and integrity of the users.”

Dasey v. Mass. State Police, #00-11232, 2001 U.S. Dist. LEXIS 16149 17 IER Cases (BNA) 1708 (D. Mass. 2001).

Click here to view the arbitration award on the AELE website. 

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California appeals court overturns a law that made it a criminal offense to falsely accuse a peace officer of misconduct.

Two California citizens accused a police officer of committing lewd conduct at a Police Activities League gathering. The charges proved to be false. They were criminally prosecuted for knowingly filing a false charge of misconduct against a peace officer.

A three-judge appeals panel reversed their convictions.  It was not a crime in California to falsely accuse a firefighter, a paramedic, a teacher, an elected official, or anyone else. By protecting only peace officers, the code selectively prohibited expression because of its content and violates the First Amendment.

The right of citizens to petition their government must not be chilled merely because it is discommoding to public employees. It may be distressing and demoralizing for police officers to be subjected to false accusations, but the panel said that “may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands.”

Peo. v. Stanistreet, #B143501, 93 Cal. App. 4th 469, 2001 Cal. App. LEXIS 855, 113 Cal.Rptr.2d 529 (2nd Dist. 2001).

EDITOR'S NOTE: On Jan. 23, 2002, the California Supreme Court ordered the appellate court decision to be depublished and will hear a final appeal later in the year. Peo. v. Stanistreet, #S102722, 2002 Cal. Lexis 271.

Click here to view the decision on the AELE website.

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Appellate court sustains the judgment against a state police employee who improperly rejected a post-pregnancy sick leave request by a male trooper, but concludes that the $375,000 jury verdict for emotional distress was excessive.

We previously reported that a Maryland state trooper sued because, after a difficult pregnancy of his wife, he was denied extended sick leave to assist her and newborn daughter.  A jury awarded $375,000; the defendant – a civilian state police employee – appealed.

The Fourth Circuit rejected the defendant's claim of qualified immunity, but also held the damage award was too high.  The trooper suffered no economic loss, and the award was based solely on his emotional injuries.  Much of the stress he suffered was the result of a grievance and the lawsuit, and not the initial decision on his leave request.

The three-judge panel said because it was not possible to determine what portion of the verdict was intended to compensate trooper for the emotional injury resulting from the litigation process, a new trial on damages is required.

Knussman v. Maryland, #99-2349, 2001 U.S. App. LEXIS 24037 (4th Cir.).

Click here to view the 4^th Circuit’s decision on the FindLaw website.

Dept. of Labor's websites about the Family & Medical Leave Act.

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Eighth Circuit refuses to dismiss a wrongful termination lawsuit of an asst. fire chief who was terminated for speaking on a radio show about racism in the fire service.  To warrant disciplinary action, the defendants must show the speech actually disrupted the workplace.

A black asst. fire chief appeared on a local radio show in his capacity as an advisor to FLAME -- the Firefighter’s League for the Advancement of Minority Employees – in support of a candidate for the Board. Political activity was not prohibited by the fire district’s policies.

He expressed concerns about the primarily African-American community the district serves. He described an incident in which an unnamed white firefighter refused to follow standard procedures because he was unwilling to climb over fences through debris, trash or garbage to save someone’s home.

A white union official complained that his comments created a hostile environment for the white firefighters.  The suburban St. Louis fire district demoted and then terminated the employment of the 25-year veteran.

He sued in federal court for a violation of his First Amendment rights. The fire district’s board unsuccessfully sought a summary judgment, and appealed.  A three-judge appeals panel affirmed the lower court.

If the speech touches on a matter of public concern, a “balancing test” is required – but only if the words created a disruption in the workplace.

The panel rejected a defense that a showing of actual disruption was unnecessary “when lives may be at stake in a fire [and] an esprit de corps is essential to the success of the joint endeavor.”

Washington v. Normandy Fire Prot. Dist., #00-3828, 2001 U.S. App. LEXIS 23832 (8th Cir.).

Click here to view the 8^th Circuit’s decision on the FindLaw website.

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Handicap Laws / Abilities Discrimination - In General

Federal court refuses to dismiss a suit by an injured NYPD officer who was passed over for sergeant.

     A NYPD police officer was injured when a prisoner struck him on the head with a pipe.  For years after the assault, he suffered from dizziness, headaches, seizures and on one occasion, suffered a blackout while on duty.  He was diagnosed with post-concussive syndrome, seizure disorder and/or post-traumatic epilepsy.

     Although he had passed the promotional exam he was twice passed over for “performance” reasons.  He took pain medications and Dilantin, to control the seizures, which made him drowsy and diminished his capacity to work.  He also missed a total of 431 working days as a result of the injury.

     The officer filed a complaint with the EEOC alleging disability discrimination.  The city’s motion to dismiss was denied because a reasonable jury could find that the city and the police commissioner made an impermissible decision not promote the police officer because of his disability.

     The judge noted that the officer no longer takes anti-seizure medication, he recently had received two awards for excellence and extraordinary bravery and his attendance record had improved.  His superiors had rated him as very competent, conscientious and service oriented  — with the potential to be an effective supervisor.

      The plaintiff presented concrete evidence from which a reasonable jury could find that the defendants made an impermissible decision not promote him because of his record of disability.  Morris v. City of N.Y.,  #99 Civ. 9813, 153 F.Supp.2d 494, 2001 U.S. Dist. LEXIS 11208 (S.D.N.Y.).

Click here to view the decision on the AELE website.

Click here to view the EEOC’s ADA regulations (Title 29, Ch. XIV, Part 1630).

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Federal court rejects a reassignment demand from an asthmatic corrections officer.  His condition did not impair the major life activities of breathing or working.

A county corrections officer with asthma sued, under the ADA, seeking a reassignment to a better-suited environment.  Because medication did not always control the condition, he claimed the work environment impaired the major life activity of breathing.

The court noted that he experienced only temporary breathing difficulty, due to extreme work conditions or seasonal changes.  “To prove he is substantially limited in his ability to work, [he] must show that he is unable to work in a broad class of jobs, not just one type of job, a specialized job, or a particular job of choice.”

Because the officer “failed to demonstrate that he has been substantially limited in a major life activity, he is not considered disabled under the ADA and is not entitled to its protections,” added the judge.

He also failed to allege any facts suggesting that his employer perceived him as disabled or harbored misperceptions about his asthma.

The employer's motion to dismiss for failure to state claim was granted.

Saunders v. Baltimore Co., #JFM-01-CV-1291, 163 F.Supp.2d 564, 2001 U.S. Dist. LEXIS 14576 (D. Md.).

Click here to view the decision on the AELE website.

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Sexual Harassment - Same Gender

Ex-officer fails to win back his job after he was separated for major depression. The fact that a gay sergeant was overly friendly did not rise to the level of a hostile work environment.  Federal court also rejects his stress disability claim.

An Ohio police officer was terminated for psychological reasons.  He sued, alleging sexual harassment and stress-based disability discrimination.

He based the claim on the fact his sergeant was a practicing homosexual, had talked about sexual activity in his presence and called him “honey” on one occasion. Allegedly homophobic coworkers may have suspected the plaintiff also was gay and was the “buddy” of the sergeant, which caused him stress.

There was other testimony the plaintiff was not well liked because he was arrogant, obnoxious, unfriendly, and a “know it all” who couldn’t accept criticism.

A federal court rejected the harassment claim.  To constitute a valid hostile environment complaint, a plaintiff must demonstrate that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.”

The court said his allegations were “insufficient to establish that [he] was subjected to a hostile work environment.”

Two psychologists found that the plaintiff was not fit for duty based on a major depressive disorder that significantly impaired his performance as a police officer.  The court held that the plaintiff “was not qualified for the position at the time of the alleged discrimination.”

The court left intact a claim that the defendants illegally disclosed his medical records, but dismissed the claims of harassment, discrimination and retaliation.

Pollard v. City of Northwood, #3:99cv7624, 161 F.Supp.2d 782, 2001 U.S. Dist. LEXIS 4277 (N.D. Ohio 2001).

Click here to view the decision on the AELE website. 

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Union and Associational Activity

Federal court upholds an officer’s lawsuit against the chief and mayor who imposed a two-day suspension for disturbing the mayor’s inauguration by blowing a truck airhorn. The protest was protected speech under the First Amendment.

An off-duty Massachusetts police officer sounded a truck air horn during the mayor's inauguration, to protest his policies towards the police and fire unions. He received a two-day disciplinary suspension, which was reversed by the Civil Service Commission, on First Amendment grounds.

He filed a federal civil rights suit against the police chief, mayor and the city.

In granting the plaintiff a summary judgment, the judge said that blasting a horn outside the inauguration at City Hall “is a plainly protected activity.” “Protest is sometimes loud. It often makes government officials uncomfortable or angry. If it does, so much the better ...”

She noted that sounding horns on automobiles and trucks “is a common activity for a union protest” and because the officer’s horn blowing was in protest of the mayor’s policies towards the police union, it related to a matter of public concern.

The city asked the court to reject the claim because the officer did not suffer any adverse personnel action.  The judge said that although the officer never served the two-day suspension, he allegedly “endured the humiliation ... the ordeal of two hearings and ... embarrassment.”  The mayor also cancelled the snowplowing services of a company owned by relatives.  He had used one of their trucks for the hornblowing protest.

Although the officer prevailed in his counts against the police chief and mayor, the claim against the city must fail.  He was not able to demonstrate a practice, policy, or custom that caused a deprivation of his constitutional rights.

Meaney v. Dever, #99-11538, 2001 U.S. Dist. LEXIS 16148, 168 LRRM (BNA) 2518 (D. Mass. 2001.

Click here to view the decision on the AELE website. 

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Federal Merit Board orders the temporary restoration, to full regular duties, of an FAA specialist who was disciplined after he called the FBI to report that the FAA had trained a Saudi with a name similar to a Sept. 11th hijacker.

A probationary aviation specialist with the Federal Aviation Administration informed his supervisors that a Saudi national, with a name almost identical to one of the suspected pilots in the Sept. 11 terrorist attacks, had trained at the FAA Academy.

The specialist alleges that his supervisor refused to forward the information to FAA security officials.  He was denied entrance to the security office, and was placed on leave for being “disruptive” and was ordered to leave the building.

Following that action, the employee notified the FBI.  Later, his superiors terminated him for “poor judgment” and an inability to maintain a “calm and professional approach in the completion of duties.”

The specialist, a decorated former Navy Officer who had worked as an intelligence analyst for the Defense Intelligence Agency, complained to the FAA’s Office of Special Counsel.

After an initial investigation demonstrated that the specialist was terminated in retaliation for reporting a substantial and specific threat to public safety, the OSC requested a 45-day stay of his termination with the Merit Systems Protection Board (MSPB).

FAA management then rescinded the termination decision, but declined to return the employee to his duties, and placed him on paid administrative leave.

In an extraordinary action, the Merit Systems Protection Board has ordered the specialist temporarily restored to his former position and directed the FAA not to impose new job requirements. The action was requested by the Office of Special Counsel.

Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 39 (1933) G.E.R.R. (BNA) 1150, – M.S.P.R. – (MSPB, 10/17/01).

» Editor’s Note: FAA's Prohibited Personnel Practices proscribes taking adverse personnel action against an employee because of an informational disclosure which the employee “reasonably believes evidences ... a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law, and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.”

Click here to view the order on the AELE website.

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New Jersey appeals court reverses a large verdict won by a police officer.  An allegation that superiors should not have issued two gun permits is not the kind of employee complaint the law was designed to protect, and does not shield an employee from disciplinary action.

A New Jersey police officer sued for damages claiming violations of the state’s whistleblower law.  The defendants were the Perth Amboy Police Dept., two deputy chiefs, the mayor and the city administrator. The allegations centered upon their handling of two gun permit applications.

A state court jury initially awarded the plaintiff $78,400 for past and future financial loss, and $700,000 in punitive damages. The trial court then dismissed the claims against the individual defendants on the basis that it was “strictly a claim against the employer.”

In a limited retrial, the jury then awarded plaintiff $436,500 for economics losses and emotional distress, plus $600,000 in punitive damages.

The judge then ordered a new trial, if the plaintiff refused to accept a $150,000 reduction of the compensatory award; he also set aside the verdict for punitive damages. The plaintiff appealed.

The appellate panel said his complaints were “a litany of disaffection with the Police Dept. and disappointment with the way in which he had been treated over the years by his superiors.”

The officer lacked a sufficient basis that either of the gun permits was illegal, or in violation of public policy.

At most, the permits were judgment errors on the part of city officials involved and could not reasonably have been seen as the type of conduct upon which a whistleblower claim may be premised.

Moreover, the disciplinary actions taken against the officer were independently supported by his insubordination.

McLelland v. Moore, #A-4534-98T5, 343 N.J. Super. 589, 779 A.2d 463, 2001 N.J. Super. LEXIS 353 (N.J. App. 2001).

New Jersey Statutes: Conscientious Employee Protection Act: N.J.S.A. 34:19-1 to -8.

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

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NOTED IN BRIEF

Arbitration Procedures:

     A grievance brought in behalf of a retired firefighter must be denied, as a retiree is no longer covered by the bargaining agreement. City of Watervliet and Watervliet Unif. Firefighters’ Assn., N.Y. P.E.R.B. #A-201-075, 116 LA (BNA) 238 (Babiskin, 2001). {N/R}

Disciplinary Appeals

     Police captain, who’s termination for sexual harassment was affirmed by a police board and appellate court, could not challenge his dismissal in federal court by disguising the appeal as a civil rights claim. Manley v. Chicago, #99-3785, 236 F.3d 392 (7th Cir. 2001). {N/R}

Disciplinary Searches

     Supreme Court declines to hear a prison employee search case.  A visual body cavity search of prison employees does not require probable cause, but management must a have reasonable and individualized suspicion that the employee is hiding contraband on his/her person. Although officials briefly observed the plaintiff’s vaginal and anal cavities, the search was supported by tip from previously reliable inmate-informer. Leverette v. Bell, 247 F.3d 160 (4th Cir. 2001); cert. den., #01-277, 70 L.W. 3315 (2001).  See article in the July 2001, Jail & Prisoner Law Bull.

Domestic Partner Rights

     By a 2-to-1 margin, voters in Miami Beach approved two ballot measures granting health coverage for the domestic partners of all city employees and survivor benefits for the domestic partners of police officers and firefighters.  A domestic partner is someone in a “committed relationship between two people who consider themselves as a member of each other’s immediate family” and who have registered their partnership with the city. Prior coverage was limited to an employee’s spouse and dependent children. 39 (1935) G.E.R.R. (BNA) 1206 (Nov. 6, 2001). {N/R}

Homosexual & Transgendered Employee Rights

     Denver ordinance prohibits public employment discrimination against transgendered individuals. Ordinance CB0898-01, 39 (1935) G.E.R.R. (BNA) 1206 (Adopted Nov. 5, 2001). {N/R}

Injuries to Employees

     Louisiana appellate court modifies an award to a lieutenant who was accidentally shot by a deputy. Liability was conceded by the deputy and the sheriff; all claims against the body armor manufacturer were voluntarily dropped. The judgment was reduced to past earning losses of $100,000 and future losses of $180,000. Doss v. Second Chance Body Armor, #34,788-CA, 2001 La. App. Lexis 1910, 794 So. 2d 97 (La.App. 2 Cir., 2001). {N/R}

Occupational Safety & Disease

     The U.S. Centers for Disease Control and Prevention have issued interim guidelines to minimize anthrax exposure at worksites. The CDC Health Advisory, issued Oct. 31, 2001, is on the agency's website. See also, Morbidity and Mortality Weekly Report (10-26-2001). {N/R}

Link to CDC website: http://www.bt.cdc.gov/

Political Activity/Patronage Employment

     Federal jury finds that the City of Chicago Heights, Illinois, fired one city employee and demoted or reassigned three police officers in retaliation for their opposition to the mayor’s re-election in 1999. It awarded the four a total $700,000 in damages; punitive damages were assessed against the mayor in the sum of $15,000, against the current police chief for $7,500 and against an ex-chief for  $1,500. Kulwin, Murphy, Pilota and Robustelli v. Ciambrone, verdict rptd. in the Chicago Tribune on 11/02/2001, p. 3 (N.D. Ill.). {N/R}

Race: Affirmative Action & Quotas

     The U.S. Supreme Court has declined to disturb an appeals court finding that the Chicago fire dept's affirmative action plan can continue because it was narrowly tailored to respond to discrimination against minorities.  The city argued that the Constitution does not require affirmative action to cease as soon as discrimination ends. Chicago Fire Fighters Union L-2 v. City of Chicago, #00-1272, 249 F.3d 649, 2001 U.S. App. LEXIS 8081, 85 FEP Cases (BNA) 1305 (7th Cir. 2001) cert. den., #01-365, 70 U.S.L.W. 3315 (10/29/01). {N/R}

Sexual Harassment

     A California deputy sheriff has been sentenced to 30 days in jail for fondling a woman volunteer firefighter while at a fire scene. The deputy was convicted of misdemeanor sexual battery and was ordered to register as a sex offender.  People v. Dolfin, Santa Clara Co. Superior Court (11-5-2001). {N/R}

Stress Related Claims and Defenses:

     Article: “Correctional employee stress and strain,” and “Examining the health risks for corrections professionals,” 63 (6) Corrections Today 83 and 110 (Oct. 2001), American Correctional Assn., www.aca.org  {N/R}

Union and Associational Activity

     Use of racial slurs by employees waiting in voting line at a unionization election does not invalidate the election, absent some evidence of intent to use race to affect the outcome. NLRB v. Foundry, #00-5062, 2001 U.S. App. Lexis 17707, 2001 FED App. 0263P (6th Cir. 2001). {N/R}

CROSS REFERENCES

Criminal Liability — see Noted in Brief: Sexual Harassment.

Free Speech – First Amendment — see Featured Cases: Union and Associational Activity.

Psychological Exams – Fitness for Duty — see Featured Cases: Sexual Harassment - Same Gender.

Sexual Harassment — see Featured Cases: Arbitration Procedures.

Stress Related Claims and Defenses — see Featured Cases: Sexual Harassment - Same Gender.

Untruthfulness & Resume Fraud  — see Featured Cases: Disciplinary Appeals.