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2002 FP Jul. (web edit.)

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CONTENTS

Featured Cases with Links

Arbitration Procedures (2 cases)
Collective Bargaining - Duty to Bargain
Criminal Liability
Disciplinary Evidence - Exclusionary Rule
Disciplinary Investigations
First Amendment Related
Fringe Benefits
Handicap Laws - Specific Disabilities
Promotional Rights, Procedures and Performance Appraisals
Sexual Harassment - In General
Sexual Harassment - Verdicts
Stress Related Claims - Disciplinary Action
Untruthfulness & Resume Fraud
Whistleblower Requirements and Protection

Noted in Brief

Arbitration Procedures
Bill of Rights Laws
Damages and Remedies
Disciplinary Punishment (2 cases)
Fair Labor Standards Act - Overtime
Family, Medical & Personal Leave (2 cases)
Handicap Laws - Constitutionality
Handicap Laws - Specific Disabilities
Obesity
Pay Disputes - Overtime Claims
Political Activity/Patronage Employment
Privacy Rights (2 cases)
Religious Discrimination
Residency Requirements
Sexual Harassment - In General
Strikes and Retaliation
Taxation
Untruthfulness & Resume Fraud
Vacation Pay

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENTS


Arbitration Procedures

California appeals court strikes down a law allowing public safety unions to demand binding arbitration of economic issues.

California's Code of Civil Procedure §1299, the "Arbitration of Firefighter and Law Enforcement Officer Labor Disputes," required cities and counties to submit unresolved economic issues to binding arbitration. A tripartite panel then chooses, between each side's last best offer, based on a designated list of factors.

Riverside County challenged the law as delegating to a private party the power to interfere with public funds, and impinging on the county's power to provide for the compensation of its county employees.

A three-judge appellate panel has ruled that the determination of salaries paid to local employees is a local matter, not one of statewide concern -- and therefore violates the state constitution, Art. XI §11(a).

County of Riverside v. Superior Court (Riverside Sheriff's Assn.), #E030454, 118 Cal.Rptr.2d 854, 2002 Cal. App. Lexis 4006 (4th Dist. App. 2002).

Click here to view the award on the FindLaw website.

Note -- Art. XI §11(a) reads: "The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.

« « « « « « » » » » » » »

Arbitrator rejects, as non arbitrable, a grievance from a deputy sheriff who received an offensive letter from the chief deputy. The mere fact that the preamble to the bargaining agreement recites as a purpose the promotion of cooperation and harmonious relations does not make every slight to a unit member the proper subject of an arbitration demand.

A jail division deputy with more than 20 years service sought reassignment to the courts division. When he was not selected, he asked for the reasons. The chief deputy wrote him a letter which the jail deputy found to be "degrading, derogatory, offensive and hurtful."

The union grieved and demanded arbitration, because the content of the letter was "so egregious that it upset the ability to promote harmonious relations between the parties." The union asked that the letter be rescinded, and the county be ordered not to issue such letters in the future.

The county said the matter was not arbitrable. The union said it was because the introductory language to the bargaining agreement read:

"This Agreement is made for the purpose of promoting cooperation and continuous harmonious relations between the Board of County Commissioners, the Office of the Sheriff, the employees of the Sheriff's Office and their representative, the F.O.P./O.L.C., and to comply with ... Ohio Revised Code."

The arbitrator sided with management. The language of a preamble "can not be extended" to apply to a complaint of hurt feelings because of the chief deputy's letter. To hold otherwise "would open the door to every employee filing a grievance if and when a supervisor makes a comment ... the employee dislikes ... "

Clark Co. Sheriff and Frat. Order of Police, FMCS Case #01/10019, 116 LA (BNA) 1266 (Kindig, 2001).

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

Editor's Comment: This case illustrates what nonsense can be raised because someone added precatory, unnecessary and unhelpful language about "promoting cooperation and continuous harmonious relations" to the preamble of the bargaining agreement. It should have read "This Agreement is to comply with the Ohio Public Employees' Collective Bargaining Act."

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Collective Bargaining - Duty to Bargain

Arbitrator overturns a management decision to assign BoP facility officers to escort inmates to and from a clinic. It was a change of conditions and must be bargained.

A study conducted by an outside consultant recommended shifting the escort details from dental clinic officers to residential officers. The bargaining agreement allowed management "to assign work ... and to determine the personnel by which agency operations shall be conducted."

The union grieved, not because escort work was assigned to unit members, but it altered their working conditions and should have been negotiated.

The arbitrator agreed that the new policy was a change in the working conditions for the affected unit members, and the contract did not include a de minimus provision. He rescinded the policy and ordered management to bargain with the union on the new procedure.

U.S. Fed. Bur. of Prisons and AFGE L-33, FMCS Case #01/11682, 116 LA (BNA) 1271 (Moore, 2002).

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

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Criminal Liability

SWAT member indicted for killing another officer during a training simulation.

A Rhode Island grand jury has indicted a Providence police officer who fatally shot a captain during a hostage training exercise. The charge of involuntary manslaughter is based on criminal negligence.

The officer, a SRT entry team member, requested and received permission to use his personal rifle -- but failed to check for ammunition either at the police station or at the training site. State v. Warzycha, Providence Co. Super. Ct. (Indictment, 2002).

Various police association representatives will serve on an advisory committee to review the police tactical operations, after which the attorney general will propose safety procedures.

Click here to view the attorney general's press release.

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Disciplinary Evidence - Exclusionary Rule

Arbitrator holds that (1) the "Exclusionary Rule" does not apply in arbitration proceedings, and that (2) management has no duty to conduct a thorough investigation of an employee's misconduct. The sole issue is the guilt or innocence of the accused employee.

Two major legal conclusions were reached in a case where the criminal charges against a city bus driver collapsed because of faulty search and seizure considerations. The first was that the exclusionary Rule has no application to grievance arbitration hearings. A public employer is entitled to present evidence of employee's unlawful activity even if the incriminating evidence is suppressed by criminal court for lack of probable cause to make the search.

The opinion stated that an arbitrator's powers are derived from the collective-bargaining agreement, and the limitations on law enforcement officers from the seizure of evidence should not serve to as an impediment to the admission of evidence in an arbitration proceeding.

The second objection raised by the grievant was the lack of an independent investigation by management -- who simply relied on the arrest and the seizure of incriminating evidence, which was later suppressed by the criminal court judge. The arbitrator ruled that the duty to investigate misconduct allegations is not a due process right of a worker. Requiring an employer to conduct a thorough investigation could generate morass of inconsequential and irrelevant issues. The bottom line should be whether employee is guilty of offense charged.

He ruled that the city had just cause to discharge a bus driver who maintained a drug lab in his garage, because of the public safety nature of that job.

City of Evansville and Amalgamated Transit Union L-878, FMCS Case #010135/07825-6, 116 LA (BNA) 1184 (Cohen, 2001).

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

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Disciplinary Investigations

Illinois appellate court reverses a $5+ million verdict to a utility employee for an overly intrusive internal investigation. Management had a right to learn whether he had abused his disability leave, and employers are allowed to access their own records.

A telephone company employee, who was on paid disability leave for an injury unrelated to his work, lied to his employer at least three times about not going on a fishing trip. Employees were not allowed to collect disability pay while on vacation, without express permission.

Suspecting that the worker was cheating, security personnel accessed the call records of the couple and the wife's employer. They contacted the resort in Canada where the couple had stayed, the kennel where they had boarded their dog, and Canadian authorities to obtain a copy of the employee's fishing license.

Confronted with the evidence, the worker was fired. He then grieved, and a year later was reinstated by an arbitrator. However, because the grievant mislead his superiors about the fishing trip, he was refused the year's back pay that he sought.

The employee, his wife, and his wife's employer filed a lawsuit in state court, for the tort of "intrusion upon seclusion." Compensatory damages were awarded to the three for $75,000, $75,000, and $10,000 respectively, plus $5 million in punitive damages.

On appeal, a three-judge panel reversed the awards to the worker and his wife. They noted that another Illinois appellate court recognized the intrusion upon seclusion tort in a 1986 case, and set out four elements that a plaintiff must plead and prove to recover:

  1. An unauthorized intrusion or prying into the plaintiff's seclusion;
  2. The intrusion must be offensive or objectionable to a reasonable person;
  3. The matter upon which the intrusion occurs is private; and
  4. The intrusion causes anguish and suffering.

Melvin v. Burling, 490 N.E.2d 1011, 141 Ill.App.3d 786 at 789 (Ill. App. 3rd Dist. 1986).

Although communications records are protected by federal law, an exception is made for the service provider. The majority said that "an organization's review of its own records is not an unreasonable intrusion upon seclusion."

Moreover, the employer's conduct "was reasonable in light of federal case law that requires an employer to conduct a documented investigation into an employee's alleged misdeeds before the employer may discipline that employee."

Third, it was not the intrusion which caused anguish and suffering, but the dismissal from employment. The plaintiffs "experienced depression, fits of crying, and a disturbed marital relationship purely as a result of the loss of [the husband's] job."

The justices noted that he lost his job because he lied, and the management "already had more than enough evidence to build a sound case for discharging [him] prior to the intrusion."

One justice partially dissented. He agreed with the majority "that an employer ... has a qualified right to protect its property interests against an employee who would commit fraud ... [and to] make appropriate internal checks ..." He said it was even reasonable to extend the investigation from the employee to his spouse, "who by the nature of her relationship to the employee is likely to be caught up in the investigation."

However, accessing the phone records of the wife's employer was "outrageous" and he would have affirmed the $10,000 award as to her.

Schmidt v. Ameritech, #1-01-0463, 768 N.E.2d 303, 2002 Ill. App. Lexis 220 (Ill. App.1st Dist. 2002).

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

Editor's Note: In 2000 (and almost six years after 1994 investigation in the above case) the same Appellate Court recognized the tort of invasion of seclusion in another case. Johnson v. K Mart Corp., #1-98-2172, 311 Ill.App.3d 573, 723 N.E.2d 1192, 2000 Ill. App. Lexis 16, 15 IER Cases (BNA) 1605 (2000).

However, the Illinois Supreme Court granted review of that decision, and the final result is still pending; rev. gtd. 729 N.E.2d 496, 2000 Ill. Lexis 593 (2000). If the 2000 ruling is upheld, it is not necessarily retroactive to behavior before that date.

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First Amendment Related

Federal appeals court affirms the dismissal of a suit brought by a former sergeant, who alleged that he was demoted because of his membership in a controversial motorcycle club. There was no evidence the demotion, based on valid rule violations, was pretextual to punish him for his associational activities, or that the sheriff had been improperly influenced by the sergeant's superiors.

A Nevada sheriff's dept. sergeant was investigated, demoted and transferred for rule violations. He quit the department and sued, alleging the adverse personnel action was in retaliation for his membership in "Blind Justice," a biker group. It was an affiliate of another club that was led by an ex-felon that had, on its website, a link to the photo of an undercover officer, and also had a link to "prison pen pals."

A federal trial court rejected the officer's claims of First Amendment retaliation. On appeal, a three-judge panel noted that the sheriff knew of the sergeant's club involvement long before he disciplined him. The sheriff did not express opposition to his association with Blind Justice and was careful to distinguish that association from his violations of departmental general orders.

The panel said the disciplinary action was grounded on the officer's "defiance, arrogance, rebelliousness, insubordination, contempt for authority, lack of accountability" and other deficiencies. Moreover, there was no evidence that the sheriff's legitimate reasons for disciplining the sergeant were pretextual.

Moreover, there is no liability if the sheriff, as the final decisionmaker, made a wholly independent and legitimate decision to discharge the plaintiff, if he was not influenced by the retaliatory motives of a subordinate. No subordinates were sued, and the panel would not speculate what the outcome might be if they had been.

Strahan v. Kirkland, #01-15493, 287 F.3d 821, 2002 U.S. App. Lexis 7214 (9th Cir. 2002).

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Fringe Benefits

Federal employees may now retain frequent flyer rewards, but cannot keep denied boarding compensation or select airlines based on their awards system.

In a Defense Department appropriation bill enacted last year, federal employees may now keep frequent flyer miles earned on official travel. Money or free tickets provided to an employee who is bumped from an overbooked flight may not be retained even if the worker gives up a seat voluntarily

The General Services Administration has published a final rule, overturning a prior regulation that provided that all frequent flyer miles earned in the course of official travel became the property of the federal government.

Although federal employees may now use frequent flyer miles to upgrade to premium seating, they may not select airlines based on whether it provides frequent flyer miles.

"Federal Travel Regulation Using Promotional Materials and Frequent Traveler Programs," 67 Federal Register No. 71, pp. 17946-47 (Apr. 12, 2002).

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

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Handicap Laws / Abilities Discrimination Specific Disabilities

Ex officer's claim that his narcolepsy was not accommodated by the sheriff is involuntarily settled for $26,000 by his creditors, acting through bankruptcy procedures.

A jail deputy in western Colorado sought reassignment from the night shift because of his narcolepsy - a neurological disorder that can induce sudden sleep.

The sheriff denied the request and later demoted deputy for leaving a meeting. The deputy filed a disabilities lawsuit in state court, which was removed to the federal court because of the ADA issues. A federal magistrate denied the sheriff's motion for a summary judgment and set the case for a jury trial in late summer.

Meanwhile, the demotion allegedly forced the deputy into bankruptcy, and he resigned from the department.

The Bankruptcy Trustee, acting in behalf the former deputy's creditors, attached his lawsuit as a financial asset, and substituted himself as the plaintiff. Against ex-deputy's wishes, the Trustee then accepted a settlement offer from the sheriff's attorney, of approximately $26,000.

Larson (substituted for Buniger) v. Waterman, #01-CV-441 (D.Colo. 2002), removed from Montrose County, Colo., Dist. Ct. (#01cv8). Settlement reported in the Denver Post, 4/25/2002.

Click here to view the presettlement docket entries.

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Promotional Rights, Procedures and Performance Appraisals

Arbitrator upholds the right of management to consider sick leave use when making decisions about promotions and awards for correctional officers.

A union of federal corrections officers filed a grievance, complaining that management wrongfully violated the privacy rights of its members and discriminated against them by improperly considering sick leave usage when administering an awards program and making Merit Promotions. Testimony was introduced that management took leave usage into account when considering officers for both promotions and awards.

Management countered that there is difference between those who legitimately use sick leave and those who abuse it, and there was nothing in the bargaining agreement to foreclose the examination an officer's use of sick leave when promotions or awards are determined.

The arbitrator denied the grievance, noting that management has an obligation to monitor the use of sick leave. More important, he said there was nothing in the agreement "that precludes the use of sick leave from the factors the warden may consider either in the ... Merit Promotion Plan or Incentive Awards Program."

Federal Transfer Center and AFGE L-171, FMCS Case #01/08836, 116 LA (BNA) 1170 (Goodman, 2002).

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

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Sexual Harassment - In General

Judge overturns a jury verdict of $150,000, that had been awarded because an employer aggressively investigated an off-duty sexual harassment claim.

Two private sector workers went on a first date and had sex. The woman told her superiors she had been raped.

The male employee was subjected to a 90-minute interrogation during which he allegedly was asked "horrible" questions. He responded that the relationship was consensual, and coworker made a false charge because she felt she was being rejected by him after they had engaged in sex.

The male filed suit in state court, against the woman coworker and his employer. He claimed that the intensive interview inflicted humiliation and anger, and caused him to cry, lose his breath and become terrified.

The jury found that the sex was consensual, but declined to give the plaintiff damages against his coworker. They awarded him $150,000 for invasion of privacy by management -- finding that he had been subjected to an embarrassing accusation for an off-duty date. Finally, they denied the woman's cross-claim for emotional distress.

The judge set the verdict aside, noting:

1. The invasion of privacy claim was barred by state's Workers Compensation Act because his emotional injury arose within the course of his employment.

2. Because of Title VII, employers have a legal duty to investigate a complaint of rape or sexual harassment.

3. The off-duty incident became work-related when the woman worker informed management that she was "not at all happy" about having to seeing the male employee in the office.

4. A single instance of unwanted behavior constitutes harassment if the conduct is severe, as would be the case if the employee was raped, as she had claimed. The judge cited Huitt v. Market St. Hotel Corp., #91-1488, 1993 U.S. Dist. Lexis 9665, 62 FEP Cases (BNA) 538 (D.Kan. 1993).

5. The woman's false allegation was "slander per se" but the jury did not have to award damages to the plaintiff if they concluded that he did not suffer any actual harm. He actually was given promotions and raises after the investigation cleared him.

Jackson v. McCrory, Comm. Pl. Ct. of Phila. Co. (2002). (The opinion was not published, but was summarized in the Legal Intelligencer of April 16, 2002).

Editor's Note: An employee's complaint to management that a coworker assaulted her is privileged and may not be the subject of a suit for defamation. Where, as here, other employees are told of the complaint, the privilege is lost. The plaintiff claimed that fellow workers looked at him so suspiciously that he quit the organization and sought therapy.

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Sexual Harassment - Verdicts, Settlements & Indemnity

Appellate court affirms a jury award of $625,000 in compensatory and $500,000 in punitive damages. Although the conduct was not especially severe, it continued for many years.

The first woman officer on a township force was given a locker in the middle of the changing area, where male officers showered and walked around naked; this situation continued for four years. When she complained about the lack of shower facilities for women, the then chief responded "that he would hold a watering can over her head ... and that he would be happy to wash her."

She also alleged that officers would leave pornographic magazines in police cars and watch obscene movies in the station. Someone placed in her mailbox a motel key, panties, and a note calling her a back stabbing cunt.

Despite the discriminatory behavior, she was promoted to sergeant and then to lieutenant. But she felt "isolated, ostracized, humiliated, and embarrassed". She experienced stress-related numbness and dizziness. She began seeing a stress therapist and a psychiatrist.

A psychiatrist diagnosed her as having an adjustment disorder of moderate severity. A psychologist treated her more than 100 times for post-traumatic stress disorder, anxiety, and depression.

After she filed a lawsuit, the new chief " ignored her and encouraged other officers to shun her."

The trial judge affirmed a jury award of $500,000 for emotional distress arising from sexual harassment, but reduced the jury's award for retaliation from $500,000 to $125,000. He then vacated a punitive damage award of $500,000, and awarded legal fees of $625,272.

On appeal a three judge panel said that officials failed to stop low grade, but continuous harassment. The police dept. has the most female officers, as a percentage, in the county and "the retaliatory activity to which [the plaintiff] was subjected was not especially egregious."

Nevertheless the jury's determinations were controlling. The panel affirmed the award of $625,000 in compensatory damages and reinstated the $500,000 punitive damages award.

Mancini v. Twp. of Teaneck, #A-2186-00T5, 794 A.2d 185, 2002 N.J. Super. Lexis 165 (N.J. App. 2002).

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

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Stress Related Claims and Defenses Disciplinary Action - Punishment

Divided Michigan appellate court allows an employee who was disciplined for harassing women, to recover comp. benefits for the depression which followed his suspension.

A Dept. of Correction probation officer allegedly said to a woman defense attorney, "Do you want to fuck?" The attorney complained about the unprofessional conduct and three other female attorneys followed suit, also alleging sexual harassment.

The officer denied any misconduct and received a ten-day suspension without pay and subsequently complained of depression. After a leave of absence he sought worker's comp. benefits. He attributed his depression to his supervisor's lack of support for him.

The claim was denied, and the state Compensation Commission affirmed 2 to 1. The majority found that although his mental disability arose out of and in the course of his employment, he should not receive compensation because his misconduct prompted the disciplinary proceedings that caused his injury.

A three-judge appeals court reversed 2-to-1, saying that "we do not find plaintiff's acts rise to the level of 'intentional and wilful misconduct' contemplated by [state law]."

Although "intentional and wilful misconduct" was not defined by the statute it has been interpreted to encompass acts of "gross and reprehensible nature, the type of case where a claimant arms himself with a gun ... " or dangerous actions "with a wanton disregard of consequences."

The officer's alleged behavior they said, "although voluntary, crude, and unprofessional, did not rise to this level."

The dissenting justice said that by repeatedly sexually harassing women attorneys, the appellant engaged in intentional and wilful misconduct. His mental disability "flowed directly and predictably from his behavior."

Allowing serial sexual harassers to profit from their misdeeds, he added, is a result "not contemplated" by worker's compensation laws.

Daniel v. WCAC Dept. of Correction, #224423, 248 Mich.App. 95, 638 N.W.2d 175,2001 Mich. App. Lexis 215 (2001).

Click here to view the opinion on a Michigan law website.

For summaries of additional cases on this topic in our library, click here.

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Untruthfulness & Resume Fraud

Arbitrator sustains the firing of a worker who consciously omitted listing prior surgeries and disability claims in her pre-employment application.

A private sector worker was injured after only four months on the job. Management reviewed her pre-employment application and medical history. Superiors learned that she had omitted two surgeries (including a back fusion) and had failed to disclose prior work injuries, including a worker's comp benefit for a 35% disability in 1992, and an 18% disability benefit in 1998. She also had failed to disclose a history of epilepsy.

She was fired and the union grieved. At the arbitration hearing, she claimed that when she went for her pre-employment physical, a nurse told her not to complete the medical history because the doctor was going to examine her anyway. She claimed that her termination was for being injured, and not for irrelevant omissions on her application and medical forms.

Management denied firing her for getting hurt and noted that her husband, who also had been injured on the job, had received workers' comp benefits and continues to be employed there.

The arbitrator said that employers have a legitimate interest in being made aware of medical conditions when assigning workers to jobs. Further, it was not believable that a nurse would suggest that the medical history portion of a form was not important.

Moreover, even if others told the Grievant it would be okay to not take the time to be accurate, they were not the ones who signed the forms. The signature line on the medical history form says: "I hereby state that the information given above is accurate and true and that the hospital and personnel physician and/or nurse will not be held responsible for the result of misrepresented or withheld facts."

The omissions and false answers on her medical form were serious misrepresentations, and if condoned would create serious safety issues. He concluded that the withheld information and false or misleading statements amounted to just cause for discharge and the grievance was denied.

Birmingham Steel and U.S.W.A. L-9777, FMCS Case #00/08457, 116 LA (BNA) 61 (Doering, 2001).

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

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Whistleblower Requirements and Protection

Federal court in Connecticut dismisses some, and upholds some of the pleadings in a suit by a suspended detective, who alleges retaliation for investigating other officers for drug-related corruption.

A detective in Connecticut who was assigned to a federal task force was ordered by the U.S. Attorney to work on a police corruption probe involving the theft of drugs, money, and weapons by police officers and supervisors.

The detective was then targeted for an internal investigation. Other officers obtained confidential medical records from his physician, searched and seized his prescription records from various pharmacies, and allegedly provided his physician with a cooperation agreement in order to fabricate information implicating the detective in criminal conduct.

Officials then drafted an arrest warrant for detective, based on the allegedly coerced statements of his physician and illegally obtained evidence. His home was searched, he was arrested, and charged with four counts each of Forgery and Obtaining a Controlled Substance by Fraud.

All criminal charges against the detective were dropped, but the acting police chief continued the suspension without pay, and the detective has not received any pay or benefits since January 2001.

The police union did not challenge his suspension or take action to effectuate his reinstatement. The detective claims that the union's failure to act was part of an implicit agreement between police management and union leaders.

He sued the city, various police, union and prosecution officials, alleging that he was unlawfully retaliated against because of his investigation of corruption within the police dept.

The federal court asserted subject matter jurisdiction over the case and rejected the defenses of Eleventh Amendment, sovereign, and statutory immunity. The court dismissed the detective's claims against the union. Motions to dismiss by various city officials were granted, in part, and partially denied.

The judge allowed the defense of qualified immunity on Fourth Amendment claims arising from the procurement of the detective's prescription records and using those records to justify his arrest. However, initiating an administrative investigation of an officer under the ruse of investigating his physician would violate clearly established rights, and the participants were not entitled to the defense of qualified immunity.

His emotional distress claims were conclusory, and "do not raise sufficiently aggravating circumstances to remove the State Defendants' behavior from the normal bounds tolerated by decent society. "

On the due process claim, the judge said that "reading the complaint in the light most favorable to plaintiff, the court concludes that the Police Defendants have not presented grounds sufficient to dismiss the substantive due process claim." The motion to dismiss the substantive due process claim was denied.

Russo v. City of Hartford, #3-97-CV-2380, 184 F.Supp.2d 169, 2002 U.S. Dist. Lexis 2555 (D.Conn. 2002).

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

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Report non-working links here


NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Procedures

A divided Seventh Circuit holds that an employee was not compelled to arbitrate her Title VII claim against the employer pursuant to a written agreement, because it required that each party pay its own attorney fees. Title VII authorizes the award of attorney's fees to the prevailing party. McCaskill v. SCI Mgmt. Corp., #00-2839, 285 F.3d 623, 88 FEP Cases (BNA) 705, 2002 U.S. App. Lexis 6068 (7th Cir. 2002).

Bill of Rights Laws

Law enforcement agencies in California won a limited right to conceal from probationary peace officers information gathered about them during employment background investigations. Although the Officers' Procedural Bill of Rights Act guarantees the right to view adverse comments in their personnel files, a divided Supreme Court held that an employee may waive the protections of the law for pre-employment conduct, but not on-the-job complaints. Riverside v. Superior Court (Madrigal), #S094675, 27 Cal.4th 793, 42 P.2d 1034, 2002 Cal. Lexis 1878, 02 CDOS 2783 (Cal. 2002).

Damages and Remedies

The statutory cap on Title VII compensatory and punitive damages does not apply to front pay awards or to claims under state law. Hemmings v. Tidymans, #99-35932, 285 F.3d 1174, 88 FEP Cases (BNA) 945, 2002 U.S. App. Lexis 6686 (9th Cir. 2002).

Disciplinary Punishment - In General

Arbitrator upholds the termination of a uniformed municipal maintenance worker who, after a near collision, followed the other motorist to his house, then grabbed and verbally berated him. City of Petoskey and Teamsters L-214, FMCS Case #01/10976-8, 116 LA (BNA) 1176 (Brodsky, 2001).

Arbitrator orders reinstatement for a private sector employee that called a superior a "half breed, red neck, mother-fucker." The misconduct was a one-time act, and discharge was an excessive punishment. Mr. Q's Enterprises and ITPEU, FMCS Case #01/141358, 116 LA (BNA) 1304 (White, 2002).

Fair Labor Standards Act - Overtime - in General

OPM issues a final rule on federal firefighter basic and overtime pay. The new method eliminates standby duty pay and authorizes overtime for both FLSA exempt and nonexempt firefighters. OPM Firefighter Pay, 67 Fed. Reg. 15463 (4/2/02). << internal link

Family, Medical & Personal Leave

Federal appeals court upholds an $84,000 jury award under the Family and Medical Leave Act for a private sector worker who was fired while convalescing after a suicide attempt. Chandler v. Specialty Tires, #0-5395/5593, 283 F.3d 818, 12 AD Cases (BNA) 1659, 2002 U.S. App. Lexis 4743, 2002 FED App. 0100P, 7 WH Cases 2d (BNA) 1217 (6th Cir. 2002).

Police dept. violated the FMLA by denying promotional opportunities to a worker who took unpaid leave because of Graves' disease -- an autoimmune disorder associated with hyperthyroidism, burning eye sensations, nervousness, emotional swings, muscle weakness and palpitations. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002).

Handicap Laws - Constitutionality

A state-controlled local police board is not a state office for 11th Amendment immunity purposes. Darby v. Bratch, #01-2006, 287 F.3d 673, 7 WH Cases2d 1252, 2002 U.S. App. Lexis 6679 (8th Cir. 2002).

Handicap Laws/Abilities Discrimination - Specific Disabilities

A district adjudication officer with the Immigration and Naturalization Service who suffers from chronic muscle pain is not disabled; her impairment did not substantially limit a major life activity, including working. Stein v. Ashcroft, #00-4326, 284 F.3d 721, 2002 U.S. App. Lexis 4560 (7th Cir.2002).

Obesity

Writing in the case of a 400 lb., 5'9" woman employee, the New Jersey Supreme Court finds that morbid obesity is a protected handicap under state law. Viscik v. Fowler Equip. Co., #A-38 Sept. Term 2001, 12 AD Cases 1758, 2002 N.J. Lexis 360 (N.J. 2002).

Pay Disputes - Overtime Claims

A worker who received $20 an hour plus $150 per week "per diem" for field work was entitled to have the $150 counted as part of his base wages for FLSA time and one-half overtime pay purposes. Berry v. Excel Group, #01-40239, 288 F.3d 252, 2002 U.S. App. Lexis 7243, 7 WH Cases2d (BNA) 1313 (5th Cir. 2002).

Political Activity/Patronage Employment

The jobs of county sheriff's deputies were protected under the First and Fourteenth Amendments for not supporting the sheriff, as they were not confidential or policy-making employees. Heggen v. Lee, #00-6315, 284 F.3d 675, 18 IER Cases (BNA) 732, 2002 U.S. App. Lexis 4374, 2002 FED App. 0094P (6th Cir. 2002).

Privacy Rights

Federal court refuses to dismiss a suit by a former police chief against town officials who revealed confidential information about his medical problems to the local newspaper. Public officials might have a privilege if the condition is a "proper matter of public concern." Pouliot v. Town of Fairfield, #01-CV-179, 184 F.Supp.2d 38 2002 U.S. Dist. Lexis 2599 (D. Me. 2002).

The two-year statute of limitations in the federal Privacy Act (5 U.S. Code §552a) begins to run when a person first becomes aware of errors in a report or record; a new cause of action does not arise with each subsequent adverse determination which is based on erroneous records. Harrell v. Fleming, #01-6134, 285 F.3d 1292, 2002 U.S. App. Lexis 6670 (10th Cir. 2002).

Religious Discrimination

Appeals panel finds that a seniority clause on job assignments in a bargaining agreement takes precedence over the religious beliefs of a male driver who refused to work with women on overnight assignments. Virts v. Consol. Frtwys., #00-5501, 285 F.3d 508, 88 FEP Cases (BNA) 801, 2002 U.S. App. Lexis 6005, 2002 FED App. 0114 (6th Cir. 2002).

Residency Requirements

Arbitrator upholds the termination of a police officer who claimed that he resided in his cousin's basement, but filed tax returns and sought a homeowner's tax exemption for property he owns in an adjacent city. Town of Cicero and IL FOP, FMCS Case #011120/02420-A, 116 LA (BNA) 1322 (Goldstein, 2001).

Sexual Harassment - In General

A volunteer is not an employee for Title VII purposes, and her claim for sexual harassment must fail. York v. Assn. of the Bar, #01-7908, 286 F.3d 122, 88 FEP Cases (BNA) 833, 2002 U.S. App. Lexis 5947 (2nd Cir. 2002).

Strikes and Retaliation

Second Circuit enforces an arbitration award even though the union breached the no-strike clause in the bargaining agreement. Mulvaney v. SMWIA L-38, 288 F.3d 491, 2002 U.S. App. Lexis 7720, 169 LRRM (BNA) 3089 (2nd Cir. 2002).

Taxation

Police association was liable for unrelated business income taxes for "royalty" received from the publication of "The Arkansas Trooper," even though the parties labeled their agreement a "Royalties and Licensing Agreement." Arkansas State Police Assn. v. Cmsnr. of Internal Rev., #01-2255, 282 F.3d 556, 2002 U.S. App. Lexis 3480 (8th Cir. 2002).

Untruthfulness & Resume Fraud

Justice Dept. indicts a Deputy U.S. Marshal for perjury, following an intimate relationship with an alternate juror in the Oklahoma bombing prosecution of Timothy McVeigh. Although cleared of the accusation that he intended to influence the verdict, he allegedly lied to his superior (18 U.S. Code §1001) and before a grand jury (18 U.S. Code §1623) about his contacts with the juror. U.S. v. Benny Bailey, #1:02 CR 00095 (D.Colo. 2002); DoJ Press Release 02-103.

Vacation Pay

Arbitrator rules that a city violated the bargaining agreement, which set a maximum on amount of annual leave that employees could accrue, by refusing to compensate a firefighter on his retirement, where he was unable to take planned leave due to an injury. City of Tulsa and IAFF L-176, FMCS Case #01/04286, 116 LA (BNA) 1192 (Jennings, 2001).

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RESOURCES

Advisory OSHA info: The Occupational Safety and Health Administration has begun e-mail advisory memos.

Report: OPM "white paper" says the federal pay system is outmoded, does not match the private sector, and does not reward achievement. "A Fresh Start for Federal Pay: The Case for Modernization."

CROSS REFERENCES

Arbitration Procedures - see Featured Cases: Disciplinary Evidence
Arbitration Procedures - see Noted in Brief: Strikes and Retaliation
Criminal Liability - see Noted in Brief: Untruthfulness
Disciplinary Interviews - see Featured Cases: Sexual Harassment
Disciplinary Investigations - see Featured Cases: Disciplinary Evidence
Handicap Discrimination - see Noted in Brief: Obesity
Privacy Rights - see Featured Cases: Disciplinary Investigations
Sick Leave & Abuse - see Featured Cases: Promotional Rights
Suicide Related - see Noted in Brief: Family Leave
Workers Comp. / Claim Validity - see Featured Cases: Stress Related Claims


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