© Copyright 2004 by A.E.L.E., Inc.
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.
Best viewed with Microsoft Internet Explorer 5+
Fire and Police Personnel Reporter
An employment law publication for law enforcement,
corrections and the fire/EMT services
,

ISSN 0164-6397

Cite this issue as:
2004 FP Jan (web edit.)

Click here to view information on the editor of this publication.

Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
Report non-working links here

Some links are to PDF files
Adobe Reader must be used to view content


CONTENTS

Featured Cases with Links
Age Discrimination
Arbitration Procedures
Arbitration Punishment Awards - Right of Courts to Interfere
Collective Bargaining - Duty to Bargain
Disciplinary Appeals (2 items)
Disciplinary Discovery
Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment
FLSA - Overtime
Family, Medical & Personal Leave
Last Chance Agreements
Promotional Rights

Noted in Brief
Arbitration Procedures
Background Investigations
Civil Liability (2 cases)
Collective Bargaining - Duty to Bargain
Criminal Liability (2 cases)
FLSA - Executive Exemptions
Handicap Discrimination - Specific Disabilities (3 cases)
Health Insurance & Benefits
Out of Title Assignments
Personnel Manuals
Privacy Rights
Race Discrimination - In General
Reductions in Force
Sexual Harassment - Verdicts
Shift Rotation and Work Schedules
Sick Leave and Abuse
Whistleblower Protection

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

Age Discrimination - General

A divided Fifth Circuit holds that age-differentiated pay increases were not subject to challenge under a "disparate impact" test, but could be challenged under a "disparate treatment" theory.

     An assortment of thirty police officers and civilian dispatchers over the age of forty filed suit claiming that larger salary increases were given to officers and dispatchers under the age of forty. They alleged both disparate impact and disparate treatment.

      In the disparate impact claim, the plaintiffs claimed that the implementation of the facially neutral plan by the city "gives rise to liability without a showing of intentional age motivation because the plan resulted in pay increases to officers under forty years of age that were four standard deviations higher than the raises received by officers over forty." The District Court found that the plaintiffs could not win under a disparate impact theory.

     A three-judge appeals panel noted that while the 8th and 9th Circuits allow a disparate impact claim in age discrimination cases, the 1st, 7th, 10th and 11th Circuits hold that disparate impact is not a viable theory for recovery. Here, the 5th Circuit chose to go with the majority of circuits, and upheld the District Court's dismissal of that claim.

     However, in a disparate treatment claim, liability depends on whether age actually motivated the city's decision. A divided 5th Circuit found that these plaintiffs are able to prevail if they can prove a disparate treatment claim.

     The majority noted that age discrimination differs from race prejudice because the process of aging "is inescapable, affecting everyone who lives long enough." They added:

     The majority said the District Court prematurely dismissed the disparate treatment claim before the plaintiffs were able to enforce a discovery demand. The matter was remanded for additional discovery and evidence. The dissenting judge disagreed with the majority's holding that a disparate impact theory should be limited to Title VII litigation. Smith v. City of Jackson, MS, No. 02-60850, 2003 U.S. App. Lexis 23125 (5th Cir. 2003).

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

      Return to the Contents menu.

Arbitration Procedures

Prior precedent reversed; the Ninth Circuit now approves of compulsory Title VII arbitration.

     An applicant was refused employment as a legal secretary because he declined to sign an agreement to arbitrate all claims arising from his employment. He sued for lost wages, claiming he was not hired for engaging in a statutorily protected activity.

     Eventually, a three-judge appeals panel concluded that the applicant had not engaged in protected activity by refusing to sign the agreement, and that the employer's decision not to hire him because of his refusal was not illegal retaliation.

     An en banc panel of 11 judges has split 8-3 to affirm the holding. The eight judges rejected the argument that the 1991 Civil Right Act, in providing a right to jury trial, does not prevent the arbitration of Title VII claims.

     "It would appear," said the majority, that "if an employer can compel its employees to submit all claims arising out of their employment to arbitration, no retaliation would be involved in an employer's exercise of such right, because an employee opposing such a practice would not be engaged in any protected activity." EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 2003 U.S. App. Lexis 20007, 92 FEP Cases (BNA) 1121 (9th Cir. en banc 2003).

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

     Editor's Note: The EEOC is vigorously opposed to the compulsory arbitration of discrimination claims. The agency believes that the procedure is "contrary to the fundamental principles" embodied in the nation's discrimination laws. See EEOC "Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment," July 10, 1997, at: www.eeoc.gov/docs/mandarb.html

      Return to the Contents menu.

Arbitration Punishment Awards - Right of Courts to Interfere

EDITOR'S CASE ALERT

Ohio appellate court concludes that an arbitrator should not have reinstated an officer who notified a colleague that his family was under investigation.

     An Ohio deputy sheriff was fired, after he admitted that he revealed a confidential investigation report to another deputy whose family was the target of an investigation. The FOP sought arbitration.

     The arbitrator agreed with management that there were grounds to impose discipline but held that "just cause" for termination did not exist. The employer was ordered to reinstate the deputy.

     The sheriff sought judicial review. A trial court vacated the arbitration award, and the union appealed.

     A three-judge appeals panel concluded that the arbitrator exceeded his powers under the bargaining agreement when he ordered the sheriff to reinstate the deputy, after finding that he had violated "law and departmental policies" by revealing a confidential investigation report to fellow deputy whose family was target of investigation.

     The panel agreed with the trial court that the arbitrator exceeded his powers by fashioning an award that was contrary to and inconsistent with the policies and rules established by the sheriff.

     The Ohio Supreme Court has agreed to provide a final review. Summit County Sheriff v. FOP, #21303, 2003 Ohio 1133, 2003 Ohio App. Lexis 1062, 173 LRRM (BNA) 2174 (Ohio App. 9th Dist. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Collective Bargaining - Duty to Bargain

Federal court dismisses a suit seeking to require the DHS to bargain with airport security screeners. There is no 1st or 5th amendment duty for a public agency to bargain with its union members, and there was a rational reason for the Congress not to include screeners in the statutory plan of federal bargaining.

     The Administrator of the Transportation Security Administration ruled in Jan. 2003 that TSA airport screeners could unionize, but not collectively bargain. AFGE sued, claiming the nonrecognition policy violates the right to free speech and association under the First Amendment, the right to equal protection under the Fifth Amendment, the Aviation and Transportation Security Act, 115 Stat. 597 (2001) and the Administrative Procedure Act, 5 U.S. Code §706. It asked a federal court to enjoin TSA from implementing the decision.

     The judge said that the union's statutory issues must be raised with the Federal Labor Relations Authority and not directly with the courts. He then said that the constitutional claims lacked merit and dismissed the lawsuit.

     The court noted that the TSA determination does not prevent airport screeners from engaging in organizing activities or joining a union. TSA policy states that "employees are still free to engage in employee organizational activities as long as they do not do so on work time and it does not interfere with our security work or otherwise undermine aviation security." The effect of the TSA's policy is to relieve management of any obligation to deal or bargain with unions. The judge added:

     AFGE, TSA L-1 v. Loy, #03-1719 & 03-0043, 281 F.Supp.2d 59, 2003 U.S. Dist. Lexis 15750, 173 LRRM (BNA) 2358; AFGE, TSA L-1 v. Loy, #03-0043, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003).

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

      Return to the Contents menu.

Disciplinary Appeals

MSPB adopts at online appeals process for federal employees.

     Under an Interim Rule, federal workers choosing to contest adverse personnel actions can file an appeal and send documents electronically to the Merit Systems Protection Board on a new e-Appeal and e-Filing system.

    The system also includes electronic links to the MSPB's regulations, guidance, and answers to frequently asked questions. "Interim Regulatory Changes for Implementation of e-Appeal and e-Filing," 68 (202) Federal Register 59859-65 (20 Oct. 2003). The e-Appeal and e-Filing system is at http://www.mspb.gov/e-appeal.html

« « « « « « » » » » » » »

Court rejects a demand that a remanded Arbitration Award be sent to a second arbitrator. Unless the city can show bias, it is more efficient to remand the dispute to the original arbitrator.

     After setting aside an Arbitration Award because of error, a disagreement arose as to whether the subsequent arbitration proceedings should be before the same arbitrator who considered this matter initially.

     The court said it was persuaded that efficiencies would be gained from continuing with the same arbitrator. He would recall the facts and issues and the remand involves a "narrow issue submitted for his decision." Thus, said the court, "a hearing before the same arbitrator will not necessitate the development of a comprehensive factual record."

     The judge rejected the view that the arbitrator "may be predisposed to reach a conclusion consistent with his prior decision." The judged noted that while that may be the union's hope, "there is nothing in the record from which I can draw any reason to question the impartiality and objectivity of the initial arbitrator." City of Wilmington v. AFSCME L-1102, #19561-NC, 2003 Del. Ch. Lexis 74 (Del. Ch. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Disciplinary Discovery

New York's Public Employment Relations Board holds that management has a duty to furnish the union with the investigative reports, including summaries and conclusions, so that a union is able to defend an employee at a disciplinary hearing.

     A deputy sheriff in Western New York was fired for making unwelcome verbal and physical sexual advances to female employees while on duty, exposing his penis to female employees, not cooperating with detectives of the Internal Affairs Unit and untruthfulness.

     The deputy filed a grievance challenging his discharge. The Teamsters then requested a "complete copy of the investigatory file, or files, including any such files from internal affairs, of the alleged incident or incidents that formed the basis of the Sheriff's decision to discharge [the deputy]."

     The Sheriff provided the Teamsters with the deputy's personnel file but refused to provide the investigatory reports. The union filed an Unfair Labor Practice charge with the state PERB.

     At the hearing, the Sheriff said the file contains a "confidential" memorandum by the EEO investigator, a summary of each of the interviews and a conclusion. It also contained copies of letters issued by the investigator to the complainants, which gave assurances that the contents of the investigation will not be shared with anyone who does not have a legitimate need to know.

     An administrative law judge upheld the discovery request and the Sheriff appealed. The state Employee Relations Board said that "a public employer has a duty to provide information which is relevant and necessary for the administration of a collective bargaining agreement, including the investigation of grievances." The Board added:

     The only assurance of confidentiality the County made to the complainants was that their statements would be shared only with those who had "a legitimate need to know". The Board said, "certainly, the Teamsters, charged with the responsibility of investigating and defending [the deputy's] disciplinary grievance, has a need to review the witness interviews and the documents upon which the County based its decision to investigate [the deputy] and subsequently discharge him."

     IBT L-264 and Erie County Sheriff, #U-23017, 36 NYPER (LRP) ¶3021, 2003 NYPER (LRP) Lexis 86 (NYPERB 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Disciplinary Punishment - In General

California appeals court affirms the termination of an off-duty officer who slapped a girlfriend and then called a male detective a faggot and a woman detective a lesbian.

     An off-duty officer, under the influence of alcohol, kicked in a bedroom door and struck his girlfriend. Police were summoned and the off-duty officer was handcuffed. He replied, "I'll kick your butt. Take off the handcuffs."

     Detectives from the Domestic Violence team took him from the police station to headquarters. In the car he challenged one detective to fight and referred to the other as a "cunt" and "lesbian." Later, when the male officer ordered him to disrobe, he complied but said, "You like what you're looking at? You must be a faggot." He then told the detective not to put him in a cell with "a black guy" because he would have "to kill him."

     The officer was administratively charged with six counts of domestic violence and four counts of unprofessional conduct, including making improper remarks to patrol officers and detectives and the racial slur. He was fired, and appealed the punishment.

     He argued that his conduct is not likely to recur and his behavior did not result in "harm to the public service." A three-judge appellate panel disagreed, noting that the Police Board "unanimously recommended [the appellant] be removed from his position as a police officer for his unnecessary, improper, criminal, and clearly unbecoming conduct."

     They said that "the patently valid concerns and reasons stated by the Board at the time it announced the penalty demonstrate the Board's overriding concern for the public interest and for the City and confirm that there was no abuse of its broad discretion." Soldo v. City of Los Angeles, #B161186, 2003 Cal. App. Unpub. Lexis 7260 (2nd Dist. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Disciplinary Punishment - Disparate Treatment

Illinois Labor Board declines to interfere with disciplinary action against officers who did not report outside earnings on their tax returns. There was no proof of union bias, and "the fact that [the officers] were more active members of the [union] is a mere coincidence."

     Various members of a suburban Chicago police dept. were scrutinized for failing to report on their tax returns, substantial salaries for off-duty security work. The village hired a former prosecutor to investigate the affair.

     He recommended that disciplinary charges be brought against the officers who unreported the most money. Some officers earned as much as $27,000 over a five-year period.

     The union filed an Unfair Labor Charge with the Illinois Labor Relations Board, claiming that management was retaliating against the accused officers because of their involvement in the union. The investigator supposedly was unaware of the union activities of the officers he investigated and only "followed the money trail."

     Management insisted that it was not motivated by unlawful union animus and that charges would have been brought against the officers regardless of their union activities.

     An administrative judge said that there is no evidence that management was hostile to the union. The union offered "no evidence that [management] opposed its organizing campaign. Rather, the union "merely argues that because the five named officers that were terminated or forced to resign were more active in the [union] than officers who suffered lesser or no discipline, the five named officers must have been terminated or forced to leave because of animus toward their protected, concerted activities." The judge wrote:

     The Labor Board affirmed those finding in a unanimous 4-to-0 Order. Metrop. Alliance of Police #165 and Vil. of Bensenville, #S-CA-00-197, 18 PERI (LRP) ¶2076, 2003 PERI (LRP) Lexis 1 (ILRB 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

FLSA - Overtime - in General

Arbitrator rejects a claim for two hours overtime because a corrections officer was required to visit a physician to obtain a note excusing a two-day sick period; officer was entitled to be paid for his $15 co-pay and $11 vehicle expense.

     After prison management demanded a doctor's note for an officer's a two-day absence, the union grieved, seeking reimbursement of $15.00 for officer's co-pay to the doctor; $69.48 for two hours overtime used in seeing the doctor, and payment of $10.95 for mileage expense. The union also wanted recovery of its costs in arbitrating this matter and an order allowing a union representative to attend all supervisory training sessions pertaining to sick leave.

     The arbitrator awarded the mileage expense and co-pay, totaling $25.95. He denied overtime pay under the commuter time exclusion, and all other relief sought by the union. U.S. Penitentiary and AFGE L-2343, 118 LA (BNA) 1324, FMCS #02/16571 (Pratte, 2003).

      Click here to view the opinion on the AELE website.

     Editor's Comment: Both parties spent substantial funds over a claim under $100; both litigated as a matter of principle. Here, it would have been better for management and the union to have met informally, to draft a protocol for sick leave substantiation.

      Return to the Contents menu.

Family, Medical & Personal Leave

EDITOR'S CASE ALERT

Federal appeals court flatly rejects a claim that a worker cannot be fired for inefficiency or other valid reason because he is on FMLA leave.

     A Chicago police officer, on offical leave to work as a Ward Superintendent, sued the city alleging that his termination violated federal law because he was fired while he on FMLA leave.

     He claimed that his superior decided to terminate him for poor performance only after seeing how much better his temporary replacement could perform his job. He alleged that was an improper motivation for his termination. The court said:

     Holding that the plaintiff failed to allege any facts that would constitute a violation of the FMLA, dismissal of the lawsuit was proper. Phelan v. City of Chicago, #02-3862, 347 F.3d 679, 92 FEP Cases (BNA) 1389,2003 U.S. App. Lexis 21344, 9 WH Cases2d (BNA) 7 (7th Cir. 2003).

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

      Return to the Contents menu.

Last Chance Agreements

Court sets aside an arbitrator's reinstatement ruling, because he did not consider prior disciplinary action, which was recent and uncontested, warning the grievant that further misconduct would result in his termination.

     In 1999 a Code Enforcement Officer, dressed in his official uniform but under the influence of alcohol, approached several men on a street corner and identified himself as a police officer, made offensive racial comments, ordered the men to leave the corner, and then chased one of them away.

     The City disciplined the officer for that conduct. The department head specifically advised the officer that "if in the future ... your conduct prevents or adversely impacts on your ability to handle any aspect of your responsibilities, you will be dismissed from City employment".

     Then, in 2000, while off duty, he exchanged words with a citizen who was walking down the street. The citizen threw a chunk of ice through the officer's car window, striking him in the face. The police were called.

     Officers apprehended the citizen, who resisted arrest. The Code Officer approached them, kicked the citizen in the head, and then sprayed pepper spray in his face. The pepper spray also affected the police officers. The Code Officer was arrested and charged with assault. While he was being processed, he made several offensive racial comments. Although the criminal charges were dismissed, the Code Officer was fired.

     The union grieved, and the dismissal went to arbitration. The arbitrator found that there was insufficient evidence to find that the terminated Code Officer had kicked the citizen in the head, rejecting the uncontradicted testimony of one of the police officers.

     The arbitrator did find that the grievant had sprayed pepper spray in the citizen's face. However, he concluded that termination was not the appropriate discipline. The arbitrator said that he could not consider the offensive racial remarks because they had not been cited as a basis for his dismissal by management in the termination letter.

     The city sought judicial review. The judge rejected the public policy argument raised by the city, noting that the city had failed to identify an "explicit" and "well-defined" public policy that would be violated by the reinstatement.

     The judge said it was only several months previous that the grievant had been disciplined for over-aggressive behavior. Moreover, the arbitrator was aware of the prior letter, which had informed the grievant that future misconduct would lead to dismissal.

     The judge noted that the arbitrator never addressed the applicability of the prior letter to current conduct. The court said, "because of the arbitrator's failure to interpret the [prior] letter and apply it to the [current] incident, he failed to 'draw the essence' of his decision from the applicable agreement that governed [the grievant's] employment ... [and] ... the Arbitration Award reinstating [the grievant] cannot stand."

     The court remanded the matter to the arbitrator, "to address the meaning and applicability of the [prior] letter in light of [the grievant's] subsequent conduct." City of Wilmington v. AFSCME L-1102, #19561-NC, 2003 Del. Ch. Lexis 26, 2003 WL 1530503, 173 LRRM (BNA) 2278 (Del. Ch. 2003).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Promotional Rights, Procedures
and Performance Appraisals

EDITOR'S CASE ALERT

Michigan appeals court reinstates an arbitration award directing the city to promote a controversial officer who had shot 4 people is 6 years.

     The City of Detroit's five-member Board of Police Commissioners unanimously rejected an arbitrator's December 2001 decision to promote an officer to sergeant. He had killed three people and wounded a fourth in nine shootings during 6 of his 10 years on the police force.

     Although administrative hearings had cleared him in the shootings, at least one lawsuit was pending. After rejecting the arbitration award, the union sought judicial enforcement.

     A Wayne County Circuit Court judge declined to enforce the award. Then, another Circuit Court awarded $4 million to the family of a man that the officer had killed in 1996. The promotional dispute proceeded to appeal.

     The city charter reads that "No person ... may be passed over in favor of an employee with a lower examination score, unless the chief of police files ... written reasons for the bypass, and the promotion is approved by four (4) of the commission members serving. ..."

     A three-judge appeals panel ordered the city to comply with the arbitrator's decision to promote the officer. They said that matter was the proper subject of a disciplinary grievance, and courts must enforce -- rather than interfere with -- an arbitration award that is predicated on terms of the bargaining agreement.

     The ruling was criticized by the Detroit Coalition Against Police Brutality, noting that Detroit was No. 1 among large cities in the number of per-capita shootings of citizens by police. Three years ago they called for the resignation of the then mayor, who currently is the president of the American Bar Assn., saying that "there's a trail of blood that leads directly to [the police chief], Mayor Archer ... and also the police commission."

     Detroit Police Officers Assn. v. City of Detroit, #241574, 2003 Mich. App. Lexis 2850 (Unpub. 2003).

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

     Research Note: A five-judge appeals court in New York held that the police chief could pass over a promotional candidate because the minority community resented him, and the officer had not matured since a racial shooting incident 11 years earlier.

     The panel reasoned that "police work is of an especially sensitive nature" and the police chief was ultimately responsible for effective discipline, the protection of the community and the integrity of the police force -- which was subject to "dangers reasonably foreseen and risks which may become serious liabilities or have grave consequences". Larkin v. Sardino, 79 A.D.2d 1096, 435 N.Y.S.2d 843, 1981 N.Y. App. Div. Lexis 10044 (A.D. 1981).

      Return to the Contents menu.

Report non-working links here


NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Procedures

     Arbitrator declines to decide a disability discrimination complaint. Arbitrators should not look to outside law to confer jurisdiction, and must "not to add to the terms of the contract." Ohio Dept. of Health and Ohio CSEA-AFSCME, L-11, 118 LA (BNA) 1361 (Murphy, 2003).

Background Investigations

     Firefighters, police officers and others who work at an airport need security clearances under 18 U.S. Code §1001(a)(2). The Fourth Circuit, in reversing a lower court, held that the FAA may lawfully include questions about relevant misdemeanor convictions in addition to felonies. U.S. v. Baer, #02-4667, 274 F.Supp.2d 778, 2003 U.S. Dist. Lexis 13240 (4th Cir. 2003).

Civil Liability

     New York's highest court holds that an administrative finding of guilt by a state regulatory body, in a sexual harassment complaint, does not prevent the accused from denying liability in a damage suit for sexual assault. The doctrine of collateral estoppel did not apply. Jeffreys v. Griffin, 1 No. 120, 2003 NY Int. 125, 2003 N.Y. Lexis 3409 (2003). [PDF]

     Sheriff's employees, whose First Amendment rights were violated when management took adverse employment actions against them because of their union organizing activities, did not have legal standing to pursue a claim for indemnification by the state for damages that the sheriff's estate did not have the funds to pay. St. George v. Gordon, #SC-16673, 264 Conn. 538, 825 A.2d 90, 2003 Conn. Lexis 256, 20 IER Cases (BNA) 435 (Conn. 2003). [PDF]

Collective Bargaining - Duty to Bargain

     Arbitrator denies a grievance that an employer eliminated the "verbal warning" stage from the discipline matrix for smoking violations. Smoking rules are more serious and "fine tuning" of a penalty for given violations is traditionally considered to be a subject upon which arbitrators are not to substitute their judgment for that of the employer. Fairfield Mfg. and UAW L-2317, 118 LA (BNA) 1485, AAA #52-300-00598-02 (Fullmer, 2003), citing Stockham Pipe Fittings Co., 1 LA (BNA) 160 at 162 (McCoy, 1945).

Criminal Liability

     Michigan appellate court upholds a criminal conviction of a police officer that beat a prisoner in the stationhouse. Peo. v. Milton, #234080, 257 Mich. App. 467, 668 N.W.2d 387, 2003 Mich. App. Lexis 1650 (2003).

     A former sheriff's deputy was sentenced to life in prison for helping plot the assassination of the incumbent sheriff, who was killed by a sniper at a campaign rally. Comm.of Ky. v. Morris, (Pulaski Co., Ky. 2003).

FLSA - Administrative & Executive Exemptions

     The Supreme Court has declined to review an appellate court holding that supervisory Border Patrol agents are "executives," and are exempt from the FLSA's overtime provisions. Lotz v. United States, 322 F.3d 1328, 8 WH Cases2d 929 (Fed. Cir. 2003); cert. den. #03-146, 2003 U.S. Lexis 8016, 72 Law Week 3307 (2003).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     A worker impaired by attention deficit hyperactivity disorder (ADHD) was not "disabled" within the meaning of the ADA, because he was not unable to work in a broad class of jobs, even though he was unable to work steadily in his current position. Whitlock v. Mac-Gray, #02-2568, 345 F.3d 44, 2003 U.S. App. Lexis 20275, 14 AD Cases (BNA) 1569 (1st Cir. 2003).

     An employee with multiple sclerosis (MS), who missed work because of headaches, dizziness, vertigo and extreme fatigue, was not disabled within the meaning of the ADA. "She has merely shown that she has had to take many unscheduled absences." Croy v. COBE Labs, #02-1366, 345 F.3d 1199, 2003 U.S. App. Lexis 20260, 92 FEP Cases (BNA) 1218, 14 AD Cases (BNA) 1570 (10th Cir. 2003).

     An epileptic employee who was fired after several incidents of confrontational and threatening behavior was not disabled or regarded as disabled. Epilepsy did not limit his major life activities outside the workplace. The fact that he was advised to seek professional anger-control assistance did not establish that management regarded him as disabled. Brunke v. Goodyear Tire and Rubber, #03-1373, 344 F.3d 819, 2003 U.S. App. Lexis 19934, 14 AD Cases (BNA) 1473 (8th Cir. 2003). [PDF]

Health Insurance & Benefits

     Arbitrator holds that a county did not violate the collective-bargaining agreement when it negotiated a new health plan. Some employees were disadvantaged by the changes, and others benefited. Clark County [Ohio] Sheriff and FOP, 118 LA (BNA) 1493, FMCS #02/04119 (Graham, 2003).

Out of Title Assignments

     Arbitrator holds that management did not require clerk/typist-receptionist to perform out-of-title work when, in light of the 9-11 acts of terrorism, it required her to identify visitors, oversee a sign-in sheet, buzz in visitors and direct them to destinations within the building. The additional duties are typical of a receptionist-clerk position. Garden City and CSEA L-1102 (AFSCME), AAA #94-2605902, 118 LA (BNA) 1470 (Gregory, 2003).

Personnel Manuals

     Distribution of an employee handbook constitutes reasonable notice, "regardless of whether the affected employee actually reads it." An employer satisfies its burden of notifying it employees of a manual by posting it on a webserver. Mannix v. Co. of Monroe, #02-1001, 348 F.3d 526, 2003 U.S. App. Lexis 22561, 2003 FED App. 0390P (6th Cir. 2003), citing Highstone v. Westin, 187 F.3d 548 at 552-3 (6th Cir. 1999).

Privacy Rights

     Celebrity Defense Dept. employee receives $595,000 in a negotiated settlement, because DoD had leaked personal information about her in violation of the Privacy Act and the Federal Tort Claims Act. Linda Tripp was a major source in the Monica Lewinski scandal that culminated in the impeachment of President William J. Clinton. Tripp v. Dept. of Defense, #99-2554 and #01-157, 41 (2033) G.E.R.R. (BNA) 1119 [settlement reported]; 2003 U.S. Dist. Lexis 17074 [protective order] (D.D.C. 2003); 219 F.Supp.2d 85 [Motion to dismiss denied] (D.D.C. 2002). [PDF]

Race Discrimination - In General

     Civil Service Board members are not entitled to absolute immunity from suit, in a case where the provisional fire chief challenged his suspension and claimed that the process was tainted by racial discrimination. Fifth Circuit affirms the result, and the Supreme Court has denied review. Turner v. Houma Fire and Police Civ. Serv. Bd., #99-31168, 229 F.3d 478, 2000 U.S. App. Lexis 25950; reh. den. 29744 (5th Cir. 2000); cert. den. #03-367, 2003 U.S. Lexis 8223 (2003), affirming 2002 U.S. Dist. Lexis 12924 (E.D. La. 2002).

Reductions in Force

     Federal court refuses to enjoin the Dept. of Homeland Security for reducing its force of airport screeners. Furloughed former screeners lacked standing to seek an injunction because they had already been laid off and could not face additional harm from a further force reduction. AFGE, TSA L-1 v. Loy, #03-1719, 2003 U.S. Dist. Lexis ---, 41 (2033) G.E.R.R. (BNA) 1121 (D.D.C. 2003).

Sexual Harassment - Verdicts, Settlements & Indemnity

     New Jersey Supreme Court affirms a $750,000 compensatory damage award to a male officer who claimed harassment by a woman coworker. It set aside a $3 million in punitive damages against the Dept. of Corrections, and remanded the case because of faulty jury instructions. Lockley v. State of New Jersey DoC, #A-108-2001, 177 N.J. 413, 828 A.2d 869, 2003 N.J. Lexis 868 (N.J. 2003).

Shift Rotation and Work Schedules

     Arbitrator holds that a partial work period is not subject to being filed as a vacant work shift. "Had the parties wished to do so, they could have so provided" but an arbitrator "cannot expand the scope of [the contract to] vacancies which may occur when an officer leaves work before the end of his or her shift." City of Kalama and Kalama Police Guild, Wash. PERC #15771-P-01-00514, 116 LA (BNA) 1349 (Henner, 2002).

Sick Leave and Abuse

     Arbitrator upholds a contract clause that provides that employees can accumulate 340 unused sick days for retirement purposes at $20.00 per day, but only 225 accumulated sick leave days are available for use due to illness. Peoria Bd. of Educ. and Peoria Fed. of Teachers, 118 LA (BNA) 1514 (Kenis, 2003).

Whistleblower Requirements and Protection

     Texas appellate court holds that a jailer who was supposedly terminated for reporting staffing shortages and surveillance problems did not have to abandon his administrative remedy under the Texas Whistleblower Act before filing a lawsuit. Harris Co. v. Lawson, #01-02-00288-CV, 2003 Tex. App. Lexis 7368, 20 IER Cases (BNA) 592 (Tex. App. 2003).

      Return to the Contents menu.

Report non-working links here

RESOURCES

  Bloodborne Pathogens: OSHA has published a bulletin reiterating the agency's policy on disposal of contaminated needles and blood tube holders following blood-drawing procedures.

     Ethics:

     Incident Command website: OSHA-provided online training software.

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:
Arbitration - Right of Courts to Interfere - see: Promotions
Arbitration Procedures - see: Last Chance Agreements
Disciplinary Appeals - see: Last Chance Agreements
Disciplinary Punishment - see: Arbitration Punishment Awards
Union Activity - see: Disciplinary Punishment - Disparate Treatment

Noted in Brief:
Civil Liability - see: Race Discrimination
Collective Bargaining - Duty to Bargain - see: Health Insurance
Disciplinary Punishment - see: Collective Bargaining - Duty to Bargain
Sexual Harassment - see: Civil Liability

Return to the Contents menu.
Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.

© Copyright 2004 by A.E.L.E., Inc.
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.


Report non-working links here.