Michigan appeals court affirms an arbitration award reinstating a jail officer. Conduct was not severe enough to warrant judicial interference.

     A Michigan sheriff fired a corrections officer for three violations of department rules and regulations. An arbitrator set aside the termination. Although concluding that the officer's conduct "constituted just cause for severe disciplinary action," he found that "persuasive mitigating factors" warranted a reduction in the penalty from termination to a long-term suspension, with full seniority. The sheriff refused to reinstate the officer, and litigation commenced.

     A three-judge appeals court said that the arbitrator was free under the agreement to conclude that while officer's misconduct served as just cause for discipline, it did not amount to just cause for discharge. "The arbitrator was also empowered to fashion an appropriate level of discipline for the violations found."

     They also rejected a public policy argument. "Maintaining safety at a county jail is clearly an important public policy," but the officer's behavior "was not so egregious that reinstatement to his job would undermine this public policy. The opinion does not describe the underlying conduct.

     Police Officers. Assn. of Mich. v. Co. of Manistee, #226909, 250 Mich.App.339, 645 N.W.2d 713, 2002 Mich. App. Lexis 823 (Mich. App. 2002).

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•••• EDITOR'S CASE ALERT ••••

Federal court enjoins an internal investigation interview of an officer who is suing superiors and the city for gender bias and retaliation. The proposed questioning was viewed as retaliatory and likely to interfere with the progress of the discrimination lawsuit.

     A NYPD detective and her husband sued 16 police and medical personnel and the City, alleging retaliation for complaining of gender-based discrimination. The department's I-A then commenced an investigation, including her interrogation. She obtained a temporary court order halting the interrogation.

The City argued that "considerations of federalism and comity weigh strongly against this Court's intervention into the pending departmental inquiry." Federal Judge Deborah Batts disagreed, and said that the NYPD's disciplinary interrogation "is likely to interfere with the orderly and fair functioning of those proceedings in this Court."

The court found the plaintiff made an adequate showing of irreparable harm and a likelihood of success on the merits. The judge said:

"... a continuous pattern of sexually offensive incidents emerges and if true, may amount to a showing that the workplace was permeated with a magnitude of intimidation and ridicule sufficient to meet the Harris standard for hostile work environment claims.

"... Plaintiff has demonstrated a likelihood of success on her claim that she was being retaliated against for filing the EEOC charges and lawsuit alleging discrimination by the police department. ... she alleges that she was isolated by her superiors and her co-workers... [and] was assigned significantly less challenging work responsibilities and ultimately forced to transfer from a prestigious assignment to a far less prestigious post. ...

"There is evidence that the Interrogation as well constitutes an additional instant of retaliation, designed to hinder her ability to vindicate her rights in this lawsuit. ... This Court finds that a preliminary injunction of the departmental disciplinary proceedings is appropriate.''

     In a prior ruling, the judge found that the plaintiff would not have to be examined by NYPD Medical personnel, and ordered that "any further return to duty fitness tests required of Plaintiff during the pendency of this action shall be performed by non-NYPD medical personnel."

     Karmel v. City of N.Y., #00 Civ. 9063, 200 F.Supp.2d 361, 2002 U.S. Dist. Lexis 8056, 88 FEP Cases (BNA) 1194 (S.D.N.Y. 2002).

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

     Editor's Note: Enjoining an I-A interrogation is an extraordinary act, but it has happened before. In 1996, an Hispanic officer sued the NYPD alleging that superiors had discriminated and retaliated against him because he had refused to negatively evaluate minority officers who had complained about discriminatory treatment and the use of racial slurs by coworkers. The I-A then accused the plaintiff of improperly obtaining confidential records for use in his lawsuit.

     The City then paid the officer $62,500 to drop his lawsuit, and he signed a general release. Thereafter, Internal Affairs officials directed him to appear for a disciplinary interview in connection with an alleged improper use of confidential documents.

     In a second lawsuit filed by the Hispanic officer, Federal Judge Denny Chin said "there can be no doubt but that the disciplinary proceedings were prompted by [the plaintiff's] filing of [the lawsuit]. Eleven of the original fifteen Charges and Specifications specifically referenced [his] verified and amended complaints ... [and] contain direct quotations from the [his] complaint."

     The judge then added:

"... the NYPD obviously was unhappy about the publicity that was generated by the filing of [the lawsuit]. ... Three officers were charged with a cover-up and retaliation, and the officers were faxing the New York Times article to each other at home. ... there was an edge and intensity to the questioning of [the plaintiff] ... that is suggestive of an intent to retaliate."

"If an injunction is not issued, [the plaintiff] will be irreparably harmed. He will have great difficulty prosecuting [his lawsuit], and both his First Amendment right to petition the government for grievances and his right to seek relief under Title VII and the state and city anti-discrimination laws will be seriously impaired.

"On the other hand, if an injunction is issued and the NYPD is enjoined from proceeding with the disciplinary proceedings, the NYPD will still have the ability to aggressively challenge Alvarez's allegations by defending Alvarez II. It will not be prejudiced by the risk of evidence turning stale because it will still be able to gather its evidence within the context of the lawsuit. The case will be put on a fast track so that the issues will be disposed of promptly."

     Judge Chin went on to say that ordinarily, he would be reluctant to interfere in the NYPD's internal personnel matters but "the NYPD's disciplinary proceedings are interfering with the orderly functioning of proceedings in this Court."

     He enjoined the City from "further prosecuting the disciplinary proceedings that have been commenced against plaintiff."

     Alvarez v. City of N.Y., #98 Civ. 7227, 31 F.Supp.2d 334, 1998 U.S. Dist. Lexis 19328 (S.D.N.Y. 1998).

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

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Florida appeals court holds that private or personal e-mails sent or received by public employees, using a city computer, do not become "public records" for the purpose of release to the news media.

     An appellate court in Florida has held that private e-mail, sent or received over a government-owned computer, does not become a "public record" and subject to public inspection.

     Florida has a very comprehensive Sunshine law, and a newspaper sought to obtain e-mails relating to the transaction of private business, by public employees, using the city's computer system.

     Chapter 119 is a legislative codification of article I, section 24(a) of the Florida Constitution, which provides:

     In Florida, "Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state ..." with limited exceptions. Art. I, Sec. 24(a), Fla. Constit. The implementing legislative provision reads:

"Public records means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." Sec. 119.011(1), Fla. Stat.

     The court noted that the e-mails were not public information, but private documents, that were sent and received on the city's e-mail system.

     The appellate court said that private or personal e-mail is not a public record. In this case, it was not created or received "in connection with the official business" of the City or "in connection with the transaction of official business" by the City.

     The result would be the same if a letter was mailed to a city employee at his work address, and kept in his city provided desk. The city had a right, under its inspection policy, to read the e-mail, but the public does not have that privilege simply because the employer has such a policy.

     Times Publishing Co. v. City of Clearwater, #2D01-3055, 2002 Fla. App. Lexis 9414 (Fla. App. 2d Dist. 2002).

     • Click here to view the decision on the court's website. [PDF format]

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Third Circuit affirms an injunction against a police chief who required subordinates to obtain his approval before appearing as an expert witness in civil or criminal cases, even if uncompensated.

     A Pittsburgh police officer, who has testified for and against the government, sued to enjoin a revised rule which required written authorization from the chief before any officer could testify as an expert witness. Pittsburgh Police Bureau Order 53-7 read:

"4.3 Except for subpoenas issued by the District Attorney's Office, no member or employee may respond to any contact, request, summons or subpoena where such contact, request, summons or subpoena is issued in connection with a criminal or civil proceeding for the purpose of seeking an opinion or advice, expert or otherwise, from the member or employee absent express, written authorization from the Chief of Police.

"4.3.1 There is a difference between a subpoena issued to 'compel testimony' of a fact witness and a subpoena issued to compel expert 'opinion' testimony. A member or employee may be compelled to testify as to the facts or a particular occurrence, but cannot be compelled to give an opinion.

"4.3.2 For this reason, written authorization from the Chief of Police must be given before any member may testify as an expert witness.

"4.3.2.1 In the event that time does not permit the written authorization through the chain of command, by the Chief of Police, a member or employee may seek permission via telephone through the chain of command, and will submit a written Special Report as soon as it is possible and practical."

     A Federal Magistrate Judge ruled that the City had not proved that the Police Bureau would be "negatively impacted by allowing its officers to provide expert testimony" without the procedure established in the Order, and that a preliminary injunction would be in the public interest and prevent an infringement of constitutionally protected speech.

     The District Judge adopted the Magistrate's recommendation and granted a preliminary injunction. The city appealed. A three-judge appeals panel has affirmed.

     A city has the right to know when and where its police officers will be occupied with court appearances, and to prevent the unauthorized disclosure of confidential information.

     Here, the regulation prohibits opinion testimony unless the Chief of Police approves it, and it is not dependent on compensated work. The panel said:

"We would view this case very differently if Order 53-7 simply barred an employee of the Bureau from receiving a fee for providing expert testimony related to the employee's official duties, but that is not what Order 53-7 provides."

     Other courts have upheld employer rules requiring employees to give notice to management. Such rules can ameliorate discontent. Here, the rule was not predicated on the regulation of outside employment, but required the chief's approval in all cases where an officer seeks to provide opinion testimony in court.

     The panel affirmed the issuance of the preliminary injunction against the rule. Swartzwelder v. McNeilly, #01-1085, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002).

     • Click here to view the decision on the court's website. [PDF format]

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Federal appeals court rejects the lawsuit of a state police chief who was fired for opposing a subordinate from continuing to serve as the deputy chief. It was insubordination for the chief, whose position requires loyalty, to speak on job-related issues, in a manner contrary to the position of his employer.

     The head of the Kentucky State Police was fired after he refused to withdraw a memo, critical of his immediate subordinate, in which he also sought to eliminate the position of deputy commissioner.

     Suit was filed in federal court. The trial judge found that the memorandum in this case did not relate to a matter of public concern because: (1) the memo did not allege any illegal activity; (2) the plaintiff never attempted to make the allegations public; and (3) most of the allegations concerned decisions made prior to the time when the conflict between plaintiff and the deputy commissioner arose.

     The appellate court affirmed the judgment for the state. "Where an employee is in a policymaking or confidential position and is terminated for speech related to his political or policy views, the ... balance favors the government as a matter of law."

     The three-judge panel found that the governor's interest in appointing politically loyal employees "converges with its interest in operating an efficient workplace" because loyalty "is an essential requirement for the efficient functioning of the workplace."

     They said that "it is insubordination for an employee whose position requires loyalty to speak on job-related issues in a manner contrary to the position of his employer," and that a balancing of interests is unnecessary.

     Rose v. Stephens, #00-6542, 291 F.3d 917, 2002 U.S. App. Lexis 10581, 2002 FED App. 0194P, 18 IER Cases (BNA) 1147 (6th Cir. 2002).

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

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Appeals court reverses a grievance determination because the Step III hearing officer was a subordinate of the Step II responder. An evidentiary hearing by the Merit Board could have cured the procedural defect.

     A sergeant, who was unsuccessful on the lieutenant's exam, filed a grievance complaining that the raters who evaluated him during the examination were incompetent and sought an "immediate promotion to the rank of police lieutenant." After an administrative review, the county's Merit System Protection Board denied the grievance and the sergeant sued. The trial court affirmed the decision, and the sergeant appealed.

     On appeal, he cited a lack of fairness because the Step III grievance hearing officer was a subordinate of the Step II responder. He argued that a hearing officer who is subject to "command influence" either does not act impartially or does not appear to be acting impartially. In either circumstance, he said, an employee/grievant can not receive fair treatment.

     Management disagreed, noting that an internal grievance review process only is a preliminary internal dispute resolution mechanism designed to promptly resolve grievances at the lowest possible level.

     The appeals panel sided with the sergeant. When the Step III hearing officer is a subordinate of the Step II responder, there is a substantial likelihood that the hearing officer's view of the case will be tainted and that he therefore will not render an impartial decision; and even if there is no actual partiality, the process appears not to be impartial.

     Here, the Step II responder and the Step III hearing officer engaged in nearly an identical adjudicatory-type function. In that situation, in which the second decision-maker is literally "second guessing" the decision of the first decision-maker, who is his superior, the process appears destined for a particular result from the start.

     The reviewing problem was not cured by Board action, because it was not a "de novo" hearing."...the Board did not conduct an evidentiary hearing. Instead, it took into consideration the findings of fact made by the Step III hearing officer and adopted by the CAO."

     If the Merit System Protection Board had conducted an evidentiary hearing of the grievance, the CAO's error in appointing a Step III hearing officer subject to "command influence" would have been cured.

     The three-judge panel also found that it would be improper to release promotional exam test materials to the sergeant. It could compromise the integrity of future exams and give candidates an unfair advantage.

     The appellate court directed that the sergeant receive another Step III hearing, before a neutral party.

     Mayer v. Montgomery Co., #2224 Sept. 2000, 143 Md. App. 261, 794 A.2d 704, 2002 Md. App. Lexis 51 (Md.Sp.App. 2002).

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

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Supreme Court holds that punitive damages are not a valid remedy in private suits against public entities under Title II of the ADA and §504 of the Rehabilitation Act. Case involved a disabled prisoner who was injured in a transport van.

     We previously reported that a federal appeals court concluded that punitive damages are available for injuries sustained by a paraplegic prisoner who was transported in a van without wheelchair restraints. The jury awarded $1,034,817 in actual and $1,200,000 in punitive damages. See Gorman v. Easley, #00-1029 and 1030, 257 F.3d 738, 2001 U.S. App. Lexis 12827 (8th Cir. 2001).

     The Supreme Court has reversed for reasons of statutory language; the remedies for violations of Sections Title II and §504 are coextensive with the remedies available in private suits brought under Title VI of the 1964 Civil Rights Act. That clause involves the power of Congress to place conditions on the use of federal funds.

     Punitive damages, unlike compensatory damages and injunctions, are generally not available for breach of contract, the majority said. Moreover, punitive damages cannot be implied under Title VI, because it is doubtful that cities and other entities would have accepted federal funding if liability for punitive damages was a required condition.

     Barnes v. Gorman, #01-682, 122 S.Ct. 2097, 2002 U.S. Lexis 4421, 70 U.S.L.W. 4548 (2002).

     Editor's Note: The city was still liable for more than $1 million in compensatory damages, plus reasonable attorney's fees.

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

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Arbitrator overturns a chief's ban on outside employment as a private investigator. Previously, the grievant had been allowed to perform that work and the bargaining agreement contained a past practice clause.

     Most public safety agencies regulate off-duty employment, to insure there is no conflict of interest or incompatibility. Many police agencies ban secondary employment as private investigators, although others allow it.

     In this case the chief denied a work permit and the sergeant grieved. The arbitrator sided with the union, in part because such work had been allowed in the past, and the contract perpetuated past practices.

     He concluded that a blanket denial of permission was unwarranted, when based on the possibility of a conflict, where none had arisen before. He added that "appropriate restrictions" could be imposed by the chief, if necessary to protect the City's interests.

     City of Columbus and FOP L-9, FMCS Case #01/07379, 116 LA (BNA) 1672 (Duff, 2002).

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

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Federal appeals court upholds the termination of a Polish officer who was unable to prove others have been treated differently based on similar misconduct.

     The Chicago Police fired an officer at the end of his probationary period because a review board found him to be untruthful, easily angered, and resentful of authority.

     He sued, alleging national origin discrimination. The trial judge found no evidence of discriminatory treatment and dismissed the complaint. A three-judge appellate panel has affirmed, noting that the plaintiff

"... has not identified a single non-Polish cadet accused of verbally abusing members of the public, being absent without permission, driving without a valid city sticker, ignoring and disobeying orders, giving false statements, and refusing to cooperate, who was not subjected to an investigation or disciplined. His failure to identify a similarly situated employee not of Polish national origin thus also dooms his Title VII claim."

     The plaintiff also claimed that a superior treated him differently than other recruits: by closely scrutinizing his behavior, initiating numerous disciplinary investigations against him, and recommending unusually harsh discipline.

     The panel said that the test of whether conduct by a superior creates an objectively hostile work environment, depends on the frequency and severity of the complained conduct, and "whether it unreasonably interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment."

     The panel concluded the alleged conduct did not create an objectively hostile work environment.

     Glebocki v. City of Chicago, #01-1243, 2002 U.S. App. Lexis 4816, 32 Fed. Appx. 149 (7th Cir. 2002).

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Federal court dismisses a suit filed by an overweight officer who "was humiliated and embarrassed" by having to take a fitness exam, under the threat of disciplinary action.

     A police officer for the Postal Service who weighed 410 pounds was ordered to undergo a Fitness for Duty examination. Management was concerned that the officer could not perform all of his duties because of his weight.

     The officer was found fit for duty and returned to work. He then sued, claiming that he was humiliated and embarrassed by having to subject himself to the exam and that other employees who are not African-American were not sent for a FFDE. He alleged race discrimination, disability discrimination, a hostile work environment and unlawful retaliation.

     The judge noted that "all four of plaintiff's claims require some showing that defendant took some action against him that was significant enough" to support a prima facie claim. Moreover, "the harm suffered may not be subjective, but must constitute an objectively tangible harm."

     The court specifically rejected the officer's claim that "the mere threat of disciplinary action constitutes an adverse employment action." The judge also dismissed as insignificant, a shouting incident with a superior, because no disciplinary action was taken.

     Bunyon v. Henderson, #01-242, 2002 U.S. Dist. Lexis 11435 (D.D.C. 2002).

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Arbitrator sustains management's reshuffling of corrections officers to avoid paying overtime. Actions did not violate the contractual duty to maintain a safe work environment.

     A union of federal correctional officers grieved the way that prison management at the El Reno facility has avoided overtime pay by reassigning on-duty personnel.

     The union complained that management "repeatedly refused to assign overtime work when confronted with a post vacancy" and re-shuffled employees resulting some posts becoming vacant, impacting officer safety.

     Management noted that the bargaining agreement and federal law, provide that management has the sole responsibility of determining internal security issues and the exclusive right to assign work, personnel and overtime, and "to vacate strategically selected posts when necessary."

     The arbitrator denied the grievance. Nothing in the contract indicated an abdication of management's right to determine work assignments and internal security practices on a day-to-day basis.

     Although management did agree to lower hazards to the lowest extent possible, it did not relinquish its right to assign work based on agency needs.

     Moreover, the vacancies causing the reassignments were created by employee absenteeism, which was non-foreseeable and beyond management's control.

     Federal Bureau of Prisons and AFGE L-171, FMCS Case #01/11034, 116 LA (BNA) 1718 (Moreland, 2002).

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

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Arbitrator orders a sheriff to rehire three deputies who were laid-off for financial reasons. The county commissioners failed to justify a budget cut, and sheriff was using special deputies to replace the work performed by laid off bargaining unit members.

     After an Ohio sheriff laid off three deputies, the union grieved. At the hearing it noted that the bargaining agreement allows for layoffs only when "necessary due to lack of work or lack of funds." It argued that the sheriff must do more than note that its budget was cut -- he must justify the budget cut and prove that layoffs are necessary.

     Moreover, the sheriff began using auxiliary and special deputies to replace the work normally performed by paid deputies.

     The arbitrator noted the agreement requires that ALL bargaining unit work be performed by bargaining unit members, "which means that auxiliaries and specials are prevented from performing any duties performed by regular deputies when regular deputies are on lay off."

     He found persuasive evidence that after the layoffs, auxiliaries and specials performed substantial amounts of bargaining unit work -- in violation of the agreement.

     The county also failed to meet its burden of proof that the layoffs in question were necessary. The sheriff "cannot escape its responsibility by attempting to shift the blame to the Commissioners ..."

     Jackson Co. Sheriff and FOP, FMCS Case #01/16348, 116 LA (BNA) 1753 (Kindig, 2002).

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Federal court in NY holds that Muslim firefighters lacked legal standing to challenge management's choice of an Islamic chaplain, but the Islamic Society of NYC firefighters had standing to challenge the selection under the Establishment Clause of the Constitution.

     Various NYC firefighters and a society of Islamic members of the FDNY sued the city and officials, alleging a longstanding pattern of discrimination against Muslim employees of the FDNY, and denying to the society privileges granted to other line organizations.

     The FDNY decided to hire a Muslim chaplain in 2001 and interviewed Imam Abdulmalik, the society's choice. However, the suit alleges, management already decided to hire Dr. Abd'allah A. Adesanya as the Muslim chaplain, without stating a reason for the choice.

     The plaintiffs claim that management "departed from its usual practice of deferring to the leadership of the respective religious communities in New York City when selecting chaplains of the respective faiths," and that Dr. Adesanya's credentials "pale in comparison to Imam Abdulmalik's."

     Plaintiffs sought leave to amend their complaint to add four new claims against the defendants. The defense sought a summary judgment.

     The court said, in order to prove discrimination and retaliation claims under Title VII, plaintiffs must demonstrate that they suffered an "adverse employment action." The question for the Court was whether the decision not to hire Imam Abdulmalik was an adverse employment action.

     The Fifth and Eighth Circuits have held narrowly, that an adverse employment action relates only to as hiring, firing, promotions and demotions. The First, Ninth, Tenth, Eleventh and D.C. Circuits, take an "expansive view" of what may be considered an adverse employment action. New York is in the Second Circuit, which takes a "middle-of-the-road" approach, an adverse employment action is a "materially adverse change in the terms and conditions of employment."

     The judge noted that the plaintiffs' argument is, because they do not like Dr. Adesanya, they will not seek out his counsel, and lack "access" to a chaplain of their faith. The judge said:

"This is exactly the type of claim courts have frequently rejected, because a plaintiff's purely subjective feelings about the events and circumstances surrounding the allegedly adverse employment action do not control. * * *

"... courts in this circuit have universally rejected attempts by plaintiffs to show an adverse employment action based simply on the plaintiff's personal feelings about the employer's actions. * * *

"Plaintiffs' purely subjective feelings about the decision not to hire Imam Abdulmalik is insufficient to demonstrate that Plaintiffs have been 'injured' such that they have standing to bring an Establishment Clause claim."

     However, to the extent that management allowed other religious groups to decide or to influence the decision as to who of their faith should serve as chaplain, the society itself may have suffered a legal injury by management's preferential treatment.

     If management's failure to hire Abdulmalik impaired the society's recruitment abilities, there could be an actual injury. If hiring Dr. Adesanyo was a deviation from a prior practice of deferring to community religious leaders, this could constitute a preference for one religion over another, said the judge.

     The court allowed the society to amend its complaint, and proceed with its claims.

     Islamic Soc. of Fire Dept. Personnel v. City of N.Y., #00 CV 3705, 2002 U.S. Dist. Lexis 10699 (E.D.N.Y. 2002).

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

     Editor's Note: Special interest groups are more likely to prevail when they are treated differently than mainstream organizations. The NYPD had a similar problem when it allowed an Hispanic officers association the use of station bulletin boards, but withheld that privilege from a rival organization because of the content of the messages. Latino Ofcrs. Assn. v. City of N.Y., 1998 U.S. Dist. Lexis 2018 (S.D.N.Y.).

     The position of FDNY chaplain has received new prominence after Fire Chaplain Mychal Judge was killed during the 9-11 terrorist attack. The 2002 amendments to the federal death benefits provision for public safety officers was named after the FDNY chaplain. See H. R. 3297.

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Cook County (Chicago) Sheriff modifies his uniform headwear regulations to accommodate two deputies, a Jewish male and a Muslim female.

     A Jewish male deputy may now wear a yarmulke (skull cap) under his regulation sheriff's hat.

     The Muslim officer may now wear her hijab (religious scarf) under her sheriff's hat. The scarf cannot cover her neck, but she can wear a regulation turtleneck shirt under her uniform to cover her neck.

     The woman deputy plans to seek monetary damages for emotional distress. In re Crystal Clark and Larry Davidson (claimants) and Michael Sheehan, Cook Co. Sheriff  (respondent). Source: Chicago Sun-Times (7/7/02).

     Research Note: The U.S. Supreme court has upheld the right of the federal government to regulate clothing of uniformed personnel. An Air Force rabbi could not wear a yarmulke. Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 1986 U.S. Lexis 34 (1986).

     In 1994 OSHA exempted Sikhs and other persons who refuse to wear hard-hats for religious reasons; the exemption reinstated a 1978 exception (withdrawn in 1990) for the Old Order Amish and Dharma Brotherhood, and OSHA has extended it to "any employee" who objects for religious reasons. OSHA Instruction STD 1-6.5 (6/20/94).

     In 1997 an arbitrator ordered reinstatement and back pay to a Muslim hospital worker who wore a skull cap and shirt hanging over his trousers, in defiance of the facility's dress code. The arbitrator held that the employer failed to accommodate the employee's religious beliefs concerning clothing. Liberty Medical Center, 109 LA (BNA) 609 (Gentile, 1997).

     Last year, the U.S. Supreme Court refused to hear the appeal of another Muslim employee who was transferred because she refused to stop wearing a hijab. Title VII makes it unlawful to "segregate or classify" employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of religion. 42 U.S. Code §2000e-2(a).

     Avoiding a decision on the claim on the merits of the dispute, the Fourth Circuit held, in an unpublished opinion, that an involuntary transfer was not an "adverse employment action," within the meaning of Title VII, and she could not maintain a damage claim. Ali v. Alamo Rent-A-Car, #00-1041, 2001 U.S. App. Lexis 3389 (Unpub. 4th Cir. 2001); cert. den. #00-1813, 2001 U.S. Lexis 7353 (2001).

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Age Discrimination - Entry

     The fact that a police applicant is presently too old under state law to be appointed does not prevent him from recovering for race discrimination, as he was under the maximum age when he was not hired. O'Neal v. City of New Albany, #00-3091, 2002 U.S. App. Lexis 11740 (7th Cir. 2002).

Age Discrimination - Termination / Mandatory Retirement

     An older male employee who resigned, after repeatedly receiving pamphlets about aging and erectile dysfunction from coworkers, can bring an age bias claim, but not a sex discrimination claim. Pamphlets were in bad taste, but were not severe enough to create a hostile work environment claim. He can maintain a constructive discharge claim for an ADEA violation. Keown v. Richfood Holdings, #01-2156, 2002 U.S. Dist. Lexis 10835 (E.D.Pa. 2002).

Arbitration Procedures

     Where the American Arbitration Association deviated from the arbitrator selection process in the employment agreement, and the employee did not timely object, the objection was waived and the award is valid. Brook v. Peak Intern., #01-50339, 2002 U.S. App. Lexis 11627 (5th Cir. 2002).

Attorney-Client Confidentiality & Ethics

Michigan appeals court holds that memoranda by in-house legal counsel "is clearly covered by the attorney-client and work-product privileges," and does not lose its privileged character even if another court orders production. Leibel v. General Motors Corp., #224734, 250 Mich. App. 229, 2002 Mich. App. Lexis 302 (Mich. App. 2002).

Back Pay Claims and Awards

     Massachusetts Appeals Court concludes that a police officer who was suspended for threatening and stalking his girlfriend, and later indicted on drug charges while on suspension, is entitled to back pay for the suspension period because the stalking charges were dropped. Brittle v. City of Boston, #99-P-893, 54 Mass.App. 820, 768 N.E.2d 576, 2002 Mass. App. Lexis 738 (2002).

Bill of Rights Laws

     California appellate court holds that the state's "Bill of Rights" law requiring accused officers to be given all "reports" pertaining to the I-A investigation includes notes and recordings made by investigating officers. San Diego P.O.A. v. San Diego, #D037812, 2002 Cal. App. Lexis 4145, 02 C.D.O.S. 5008 (Cal. 4th App. Dist. 2002).

Collective Bargaining - In General

The President has exempted certain Dept. of Justice personnel from collective bargaining rights under 5 U.S. Code Ch. 71. The affected employees have intelligence, counterintelligence, investigative, or national security work as a primary function. Amendment to Executive Order No. 12171.

Collective Bargaining - Duty to Bargain

     The Federal Labor Relations Authority holds that management has no duty to bargain over a union proposal to limit the number of people who would have access to home phone numbers, as the proposal would interfere with management's right to assign work. AFGE L-2280 and Veterans Affairs Med. Ctr., 57 FLRA No. 158 (FLRA 2002).

Death Benefits

     New law allows federal benefits for designated life insurance beneficiaries, including domestic partners, of unmarried and childless police officers or firefighters who are killed in the line-of-duty. The amendment to the Omnibus Crime Control and Safe Streets Act of 1968 removes a condition that payment of the $250,000 benefit is limited to the spouse or children of the deceased. The amendment also extends survivor death benefits to chaplains, volunteer or paid, of any legally organized fire or police department. The law now allows same and opposite gender domestic partners to receive survivor benefits if they are listed as life insurance beneficiaries, and there is no surviving spouse or children. H. R. 3297 enacted as Pub. L. No. 107-196 (6-24-2002).

Defamation

     Public official was not entitled to a court order compelling a reporter to disclose his source for an allegedly defamatory article. Weinberger v. Maplewood Review, #C7-01-2021, --- N.W.2d ---, 2002 Minn. App. Lexis 711 (Minn. App. 2002).

Disciplinary Offenses - In General

     Third Circuit holds that a corrections officer has a legal duty to intervene and prevent the excessive use of force, even if caused by supervisors or superior officers. "The duty to uphold the law does not turn upon an officer's rank." Smith v. Mensinger, #99-1382, 2002 U.S. App. Lexis 11678 (3rd Cir. 2002).

Disciplinary Punishment - In General

     Seventh Circuit upholds the termination of a police officer who patronized prostitutes while on duty, falsified his departmental health appraisal, and consumed alcohol while on duty. Krocka v. Police Bd. of Chicago, #1-00-2639, 327 Ill.App.3d 36, 762 N.E.2d 577, 2001 Ill. App. Lexis 933 (7th Cir. 2001).

Drug Screening and Specimen Testing

     A police officers' federal challenge to his employer's drug and alcohol screening program failed. Byrne v. Mass. Bay Transp. Auth., 196 F.Supp.2d 77 (D.Mass. 2002).

Free Speech

     Supreme Court declines to review a holding that a county did not violate a worker's Free Speech by suspending him for expressing a "negative attitude and personal antagonism" toward local and state policies. Michael v. St. Joseph Co., 259 F.3d 842, 2001 U.S.App. Lexis 17268 (7th Cir.); cert. den. #01-1441, 122 S.Ct. 2328, 2002 U.S. Lexis 4055, 70 U.S.L.W. 3741 (2002).

Handicap/ Abilities Discrimination - In General

     Employers with less than 15 workers are subject to discrimination provisions of §504(d) of the Rehabilitation Act if they are recipients of federal assistance. Schrader v. Ray, 00-5224, 2002 U.S. App. Lexis 14344 (10th Cir. 2002).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Appeals court holds that a rejected LAPD applicant with an artificial leg was not protected under California's disability discrimination law. "The police department is the sole judge of whether it wishes to assume the risk of hiring an officer whose prosthetic leg may rotate or, even worse, fall off while he is running on uneven ground, climbing six-foot fences, jumping over obstacles, or climbing an embankment," Christensen v. City of Los Angeles, #B149031, 2002 Cal. App. Unpub. Lexis 1680 (Cal.App. 2002).

Injuries to Employees

     South Carolina Supreme Court declines to adopt the "Firefighter's rule," a common law doctrine which limits or prevents lawsuits brought by police, fire and corrections officers against persons or businesses that have negligently caused their injury. Minnich v. Med-Waste, #25468, --- S.E.2d ---, 2002 S.C. Lexis 91 (2002).

Marital Status Discrimination

     Terminating an employee because of adultery is not marital discrimination prohibited by state law. Such laws protect status, not conduct. Veenstra v. Washtenaw Country Club, #117985, 466 Mich. 155, 645 N.W.2d 643, 2002 Mich. Lexis 2888 (Mich. 2002).

Occupational Safety & Disease

     London's Metropolitan Police Commissioner Sir John Stevens and his predecessor Lord Condon will stand trial, charged at Southwark Crown Court, for failing to ensure the "health, safety and welfare" of officers after police constables fell through roofs as they chased suspects. Evening Standard (London) June 19, 2002.

Privacy Rights

     Supreme Court holds that the Family Educational Rights and Privacy Act of 1974, 20 U.S. Code §1232g, which prohibits the release of students education records without parental written consent, did not create an independent right to sue for violations, and §1983 cannot be used as a piggyback vehicle to prosecute an action for damages. Gonzaga Univ. v. Doe, #01-679, 122 S.Ct. 2268, 2002 U.S. Lexis 4649 (2002).

Racial Harassment

     New Jersey State Police pays $5 million to settle a suit filed by 13 black state troopers who were harassed and denied promotions. Individual awards range from $225,000 to $500,000, plus attorney's fees. Davis v. New Jersey Dept. of Law and Public Safety, #L-2229-97 (N.J. Mercer Co. Super. 2002); N.J. Law Journal (7-9-2002); prior interim opin. at 327 N.J. Super. 59, 742 A.2d 619, 1999 N.J. Super. Lexis 424 (1999).

Race: Reverse Discrimination

     Federal appeals court rules against white police officers who challenged the promotion of minority officers under an affirmative action plan, which remedied past discrimination. Although promoting 20 black, Hispanic, and female police officers because of their race, national origin or gender was discriminatory, the need for the promotions outweighed the impact on the white male officers. Reynolds v. City of Chicago, #00-3771, 2002 U.S. App. Lexis 12274 (7th Cir. 2002).

Residency Requirements

     Members of the Wyoming National Guard who were dismissed for failing to meet the state's newly enacted residency requirements are entitled to reinstatement because the requirement violates the Privileges and Immunities Clause. The decision is grounded on the fact that the National Guard is peculiarly a federal and state agency. Nelson v. National Guard Assn. (Wyoming), #00-8039/93, 2002 U.S. App. Lexis 13267 (10th Cir. 2002).

Sexual Harassment - In General

     A corrections sergeant who alleged seven instances of hostile or abusive comments on her gender and pregnancy adequately pled a claim for hostile work environment discrimination. Gorski v. N.H. Dept. of Corrections, #01-1995, 290 F.3d 466, 2002 U.S. App. Lexis 9828 (1st Cir. 2002).

Sexual Harassment - Verdicts, Settlements & Indemnity

Federal judge sets aside a $3 million verdict for sexual harassment of a woman police officer as "grossly excessive;" damages reduced to $300,000. Spina v. Forest Preserve Dist. of Cook Co., #98-C-1393, 2002 U.S. Dist. Lexis 9818 (N.D.Ill. 2002). See our article in the Feb. 2002 issue.

Stress Related Claims and Defenses

     California appeals court denies a stress claim resulting from a reduction in force demotion. Injuries caused by "a lawful, nondiscriminatory, good faith personnel action" are not compensable under the state's workers' comp. laws. City of Oakland v. Workers' Compensation Appeals Board, #A095800, 02 C.D.O.S. 5208, 120 Cal.Rptr.2d 873, 2002 Cal. App. Lexis 4227 (Cal. App. 1st Dist. 2002).

Taxation

     IRS ruling provides that N.Y.C. accidental death benefits payable to a spouse are not includible in the gross estate of a police officer or firefighter because they are payable pursuant to state laws, do not represent the value of contributions to a pension fund, and the deceased had no interest in them at the time of death. Rev. Rul. 2002-39, Internal Revenue Bulletin 2002-27.

Unemployment Compensation Claims

     State Unemployment Board should have denied benefits to an employee who was fired for misconduct by the Board of Fire and Police Commissioners. Doctrine of Collateral Estoppel applies. Vil. of Oak Park v. IL Dept. of Emplmt. Security, #1-01-3113, 2002 Ill. App. Lexis 535 (Ill. App. 1st Dist. 2002).

Whistleblower Requirements and Protection

     Assistant U.S. Attorney wins $200,000 in punitive damages against the Justice Dept. for imposing a pretextual five-day suspension after he contacted a member of Congress about hazardous waste contamination at an airport. Environmental whistleblowers are protected under 33 U.S. Code §1367, 42 U.S. Code §6971 and §7622. Sasse v. Dept. of Justice, #1998-CAA-7, 40 (1962) G.E.R.R. (BNA) 557 (ALJ decis. 2002); facts and jurisdiction at ARB #99-053, 2000 DOL Ad. Rev. Bd. Lexis 94 (DoL-Adm.Rev.Bd. 2000).

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Online book: "The Lie Behind the Lie Detector," By George W. Maschke and Gino J. Scalabrini, 2nd edit., 176 Pages, 739kb PDF format. Published by AntiPolygraph.org

Website: OSHA has developed an electronic tool for the proper use and selection of eye and face protection.

Website: The U. S. Dept. of Labor, Office of Labor-Management Standards, has launched a searchable website that allows visitors to access annual financial reports of labor unions.

Website: The U.S. Dept. of Labor also provides information on how to establish drug-free workplace programs to ensure safe and healthful workplaces.

Website: White House information site on the Dept. of Homeland Security.

CROSS REFERENCES