Arbitrator strictly enforces the time requirements to demand arbitration. The fact that a grievance hearing might prejudice a pending criminal case does not excuse compliance with the CBA's time limitations. Union official's failure to file a formal arbitration demand was not waived by his misunderstandings with the chief.

     A police officer was terminated for excessive force, and criminal charges were brought by the prosecutor. The union grieved but did not demand arbitration for 15 months, until after the officer was acquitted. The city asked for dismissal of the appeal because the time limits for demanding arbitration were ignored

     At the arbitration hearing, the union noted that:

     "If [the officer] testified in the arbitration before his criminal trial he would have to waive his right not to testify at the criminal trial..."

     If the grievant had "exercised his constitutional right not to testify at arbitration, he would not have been able to adequately defend himself." Because of the "prejudice" to the grievant, the union claimed that strict adherence to the bargaining agreement's time limitations was unfair.

     The arbitrator was unimpressed and vacated the appeal. City of Margate and Fraternal Order of Police, FMCS #01/09602, 116 LA (BNA) 985, 40 (1952) G.E.R.R. (BNA) 308 (Hoffman, 2001).

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

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Maryland appellate court affirms that public employees must answer questions, if required to do so, that specifically, directly, and narrowly relate to the performance of their official duties or their fitness for continued employment. Superiors must give a clear order (and advice of rights) to interviewed employees.

     A Maryland corrections officer was accused of threatening a woman and using narcotics. A superior officer interviewed the officer, but he refused to respond to the accusations as they arose out of a personal matter that was not work related.

     The superior informed the officer that it investigates "conduct on and off the job, and that the Department's regulations* require an employee to cooperate with an investigation and to answer questions."

     The officer was suspended for his "refusal to cooperate with the investigation." An Administrative Law Judge reversed the disciplinary action, and a trial court affirmed that ruling.

     On appeal, a three-judge panel noted that the ALJ determined that the off-duty behavior about which appellee was questioned was not the kind of conduct that would pose a security threat to the institution. The panel disagreed with that finding.

     Management "has a duty to investigate whether its correctional officers -- while off duty as well as while on duty -- abuse controlled dangerous substances and/or demonstrate a propensity for assaultive behavior." Finding that correctional employees "have a unique and demanding job" they said that:

     "Allegations that a correctional officer has engaged in unstable or violent behavior, or that the officer uses narcotics, should be investigated thoroughly. An interview of the accused is an important component of any   such investigation."

     If a public employee refuses to answer questions that are "specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity," the constitutional privilege against self-incrimination is not a bar to his dismissal, they added.

     Moreover, the state's "Bill of Rights" law for law enforcement and correctional personnel specifically grants management the right to require employees to answer questions pertaining to their duties or fitness -- and immunizes those answers from use in a subsequent criminal proceeding.

     However, the facts in the case were unclear to the appellate panel. Was this officer given a direct order to answer the questions? They remanded the case to the ALJ for evidentiary findings, and added:

     "A direct order to answer a particular question is distinguishable from a request that the question be answered, even if the request is preceded or accompanied by notification that the agency's regulations include a requirement that the employee answer job related questions."

     On remand, if the ALJ is persuaded that such an order was issued, then the officer's answers could not have been used in a subsequent criminal proceeding, and management was entitled to impose discipline for his refusal to answer. If he was not given a direct order to answer the questions, the officer was punished for asserting his Fifth Amendment privilege against self incrimination, and any disciplinary action must be reversed.

     Dept. of Pub. Sfty. & Corr. v. Shockley, #2081 Sept Term 2000, 790 A.2d 73, 2002 Md. App. Lexis 12 (Md.Sp.App. 2002).

• Click the applicable link to read the decision in WordPerfect or PDF format.

     Editor's Note: This case exemplifies the importance of providing employees with a written admonition that they will be terminated or disciplined for their willful refusal to cooperate in an interview, along with a statement that their responses cannot be used in a criminal proceeding.

* The applicable rule on off-duty or personal behavior reads:

     "Each employee shall conduct him/herself at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any employee of the department, either within or outside his/her place of employment, which tends to undermine the good order, efficiency or discipline of the Department, or which reflects discredit upon the department or any employee thereof, or which is prejudicial to the efficiency and discipline of the Department, even though these offenses may not be specifically enumerated or stated, shall be considered conduct unbecoming an employee of the Agency, and subject the employee to disciplinary action by the agency." Maryland Dept. of Pub. Sfty. & Corr. "Standards of Conduct and Performance Standard" § II.B.1.

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Arbitrator sustains a charge, brought against a VA hospital police officer, of failing to assign an officer to protect a nurse who needed to meet with an employee who had a history of losing control. A disciplinary suspension of five days was excessive, and was reduced to one day.

     A veteran officer initially declined a request to have an officer accompany a nurse who was concerned about the behavior of an employee she wanted to meet. Management imposed a five-day suspension because:

     "Hospital Police have a different mission than that of a municipal police department. The policeman at a college or hospital is the first line ambassador for that institution. It is not uncommon to dispatch an officer to the aid of a staff member who anticipates a disorderly response from a patient. Part of the police officer's job is to assure confidence as to the safety of the hospital."

     The arbitrator sustained the charge, noting that the officer "exercised very poor judgment" and "not once during the hearing did [he] show remorse, take responsibility for his actions, or show concern for possible consequences of his handling of the incident."

     However, there was no documentary evidence to support management's claim that another employee had been suspended five days for a similar offense. Although a written reprimand would be the appropriate penalty for a first offense, the arbitrator concluded that some disciplinary action was necessary in this case.

     Because of his attitude at the hearing, the officer might be "inclined to repeat his intimidating style when people call for help" unless he was punished for his behavior in this case. The arbitrator imposed a one-day disciplinary suspension and directed that the employer would not be responsible for any fees or assessments in the case.

     Central Ark. Veterans Healthcare and AFGE L-2054, FMCS #01/0523-11049-3, 116 LA (BNA) 1008 (Crow, 2002).

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California appeals court allows the search of an employer-owned computer used at an employee's home; he had signed a consent form and was obligated to permit the inspection.

     An employer provided two computers for an employee's use, one for the office, the other to permit him to work at home. The employee had signed his employer's "electronic and telephone equipment policy statement" and agreed that his computers could be monitored by his employer.

     The worker was terminated for "repeatedly accessing pornographic sites on the Internet" while at work. He sued for wrongful discharge and the employer demanded production of the home-based computer.

     The employee refused on privacy grounds. The California Constitution specifically protects individual privacy. The trial court ordered production and the employee appealed.

     A three-judge appellate panel has affirmed:

     "He agreed that the computer would not be used for improper, derogatory, defamatory, obscene or other inappropriate purposes... and consented to authorized personnel to enter such systems and monitor messages and files on an as needed basis. ... His signature shows that he read the Company's policy, understood it, and agreed to adhere to it. * * *

     "To state the obvious, no one compelled [the plaintiff] or his wife or children to use the home computer for personal matters, and no one prevented him from purchasing his own computer for his personal use. With all the information he needed to make an intelligent decision, [he] agreed to the Company's policy and chose to use his computer for personal matters. By any reasonable standard, [he] fully and voluntarily relinquished his privacy rights in the information he stored on his home computer, and he will not now be heard to say that he nevertheless had a reasonable expectation of privacy."

     TBG Insurance v. Superior Court (Zieminski), #B153400, 2002 Cal. App. Lexis 1839 (Cal. App. 2d Dist. 2002).

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Controversial proposed OSHA Rule to be rewritten as guidelines.

     The Labor Dept. says it will downgrade its disputed ergonomics Rule to guidance. In FY 2003 budget submissions, the Occupational Safety and Health Administration will develop "industry specific, as well as task and operational specific, guidelines" that address ergonomic injuries in the workplace. Ref: 40 (1950) G.E.R.R. (BNA) 229.

     Last year the Congress overturned the proposed DoL Rule after an outcry from employers. OSHA rules apply to state and local governments in 25 states; 13 states require state and local agencies found to be in violation of the OSHA rules to pay fines: AK, AZ, CA, CT, HI, IA, KY, MI, MN, NC, OR, VT & WA.

• Click here for DoL ergonomics information

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Federal court rejects a fire lieutenant's sexual harassment claim, but allows a retaliation claim. Used condoms and gay material were put in his desk; his gear was smeared with excrement. Management responded inadequately to his complaints and then refused to let him work for medical reasons. Jury awards him $1,237,500.

     A newly promoted fire lieutenant began to institute changes in the discipline and training, some of which were not well received by members of the company. A few weeks later he found used condoms, homosexual advertisements and explicit playing cards inside his desk.

     The harassers also wrote a threatening letter and placed either urine or feces on the sleeve of his running gear, which caused a fungal infection. He complained that his superiors' response to these actions was insufficient.

     Management removed him from the firehouse and he was not allowed to work for "medical reasons" and was required to exhaust his sick leave. He responded with a suit in federal court, alleging sexual harassment and unlawful retaliation.

     The court dismissed the sexual harassment count. Although same-gender harassment is unlawful, he was unable to offer proof that the harassment was sexual in nature or motivated by his being a male. The retaliation count survived; the judge said:

     "When members of the fire department are spending their time placing used condoms in co-workers drawers, drafting fictitious letters, and threatening their co-workers either because they believe he is gay or are unhappy with his leadership style, it is a matter of public concern," he wrote.

     There was a "temporal proximity and general sequence" of events which raised the inference that lieutenant was terminated for criticizing the department and speaking out.

     His First Amendment claim was allowed to go a jury. After two hours of deliberation, a panel of six women and four men awarded the plaintiff $225,000 in backpay, $512,500 in front pay, and $500,000 in compensatory damages for retaliation claims brought under Title VII against the city.

     The plaintiff will also be entitled to an award of attorney's fees.

     Bianchi v. Philadelphia, #99-CV-2409 (E.D.Pa). Pre-verdict ruling at 2002 U.S. Dist. Lexis 103, 87 FEP Cases (BNA) 1728 (1/7/02); verdict summarized at 40 (1951) G.E.R.R. (BNA) 282 (2/19/02).

• Click here to view the pre-verdict opinion on the official court site.

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Divided Supreme Court strikes down a DoL regulation requiring employers to inform workers that authorized leave counts against their FMLA 12 week entitlement.

     The Family and Medical Leave Act of 1993 guarantees eligible employees 12 weeks of unpaid leave each year, and encourages employers to adopt more generous policies. The employer in this case granted the plaintiff 30 weeks of medical leave under a more generous policy in 1996.

     The employer refused her request for additional leave or permission to work part time and terminated her when she did not return to work. She filed suit, alleging that a Dept. of Labor regulation, 29 CFR 825.700(a), required the employer to grant her 12 additional weeks of leave because it had not informed her that the 30-week absence would count against her FMLA entitlement.

     The trial granted the employer a summary judgment, finding that the regulation was in conflict with the statute and invalid, because it required employers to grant workers more than 12 weeks of FMLA leave in one year. The Eighth Circuit agreed.

     The Supreme Court affirmed 5-to-4, holding that the DoL regulation was an overextension of the powers granted to the Secretary of Labor in the Act. The majority said:

     Even if [the employer] had complied with the notice regulations, [the plaintiff] still would have taken the entire 30-week absence. Blind to this reality, the Secretary's provision required the company to grant [her] 12 more weeks of leave and rendered it liable under 2617 when it denied her request and terminated her.

     The challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice. In the case at hand, the regulation permitted [the employee] to bring suit under 2617, despite her inability to show that [her employer's] actions restrained her exercise of FMLA rights. ... This regulatory sleight of hand also entitled [the plaintiff] to reinstatement and backpay, even though reinstatement could not be said to be appropriate in these circumstances and [she] lost no compensation ...

     Four justices dissented. Ragsdale v. Wolverine World Wide, #006029, 2002 U.S. Lexis 1936, 70 U.S. Law Week 4191 (2002) affirming 218 F.3d 933.

• Click here to view the opinion on the Cornell website.

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Seventh Circuit upholds right of a detective to sue for a retaliatory transfer. He pursued an investigation that revealed damaging allegations about a politician who is a close friend of the chief of police.

     A police detective received a letter concerning criminal drug activity. The writer claimed that a close relative of an elected official had been frequenting a drug house, and that the Chief of Police Jones was a close personal friend of the public official.

     A subsequent interview with the arrestee corroborated the claims of the letter. Although a deputy chief recommended an investigation by an outside agency, the chief declined to do so -- and then summarily transferred the detective to a less desirable assignment. The detective sued. The District Court declined to dismiss the civil action against the chief.

     The issue on appeal, was whether the interview memo had the protection of the First Amendment. Generally, writings or statements arising in the normal course of an employee's regular duties are not protected. Here, the content went further than a routine report -- and was a matter of "public concern."

     The three-judge panel noted that efficient government could be stymied if every memo or report by a public employee was deemed a matter of public concern. Conversely, "government efficiency can be equally compromised if government supervisors can freely pursue retaliation for speech that is politically sensitive or embarrassing." They added:

     "Effective police work would be hopelessly compromised if police officers could be retaliated against for communicating factual details (e.g., a supervisor's relationship to a criminal suspect) that bear on the department's ability to conduct an objective investigation. The fact that a police officer's job responsibilities may in some measure overlap with motivations of a well-meaning citizen does not change this analysis."

     Because the chief of police purportedly ordered the unwanted job transfer (and a change in the detective's vacation schedule), "the defense of qualified immunity must fail." Delgado v. Jones, #01-1460, 2002 U.S. App. Lexis 3669 (7th Cir. 2002).

• Click link to view the opinion on FindLaw or the 7th Circuit website.

     Editor's Note: Whistleblower protection laws insulate an employee who alleges misconduct, as opposed to an investigator that only writes a report about the allegations. An employee who only reveals "politically sensitive or embarrassing" allegations may be more vulnerable to retaliation than the worker who made the damaging assertions.

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Ninth Circuit upholds a whistleblower's lawsuit alleging retaliation for speaking out against prison conditions. In mixed-motive cases, the burden of justifying adverse personnel action falls on the employer.

     A prison physician publicly disclosed the mistreatment of inmates by officers, and testified against the administration at a state legislative hearing. Thereafter he was twice locked out of the facility and a lesser qualified doctor was promoted to a superior grade.

     He sued in federal court, and the trial judge found that his whistleblowing activities were a motivating factor for rejecting his promotion. This finding was in spite of evidence that his personality and behavior contributed to his problems with management.

     In so-called "mixed motives" cases, the burden of justifying management action falls on the employer once the employee puts forward a prima facie case. Mt. Healthy Bd. of Ed. v. Doyle, 429 U.S. 274 (1977).

     Mt. Healthy involved a Title VII discrimination complaint, and this case involves the First Amendment. The employer unsuccessfully urged on appeal that circumstantial evidence of retaliation is not enough in First Amendment cases. Other appellate circuits have arrived at the same conclusion.

     Here, management knew of his criticisms, subjected him to harassment, and retaliated by denying him a promotion. Allen v. Iranon, #99-16896, --- F.3d ---, 2002 U.S. App. Lexis 3892 (9th Cir. 2002).

• Click here to read the opinion on the FindLaw site (PDF format).

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Federal court awards compensatory damages, back and front pay, and attorney's fees to a sheriff's officer who was unable to work as a jailer after a heart attack, and was not told of a senior dispatcher's vacancy. Appeals court remands for further clarification.

     After having bypass surgery, a jailer's cardiologist wrote the sheriff that his heart condition was "indefinite" and that "he should not have contact with inmates or any other job that might lead to severe or strenuous activity."

     After a few weeks, the sheriff wrote the jailer that "it is apparent that you can no longer perform the essential functions of a Confinement Officer ... [and] I can not accommodate this restriction on an indefinite schedule."

     The County Personnel Review Board upheld the dismissal. Although a dispatcher job opened, the ex-jailer was not told of it because the sheriff "had forgotten" about the accommodation request.

     The jailer then sued, alleging ADA violations. The jury returned a special verdict finding that the county and sheriff failed to reasonably accommodate his disability; they awarded $72,544 in back-pay, and compensatory damages of $140,000.

     The trial judge, not the jury, should have set the amount of back pay, but the judge confirmed the award. The court added $26,174 in front pay, reduced the compensatory damages to $100,000, and awarded attorney fees of $41,609. The county appealed.

     A three-judge appellate panel noted that a position is "vacant," for purposes of considering whether an employer has a duty to transfer a disabled employee to that position, "only when the employer knows, at the time the employee asks for a reasonable accommodation, that the job opening exists or will exist in the fairly immediate future."

     The panel said that a position "is not vacant if, as here, the employer did not know at the time the employee asks for a reasonable accommodation that the position would become vacant in the fairly immediate future ..."

     However, they affirmed the trial court's finding that the county "failed reasonably to accommodate him by reassigning him to a vacant position."

     The panel remanded for a new trial, for a finding whether the plaintiff "is substantially limited in the major life activity of working," and as to whether the county (or the sheriff) was the employer. One judge wrote a special opinion concluding that the sheriff, not the county, was the plaintiff's employer.

Bristol v. Bd. of Co. Cmsnrs., Co. of Clear Creek, #00-1053, 2002 U.S. App. Lexis 2937 (10th Cir.).

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Boston jury orders reinstatement and awards $847,785 in back pay and damages to a man who was expelled from the police academy because of his audio impairment.

     Richard Dahill Sr., is a state trooper; his son, Richard Dahill Jr. wanted to be a police officer, but has worn hearing aids since age 3. The 22 year-old son was hired as a Boston police cadet, but was expelled after he failed to hear commands or gunfire at the range, when his hearing aids were removed.

     He sued in the Superior Court of Suffolk County, but the city removed the case to federal court because of the ADA issues. The (Massachusetts) Disability Law Center filed a brief, amicus curiae, supporting Dahill. The DLC is a local United Way recipient.

     After more than four years after Dahill's termination, a federal jury has found that the city should have accommodated his impairment. Testimony revealed the plaintiff had worked successfully as a lifeguard and a teacher in a detention center.

     The trial lasted more than 9 days; the jury deliberated almost 5 hours before returning its verdict of $847,785.

     Dahill v. City of Boston, 98-CV-11441 (D.Mass. 2002). Background source: Boston Globe, Feb. 7 and Jan. 24, 2002.

• Click here to view a copy of the jury verdict and prejudgment docket entries on the AELE website.

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Appeals court overturns a ruling against a police captain who was sued because a subordinate officer had videotaped a woman while undressing at the academy. The captain had no knowledge of four prior incidents involving the trooper.

     A male trooper videotaped a woman undressing at the State Police Training Center after asking her to appear in a training video. She brought a §1983 claim against the male trooper and the captain -- alleging that the superior officer failed to adequately train, supervise, and discipline the offending trooper. The trial court refused to grant the captain a summary judgment and he appealed. The Second Circuit noted that:

     "... in order for a supervisor to be held liable under section 1983, both the law allegedly violated by the subordinate and the supervisory liability doctrine under which the plaintiff seeks to hold the supervisor liable must be clearly established. By 1993, it was clearly established that a police officer violates a person's Fourteenth Amendment right to bodily privacy when that officer views, photographs or otherwise records another's unclothed or partially unclothed body, without that person's consent.

     "By 1993, it was also clearly established that a supervisor could be liable if he had actual or constructive notice that it was highly likely his subordinate, while on duty, might violate another's right to privacy in his or her unclothed body, but the supervisor deliberately or recklessly disregarded that risk by failing to take reasonable action to prevent such a violation, and that failure caused the constitutional injury to the plaintiff."

     However, the three-judge panel said the plaintiff failed to adduce enough evidence to establish that the captain's inaction "was reckless or deliberately indifferent to a high risk that [the trooper] would violate [her] constitutional rights."

     It was true that the male trooper "had a history of inappropriate or otherwise problematic behavior with female civilians while on duty," including four prior incidents. But those events all occurred well before the captain assumed command.

     The captain was unaware of, and was not informed by his predecessor of any performance or disciplinary issues involving the male officer. Poe v. Leonard , #00-9024, 2002 U.S. App. Lexis 2530 (2nd Cir. 2002).

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Campus police, who suspected that a cashier was stealing money, lawfully installed a hidden video camera aimed at an employee's desk.

     A videotape showed the worker pilfering cash from a money bag, putting it into her desk, and then into to her purse. Police viewed the tape, obtained a search warrant, and arrested the employee -- who was convicted of theft. The U.S. Supreme Court has declined to review the case.

     The Alaska Supreme Court split 3-2 upholding the warrantless installation of a videocamera. Cowles v. State, #S-8831 (Opin. No. 5418), 23 P.3d 1168, 2001 Alas. Lexis 67(Alaska 2001); cert. denied, 122 S.Ct. 1072, 2002 U.S. Lexis 701 (2002).

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

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NYPD pays $1.5 million to settle lawsuits brought by two high ranking officers who allegedly were sanctioned for refusing to change the findings in a sexual harassment investigation in the Staten Island command.

     A Borough commander was accused of retaliating against two woman officers after they had filed a sexual harassment complaint. The commander's assistant purportedly lied to investigators when he was questioned.

     The first suit was filed by a Deputy Commissioner, who left the NYPD. She alleged that she was stripped of her job responsibilities and constructively discharged in retaliation for having approved the findings that the Staten Island commander had engaged in retaliatory conduct against two women officers, and that his executive assistant had lied to the department's EEO investigators.

     The second suit was filed by a captain, who served as the Deputy Commissioner's assistant. He was transferred to what he viewed as a series of dead-end jobs in the department.

     The first lawsuit was settled for $1 million; the second for $490,000 and a promotion to deputy inspector.

     Donovan v. Safir (S.D.N.Y.); Marsh v. Safer 99 Civ. 8605 (S.D.N.Y.). Prior interim ruling and facts at 2000 U.S. Dist. Lexis 5136. Settlements rptd. in the (N.Y.) Daily News, 2/8/2002.

• Click here to view a summary of the allegations (in a prior, interim ruling) on AELE's website. The actual settlement document was not published.

     Editor's Note: Ultimately six Staten Island officers filed their own lawsuit, charging some of the same defendants, as well as others, with harassment and retaliation. Maher v. Monahan, 98 Civ. 2319 (S.D.N.Y.).

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Age Discrimination - Termination / Mandatory Retirement

     Federal appeals court upholds a management decision to terminate an older employee and replace him with a younger man who possessed superior computer skills. Lesch v. Crown, #00-4239, 2002 U.S. App. Lexis 3159 (7th Cir.).

     A state court jury in Massachusetts has awarded a former senior citizen van driver $165,000 plus $45,893 in interest because she was fired, at age 82. Kowalczyk v. City of Blackstone, Worcester Co. Super. Ct. (2002).

Applicant Rejections

     An employer's refusal to rehire former employees because of pension liability does not violate §510 of the Employee Retirement and Income Security Act (ERISA) 29 U.S. Code §1140. Becker v. Mack, #00-4414, 2002 U.S. App. Lexis 2622 (3d Cir. 2002).

Fair Labor Standards Act - Overtime & in General

     Federal court dismisses a suit by California state corrections officers seeking damages against their superiors, in their individual capacities for failing to timely pay retroactive overtime pay increases. The court held that managers were not "employers" under the FLSA, and even if they were, sovereign immunity applies because the state was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d 1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001).

Fair Labor Standards Act - Administrative & Executive Exemptions

     Although GS-12 first line supervisory border patrol agents were entitled to overtime, GS-13 Agents In Charge and Assistant Patrol Agents In Charge were exempt from the FLSA. Bates v. United States, #96-931, 51 Fed. Cl. 460; 2002 U.S. Claims Lexis 7 (Ct.Cl. 2002); also see earlier related case, Adams v. United States, 44 Fed. Cl. 772 (1999).

Family and Medical Leave

     Evidence that the plaintiff's father suffered from severe depression, which prompted the plaintiff to take time off, was sufficient to create triable issues of fact under the FMLA. Scamihorn v. General Truck Drivers Union, #00-55722, 2002 U.S. App. Lexis 3369 (9th Cir.2002).

Free Speech

     Communications that are part of an employee's regular job duties are not matters of public concern. Police officer had claimed that he was terminated because of negative reports he had written about other officers during his prior tenure as a police civilian employee. Those reports lack First Amendment protection. Gonzalez v. City of Chicago, 239 F.3d 939, 2001 U.S. Lexis 2098 (7th Cir. 2001). See also Morris v. Crow, #97-2764, 142 F.3d 1379, 1998 U.S. App. Lexis 12202, 14 IER Cases (BNA) 186 (11th Cir. 1998) for a similar case.

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Federal court in N.Y. holds that the ability to get along with others is "a major life activity" within the meaning of the ADA; the plaintiff suffers from bipolar disorder. Jacques v. DiMarzio Inc., 97-CV-2884, 2002 U.S. Dist. Lexis 3399 (E.D.N.Y. 2002).

Hearing (Audio) Impairment

     A court's refusal to provide videotext display for an individual with a hearing impairment, who was a party to litigation, violated the ADA's reasonable accommodation requirement. Duvall v. County of Kitsap, # 99-35934, 260 F.3d 1124, 2001 U.S. App. Lexis 18316, 12 AD Cases (BNA) 148 (9th Cir. 2001).

Heart Problems

     N.Y. Corrections officer was entitled to statutory benefits for heart disease, notwithstanding a long history of smoking and a family predisposition to heart disease. White v. Co. of Cortland, 3 No. 18, 2002 N.Y. Lexis 487, 2002 NY Int. 21 (N.Y. 2002).

Injuries to Employees

     New York correctional facility counselor awarded $109,000 for injuries sustained when her chair collapsed. Kwartler v. State of N.Y., #91739 (N.Y.Ct.Cl. 2002).

     New York jury awards a firefighter $2.3 million against a motorist who struck him while passing a fire truck. The plaintiff suffered a fractured ankle, requiring surgery and six screws. McNamara v. Hittner, #11535/00 (N.Y. Supr. Ct., Richmond Co. 2002).

Military Leave

     Federal appeals court holds that military training laws did not protect an employee who deliberately falsified his time card. Hill v. Michelin N.A., #00-2202, 252 F.3d 307, 2001 U.S. App. Lexis 11073, 167 LRRM (BNA) 2225 (4th Cir. 2001).

Pending Legislation

     FBI oversight: Chairman of the Senate Judiciary Committee Patrick Leahy (D-Vt.) and Sen. Charles Grassley (R-Iowa) have introduced legislation which would give the Justice Dept's inspector general permanent jurisdiction over the FBI, include FBI employees under the Federal Whistleblower Act, and create an FBI internal security division. Federal Bureau of Investigation Reform Act of 2002, S. 1974 (107th Cong, 2d Sess.)

Pleading Requirements

     Supreme Court overturns a "heightened pleading standard" for employment discrimination cases adopted by the Second Circuit. In a unanimous decision, the justices said an employee does not need to plead a prima facie case in a discrimination complaint and may make a "short and plain statement" of the claim. Swierkiewicz v. Sorema, #00-1853, 122 S.Ct. 992, 2002 U.S. Lexis 1374, 88 FEP Cases (BNA) 1 (2002).


Pregnancy Policies and Discrimination

     Where the evidence shows that the plaintiff was fired because of absenteeism, not her pregnancy, she could not recover under the Pregnancy Discrimination Act of 1978. Stout v. Baxter Healthcare, #99CV129, 2002 U.S. App. Lexis 2573 (5th Cir. 2002); prior decis. at 107 F.Supp.2d 744 (D.Miss. 2000).

Probationary Employment

     California appellate court holds that placing an officer, accused of rape, on inactive duty status, did not extend his probationary period. Winter v. City of Los Angeles, B148898, 2002 Cal.App. Lexis 2557, --- Cal.App.4th --- (2002).

Race Discrimination - In General

     Eighth Circuit allows an at-will employee can sue a former employer under 42 U.S. Code §1981. Skinner v. Maritz, #00-2569, 253 F.3d 337, 2001 U.S. App. Lexis 12140, 86 FEP Cases (BNA) 97 (8th Cir. 2001), following the lead of the Fourth Circuit in Spriggs v. Diamond, #99-2393, 165 F.3d 1015, 1999 U.S. App. Lexis 1137 (4th Cir. 1999).

     If a minority promotional candidate was not clearly more qualified than the persons ultimately promoted, and if there was no evidence of intentional discrimination, the employer was entitled to judgment as a matter of law. Millbrook v. IBP, Inc., #01-1189, 280 F.3d 1169, 2002 U.S. App. Lexis 2597 (7th Cir. 2002).

     Profiling: Baltimore City Police major abruptly retires after issuing a memo to subordinates that targeted all blacks found near a bus stop for stop-and-question tactics, following a reported rape at that location. Baltimore Sun (3-6-2002).

Race: Reverse Discrimination

     A white applicant who scored so low on a police entry exam does not have standing to challenge racial preferences, because he would not have been hired if there were no preferences in place. Donahue v. City of Boston, #00-10884-JLT, 2001 U.S. Dist Lexis 20964 (D.Mass. 2001).

Retirement Rights and Benefits

     Merit Systems Protection Board holds that U.S. Navy police officers at the Norfolk Naval Shipyard were not entitled to law enforcement officer retirements. Street v. Dept. of the Navy, #DC-0842-00-0210-I-1, 2002 MSPB Lexis 41 (MSPB 2002).

     Federal appeals court upholds a one-year limitation of the Navy's law enforcement retirement credit, 5 C.F.R. §831.906(e-f). Stearn v. Dept. of the Navy, #01-3013, 280 F.3d 1376, 2002 U.S. App. Lexis 2420 (Fed. Cir. 2002); prior decision at 81 MSPB 551, 1999 MSPB Lexis 457 (MSPB 1999).

Sexual Harassment - In General

     Appeals court affirms the dismissal of a suit against a police lieutenant who had singled out a woman officer for scrutiny during a uniform inspection. Hilt-Dyson v. Chicago, #01-2095, 2002 U.S. App. Lexis 2947 (7th Cir.).

Sexual Harassment - Same Gender

     Ninth Circuit rules that a male employee who was taunted for effeminate behavior had suffered sexual harassment for purposes of Title VII. Nichols v. Azteca, #99-35579, 256 F.3d 864, 2001 U.S. App. Lexis 15899, 86 FEP Cases (BNA) 336 (9th Cir. 2001).

Whistleblower Requirements and Protection

     New Jersey jury awards a police officer over $3 million for harassment, after he reported that fellow officers were involved in selling blue jeans overseas. Award included $2 million for past pain and suffering, $545,000 for future lost wages and punitive damages. Pisano v. Township of Parsippany, No. MRS-L-002351-97 (Morris Co., N.J. Super. Ct.) as rptd. in the National Law Journal, p5, Feb. 18, 2002.

• Article: "Shooting while pregnant: Dangerous or not?" 26(5) The Police Marksman 15-18 (Sep/Oct. 2001).

• Budget: United States Government, FY 2003

• FEMA Fire Service Grants: The Federal Emergency Management Agency has announced grants to fire departments for the purpose of protecting firefighting personnel and the public from fire and fire-related hazards . 67 (39) Federal Register Pp. 9141-9154 (Feb. 27, 2002) 44 CFR Part 152. Access the Federal Register Online via GPO Access.

• Law review article: "Accommodating the Employment Disabled," by Prof. Douglas Leslie, 17 The Labor Lawyer (ABA) 143-152 (Summer, 2001); 4,522 words, published by the American Bar Assn.

• Report: E Government Strategy: Implementing the President's management agenda for E-government.

• Report: Bureau of Labor Statistics site: Union affiliation of employed wage and salary workers (2000-2001), listed by occupation & industry and by state.

• Website: The National P.O.L.I.C.E. Suicide Foundation, Inc. provides training programs and support services on suicide awareness and prevention.

CROSS REFERENCES