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Fire and Police Personnel Reporter
An employment law publication for law enforcement,
corrections and the fire/EMT services
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ISSN 0164-6397

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2003 FP Nov (web edit.)

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CONTENTS

Featured Cases with Links
Disciplinary Offenses
Disciplinary Punishment - Disparate Treatment
Employee Harassment - Nonsexual
Privacy Rights
Psychological Exams - Fitness for Duty
Race Discrimination - In General
Race - Reverse Discrimination
Sexual Harassment - Retaliation
Sexual Harassment - Settlements
Training Rights & Reimbursement
Uniforms, Clothing and Equipment
Whistleblower Protection (2 cases)

Noted in Brief
Alcohol Testing
Arbitration Procedures
Certification Rights
Criminal Liability
Disciplinary Punishment (2 cases)
E-Mail/Internet - Legal Issues
Health Insurance
Homosexual & Transgendered Rights (2 cases)
Impasse Arbitration
Inefficiency and Incompetence
Injuries to Employees (2 cases)
Past Practices Clauses
Picketing
Sex Discrimination - Retaliation
Sexual Harassment
Transfers - Disciplinary or Punitive
Visual Acuity Standards
Whistleblower Protection

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENTS

Disciplinary Offenses

Arbitrator upholds the disciplinary suspension of an Air Force employee who repeatedly made verbally abusive comments in the workplace - including a suicide threat.

     Although rough talk is common on military installations, an arbitrator concluded that management was correct to give a five-day suspension to an employee who repeatedly made verbally abusive comments in the workplace and threatened to commit suicide.

     A chronically abusive person in workplace is an "employee relations nightmare," said the arbitrator. Employers who tolerate abusive employees signal to others that they are not concerned about employee's welfare.

     Tinker AFB Oklahoma and AFGE L-916, 118 LA (BNA) 963, FMCS Case #00/13835 (Crow, 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Disciplinary Punishment - Disparate Treatment

EDITOR'S CASE ALERT

Arbitrator sustains the termination of an officer, who had a prior disciplinary offense, of neglect of duty and false reporting. He was sitting in a remote area outside his patrol zone on the graveyard shift, did not see his sergeant arrive for 20 minutes, and then falsely claimed he was only there a short period while on a meal break.

      The union's attempt to show disparate punishment failed. The other three cases involved a resignation; a last chance agreement for a 19 year veteran; and first-time discipline against the third officer.

      Management had no duty to conduct an I-A investigation where a sergeant saw the misconduct and there were no witnesses who had not been interviewed.

     In 2001, a Southeast Florida police officer claimed that he could not work, even at light duty, and that medication prevented him from driving. During this period he was observed by a captain driving a vehicle to a bar, a restaurant and to shops. He walked over curbs, climbed in and out of his vehicle without a limp, without the use of a cane or crutch. Later, when the officer saw investigating officers, he used a crutch and walked with an exaggerated limp.

     He received a three-day disciplinary suspension and a warning that any further instances of malingering or misrepresentation "shall result in a recommendation of termination."

     Then, in 2002, while on the graveyard shift, he was found parked in a gated community, outside his patrol zone, with another officer. His sergeant actually pulled his car within a few feet of the two and remained there about 20 minutes before he was noticed.

     The out-of-zone officer was interviewed by the chief. He claimed that he was on his 30-minute meal break when, about 15 minutes later, he noticed the sergeant arrive. The problem is, the gate guard had told the sergeant that the officers had been there about 45 minutes before the sergeant entered the area, and the patrol officer failed to notify communications that he was on a "meal break."

     The officer was fired. After grieving, an arbitrator reviewed the disciplinary action. Management said the case involved "the most basic principles of law enforcement, honesty and integrity."

     Management noted that, instead of patrolling his assigned zone, he sat, malingering in his police vehicle, for well over an hour in a most secluded gated community. Then he wrote his activity report to "cover up his tracks."

     The arbitrator sustained the malingering count and the report falsification charge. He said:

     In defending the grievant, the union claimed an inadequate investigation and disparate discipline. As for the lack of an I-A investigation, a supervisor had witnessed the conduct and was the complainant. He also obtained a written statement from the guard. The union failed to point to any witnesses or other evidence that was overlooked.

     Regarding the claim of differential punishment, one officer had 19 years of service and signed a last chance agreement. The grievant had 6 years of service. Another officer had resigned when confronted with his misconduct. A third officer, who was not fired, had no prior record of discipline and had received no ultimatum -- whereas the grievant had a prior record and was under a conduct ultimatum.

     City of Cooper City and Broward Co. PBA, 118 LA (BNA) 842, FMCS Case #020814/04630-3 (Hoffman, 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Employee Harassment - Nonsexual

Jury awards $1.9 million to gay cook in a state prison who claimed he was verbally harassed by coworkers because of his sexual orientation.

     A jury voted 10-2 to awarded a prison cook $917,000 in economic damages and $1 million in noneconomic damages. The HIV+ man claimed harassment and retaliation under the state's anti discrimination laws.

     Management claimed that the harassment was not severe or pervasive and was unrelated to his sexual orientation. His superiors contended that most of the comments arose from the fact that he had snitched on a coworker who was providing inmates with contraband.

     Hope v. St. of Calif. Youth Auth., #BC258985, 41 (2021) G.E.R.R. (BNA) 826 (Los Ang. Co. Super. Ct. 2003).

      Click here to view the docket entries on the AELE website.

      Return to the Contents menu.

     Editor's Note: Under federal law, a person must be harassed because of his or her race, color, sex, religion, national origin, age (if 40 or older), disability, or protected activity under the anti-discrimination statutes. Harassment by a coworker must be severe and pervasive, and the plaintiff must show that management was indifferent and took insufficient steps to remedy the complaint. State laws may include other categories of protected persons, have lesser proof requirements and allow additional remedies to those available under federal law.

      Return to the Contents menu.

Privacy Rights

EDITOR'S CASE ALERT

California appellate court concludes that a dentist did not violate medical confidentiality when he reported to I-A that a police officer had tried to get a prescription for an opiate without medical justification. There is a public policy encouraging citizens to report possible misconduct of police officers.

     A San Francisco police officer sought a refill of a synthetic opiate he used following an injury. He had complained of severe pain. The dentist refused, because he could not find a source of the alleged pain.

     While leaving the examination room, the officer again asked for Vicodin (7.5 mg hydrocodone bitartrate) and again was rebuffed. On hearing the second refusal, he gave an icy glare as if he wanted to assault the dentist. Dental assistants who observed the officer described him as "psycho," and told the dentist that it looked like "he wanted to kick your ass."

     Because the patient was a police officer and was very upset when he did not get a prescription for an opiate, the dentist called the SFPD Internal Affairs unit.

     An internal investigation followed, and the officer was disciplined for "improper conduct" in not complying with a SFPD General Order requiring officers using prescription drugs to advise their supervisor.

     The officer was reassigned to a desk job, not allowed to carry a firearm, and was not allowed to work paid overtime. Believing the incident effectively ended any prospect of promotion, the officer sued the dentist, claiming a breach of medical privacy in violation of state laws.

     The Superior Court dismissed the suit because the judge concluded that the disclosure fell within the exception allowing release of information when "authorized by law." The officer appealed.

     A three-judge appellate panel said that California has a policy of encouraging reports concerning suspected misconduct or unfitness by law enforcement officers. Moreover, the city Charter establishes a strong public policy of encouraging citizens to report claims of misconduct by police officers.

     Although incidents of this type are not specifically mentioned in the state's medical privacy laws, the panel said that "not every piece of legislation, not every regulation, has to be a laundry list of all possible applications." They added:

     "Police officers occupy a unique position of trust in our society. They are responsible for enforcing the law and protecting society from criminal acts. ... Dr. B__ was concerned with the possibility that a member of the SFPD either was, or was at risk of becoming, dependent upon prescription drugs. ... It is entirely foreseeable that the SFPD would receive and investigate civilian reports that officers were not incapable of performing their important public duties."

     Shaddox v. Bertani, #A097480, 110 Cal.App.4th 1406, 2 Cal.Rptr.3d 808, 2003 Cal. App. Lexis 1167 (2003).

      Click here to view the decision on the AELE website.

      Editor's Note: If the disclosure is for the purpose of aiding a criminal prosecution, the result would be different. The Ninth Circuit has ruled that a psychiatrist could not testify against a patient who made dangerous or threatening confessions during therapy.

     Although psychiatrists and psychologists may report situations that could lead to violence, the en banc panel ruled 8-3, that prosecutors cannot use testimony from therapists to help convict their patients. U.S. v. Chase, #01-30200, 2003 U.S. App. Lexis 17420 (9th Cir. 2003). [PDF]

      Return to the Contents menu.

Psychological Exams and Standards -

Fitness for Continued Duty or a Return to Active Duty

EDITOR'S CASE ALERT

EEOC appellate decision finds that a postal worker was retaliated against by management after she reported sexual harassment. Backpay awarded for a suspension for refusing to take an "unnecessary" fitness-for-duty examination plus $50,000 in damages for mental anguish.

     A postal worker filed several equal employment opportunity complaints, alleging that various incidents constituted unlawful employment discrimination, and were in reprisal for complaining about sexual harassment.

     Among other things, management transferred her to a facility where she was required to perform work inconsistent with her medical restrictions, berated her in public about her sexual harassment complaint and suspended her for 312 hours for refusing to take an "unnecessary" fitness-for-duty psychological exam.

     The Commission noted that, irrespective of whether an employee is an individual with a disability, an agency may only make a disability-related inquiry or require a medical examination if it is job related and consistent with business necessity.

     The Postal Service was required issue backpay for the 312 hours of work the complainant missed while under suspension for failing to comply with an "unnecessary" fitness-for-duty examination, and pay her $50,000 for non-pecuniary harm (prolonged mental anguish, depression, humiliation, insomnia, etc.) suffered as a result of the agency's discriminatory action.

     Amen v. Potter, U.S. Postal Service, Appeal #07A10069, 2003 EEOPUB Lexis 53 (EEOC 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Race Discrimination - In General

Ninth Circuit affirms liability and punitive damages in a discriminatory termination case. The only black officer was fired after he complained of profiling.

     We reported in the May 2001 issue that a black sheriff's recruit had won $1,467,122 for wrongful termination, after he complained about racial profiling.

     Carmichael Bell, the only black officer in an Oregon sheriff's dept. with 185 white law enforcement deputies, was fired during his probationary period. After he reported ethnic attitudes and profiling by coworkers, his new-officer ratings fell.

     Although he had more than four years of service as a sergeant-criminal investigator in the Army and almost two years as a police officer in Portland suburb, his ratings were downgraded to substandard.

     After three weeks of testimony, a jury of eight whites and one black awarded him $850,000 against the county, $250,000 against the sheriff and $52,446 against each of the seven deputies who testified against him at the trial.

     The trial court set aside the judgment against one deputy and reduced the punitive damages award against each of the remaining defendants to $10,000. The trial court also reduced Bell's attorneys' hourly rates from $200 to $175 per hour, and awarded him $216,055 in attorney fees.

     The defendants appealed. They claimed that there was no evidence of profiling or discriminatory discharge. Bell cross-appealed that the punitive damages and attorney's fees should not have been reduced.

     A three-judge panel agreed with the plaintiff, noting that:

     The panel said that a careful review of the record also prompted them to uphold the jury's verdict imposing individual liability against all defendants, except the one deputy the trial judge released.

     The panel then reversed the trial court's reduction of punitive damages against the individual defendants, and remanded for reconsideration whether the jury's award against each of those defendants comports with due process in light of the Supreme Court's recent decision in State Farm Ins. v. Campbell, 123 S.Ct. 1513 (2003). They added:

     However, they added, to the degree the defendants are entitled to a reduction of punitive damages because of their inability to pay, they said that "any indemnification by the County for the payment of such damages may be taken into account."

     The panel also reinstated the $200 per hour demand for attorneys' fees. A court "must look to the prevailing market rates in the relevant community at the time the work was performed." Bell v. Clackamas Co., #01-35508, 2003 U.S. App. Lexis 17041 (9th Cir. 2003).

      Click here to view the opinion on the Internet. [PDF]

      Return to the Contents menu.

Race - Reverse Discrimination

Eleventh Circuit reaffirms that absent a valid affirmative action plan, race may not be used as a factor to hire, transfer, or promote candidates. White firefighters were not promoted to captain because the chief waited for the eligibility list to expire.

     In 1999, a black fire chief in Florida was sued by four white firefighters who were not promoted to captain for new positions the agency was creating. The chief wanted to wait for a new eligibility list, allegedly because he did not want to promote four white men to the new positions -- and -- he already promoted eight whites from the current eligibility list.

     The Court of Appeals said that "a decision not to create new positions that is based solely upon the race and gender of the next eligible candidates for promotion, in the absence of a valid affirmative action plan, violates the Equal Protection Clause."

     Moreover, "it was clearly established in 1999 that it was unlawful for a public official to make a race- or gender-based decision concerning hiring, termination, promotion, or transfer to or from an existing position [or] to refuse to fill an existing position because of the race of an applicant."

     However, the chief gets a one-time pass because he did not make a decision concerning an existing or viable position. The panel said

     Williams v. City of Jacksonville, #02-14191, 2003 U.S. App. Lexis 16678 (11th Cir. 2003).

      Click here to view the opinion on the Internet. [PDF]

      Return to the Contents menu.

Sexual Harassment - Retaliation

Teasing of a woman officer was neither severe nor pervasive, but whether she was fired for legitimate reasons, or as a pretext to mask retaliation for complaining, was a question of fact.

     The first woman officer, who also was the first minority member of a Pennsylvania police dept. claimed that her work performance was progressing well until she complained about of racial and sexual harassment. At the end of her probationary period she was fired for various deficiencies. In her lawsuit against the agency, she alleged that the stated reasons for her termination were pretextual.

     The court noted that the incidents complained of "amount to simple teasing, offhand comments, and isolated incidents that are not so severe or pervasive as to allow a claim for hostile work environment."

     However, there were "genuine issues of material fact" as to whether the plaintiff was terminated because of her complaints about racial and sexual harassment, so the court declined to give the agency a summary judgment on that claim. Cruz v. Pennridge Regional Police Dept., #02-4372, 2003 U.S. Dist. Lexis 12962 (E.D. Pa. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Sexual Harassment - Verdicts, Settlements & Indemnity

Public employer pays $435,000 to employees who inadvertently saw porn pics on computers owned by the city. Management failed to respond to their complaints.

     Eleven women and one male employees of the Minneapolis Public Library sued their employer because they were regularly exposed to explicitly sexual images on the computer monitors used by library patrons. The plaintiffs also claimed that management's laissez-faire attitude led to overt acts of harassment, including masturbation, physical threats and stalking.

     The EEOC in 2001 found probable cause that Title VII had been violated because of a sexually hostile work environment. Although the case was referred to the Justice Dept. no further action took place. The librarians hired an attorney and brought their own civil action.

     In a pretrial settlement conference, the employer offered -- and the plaintiffs have accepted $435,000. Adamson v. Minneapolis Public Library, #03-CV-2521 (D. Minn. 2003).

     Similar complaints have arisen in lawsuits filed by women who work in law enforcement agencies.

      Click here to read the docket entries on the AELE website.

     Editor's Note: The Supreme Court has upheld the Children's Internet Protection Act, a 2000 law that requires libraries receiving federal funds to use filtering software to prevent children from being exposed to pornography on the Internet. The law allows libraries to disable such software when adults want to access a blocked site "for bona fide research or other lawful purposes." U.S. v. Amer. Library Assn., #02-361, 123 S.Ct. 2297, 2003 U.S. Lexis 4799 (2003).

      Return to the Contents menu.

Training Rights, Requirements and Cost Reimbursement

Missouri appellate court enforces a standard form reimbursement agreement. It was not an unlawful assignment of future wages or an unconscionable adhesion contract.

     Training reimbursement contracts are common; if the worker takes similar employment with another agency within a stated time period, a pro-rata reimbursement is due. A Missouri police officer raised two interesting challenges to a lawsuit filed by his former agency:

     1. The contract was an assignment of future wages, prohibited by law.
     2. The contract was an unconscionable adhesion agreement.

     The first defense was rejected outright, because the contract did not operate as a future wage assignment agreement. As to the adhesion claim, the Missouri Court of Appeals said:

     Smith v. Kriska, #ED82062, 2003 Mo. App. Lexis 1335 (2003).

      Click here to read the decision on the AELE website.

     Editor's Note: Cost reimbursement requirements are a mandatory topic of collective bargaining: New Jersey Transit Auth. v. N.J. Transit PBA L-304, #A-5710-96T5, 314 N.J. Super. 129, 714 A.2d 329, 1998 N.J. Super. Lexis 342, 158 LRRM (BNA) 3064 (1998), affirming #97-125, 23 NJPER (LRP) 28,137, 1997 NJPER (LRP) Lexis 61 (NJ-PERC, 1997); Hallandale Prof. Fire Fighters Assn. L-2238 v. City of Hallandale, PERC #CA-88-080, Order #89U-161, 1989 FPER (LRP) Lexis 154, 15 FPER (LRP) 20,214 (Fla. PERC, 1989); arb. award in City of Mt. Vernon, noted at 2 The Labor Lawyer (ABA) 599 and 23 G.E.R.R. (BNA) 667.

     Other states have enforced similar agreements: City of Pembroke v. Hagin, 391 S.E.2d 465 (Ga. App. 1990); Bowbells Public School Dist. v. Walker, 231 N.W.2d 173, 1975 N.D. Lexis 164 (N.D., 1975); Tremco Inc. v. Kent, 1997 Ohio App. Lexis 2367; Silk v. Dean Witter Reynolds, #87-03614-WDR (Unreported) (C.D.Cal. 1997); Carlson Ambulance Transport v. Fischbach, 1998 Ohio App. Lexis 1556; Bottineau Public School Dist. v. Zimmer, 231 N.W.2d 178, 1975 N.D. Lexis 163 (N.D. 1975).

     An Illinois court enforced a training cost reimbursement contract, including legal fees, but disallowed full recovery of the officer's wages earned while attending a program on dept. time. The wage reimbursement clause violated the FLSA, 29 C.F.R. 531.36. Montgomery (Vil. of) v. (John) Thompson, #SC-KA-97-3820 (Ill.Cir.Ct., Kane Co. 1998). See also, Strong v. Williams, 1980 U.S. Dist. Lexis 14185 at 5-f (M.D.Fla.).

      Return to the Contents menu.

Uniforms, Clothing and Equipment

Federal court holds that a county violated an employee's rights by firing her for repeatedly wearing a cross pendant.

     A county librarian was told she had to comply with the dress code, which prohibited: "clothing depicting religious, political, or potentially offensive decoration." A year later, religious "ornaments" were also banned.

     In April 2001 she reported to work wearing a cross necklace. Management told her to remove it or wear it under her clothing. A week later she again reported to work wearing the necklace and again was told to remove it. She refused to remove it went home. A few days later she was fired for insubordination.

     A suit was filed in the Federal Court for Western Kentucky. The county cited the Fifth Circuit's opinion upholding a police rule against wearing religious or other pins on uniforms.

     The three-judge panel in the Texas case said that "visibly wearing a cross pin ... takes on an entirely different cast when viewed in the context of a police uniform." The belief that one must announce his conviction to others "is not a matter of public concern ... in the constitutional sense." Moreover, the no-pins policy served a "legitimate governmental purpose in the context of uniformed law enforcement personnel."

     See Daniels v. City of Arlington, #00-11191, 246 F.3d 500, 2001 U.S. App. Lexis 6018 (5th Cir.). The Supreme Court denied review, ending the officer's career; Docket #01-187, 534 U.S. 951, 122 S.Ct. 347, 2001 U.S. Lexis 9494 (10/9/2001).

     However, the Kentucky judge said the Fifth Circuit's reasoning was flawed, and the librarian in this case did not wear a uniform. That means the county must justify the restriction. There was no showing that the wearing of the cross was "disruptive" or "controversial." The court said:

     However, her right to wear the pendant was not clearly established at the time of her dismissal, and her two supervisors were entitled to have the suit against them, in their personal capacities, dismissed under the doctrine of qualified immunity.

     The plaintiff was granted a summary judgment against the county. Draper v. Logan County Library, #1:02CV-13 (W.D.Ky. 2003).

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

     Editor's Comment: Although the Kentucky judge was not impressed with the Fifth Circuit's opinion, because the plaintiff in that case was a uniformed police officer, we believe that issue was correctly decided -- and the Supreme Court declined to review the holding.

      Return to the Contents menu.

Whistleblower Requirements and Protection

Los Alamos Lab reinstates law enforcement whistleblower and offers $930,000 plus back pay.

     The University of California has offered $930,000 to a special investigator whose termination triggered a congressional inquiry into mismanagement at the Los Alamos National Laboratory. Earlier this year, UC reinstated the claimant and another investigator, at full back pay; the monetary settlement was offered in August, 2003 to avoid whistleblower litigation.

     Glenn Walp, the former Commissioner of the Pennsylvania State Police and his associate were fired after they disclosed fraud and mismanagement at Los Alamos national laboratory. Walp revealed widespread credit card misuse and the disappearance of nearly $3 million worth of government property, including 260 computers that might have contained nuclear weapons information.

     A UC official denied the two were fired for whistleblowing, and said that they had been terminated because they had provided "incomplete, inaccurate information" to management. Another spokesman minimized Walp's accusations, claiming that only 0.1% of the Lab's $1 billion inventory "disappears" each year, which is far below the percentage that retail stores deem acceptable.

     Then, in a reverse move, the official who denied wrongdoing was fired, along with 16 other Los Alamos employees who have been terminated or removed from management positions by the University.

     The 60-year federal contract with the school will open to competitive bids in 2005. The current contract is for $2.2 billion-per-year. The settlement was negotiated by Walp's attorneys at Bernabei & Katz, a D.C. firm that specializes in whistleblower litigation. Walp v. Univ. of Calif., (prelitigation settlement). Sources: S.F. Recorder (8-22-2003), 31 Energy Daily #13, and U.C./DoE LabUpdate #1.

      Hearing Testimony, "Procurement and Property Mismanagement and Theft at Los Alamos National Laboratory," The House Committee on Energy and Commerce. (2003).

      Prepared Statement of Glenn A. Walp, for a Hearing before the Energy and Commerce Subcommittee on Oversight and Investigations. (2/23/2003).

     Editor's Note: The University has also settled a whistleblower lawsuit arising over financial irregularities revealed at its Lawrence Livermore facility near Berkeley. The plaintiff, a lab worker who turned informant, received $33,000 in lost wages, $264,000 for medical and sickness expenses, and $264,000 in general damages -- plus attorney's fees and costs of $428,000. Doggett v. Regents of the Univ. of Cal., #829369 (Super. Ct. Alameda Co. Cal.).

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« « « « « « » » » » » » »

Federal appeals court holds that a police report, revealing misconduct of a fellow officer, is protected "speech" and addressed a matter of public concern. Their terminations violated the First Amendment.

     The district court held that the officers did not engage in protected speech, and granted summary judgment for the defendants. A three-judge appeals panel has reversed. Although the "speech" consisted of a report, made in the course of their employment, the content of their speech alleged police brutality, and addressed a matter of public concern. The panel said that the speech was intended to reveal the wrongdoing of a fellow officer. Taylor v. Chief of Police Keith, No. 01-6460, 338 F.3d 639, 20 IER Cases (BNA) 3532003 U.S. App. Lexis 15602, 2003 FED App. 0270P (6th Cir. 2003).

      Read the decision on the Internet.

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Report non-working links here


NOTED IN BRIEF
(SOME WITH LINKS)

Alcohol Abuse, Testing & Rehabilitation

     Off-duty police officers who were detained and subjected to urine tests for intoxication after a street fight cannot shield the test results from the prosecutor. Fagan v. Superior Ct. (People), #A102525, 2003 Cal. App. Lexis 1288 (1st App. Dist. 2003). [PDF]

Arbitration Procedures

     Arbitrator holds that management did not waive its right to object to an untimely request for arbitration, when it participated in the FMCS arbitrator selection process. Bur. of Prisons, Beaumont TX and AFGE L-1010, FMCS #03/06117, 118 LA (BNA) 1086 (Moreland, 2003).

Certification Rights, Standards and Procedures

     A new California law clarifies that the state lacks the authority to administratively revoke a POST peace officer certificate. Prior law prohibited any person who has been convicted of a felony from holding office as a peace officer or being employed as a peace officer. The new law provides that a plea of guilty to a felony, pursuant to a deferred entry of judgment program, would not alone disqualify a person from being a peace officer unless a judgment of guilty was entered. S.B. 221.

Criminal Liability

     Ninth Circuit affirms an order that a public official, who pled guilty to accepting a bribe under 18 U.S. Code §666, must pay restitution to the city in the amount of bribe money received. U.S. v. Gaytan, #02-50377, 2003 U.S. App. Lexis 18403 (9th Cir. 2003). [PDF]

Disciplinary Punishment - In General

     Supreme Court declines to review a ruling that upheld the termination of a police officer who had violated the deadly force policy when, unable to see clearly either his target or his surroundings, he fired one or more shots at a vehicle that was moving away from him and was no longer a threat to either him or bystanders. Joseph v. Salt Lake City Civil Serv. Cmsn., #20010399, 2002 UT App. 254, 53 P.3d 11, 2002 Utah App. Lexis 72; cert. den. #02-1211, 71 U.S.L.W. 3666 (2003).

     Arbitrator finds that the demotion of a sergeant for allowing another officer to take a test for him was excessive punishment. Management is ordered to restore the grievant's rank, subject to a 30-day disciplinary suspension. Reno Police Dept. and Police Supervisory and Employees Assn., 118 LA (BNA) 926, FMCS Case #020503/09716-1 (D'Spain, 2003).

E-Mail/Internet - Legal Issues

     Management had just cause to discipline a county employee who used the computer system to send sexually-related messages, where "common sense" should have dictated that matters of a sexual nature are inappropriate in workplace. Co. of Sacramento and United Public Employees L-1, 118 LA (BNA) 699 (Riker, 2003).

Health Insurance & Benefits

     Arbitrator holds that a sheriff's dept. violated the bargaining contract when it unilaterally changed the health insurance plan, based on the recommendations of a cost containment board. Lucas County Sheriff's Office and Ohio PBA, 118 LA (BNA) 929, FMCS Case #03/06631 (Coyne, 2003).

Homosexual & Transgendered Employee Rights

     California discrimination laws now include transgendered persons. Only three other states (MN, RI and NM) have enacted laws that prohibit discrimination on the basis of gender identity and expression. At the local level, 59 cities and counties have enacted non-discrimination ordinances that protect transgendered people. A recent study disclosed that a large number of transgendered people have low-income jobs and often lack health insurance. A.B. 196, amending the Calif. Fair Employment and Housing Act.

     The 9th U.S. Circuit Court of Appeals reinstates a lawsuit by a former Air Force physician who was required to reimburse his medical school expenses after revealing he is homosexual. Hensala v. Dept. of the Air Force, #01-16791, 2003 U.S. App. Lexis 18938 (9th Cir. 2003). [PDF]

Impasse Arbitration

     California amends a law providing for binding arbitration of wages and benefits for peace officers and firefighters, although it permits the arbitrator's award to be ignored if it is rejected by a unanimous vote of the county Board of Supervisors or the city Council. The override provision was placed in the law to respond to a recent California Supreme Court ruling declaring the binding arbitration law unconstitutional because it deprived County Boards and City Councils of their authority to set wages and benefits for their employees. S.B. 440

Inefficiency, Performance Standards, Negligence and Incompetence

     Arbitrator finds that management violated the bargaining agreement when it discharged an employee without giving her coaching or a reasonable opportunity to improve. Int. Rev. Serv. and NTEU, 118 LA (BNA) 967 (Abrams, 2003).

Injuries to Employees

     The New Jersey "fireman's rule" does not bar injury claims against the defendants for their negligence in starting or failing to prevent a fire. Roma v. U.S., #02-3820, 2003 U.S. App. Lexis 19177 (3d Cir. 2003). [PDF]

     A federal jury in Los Angeles has awarded $2 million in damages to a retired police officer who was shot in the back by an off-duty deputy sheriff who was trying to disarm the officer's intoxicated son at a wedding reception. Morales v. Co. of Ventura, #2:01cv04121 (C.D.Cal. 2003).

Past Practices, Precedents & Zipper Clauses

     Management did not violate the bargaining agreement when teachers were assigned as cafeteria monitors, even though management had not made these assignments in past. Newbury Local Sch. Dist. and Newbury Educ. Assn., 118 LA (BNA) 982, AAA Case # 53-390-00847-02 (Skulina, 2003).

Picketing

     Picketing off-duty firefighter, who engaged in a verbal confrontation with the county's chief executive, was not protected by the First Amendment; 30-day suspension upheld. Travers v. Jones, #02-14043, 323 F.3d 1294, 2003 U.S. App. Lexis 4178, 172 LRRM (BNA) 2009 (11th Cir. 2003).

Sex Discrimination - In General

     Tenth Circuit holds that the 11th Amendment does not bar a suit by a state employee raising a gender discrimination retaliation claim. Crumpacker v. State of Kansas, #02-3197, 338 F.3d 1163, 2003 U.S. App. Lexis 16314, 92 FEP Cases (BNA) 728 (10th Cir. 2003).

Sexual Harassment - In General

     A sexual harassment claim against the Chicago Police fails. The ex-officer failed to report a coworkers gender-biased slurs until after she flunked the academy. Durkin v. City of Chicago, No. 02-2358, 2003 U.S. App. Lexis 17541 (7th Cir. 2003). [PDF]

Transfers - Disciplinary or Punitive

     Arbitrator finds that management transferred two officers for disciplinary reasons in violation of the bargaining agreement. City of El Paso and El Paso POA, 118 LA (BNA) 855, AAA Case #70-390-00619-02 (Allen, 2003).

Visual Acuity Standards

     Monocular vision (blindness in one eye) is not a disability under the ADA unless a plaintiff can also show that the loss of vision affects his ability to engage in daily activities. Congleton v. Weil-McLain, #01-CV-2237, 2003 U.S. Dist. Lexis 15573 (E.D. Pa. 2003); prior decis. at 2002 U.S. Dist. Lexis 12266.

Whistleblower Requirements and Protection

     Terminated Utah public employee was entitled to collect compensatory and punitive damages for whistleblowing. Youren v. Tintic Sch. Dist., #01-4131, 2003 U.S. App. Lexis 18768 (10th Cir. 2003).

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RESOURCES

     Contagious Diseases - Severe Acute Respiratory Syndrome: Intelligence Community Assessment requested by the Secretary of Health and Human Services.

     Federal Holidays: List (through 2010).

     Federal personnel: U.S. Office of Personnel Management's 2002 Performance and Accountability Report [PDF] and the Federal Civilian Workforce Statistics Fact Book

     Freedom of Information Act: Summary of Annual FOIA Reports for FY 2002.

     Stress-Related: Article, "Handling the Stress of the Electronic World," by James D. Sewell, Ph.D., FBI Law Enforcement Bulletin, Aug. 2003. [PDF]

     Whistleblower Manual: Revised OSHA directive # DIS 0-0.9. [PDF]

Reference:

      Abbreviations of Law Reports, laws and agencies used in our publications.
      AELE's list of recently noted employment law resources.  
      Discrimination Laws plus EEOC Regulations and Policy Guidance

CROSS REFERENCES

Featured Cases:

Disciplinary Investigations - see: Disciplinary Punishment - Disparate Treatment
First Amendment Related - see: Whistleblower Requirements and Protection
Religious Discrimination - see: Uniforms, Clothing and Equipment
Untruthfulness - see: Disciplinary Punishment - Disparate Treatment

Noted in Brief:

Collective Bargaining / Duty to bargain - see: Health Insurance

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