Arbitrator concludes he has the power, under contractual grievance procedures, to interpret and implement a civil service board remedy.

     The Cook County Sheriff in Chicago is bound by a contractual agreement, which provides that members of the bargaining unit are entitled to appeal routine grievances to arbitration, except in cases where there is disciplinary punishment in excess of a 30-day suspension. The more serious cases are appealed to a statutory Merit Board.

     Here, an officer was fired and the Merit Board reduced the penalty to a 120-day suspension. Because there were 168 days between his termination and reinstatement, he sought pay and benefits for the added 48 days he was out of work. When the demand was denied, it proceeded to arbitration.

     The arbitrator rejected management's claim that because the penalty was more than 30 days, the matter was not grievable. He noted that the grievance did not challenge the decision or the discipline imposed by the Merit Board. Rather it protested the Sheriff's interpretation of the reinstatement order and is therefore arbitrable.

     Additionally, the arbitrator ruled that the burden of proof, as to the justness of the decision not to reimburse the officer, falls on the employer. Sheriff of Cook County and AFSCME L-3692, 117 LA (BNA) 1745 (Wolff, 2002).

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

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California appeals court upholds a state law requiring candidates for sheriff to have prior law enforcement experience.

     A county registrar of voters in California notified a candidate for sheriff that he lacked the statutory qualifications of prior law enforcement experience. He sued in state court, alleging that the law unconstitutionally prevented private citizens from becoming candidates in sheriff elections. The candidate lost his challenge and appealed.

     A three-judge appellate panel noted that the provision was politically neutral and that a law enforcement experience requirement does not significantly impair access to the ballot, stifle speech or dictate an electoral outcome. They said:

     "There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office."

     Rawls v. Zamora, #H024372, 2003 Cal. App. Lexis 552 (6th Dist. 2003).

     • Click here to read the opinion on the Internet. [PDF]

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New Jersey Supreme Court awards compensation benefits to a retired fire captain who contracted emphysema, even though he was a heavy smoker for many years and had a family history of the condition.

     A fire captain with more than 22 years of service retired and shortly thereafter contracted emphysema. He sought job-related worker's compensation benefits, alleging occupational exposure to respiratory irritants while employed as a firefighter.

     The New Jersey Supreme Court noted that the claimant was exposed to heavy smoke for as long as forty-five minutes and fought fires involving burning chemicals, plastics, household cleaners, and propane.

     The city claimed his disability was not job-related because he had smoked 15 cigarettes per day for twenty-plus years, until he quit a few years ago. His grandfather had died of the disease, indicating a family propensity.

     The claim was supported by the testimony of a heart and lung specialist who found, back in Jan. 1995, that the captain suffered from "chronic obstructive pulmonary disease (COPD) in the form of emphysema." He attributed the condition primarily to occupational exposure as a firefighter to fire, smoke, hazardous waste, combustion, and secondarily to cigarette smoking, but was unable to allocate exact percentages to each cause.

     A Compensation Judge found that occupational exposure materially contributed to the development of emphysema and awarded a thirty percent disability for emphysema. The appellate court disagreed, but the Supreme Court has reversed.

     The justices noted the existence of studies that support the relationship between exposure to pollutants at work can cause emphysema. Although cigarette smoking is an important risk factor, environmental exposure alone can cause emphysema. There was sufficient scientific data in support of this claim to allow the Compensation Judge to find in the claimant's favor.

     The New Jersey statute created a presumption of job-induced causation, which was supported by medical evidence, which was not rebutted by the city. Lindquist v. Jersey City Fire Dept., A-84-01, 175 N.J. 244, 814 A.2d 1069, 2003 N.J. Lexis 25 (2003).

     • Click here to read the opinion on the Internet.

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Supreme Court declines to review the termination of a police officer who had been fired for excessively self-centered personality traits. The officer's appeal was dismissed for a repeated failure to comply with the city's discovery requests. Dismissal of an appeal is an appropriate sanction, and does not deny an appellant's due process rights.

     Following an incident where a Salt Lake City officer "acted unprofessionally" and violated the agency's deadly force policy, a Fitness For Duty Exam was compelled. The examining doctor found that the officer had "Disordered Personality Traits" that caused him to place himself in jeopardy in the shooting incident, he was excessively self-centered, and was unwilling to learn from peers or superiors.

     The personality traits were likely to cause isolation and alienation and were "resistant to psychotherapeutic intervention, additional training, closer supervision or disciplinary action."

     Because those traits increased the risk for harm to the officer and his coworkers, the FFDE concluded that the officer Joseph was "not psychologically suitable to perform the duties of a police officer." His employment was terminated and an appeal was taken to the Civil Service Commission.

     Over the course of the appeal, the officer and his attorney failed to comply with seven discovery requests. His petition was rejected for procedural deficiencies, and he appealed to the Utah Court of Appeals.

     A three-justice panel concluded that the Civil Service Commission "had an ample basis to justify sanctioning [the plaintiff] for his continued failure to comply with the City's discovery requests." Dismissal of his appeal was an appropriate sanction.

     The ex-officer sought review by the U.S. Supreme Court, claiming that the dismissal of his appeal was a denial of his right to Due Process, and that he was unconstitutionally prejudiced because the City Attorney's Office defended the city in his appeal and also served as legal advisor to the Civil Service Commission.

     The Supreme Court denied review, without comment. Joseph v. Salt Lake City, #20010399-CA, 2002 UT App 254, 53 P.3d 11, 2002 Utah App. Lexis 72; cert. den., #02-1211, 2003 U.S. Lexis 2973 (4/21/2003).

     • Click here to read the opinion on the Internet.

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Arbitrator reinstates a corrections officer who was fired for abusive and profane language towards a lieutenant. The lieutenant was no longer employed at the prison and the hearsay evidence against her was not sufficiently persuasive to warrant her termination.

     The grievant allegedly stormed into her shift commander's office, threw a piece of paper and said that she was going to "fucking sue" him and then yelled, "Fuck you and Fuck that -- I am writing you the fuck up and ... all you Mother Fucking Supervisors."

     She was fired the same day and filed a grievance, leading to arbitration. Management introduced a written document signed by the shift lieutenant, but he no longer was employed at the prison, and management made no effort to produce him at the hearing -- and no subpoena had been requested.

     Management's case against the grievant was based entirely on hearsay evidence. Other than the grievant, the lieutenant was the only other person present during the alleged confrontation. The arbitrator noted that the Warden's testimony was purely hearsay.

     The grievant denied being loud or using profanity. The arbitrator noted that although hearsay evidence is admissible, "it is generally not given much weight, especially if the only evidence to meet the burden of persuasion is uncorroborated hearsay or the hearsay is contradicted by testimony of a witness who has been subject to cross-examination."

     Management was ordered to reinstate the grievant with back pay, benefits and seniority. Wackenhut Corrections Corp. and Delaware Co. Prison Employees, FMCS Case #02/12669, 118 LA (BNA) 63 (O'Connor, 2003).

     • Click here to read the opinion on the AELE website

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Pennsylvania appeals court affirms right of a woman police lieutenant to recover benefits for stress resulting from male harassment because of her promotions. The city had failed to seriously investigate her claims in a timely manner.

     A woman police sergeant complained that after she was promoted to lieutenant several male officers began to harass her. After she applied for a commander position, other police officers began to harass her sons through arrests on five occasions, all of which resulted in dismissal of the charges. Her eldest son, a new police recruit, also was harassed, was denied backup in dangerous situations, and was nearly run down by a police driver.

     She filed fourteen harassment complaints between 1994 and 1996. The City could produce only four dispositions, one of which was three years after the complaint was filed, and another was over two years, although regulations require dispositions within ninety days.

     An arbitrator initially denied her harassment claims on the ground that she had not established that her mental injury was caused by abnormal working conditions involved in the performance of her duty. He also concluded that the city's failure to dispose of her written complaints did not constitute abnormal working conditions because she filed the complaints as a mother rather than as a police officer.

     She sought judicial review and a trial court reversed the arbitrator, holding among other things that he erred in requiring her to establish abnormal working conditions and exceeded his authority in denying her right to benefits.

     The trial court noted also that ongoing harassment from coworkers or supervisors gives rise to abnormal working conditions. Work conditions that "place an employee in the position of choosing between continuing her duties or being subjected to repeated harassment and having her children assaulted, harassed, insulted, nearly run down and sent into life-threatening situations without proper support cannot be considered normal under any definition."

     On appeal, a three-judge panel affirmed. The circumstances "unequivocally involved abnormal working conditions." The city's actions against the lieutenant and her children and the failure to properly resolve her resulting complaints constituted abnormal working conditions.

     Sloan v. City of Pittsburgh Police Dept., #1024 C.D. 2002 (Unpublished, Pa. Commw. 2003); prior decis. at 779 A.2d 598, 2001 Pa. Commw. Lexis 432 (2001).

     • Click here to read the opinion on the AELE website. [PDF]

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Federal court rejects claim that a disabled detective was entitled to a permanent light duty position. The fact that he satisfactorily performed his duties in a wheelchair while his condition was under evaluation did not require management to make the assignment a permanent one.

     A detective was diagnosed with multiple sclerosis in 1990. In 1992, the plaintiff's job was modified to allow him to complete investigations from within the police station. He satisfactorily performed his duties, using an electric wheelchair, until forced to take a medical pension in 1996.

     A federal court has rejected his ADA lawsuit. He "was not able to run or engage in physical altercations which are abilities a police officer ... and that there was no accommodation which would enable him to do so." He was not a qualified individual for purposes of continued employment as a police officer.

     The court said the fact that the city had allowed him to remain an investigator working inside for several years "does not mean defendant had created an investigator position that eliminated the need for these physical abilities." A temporary adjustment "does not obligate [an employer] to make the position permanent." Doner v. City of Rockford, 2003 U.S. Dist. Lexis 1792, 2003 WL 262514 (N.D. Ill. 2003).

     • Click here to read the opinion on the AELE website.

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Federal court in Ohio gives a police officer $320,511 in damages for discrimination after he changed his gender to female.

     In 1998 a male Cincinnati police officer scored 18th out of the 105 who took the sergeant's exam. The 22-year veteran then underwent hormone therapy in preparation for sexual reassignment surgery.

     He was promoted to sergeant but allegedly was told by a Lieutenant Colonel that he "was not masculine enough and that he needed to change his demeanor." Eventually, he failed his probationary period, and was the only person to fail the probationary period in the history of the agency.

     He changed his name from Phillip to Philicea, and sued under federal and state discrimination laws after the demotion -- allegedly the result of the plaintiff's transsexuality and failure to conform to gender stereotypes.

     The jury awarded the plaintiff $150,000 in compensatory damages and $140,000 in front pay. An additional $30,511 in stipulated back pay and at least $300,000 in attorney's fees will be demanded. Barnes v. Cincinnati, #C-1-00-780, 41 (2001) G.E.R.R. (BNA) 294 (S.D. Ohio 2003).

     • There is no opinion, click here to view the court's docket entries on the AELE website.

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Arbitrator holds, in the absence of specific language, pay differentials given to sheriff's officers on military leave should include housing allowances in the computation only for those who did not incur additional housing expense when serving on military leave.

     Both the union and management agreed that the purpose of the county's pay differential plan is to compensate officers for their pay losses when serving on military leave. Whether the county's payment should be the difference between an officer's regular and military salary, or military salary plus housing allowances, was the subject of an arbitration award.

     The bargaining agreement did not specifically address the issue. The arbitrator said that a distinction should be made between those officers that actually incurred additional housing expense, and those that did not.

     For those who actually incur additional expenses for housing and subsistence, the inclusion of allowances in computing pay differential would result in an economic loss and the allowances should be excluded when computing the pay differential.

     For those who do not incur the extra housing and subsistence expenses while on leave, the allowances actually increase their net military compensation and the allowances should be included for the purpose of computing the differential payment, as it would "provide a windfall" for those officers. Franklin Co. Sheriff's Office and FOP L-9, 117 LA (BNA) 1821, FMCS Case #02/05119-6 (Goldberg, 2002).

     • Click here to view the Award on the AELE website.

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Update: New Jersey police and fire discrimination cases still active after 30 years.

     The Jersey City police discrimination case has been going on almost 31 years; the fire discrimination case for 30 years. The two cases have been before four federal trial court judges; three have since retired. One of the original police applicants was a plaintiff, and later became a defendant when he served as director of the police department.

     Various parties intervened, resulting in consent decrees with the state, the Dept. of Justice, dozens of cities and their public employee unions. In January of this year, a federal judge ordered Newark to hire 57-year-old as a police officer for a week so he could then immediately retire with backpay and a pension back-dated to 2001.

     Employment quotas were imposed; Newark had to hire one minority officer for every two whites, and Hoboken had to fill 40 percent of its firefighter jobs with minorities. Various U.S. District and Appeals courts throughout the country have cited the many published decisions in the two cases. Vulcan Pioneers v. New Jersey, #950-73 (D.N.J.); Bronze Shields v. New Jersey, #2022-72 (D.N.J.).

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Ohio appeals court rejects state liability for the termination of a woman probationary trooper, and the reinstatement of a tenured male trooper, after an evening of drinking and consensual sex.

     A woman state trooper in Ohio, while off-duty, drank too much and had sex with an instructor at the academy. She and the male trooper were terminated, but the male officer was ultimately reinstated in an arbitration proceeding. The woman officer was still a probationary trooper and was not entitled to challenge her dismissal via arbitration.

     Instead, she sued the state for sex discrimination and sexual harassment, because management was aware that the male trooper had previously engaged in extra-marital activity.

     The trial court ruled for the employer, and a three-judge appeals panel has affirmed. First of all, she voluntarily had sex with the male trooper. Second, his buying several drinks for her and ultimately having sex with her in the highway academy building was not part of his employment.

     As far as management's knowledge of his prior sexual activity, the state patrol had no duty to supervise the instructor while he was off-duty. The panel said:

"Although Trooper M_ had engaged in extra-marital sexual relations before he became involved with Ms. B_, his previous sexual activity did not mean that the highway patrol had a duty to fire him or that the highway patrol was negligent for hiring him in the first place.

"The evidence showed that the highway patrol had knowledge of the previous extra-marital affair, confirmed by its prompt investigation to have been a consensual relationship conducted entirely outside the scope of either participant's duties."

     The panel concluded that the instructor's prior behavior was "legally insufficient to establish foreseeability" in regard to the plaintiff's negligent hiring and negligent retention claims. Browning v. Ohio Highway Patrol, #02AP-814, 151 Ohio App.3d 798, 2003 Ohio 1108, 2003 Ohio App. Lexis 1051 (10th Dist. Ohio App. 2003).

     • Click here to read the opinion on the AELE website.

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Supreme Court declines to hear the appeal of a "Five Percent" adherent, who claimed he was fired because of his religious beliefs.

     The plaintiff worked for the City of New York from 1985 until 1999. He was terminated for failing a drug test, striking and intimidating a supervisor, using obscene language to the supervisor, failing to obey a lawful order, engaging in disruptive conduct, excessive tardiness, and neglect of duties.

     He claimed the city discriminated against him because of his unorthodox religious beliefs. His principal evidence of discrimination was that his superiors were white, and others have received lesser disciplinary punishment.

     The trial court dismissed the suit, and a three-judge panel of the Second Circuit affirmed. The U.S. Supreme Court has declined to review the case. Allah v. City of N.Y., #01-9114, 47 Fed. Appx. 45, 2002 U.S. App. Lexis 20475 (Unpub. 2nd Cir. 2002); cert. denied, 2003 U.S. Lexis 1761 (S.Ct. 2003).

     Editor's Note: Five Percenters are blacks that follow teachings called "Supreme Mathematics." The name comes from a tenet that only five percent of the population knows or teaches the truth. The adherents practice Islam and believe that while Allah is the Supreme Being, black men are gods. The five percent figure purportedly originated with Nation of Islam leaders Elijah Muhammad and Fard Muhammad in the 1930s.

     • Click here to read the Second Circuit's opinion on the AELE website.

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Defamation - In General

     Federal appeals court holds that a county is not liable under §1983 for public statements made by a member of the county board of commissioners concerning the job performance of a county employee. Also, under state law, the commissioner was entitled to absolute immunity for his statements. LaVerdure v. Co. of Montgomery, #02-2773, 2003 U.S. App. Lexis 6547 (3rd Cir. 2003). [PDF]

Disciplinary Hearings - Tenured/General

     California appeals court holds that officers are not entitled to confront and cross-examine witnesses during a Bill of Rights hearing contesting the contents of a written memoranda, placed in their personnel files, for use during their next performance review. James v. City of Coronado, #D039686, 2003 Cal. App. Lexis 313 (4th Dist. 2003). [PDF]

Disciplinary Hearings - Untenured

     Terminated at-will police officer did not have a protected property interest in continued employment, and could not show that the defendants made any untrue or stigmatizing public statements. Eddings v. City of Hot Springs, #02-1895, 2003 U.S. App. Lexis 4246(8th Cir. 2003). [PDF]

Disciplinary Offenses

     Arbitrator upholds disciplinary action against a corrections officer who threatened to "get even" with an inmate that had filed grievance against an officer; corrections officials cannot punish or retaliate against inmates who exercise their First Amendment rights. In re Wackenhut Corrections Corp. and Delaware County Prison, FMCS Case #02/12670-7, 117 LA (BNA) 1802 (Smith, 2002).

Fair Labor Standards Act - 7K Exemption

     Federal appeals court holds that a city can elect not to use the FLSA's Section 207(k) exemption and to pay a firefighter assigned to administrative duties overtime after 40 hours a week. Potter [and Sharpe] v. Cureton, #00-5805, 319 F.3d 259, 2003 U.S. App. Lexis 2643, 8 WH Cases 2d (BNA) 801, 2003 FED App. 0050P (6th Cir. 2003).

Handicap Laws / Abilities Discrimination - Accommodation - General

     A court employee with "cluster headaches" who frequently had been given leave time over a period of years, was not entitled to an "indefinite leave," which is not a reasonable accommodation. Wood v. Green, #02-12971, --- F.3d ---, 14 AD Cases (BNA) 103, 2003 U.S. App. Lexis 4470 (11th Cir. 2003).

     Federal appeals court holds that a city had no duty to accommodate, and could lawfully terminate a deputy marshal who, after an injury, was unable to hold a firearm in his right hand. Kaplan v. City of North Las Vegas, #02-16048, 2003 U.S. App. Lexis 6221 (9th Cir. 2003). [PDF]

Handicap Laws / Abilities Discrimination - Constitutionality

     The Eleventh Amendment does not prevent the United States from suing a state under the ADA. U.S. v. Miss. Dept. of Public Safety, #02-60048, 2003 U.S. App. Lexis 1965, 13 AD Cases (BNA) 1706 (5th Cir. 2003). [PDF]

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A person with voice impaired by laryngeal dysphonia is not substantially limited in the ability to talk. Hooper v. Saint Rose Parish, #99 C 6267, 2002 U.S. Dist. Lexis 10936 and 205 F.Supp.2d 926, 2002 U.S. Dist. Lexis 12850, 13 AD Cases (BNA) 1742 (N.D. Ill. 2002).

     A manager with attention deficit hyperactivity disorder was not entitled to reinstatement following his termination for repeated tantrums. Calef v. The Gillette Co., #02-1444, 322 F.3d 75, 2003 U.S. App. Lexis 4253, 14 AD Cases (BNA) 110 (1st Cir. 2003).

Homosexual & Transgendered Employee Rights

     Federal appeals court upholds conviction of a Naval petty officer for soliciting homosexual acts with other seamen. Turner v. Dept. of Navy, et al., #02-5067, 2003 U.S. App. Lexis 7082 (D.C. Cir. 2003).

National Origin Discrimination

     Jury awards $3,591,000 to an Asian-American LAPD officer who allegedly suffered harassment and retaliation from his supervisors. The incidents, over a seven-year period, ranged from a failure to respond to his backup calls to putting women's underwear in his work mailbox. Nagatoshi v. City of Los Angeles, Superior Ct. #BC260299, 41 (2004) G.E.R.R. (BNA) 383 (jury verdict 2003).

Past Practices, Precedents & Zipper Clauses

     Arbitrator overturns a management requirement that detectives take off on a specified holiday, rather than choose their leave day, where a past practice of choosing a floating recreation day had been followed for more than ten years. The right of management to determine work periods did not override a past practice. In re Port of Portland and AFSCME L-1847, 118 LA (BNA) 83 (Reeves, 2002).

Political Activity/Patronage Employment

     Ninth Circuit upholds the rights of a newly elected prosecutor to terminate at-will confidential secretaries that were hired by and loyal to his predecessor. Hobler v. Brueher, #00-35589, 2003 U.S. App. Lexis 6596 (9th Cir. 2003). [PDF]

Race: Affirmative Action & Quotas

     Federal appeals court holds that Boston, acting under a 29-year-old federal court decree, overcorrected its disparate hiring of white firefighters and was now biased against them. Quinn v. City of Boston, #02-1727, 2003 U.S. App. Lexis 5860 (1st Cir. 2003). However, the city's race-conscious plan to promote African-American police officers, which had the same ranking as whites on the promotional eligibility list, was constitutional because of a proven need to remedy past discrimination. Cotter v. City of Boston, #02-1404, 2003 U.S. App. Lexis 5695 (1st Cir. 2003).

Retirement Rights and Benefits

     Supreme Court to decide, in the 2003 Fall Term, whether a retirement plan designed to benefit workers currently over age 50 discriminates against younger employees. General Dynamics Land Systems v. Cline, #02-1080, cert. gtd., (2003); prior decision at 296 F.3d 466, 2002 FED App. 0242P (6th Cir. 2002).

Sexual Harassment - In General

     A prison warden's preferential treatment of his paramours was not pervasive harassment and did not alter the conditions of the plaintiffs' employment because of their gender. Mackey v. Dept. of Corrections, #C040262, 105 Cal.App. 4th 945, 130 Cal.Rptr.2d 57, 2003 Cal. App. Lexis 120, 90 FEP Cases (BNA) 1651 (2003). [PDF]

Sexual Harassment - Verdicts, Settlements & Indemnity

     California county agrees to pay $250,000 to a former ranger for gender bias and harassment. She alleged continuing mistreatment after the county settled an earlier lawsuit that she had filed. Christensen v. Monterey County, as rptd. in the Monterey Herald (3-23-2003).

Union and Associational Activity

     Arbitrator finds that management improperly lowered two employee's performance ratings in retaliation for their union organizing activities. Naval Surface Weapons Center (Carderock Div.). and Int. Assn. of Mach. & Aerospace Workers L-282, 118 LA (BNA) 55 (Allen, 2002).

     Federal appeals court allows a union to charge a "reentry fee" equal to unpaid dues, to former union members who resigned but continued to be members of the bargaining unit, as it promotes union membership, and permits members to resign without coercion. Lee v. NLRB, #01-1434, 2003 U.S. App. Lexis 6572 (6th Cir. 2003).

Wrongful Discharge/Discipline: Damages & Settlements

     New York trial court reduces a $10 million punitive damages jury award to $500,000. A wrongfully terminated worker endured hostile and egregious behavior from hotel magnate Leona Helmsley, aka the "Queen of Mean", but the damages were grossly excessive. Bell v. Helmsley, #111085/01, 2003 NY Slip Op 50616U, 2003 N.Y. Misc. Lexis 192, 91 FEP Cases (BNA) 320 (N.Y. Misc. 2003).

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     Report: The Equal Employment Opportunity Cmsn. has issued the 2001 statistics for "Occupational Employment in Private Industry by Race/Ethnic Group/Sex, and by Industry."

     Website - FLSA/overtime claims: A U.S. Dept. of Labor chart compares the current requirements for exemption as an executive, administrative, professional, computer or outside sales employee with the new proposed regulations.

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.

CROSS REFERENCES