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2002 FP June (web edit.)

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CONTENTS

Featured Cases with Links

Arbitration Procedures
Conflicts of Interest (two items)
Disciplinary Punishment - In General
Disciplinary Searches
Emotional Distress
Free Speech
Handicap Discrimination - Accommodation
Handicap Discrimination - Employee Medical Exams
Last Chance Agreements
Privacy Rights
Race: Reverse Discrimination
Rule Making
Sex Discrimination - In General
Vehicle Related

Noted in Brief

Age Discrimination - Entry
Arbitration Procedures (2 cases)
Back Pay Claims and Awards
Disability Rights and Benefits - Offset and subrogation
Disciplinary Procedures - In General
Disciplinary Punishment - In General
Drug Abuse and Rehabilitation
Employee Harassment - Nonsexual
Handicap Discrimination - Specific Disabilities
Heart Problems
Political Activity/Patronage Employment
Probationary Employment
Race and Sex Discrimination
Race: Reverse Discrimination
Racial Harassment
Sex Discrimination - Reverse Discrimination
Strikes and Retaliation
Taxation
Union and Associational Activity
Whistleblower Requirements and Protection
Wrongful Discharge - In General

Resources

Punitive Damages
Employee Privacy
Employment Law Developments
Employee Evaluations
Early Warning Systems
Police Integrity
Union Membership

Cross_References
Criminal Liability
Duty to Bargain
Disciplinary Punishment
Disciplinary Searches
Legal Defense Rights
Privacy Rights
Sexual Harassment


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENTS

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Arbitration Procedures

U.S. Supreme Court declines to review a Massachusetts Supreme Court decision upholding an arbitration award that reinstated a police officer who used excessive force. Courts may not set aside an arbitrator's award because judges disagree with the reasoning. If the arbitrator found the use of force to be reasonable, then the award is not a violation of public policy.

A police officer broke the arm of a mentally unstable woman while handcuffing her. The city tried to discharge the officer, but an arbitrator found that he did not use unnecessary force, and ordered reinstatement.

The city then sought to set aside the award in court, as contrary to public policy. A trial court agreed with the city, and so did the intermediate court of appeal.

Meanwhile the city paid out $350,000 in damages to settle the woman's civil rights claims.

The Massachusetts Supreme Court reversed the lower courts, and upheld the arbitration award. The justices said:

If the arbitrator concluded that the officer had used unnecessary force, a decision to reinstate him would be reversible by the courts. Police officers who use unnecessary force are a potential liability to the city.

The Massachusetts justices repeated an oft-quoted statement that "an arbitrator's result may be wrong; it may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet, it may not be subject to court interference." Delta Air Lines, Inc. v. Air Line Pilots Assn., Int'l, 861 F.2d 665, at 670 (11th Cir. 1988); cert. denied, 493 U.S. 871 (1989).

The Supreme Court denied certiorari without comment. City of Lynn v. Thompson, #SJC-08487, 435 Mass. 54, 754 N.E.2d 54, 2001 Mass. Lexis 487 (Mass. 2001); cert. den., 122 S.Ct. 1071, 2002 U.S. Lexis 694 (2002).

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

Editor's Note: In a published opinion two years ago, the U.S. Supreme Court refused to overturn an arbitrator's reinstatement of a two-time drug abuser. The public policy of enforcing arbitral decisions outweighed the policy of punishing substance abusers. Eastern Assoc. Coal Corp. v. United MWA D-17, 121 S.Ct. 462, 2000 U.S. Lexis 8083 (2000).

Click to read our article on that case or to view the decision in full text.

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Conflicts of Interest

Second Circuit reverses the convictions of three ex-NYPD defendants in the Louima scandal. Joint representation by a union-provided attorney resulted in a conflict of interest between the defendants.

A three-judge appeals panel has held that Charles Schwarz must be retried, because a PBA attorney jointly represented the defendants. There was "an unwaivable actual conflict of interest" that adversely affected the attorney's performance.

Because Abner Louima testified that he was rectally assaulted in the bathroom by at least two officers, it made sense for Schwarz to implicate another officer as the one who accompanied officer Justin Volpe. Volpe, who tortured Louima, is serving time in federal prison.

If Schwarz had named another officer as Volpe's accomplice, it could have hampered the PBA in its defense of the Louima civil suit. The PBA lawyer "faced an actual conflict between his representation of Schwarz, on the one hand, and both his professional obligation to the PBA and his self interest, on the other."

Instead, the PBA-supported defense "advanced the implausible and factually unsupported theory that Volpe acted alone," in an apparent effort to obtain an acquittal for Schwarz without having to implicate another member of the PBA.

It is true that the defendants agreed to joint representation, paid for by the PBA. However, an "actual or potential conflict cannot be waived if, in the circumstances of the case, the conflict is of such a serious nature that no rational defendant would knowingly and intelligently desire that attorney's representation."

The panel added that in such circumstances, the attorney "must be disqualified, regardless of whether the defendant is willing to waive his right to conflict-free counsel."

The appeals panel also reversed the convictions of Thomas Wiese and Thomas Bruder for lying to protect Schwarz. There was insufficient evidence to convict them, and they cannot be retried on the charge.

U.S. v. Schwarz, #00-1479, 283 F.3d 76, 2002 U.S. App. Lexis 3163 (2nd Cir. 2002).

Click here to view the decision on the FindLaw site.

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« « « « « « » » » » » » »

Office of Government Ethics publishes new and revised exceptions relating to the prohibition on federal employees having financial interests in matters in which they participate in an official capacity.

The de minimus exception is raised from $5,000 to $15,000 for financial holdings an employee or immediate family member who participates in a matter affecting those securities.

A new exemption allows up to $50,000 ownership in mutual funds invested in the same industry, business, single foreign country, or bonds of a single U.S. state and up to $25,000 in securities issued by entities affected by a matter in litigation, if the entities are not parties in the litigation.

Exemption Amendments Under 18 U.S. Code 208(b)(2), 67 (53) Fed. Reg. 12443-46 (Mar. 19, 2002).

Click here to access the Federal Register.

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Disciplinary Punishment - In General

Arbitrator overturns the firing of a police officer for sexual harassment and imposes a one-year suspension. This was not a continuing violation and the grievant had many years of unblemished service.

The arbitrator noted that there is no public policy that requires the firing of an employee with 17 years of service, for a non-continuing first offense. A one-year suspension is sufficient penalty for unhooking a coworker's bra.

He said that there was nothing in the city's anti harassment policy that required all first offense cases to be punished with termination. The bargaining agreement provided for progressive discipline "in all but the most serious case."

In re City of Boston and AFSCME C-93/L-804, 116 LA (BNA) 906 (Remmes, 2001).

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

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Disciplinary Searches

Federal appeals court upholds management's seizure of a laptop issued to an employee. Evidence was admissible because the employer had an announced policy that management could inspect the computers furnished for the use of the employees.

An employee, convicted of downloading kiddie porn on his employer's computer, sued his former employer. Management had confiscated the laptop that was issued him and turned it over to federal authorities, resulting in his arrest, conviction and imprisonment.

The District Court dismissed the suit; a three-judge panel of the Seventh Circuit has affirmed, saying:

The plaintiff also raised a state-law claim for invasion of the "right of seclusion," which protects an individual from an overly intrusive surveillance -- unrelated to the search of the laptop. The employer had engaged private detectives to perform surveillances on the plaintiff, after he was no longer in the defendant's employ. The panel said the claim was conclusional and vague. An employer may have a valid interest in investigating its former employees. They remanded that claim for further proceedings.

Muick v. Glenayre Electronics, #00-3299, 280 F.3d 741, 2002 U.S. App. Lexis 1782 (7th Cir. 2002).

Click here to view the arbitration decision on the FindLaw website.

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Emotional Distress

Woman ex-firefighter loses a sexual harassment appeal against the city and a superior, but her claim for the intentional infliction of emotional distress survives. Coworker displayed a photo of a naked woman who resembled the plaintiff to 15 others, which caused her to suffer clinical depression.

The complainant sued a coworker, a supervisor, and the city, alleging a hostile work environment, the intentional infliction of emotional distress, defamation, invasion of privacy and sexual harassment in violation of Ohio laws.

A male coworker had found a photo of a naked woman on the Internet who resembled the plaintiff. Over a two-day period he showed the picture to more than a dozen other firefighters and lieutenants.

The trial court rejected all claims and the woman appealed. A three-judge appellate panel affirmed on all but one claim. The offender was not her supervisor, and the city took prompt action and forced the perpetrator to take retirement.

Her claim against the coworker for emotional distress was valid, however. The panel acknowledged that:

At the time the plaintiff reported the conduct she "was crying, very upset, and unfit for duty." She was placed on sick-leave and began receiving psychological treatment and medication for depression. She had "difficulty performing basic daily tasks and working [and] never resumed her job at the fire department ..."

The panel said "that the actions taken by [the defendant] ... rise above the level of mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Certainly ... the facts of this case present a jury question on the issue of whether the alleged conduct was extreme and outrageous."

Because she presented sufficient evidence to survive a summary judgment on her claim of an intentional infliction of emotional distress claim, the trial court was reversed, and the case was remanded for a jury trial

Hale v. City of Dayton, #18800, 2002 Ohio App. Lexis 474, 88 FEP Cases (BNA) 290 (Ohio App. 2d Dist. 2002).

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

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Free Speech

Federal appeals court affirms awards of $158,542 and $46,750 given an ex fire chief and his brother, a former firefighter; they were removed from their positions because the ex-chief's wife spoke out critically on changes in the fire dept.

A Missouri fire chief's wife was publicly critical of changes in the fire department by the city administrator. The administrator told the chief and his brother, a firefighter, that "they were in jeopardy of losing their jobs if they did not censure" the chief's wife. The criticism continued, and the chief was removed from his position. When the ex-chief's wife continued her verbal barrage, her brother-in-law was fired.

The ex-chief, his wife and brother sued the city and city administrator. The trial judge dismissed the claims of the wife, "finding she had failed to state a claim for damages [or] ... establish a causal connection between the damages claimed and any actions of the [defendants].

The jury returned a verdict in favor of the ex-chief for back pay of $8,542, emotional distress damages of $50,000, and punitive damages of $100,000. The ex-chief's brother was awarded $6,750 in back pay, $10,000 for emotional damages, and $30,000 in punitive damages.

The three-judge appeals panel affirmed the trial court on all issues. They left intact the award of $130,000 punitive damages against the city administrator. Punitive damages are appropriate in a §1983 case "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."

Naucke v. City of Park Hills, #01-1808, 01-1809, 2002 U.S. App. Lexis 4990 (8th Cir. 2002).

Click here to view the opinion on the FindLaw website.

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Handicap Laws / Abilities Discrimination - Accommodation

Supreme Court upholds the priority of seniority systems, whether imposed by management or required by a bargaining agreement.

An airline cargo handler injured his back and asked to be permanently transferred to a less demanding position.

The employer declined to accommodate his disability because of a seniority bidding system for job openings. The Ninth Circuit upheld the worker's claim, holding that a seniority system is only one factor in an undue hardship analysis, and that a case-by-case, fact-intensive analysis is required to determine whether an assignment would constitute an undue hardship for the employer or coworkers. In this case the seniority system was not required by a bargaining agreement.

The Supreme Court reversed in a 5-to-4 holding. The majority held that seniority systems are not limited to collectively bargained systems, but also apply to systems that are unilaterally imposed by management.

A typical seniority system provides important employee benefits by creating employee expectations of fair and uniform treatment, job security and an opportunity for predictable advancement. Those goals could be undermined if an employer is required to show more than the system's existence. Nothing in the ADA suggests that the Congress intended to undermine seniority systems.

Justice Breyer delivered the majority opinion in which Rehnquist, Stevens, O'Connor, and Kennedy joined. Justices Scalia, Thomas, Souter, and Ginsburg dissented.

US Airways v. Barnett, #00-1250, 2002 U.S. Lexis 3034 (2002).

Click here to view the decision on the Cornell website.

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Handicap Laws/Abilities Discrimination
Applicant/Employee Medical Exams


Federal court strikes down a N.Y. prison rule requiring employees to submit a doctor's diagnosis after each sick leave absence.

The challenged policy required the state's 30,000 correctional workers to provide a medical certificate containing a diagnosis. The certificate had to be on the doctor's letterhead and contain a brief diagnosis of the condition, a statement that the employee was unable to work during the absence, and a prognosis including the probable date of return to work. If a medical certificate was rejected the employee was subject to disciplinary action.

The court noted that documentation is prohibited by the ADA, because it might require a worker to reveal a disability or a perceived disability. 42 U.S. Code §12112(d)(4)(A) states:

The judge said there are two exceptions allowing an employer to make inquiries.

In this regard, the court cited a prior holding where management was allowed to require a medical examination after a police officer had suffered an eye injury resulting in blindness. Ditullio v. Village of Massena, 81 F.Supp.2d 397 at 411 (N.D.N.Y. 2000).

The court issued an injunction against the current policy and directed that the plaintiff receive an award of attorney's fees. Fountain v. N.Y. Corr. Serv., #99-CV-389, 2002 U.S. Dist. Lexis 4100 (N.D.N.Y. 2002).

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

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Last Chance Agreements

Arbitrator upholds the termination of an officer for two minor offenses, where he was subject to a last chance agreement.

After series of deportments, a deputy signed a Last Chance Agreement. Thereafter he was terminated for two allegations of misconduct, a failure to attend a staff meeting and an EMS meeting. A grievance proceeded to arbitration.

The deputy claimed that because had received a letter of counseling for missing the first meeting and a written reprimand for the second, he had already been disciplined and punished.

The arbitrator disagreed, noting that the Sheriff had just cause to discharge him because of the last chance agreement. It read:

The arbitrator wrote that the recent incidents, "standing alone, would not justify termination." However, the last chance agreement was controlling. Pike County Sheriff and the FOP Ohio, FMCS #01/1135, 116 LA (BNA) 843 (Kindig, 2001).

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

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Privacy Rights

Arbitrator holds that management can prohibit personal passwords on employer-provided computers, without resorting to the bargaining process.

An arbitrator in Ohio has ruled that management did not violate the collective bargaining contract when it unilaterally issued a disciplinary rule prohibiting employees from having their own passwords on computers.

The union claimed that passwords were necessary to protect employees against use of assigned computers by other employees who were unauthorized.

The arbitrator held that the employer owned the computers and, under a management rights clause, had the right to establish conditions under which they are operated by employees.

Disciplinary action against the grievant was set aside. He was not insubordinate in removing a password from his assigned computer up to 16 hours after learning of the rule. It had been removed when management representatives seized his hard drive, looking for evidence that he had authored a bulletin board message referring to the manager as a "gay soldier boy." Such evidence was not found.

Saint Gobain Norpro and United Steelworkers of America, L-1761-11, FMCS Case #010226/06676, 116 LA (BNA) 960 (Fullmer, 2001).

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

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Race: Reverse Discrimination

Federal jury awards more than $2.2 million in damages to 10 white Chicago firefighters who were passed over for promotions.

In October 2000 a federal jury found that the city engaged in "race-norming" on a 1986 lieutenant exam, by lowering the scores of white candidates to increase the number of promotions for black and Hispanic firefighters. The test itself was not discriminatory, but race-norming is unlawful under the Civil Rights Act of 1991, Pub. Law 102-166, which reads in part:

An employer cannot adjust test scores, use different cutoff scores, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or natural origin. Banding, or the use of differential norms, is prohibited for the purpose of enhancing the success of a group (absent a court-ordered affirmative action plan).

A separate jury was convened on the issue of damages for ten of the plaintiffs. The verdicts averaged $122,200 in back pay differential and $103,000 for emotional distress. Judge James Holderman then added a multiplier for prejudgment interest of 31.36%.

The judge also ordered that 8 of the 10 firefighters receive front pay differential, as if they had been promoted to captain or battalion chief. The higher pay could continue for up to 12 years.

Rank and salary also affect pension benefits, so the court agreed to fashion a formula for additional compensation based on each plaintiff's career path.

Finally the judge urged the parties to promptly resolve the final issues because "the sting of race discrimination in the CFD will remain as a part of the lives of many of the CFD's members."

Biondo v. City of Chicago, #88-CV-3733, 2002 U.S. Dist. Lexis 3463, 2002 WL 335317 (N.D. Ill. 2002).

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

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Rule Making

NLRB Counsel issues guidance on drafting notices using plain language.

The guidance sets forth what words and phrases are appropriate to be included in notices, settlements and remedial notices in litigated cases. "The goal is to ensure that all notices are written in laypersons' language without legal jargon." Examples are given.

Office of the NLRB General Counsel Memorandum OM 02-43 (Mar. 11, 2002).

Click here to view the NLRB Memorandum on AELE's website.

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Sex Discrimination - In General

Fifth Circuit holds that a Texas woman firefighter applicant was entitled to recover $23,000 because she was asked "inappropriate" questions during her interview. She was later admitted to the academy and then flunked out. A $877,000 verdict for retaliatory termination was set aside by the trial and appellate courts.

During the pre-employment interview, a woman applicant was asked what her reaction would be to pornographic films if shown in the firehouse, how she would react to unwanted sexual advances by her superiors, and whether she would be offended by acts of indecent exposure which might occur in the firehouse. She responded by stating that she would follow established Department procedures. The Fire Review Board determined that she failed the interview.

She complained and was re-interviewed. This time she passed the interview but was rejected because her driver's license had been suspended for driving without insurance in 1993 and 1994, and a poor academic record in high school and college.

She sued in the state court, which ordered the city to admit her to the Fire Academy. She was subsequently expelled for flunking three written exams. She also performed poorly during various firefighting techniques and procedures.

She then sued in federal court, claiming retaliatory termination. A jury made three specific findings. First, her gender was a motivating factor in the City's decision not to admit her to the Academy. Second, she was not admitted to the Academy in retaliation for her complaints and/or opposition to the City's alleged discriminatory hiring practices. Third, she was terminated from the Fire Department in retaliation for her complaints and/or opposition to the City's alleged discriminatory hiring practices.

The jury awarded $23,000 for the initial rejections of her application, and an additional $877,000 because of a retaliatory firing. The District Judge allowed the first award, and set aside the second, finding that her termination was non discriminatory.

A three-judge appellate panel upheld the $23,000 verdict and concurred on setting aside the $877,000 award. There was an unrebutted, legitimate, non-pretextual reason for terminating a firefighter who repeatedly failed three tests.

70% was the passing score for written examinations. She scored 60% on the Emergency Communications written exam, 67% on the Fire Safety written exam, and 64% on the Pump Operations written exam.

Because of her substandard performance on physical tasks, there was no basis for the Fire Chief to grant her a waiver. The panel said:

Montemayor v. City of San Antonio, # 00-50681, 276 F.3d 687, 2001 U.S. App. Lexis 26909, 87 FEP Cases (BNA) 1054 (5th Cir. 2001).

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

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Vehicle Related

GSA asks all federal agencies to prohibit employees from using hand-held cell phones while driving government owned vehicles, and to provide hands-free devices.

A General Services Administration memo says the federal government should assume a leadership role in promoting the safe use of wireless telephones by its employees when they are engaged in official Government business.

The GSA asks agency heads to adopt internal policies on wireless phone use that discourage hand-held use by drivers and to provide portable hands-free accessories for government owned wireless phones.

GSA Motor Vehicle Management Bulletin FMR B-2, 67 (41) Federal Register 9453-9454 (3/1/02).

Click here to view the GSA directive on AELE's website.

Editor's Note: Many agencies already have phone safety rules. For example, Indiana State Police Standard Operating Procedure No. COM-005, "Cellular Telephones and Pagers," effective on April 19, 2000, states in Part C:

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NOTED IN BRIEF
(SOME WITH LINKS)

Age Discrimination - Entry

Federal court refuses to dismiss an ADEA suit by a 61-year-old police applicant. Purdy v. Town of Greenburgh, #00 Civ. 4363, 178 F.Supp.2d 439, 2002 U.S. Dist. Lexis 120, 87 FEP Cases (BNA) 1236 (S.D.N.Y. 2002); prior opin. at 166 F.Supp.2d 850, 2001 U.S. Dist. Lexis 15563, 87 FEP Cases (BNA) 1223 (S.D.N.Y. 2001).

Arbitration Procedures

An employee who signs an arbitration agreement, but does not approve subsequent modifications, is not bound by the revised provisions. Brennan v. Bally, 153 F.Supp.2d 408, 2001 U.S. Dist Lexis 9882, 88 FEP Cases (BNA) 329 (S.D.N.Y. 2002).

Arbitration clause in the employment agreement was enforceable under the Federal Arbitration Act even though it was not enforceable under state law because it provided for arbitration elsewhere under the laws of another state. Jensen v. Rice, 809 So. 2d 895, 2002 Fla.App. Lexis 2973 (Fla. App. 2002).

Back Pay Claims and Awards

Supreme Court reverses a back pay award won by an illegal immigrant. Federal immigration policy foreclosed backpay to an undocumented alien. Hoffman Plastic Compounds v. NLRB, #00-1595, 122 S.Ct. 1275, 2002 U.S. Lexis 2147, 169 LRRM (BNA) 2769 (2002).

Disability Rights and Benefits - Offset and subrogation

City was entitled to deduct, from its payments to a disabled firefighter, those amounts paid him under a state disability benefits program. Farber v. City of Utica, 2002 N.Y. Lexis 490, --- N.E. 2nd ---, 2002 N.Y. Int. 0024 (N.Y. 2002).

Disciplinary Procedures - In General

The Dept. of Defense did not violate its own procedural regulations when it revoked the security clearance of an employee for the failure to disclose his marijuana use on a security questionnaire. Duane v. U.S. Dept. of Defense, #00-1309, 275 F.3d 988, 2002 U.S. App. Lexis 49, 18 IER Cases (BNA) 526 (10th Cir. 2002).

Disciplinary Punishment - In General

Louisiana appellate court overturns a civil service decision that had reinstated a police officer who was administratively charged with committing a battery on his wife. "The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust." Taylor v. New Orleans Police Dept., #2000-CA-1992, 804 So. 2d 769, 2001 La. App. Lexis 3035 (La.App. 4 Cir. 2001).

Drug Abuse and Rehabilitation

Arbitrator reinstates a municipal equipment operator who was fired for testing positive on a random drug test. A two month suspension was proper, in light of 19 years of good service. City of Oklahoma City and AFSCME L2406, FMCS Case #01/16221, 116 LA (BNA) 1117 (Jennings, 2002).

Employee Harassment - Nonsexual

Federal court rules that a jury reasonably could find that two white male employees who repeatedly asked a white female worker "How is your nigger doing?" -- on an almost daily basis for several months -- was sufficiently pervasive and severe to create an objectively hostile work environment. EEOC v. Quality, 2002 U.S. Dist. Lexis 1766, 88 FEP Cases (BNA) 99 (D. Minn. 2002).

Handicap Laws/Abilities Discrimination - Specific Disabilities

Federal court holds that a corrections officer with a back injury that prevents him from restraining prisoners was neither "disabled" nor a "qualified individual" under the ADA. Marsolais v. Mass. Dept. of Corr., #98-11709, 2002 U.S. Dist. Lexis 3991, 12 AD Cases (BNA) 1556 (D. Mass. 2002).

Heart Problems

County corrections officer who suffered a heart attack was entitled to disability benefits even though only a hearing officer found that less than 25% of the disability related to his job duties. White v. Co. of Cortland, 97 N.Y.2d, 766 N.E.2d, 740 N.Y.S.2d 288, 2002 N.Y. Lexis 487, 2002 N.Y. Int. 0021 (N.Y. 2002).

Political Activity/Patronage Employment

The wife of a firefighter had standing to challenge a city charter provision that prohibits city employees from contributing money to a candidate for mayor or city council. IAFF of St. Louis v. City of Ferguson, #01-2277, 283 F.3d 969, 2002 U.S. App. Lexis 4750 (8th Cir. 2002).

Probationary Employment

California Supreme Court holds that a probationary officer is protected by the Public Safety Officers Procedural Bill of Rights, which prohibits putting secret and derogatory information in a employee's personnel file; generally, those rights cannot be waived. A newly appointed officer can, however, waive the right to inspect the contents of a background investigation if the allegations relate to conduct before he was hired, but not to conduct after he was employed. County of Riverside v. Super. Court of Riverside Co. (Madrigal), #S094675, 27 Cal. 4th 793, 42 P.3d 1034, 2002 Cal. Lexis 1878 (Cal. 2002).

Race and Sex Discrimination

A black female who received a pay raise that $658 smaller than that of a younger light-skinned black male colleague did not suffer an adverse employment action. Milligan v. Citibank, #00 Civ. 2793, 2001 U.S. Dist. Lexis 16105, 88 FEP Cases (BNA) 38 (S.D.N.Y. 2001).

Race: Reverse Discrimination

White officers who did not receive a high enough composite score to be "bumped" from a sergeant's list lacked standing to pursue a discrimination lawsuit, because they suffered no injury. Aiken v. Hackett, #00-5227/5451, 281 F.3d 516, 2002 U.S. App. Lexis 2522, 2002 FED App. 0061P (6th Cir. 2002).

Racial Harassment

Police officer's lawsuit for enduring a retaliatory, hostile work environment because of his opposition to a superior's orders to enforce the law in a discriminatory manner was not unlawful discrimination because of his "race, color, religion, sex or national origin" within the meaning of Title VII. Johnson v. San Antonio, #00-50834, 273 F.3d 1094, 2001 U.S. App. Lexis 22658 (5th Cir. unpub.); cert. den. #01-924, 122 S.Ct. 1204, 2002 U.S. Lexis 1403 (2002).

Sex Discrimination - Reverse Discrimination

Gender-norming physical fitness standards for police officers did not violate the equal protection rights of male applicants. Alspaugh v. Cmsn. on Law Enf. Stds., #220156, 246 Mich. App. 547, 634 N.W.2d 161, 2001 Mich. App. Lexis 137 -- relying on state laws and decisions.

A general "no strike" clause in a bargaining agreement does not prohibit "sympathy strikes" to support non unit coworkers, unless the right to engage in supporting job actions was clearly and unmistakably waived in the bargaining agreement. Childrens Hosp. v. Calif. Nurses Assn., #00-15636, 2002 U.S. App. Lexis 4601, 169 LRRM (BNA) 2779 (9th Cir. 2002).

Taxation

Where statutory attorney's fees are awarded to the prevailing party and not directly to the lawyer, the litigant is liable for the payment of income taxes on that award. Sinyard v. C.I.R., #99-71369, 268 F.3d 756, 2001 U.S. App. Lexis 20886, 86 FEP Cases (BNA) 1417 (9th Cir. 2001).

Union and Associational Activity

Federal appeals court holds that a union that is the exclusive bargaining representative can charge all members of the bargaining unit, members and non-members alike, its costs in organizing other similar employers within the same labor market as the bargaining unit. It affirms a NLRB ruling that everyone's wages are raised through increased union penetration. United Food Workers v. N.L.R.B., #99-71317, 2002 U.S. App. Lexis 4754, 169 LRRM (BNA) 2786 (9th Cir. 2002) affirming 329 NLRB No. 69 (NLRB 1999).

Whistleblower Requirements and Protection

Jury awards a police officer more than $3 million in compensatory and punitive damages in a suit against his town and named officers. He endured 7 years of threats and harassment, after reporting fellow officers for misconduct. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct.), 2/18/2002 Natl. Law Journal, p. B5).

Wrongful Discharge - In General

Where a civil service commission is the final policy maker on personnel matters in the sheriff's office, the county is not a proper party defendant in a damage suit alleging wrongful termination. Crockett v. Shields, #99-35687, 2001 U.S. App. Lexis 2613, 8 Fed. Appx. 604 (9th Cir. 2001); cert. den. #01-743, 2002 U.S. Lexis 661, 70 U.S. Law Week 3514 (2002).


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RESOURCES

AELE links to Government Agencies and Information.

Law Review: "Constitutional constraints on punitive damages and other monetary punishments," by George Freeman, Jr., 57 (2) The Business Lawyer (ABA) 587-635 (Feb. 2002); American Bar Assn.

Law Review: "Employee privacy and Internet monitoring: Balancing worker rights and dignity with legitimate management interests," by Charles Frayer, 57 (2) The Business Lawyer (ABA) 857-874 (Feb. 2002); American Bar Assn.

Law Review: "Recent developments in employment law," by M. Schiff et al., 37 (2) Tort & Insur. Law Journal (ABA) 391-420 (Winter 2002); American Bar Assn.

Report: "Conducting Legal Employee Evaluations and Performance Appraisals," by Maurice Baskin, Association Law & Policy, Feb. 01, 2002, American Society of Association Executives.

Report: Early Warning Systems: Responding to the Problem Police Officer, 8 pp., National Institute of Justice (2001).

Report: Principles for Promoting Police Integrity, 45 pp., National Institute of Justice (2001).

Report: Union Membership in Government, 2001: The Bureau of Labor Statistics reports that union membership in government was 37.4 percent in 2001, compared with 9.0 percent among private sector employees.

CROSS REFERENCES

Criminal Liability - see Featured Cases: Conflicts of Interest
Duty to Bargain - see Featured Cases: Privacy Rights
Disciplinary Punishment - see Featured Cases: Arbitration Procedures
Disciplinary Searches - see Featured Cases: Privacy Rights
Legal Defense Rights - see Featured Cases: Conflicts of Interest
Privacy Rights - see Featured Cases: Disciplinary Searches
Sexual Harassment - see Featured Cases: Emotional Distress


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