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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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2004 FP Oct (web edit.)

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CONTENTS

Featured Cases with Links

Disability Rights and Benefits
Disciplinary Offenses
Disciplinary Searches
Drug Screening and Specimen Testing
Educational Requirements and Incentives (2 cases)
Firearms/Weapons
Injuries to Employees
National Security Issues
Physical Fitness Reqs., Agility Tests & Stds.
Stress Related Claims and Defenses
Wrongful Discipline: Damages

Noted in Brief

Age Discrimination
Ambulance Services
Civil Service
Collective Bargaining (2 cases)
Disciplinary Hearings - Proof Required
Domestic Partner Rights (4 items)
Handicap Discrimination - Accommodation (2 items)
Handicap Discrimination - Constitutionality
Hearing (Audio) Impairment
Moonlighting
Promotional Rights
Race: Reverse Discrimination
Religious Discrimination
Residency Requirements
Resignations
Sex Discrimination - EEO Claims
Sexual Harassment (2 cases)

Resources

Cross_References


FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

Disability Rights and Benefits - Other issues

California appellate court denies a disability pension to a partially disabled firefighter who initially was terminated for disciplinary reasons, and then failed to qualify for reinstatement. Unless the termination is because of an employee's disability, he or she is not entitled to seek a disability pension after a disciplinary termination.

     It is common in some states for a public safety worker to draw a years-of-service pension or even qualify for a disability pension, after he is fired for disciplinary reasons. A California appeals panel, interpreting prior case law, said that such persons are ineligible for disability pensions, unless they are fired because of the disability.

     The panel said that the key issue is whether a worker's right to a disability retirement matures before his separation from service. A vested right matures when there is an unconditional right to immediate payment.

     They noted that in this case, the plaintiff did not initiate the process until after giving cause for his dismissal. Smith v. City of Napa, #C044944, 120 Cal.App.4th 194, 2004 Cal. App. Lexis 1041 (3rd Dist. 2004).

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

      Return to the Contents menu.

Disciplinary Offenses - In General

Arbitrator holds that a fire district can terminate a paramedic/firefighter if the insurance carrier refuses to include him within the fleet policy, based on a DUI incident.

     An off-duty Ohio paramedic-firefighter was arrested for speeding and DUI. His driver's license was temporarily confiscated. He reported for work without a valid license and failed to notify management of his driving impediment.

     He later pled guilty to reckless driving, a lesser offense than DUI. The fire district's insurance carrier gave notice that it would not include any vehicle driven by the paramedic.

     Management imposed a one-day disciplinary suspension for working without a valid license, and eventually terminated him because of the insurance coverage problem. The union filed a grievance.

     The arbitrator sustained the one-day suspension, and then noted that management could not rationally allow the grievant to work without valid vehicle insurance -- and there were no non-driving jobs available as an alternative.

     The arbitrator explained that a fire district "cannot be expected to allow its vehicles to be driven and operated by an individual who is excluded from coverage under its fleet vehicle insurance policy." The grievant was terminated only after management was unsuccessful in removing the exclusion.

     However, the arbitrator directed management to amend the record to show that the grievant was "relieved from duty" because of the insurance problem and to reinstate him with full seniority, but without retroactive pay or benefits, if he is approved for insurance coverage by Oct. 15, 2004 -- or to terminate him for "just cause" as of that date, if he cannot be insured under the fleet policy.

     Cumberland Trail Jt. Fire Dist. and C.T. Career Firefighters L-3667, FMCS #04-03014-T (Petersen, 2004).

      Click here to view the award on AELE's website. Note: This is a large, slow-loading PDF graphic document.

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Disciplinary Searches

Eighth Circuit holds that a state employee lacked a legitimate expectation of privacy as to the contents of his state-owned computer. Remote location search upheld.

     The three-judge panel noted that the employee was fully aware of the agency's computer use policy, which provides that employees have no personal right of privacy respecting their use of the agency's computers

     Moreover, the policy explicitly provides that management can access all of the agency's computers in order to audit their use. The panel also rejected the argument that the computer search -- done from a remote location -- required a warrant or was unnecessarily intrusive, explaining that the agency's computer-use policy placed employees on notice that their computers could be searched.

     Even if the employee had some minimal expectation of privacy in his office, desk and filing cabinet, the searches of these items by investigators did not violate the Fourth Amendment's because a public employer can investigate work-related misconduct -- so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.

     His conviction for possession of kiddie porn was affirmed. U.S. v. Thorn, #03-3615, 375 F.3d 679, 2004 U.S. App. Lexis 14295 (8th Cir. 2004).

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

     Editor's Note: In 1993, the defendant was a plaintiff in a lawsuit against IBM, claiming repetitive motion injuries from using an IBM computer keyboard. He also lost that appeal before the Eighth Circuit, when the panel ruled his claims were not timely filed.

      Return to the Contents menu.

Drug Screening and Specimen Testing

Illinois appellate court reinstates a deputy that had innocently consumed some Peruvian tea that contained cocaine metabolites. The panel refused to enforce a zero tolerance policy that was unrelated to guilt, simply because it might make it more difficult to fire officers that have an explanation of why they tested positive.

     The Cook County sheriff has a zero-tolerance drug-free workplace policy. A deputy sheriff was randomly selected to undergo drug testing. After her urine sample tested positive for the presence of 307 nanograms per ml. of cocaine metabolites (benzoylecgonine) she was charged with violation of the policy.

     At a disciplinary hearing, she testified that she had innocently consumed some Mate de Coca tea while in Peru, when she and her husband were there to adopt a child. Her firing was upheld by the Merit Board, because the attorney for the sheriff argued that under a zero tolerance policy it does not matter whether an employee knows that he or she was consuming a controlled substance or not.

     On appeal, a three-judge panel said that the sheriff's office has "a very strong interest in preventing employees who are entrusted with protecting the public safety from becoming a danger to themselves or others by the use or abuse of illegal drugs." They added that it would be "absurd to even suggest that zero-tolerance policies in a workplace such as the sheriff's office are inherently bad and serve no legitimate state purpose."

     However, the evidence established that the deputy had innocently drank tea while in Peru, that the drug test further indicated that she was not a chronic user or abuser of illegal drugs, and that the amount of cocaine metabolites found in her system "was consistent with consuming the Mate de Coca tea."

     Sheriff's counsel argued that if knowledge becomes an issue of relevance in drug testing cases, "it would open the door for future employees who are similarly charged to falsely maintain that they, too, did not know they were ingesting an illegal substance."

     The panel rejected that argument and said there was no case law to support such an "absolute and inflexible" application of the sheriff's drug-free workplace policy. The panel reversed, finding that the application of the policy was not rationally related to its specified purpose and violated the deputy's substantive due process rights.

     The appellate court directed circuit court to order the sheriff to reinstate her. Garrido v. Cook Co. Sheriff's Merit Bd., #1-03-1128, 811 N.E.2d 312, 21 IER Cases (BNA) 716, 2004 Ill. App. Lexis 674 (1st Dist. 2004).

      Click here to view the opinion on the Internet.

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Educational Requirements and Incentives

Arbitrator denies educational pay supplement to a grievant that was not granted a waiver for his course work, even though management may have improvidently given waivers to two others. To compound an error would open the door to others and defeat the purpose of the incentive.

     An Ohio police department pays a bonus to officers who have earned a degree in criminal justice or a related area. Two officers unsuccessfully sought bonus pay for their degrees in radiation therapy and fine arts.

     They grieved, and claimed discriminatory treatment because two other officers received the supplement, and their degrees were not in criminal justice. One had a degree in photography, which is arguably related to police science; the other officer had a bachelor's degree, but lacked sufficient credits for a CJ minor.

     The arbitrator concluded that grievants' academic credentials clearly did not qualify them for incentive pay. Although the agency "manifestly discriminated against the grievants by denying them a bonus" when it made an exception for two other officers, management "would compound its errors" by approving their grievance.

     Management could "open itself up for a plethora of grievances by allowing for exceptions or exemptions to prevail." Miami Twp. and FOP Ohio, 119 LA (BNA) 1457, FMCS #04/52483 (Speroff, 2004).

« « « « « « » » » » » » »

Arbitrator rules that management did not violate the bargaining agreement when it denied the grievant overtime pay and tuition reimbursement to take courses for a position on the air rescue unit, because he needed the courses to be eligible to take the new job, and did not need the courses for his current position as a paramedic.

     The grievant attended two courses on "Rope Rescue" on his own time and at his own expense, to qualify for a position in the air rescue unit. Because those classes were necessary for the assignment he sought, he claimed it was "mandated" training and that he was entitled to overtime and reimbursement.

     The arbitrator disagreed, noting that as a paramedic, the rope rescue courses were not required to maintain his skills or to retain his position. He ruled that there is a difference between "mandating" what courses are needed in order to bid for a new job classification and "mandating what courses are required to retain a classification already attained."

     Broward Co. Sheriff's Dept. and B.C. Prof. Paramedics and F/F, IAFF L-3333, 119 LA (BNA) 1281, FMCS Case #03/13856-3 (Chandler, 2004).

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

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Firearms/Weapons - Other Issues

Editor's Case Alert

Utah Supreme Court allows a private employer to discipline workers who violate its policies and have a firearm in their vehicles while in employer-provided parking lots.

     The Utah Supreme Court has upheld the right of an employer to fire three workers whose firearms were stored in the trunks of their cars in an employer-provided parking lot in Ogden. The employer, America Online, has a policy that reads:

     The court acknowledged an individual's right to keep and bear arms, but the right of an employer to regulate its own property is more important. Additionally, the justices noted that the rule was part of AOL's policy to prevent workplace violence and to promote worker safety.

     Hansen v. America Online, #20020288, 2004 WL 1608821, 504 Utah Adv. Rep. 20, 2004 UT 62, 2004 Utah Lexis 136 (2004).

      Click here to view the opinion on the Internet.

     Editor's Note: Earlier this year Oklahoma passed HB 2122 protecting employees with guns in their cars against employer-initiated disciplinary action. [RTF download]

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Injuries to Employees

Editor's Case Alert

Wisconsin Supreme Court allows a suit by a police officer that was bitten by a dog. The "Firemen's Rule" did not apply to this kind of injury.

     The Firemen's Rule holds that an injured firefighter may not recover against the property owner for injuries sustained while suppressing a fire and rescuing occupants. In Wisconsin, an on-duty police officer was bitten by a stray dog she was trying to capture; she sued the dog's owners for damages.

     A majority of the state Supreme Court justices held that the policy considerations underlying the Firemen's Rule do not support extending it to police officers injured on the job. Police officers, like firefighters, serve the public in time of need, but there are many differences between them, the majority noted.

           Firefighters know they are exposed to danger when they are called to fight a fire, whereas police officers on patrol are not directed to a single hazard, and respond to many circumstances.

           Firefighters receive specialized training to fight fires, whereas police officers receive no specialized training to capture stray dogs, and doing so is not a central focus of their day's activities.

     A dissenting justice said that to allow recovery for the acts of negligence that cause the need for a police officer's services places too great a burden on members of the public who are entitled to police protection. Cole v. Hubanks, #02-1416, 2004 WI 74, 681 N.W.2d 147, 2004 Wisc. Lexis 437 (2004).

      Click here to view the opinion on the Internet.

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National Security Issues

Federal court dismisses a whistleblower action brought by a terminated FBI contract translator. Although the plaintiff reported security lapses, the court dismissed the action because a trial could expose intelligence-gathering methods and disrupt diplomatic relations with foreign governments.

     During the course of her employment with the FBI, the plaintiff claimed that she "reported a number of whistleblower allegations to FBI management officials concerning serious breaches in the FBI security program and a break-down in the quality of translations as a result of willful misconduct and gross incompetence."

     After her FBI employment was terminated, she filed suit under:

     In dismissing the suit, the judge explained that the Supreme Court has recognized a state secrets privilege since Totten v. U.S., 92 U.S. 105 (1875). He noted that Attorney General Ashcroft stated in a court declaration:

     The Court determined that the plaintiff would be unable to establish her claims, and the DoJ would be able to rebut her allegations, without the disclosure of privileged information.

     The judge concluded that "the government has properly invoked the state secrets privilege ... [with] a classified declaration that contains the requisite specificity needed to properly invoke the privilege." Edmonds v. Dept. of Justice, #02-1448, 2004 U.S. Dist. Lexis 12355 (D.D.C. 2004).

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

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Physical Fitness Requirements, Agility Tests and Standards

Editor's Case Alert

Federal appeals panel rejects a gender discrimination suit by a vice sergeant who failed the fitness test when her job was combined with the SWAT unit into a special enforcement unit. Male vice officers had to pass the same test.

     A woman police vice and narcotics sergeant was told her unit was to be combined with the SWAT unit, into a newly-created Special Enforcement Unit.

     Since the mid 1980s, management required SWAT officers, including sergeants, to pass an initial fitness test, periodic fitness tests, and to participate in on-duty physical fitness training. Vice and narcotics officers had not been required to be fitness tested or to participate in fitness training.

     The test consisted of the following components: (1) skinfold assessment; (2) trunk flexion; (3) trunk extension; (4) bent-knee sit-ups; (5) a twelve-minute run; (6) push-ups; (7) pull-ups; (8) squat thrusts; (9) bench press; (10) standing broad jump; and (11) standing vertical leap. A composite score of seventy was needed to pass the test. An applicant did not have to complete every event successfully to pass the test.

     The plaintiff had not engaged in a regular exercise program, was 25-30 pounds overweight and had smoked a pack of cigarettes each day for the past 30 years. She continued to smoke while she was training for the test.

     She failed the bench press, vertical jump, broad jump, and trunk extension components, and, as a result, received a failing composite score. She sued, claiming gender discrimination, under disparate impact and disparate treatment theories.

     The trial court rejected her claims. On appeal, a three-judge panel said the question is whether the sergeant presented sufficient evidence that the reason management failed to select her -- a failure of the fitness test -- was a pretext for gender discrimination.

     She did not challenge the legitimacy of the test components; rather, she argued that the manner in which management administered the test was evidence of pretext, because of the short period of time that she had to prepare for the test.

     The officers who had served in the SWAT unit (all of whom were men) were "allowed to train on the job for a period of years, while she received only two to three weeks formal notice of the test and thus had insufficient time to train."

     The appellate panel affirmed. The fact that the sergeant had not previously been required to participate in physical fitness training was because she had been assigned to the vice unit, and not because of her gender." Moreover, the panel added, "all of the officers in the vice and narcotics unit in which [the sergeant] both male and female, received the same notice of the fitness test and had the same opportunity to train for it."

     She also argued that a male officer was allowed to rest on the floor between the final few push-ups while she was not. That evidence was "isolated and inconsequential," they said. Stahl v. Bd. of Cmsnrs. of Unif. Govt. Wyandotte Co./Kansas City, KS, #03-3068, 101 Fed. Appx. 316, 2004 U.S. App. Lexis 11476 (10th Cir. Unpub. 2004).

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Stress Related Claims and Defenses

MSPB judge overturns the firing of a public employee because she had body odor, and reduces the penalty to a 90-day suspension. Her punishment was lightened because she suffers from depression.

     Follow a reprimand and two short-term suspensions, the government fired a technician for having an offensive body odor. Oddly, the worker did not contest management's right to impose discipline for this "offense."

     On the issue of punishment, the judge considered the Douglas Factors, but that the removal penalty was overly severe because the employee had presented evidence that her untreated depression was the cause of the four incidents of misconduct.

     Douglas Factor 11 addresses mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, or mental impairment. There was testimony that the appellant suffered from "extreme mood lability, tearfulness, suicidal ideation, hopelessness, lack of motivation, poor self-esteem, poor self-care, poor self-worth, anxiousness, decreased energy, lack of pleasure, and panic attacks."

     The judge wrote:

     In view of her 17 years of federal service, the penalty was reduced to a 90-day suspension. Heilpern v. Dept. of the Army, #PH-0752-03-0271-I-1, 42 (2067) G.E.R.R. (BNA) 687 (MSPB-AJ 2003; rptd. 2004).

o Click here to view the ALJ opinion on AELE's website. The list of all 12 Douglas Factors is on the AELE website. [PDF]

     Editor's Note: Supposedly, the term body odor ("BO") was invented by advertising agents for a deodorant manufacturer in 1919. It is caused by bacterial contact with sweat (hidrosis).

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Wrongful Discharge/Discipline: Damages & Settlements

Federal appeals court rejects a damage claim for a wrongful disciplinary suspension, because a successor police chief reversed that decision, with back pay. Corrective action prevents a successful Sec. 1983 damage action.

     A police sergeant sued because he was given a five-day disciplinary suspension, in violation of his First Amendment rights. However, he also administratively challenged the suspension by filing a grievance. That resulted in a reversal of the discipline, and his lost pay was restored.

     A federal appeals court rejected his damage claims, noting:

     The panel added that simply because the plaintiff was initially suspended did not demonstrate a sufficient deprivation of a property interest for the purpose of a civil rights action, "because the disciplinary action was reversed" Johnson v. City of Louisville, #03-5964, 2004 U.S. App. Lexis 16200 (Unpub. 6th Cir. 2004).

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

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NOTED IN BRIEF
(SOME WITH LINKS)

Age Discrimination - General

     Employer was not entitled to terminate a 73 year-old driver because a new insurance policy excluded drivers over age 70. Enlow v. Salem-Keizer, #02-35881, 371 F.3d 645, 2004 U.S. App. Lexis 11428, 93 FEP Cases (BNA) 1601 (9th Cir. 2004). [PDF]

Ambulance Services

     Illinois appellate court, in a 2-to-1 holding, reinstates a wrongful death action against a fire district after EMTs waited seven minutes before administering drugs to a woman who was suffering an allergic reaction to walnuts, causing her throat to swell shut, resulting in her death. The lower court improvidently dismissed the action pursuant to the Illinois Emergency Medical Services Act. Kirwan v. Lincolnshire-Riverwoods Fire Prot. Dist., #2-02-1376, 2004 Ill. App. Lexis 762 (2nd Dist. 2004).

Civil Service

     Federal government publishes rules to establish a performance-based pay system for senior-level executives, scientists, and professional employees. Nine criteria will be used in the determination process. Senior Executive Service Pay and Performance Awards and Aggregate Limitation on Pay, 69 (145) Fed. Reg. 45535-45546 (July 29, 2004).

Collective Bargaining - In General

     Pennsylvania appellate court holds that a public employer is not required to honor continuing wage increases mandated by an expired bargaining agreement. Pa. State Park Officers Assn. v. Pa. Labor Rltns. Bd., #2671 C.D. 2003, 2004 Pa. Commw. Lexis 549 (Pa. Cmwlth. 2004). [PDF]

     The NLRB has ruled that student assistants are not "employees" within the meaning of federal bargaining laws, and dismissed a union's petition to represent a unit of students who serve as teaching and research assistants and proctors at a university. Brown Univ. and UAW, #1-RC-21368, 342 NLRB No. 42, 175 LRRM 1089, 2004 NLRB Lexis 385 (NLRB 2004). The 3-to-2 decision overrules the Board's decision four years ago in New York Univ., and UAAAIW, 332 N.L.R.B. 1205, 2000 NLRB Lexis 748, 332 NLRB No. 111 (2000).

Disciplinary Hearings - Proof Required

     Arbitrator holds that management did not have just cause to fire a worker who was accused of sexually harassing two women coworkers, even though the HR director testified that the women had complained to her, where the complainants refused to testify at the hearing; the "just cause" requirement for discharge must include an opportunity for cross-examination of the complainants. Cincinnati Metrop. Housing Auth. and AFSCME Ohio Council 8, L-1027, 119 LA (BNA) 1389 (Heekin, 2004).

Domestic Partner Rights

     New Jersey becomes the fifth state to officially recognize same-sex couples. Domestic partner legislation also exists in California and Hawaii; Vermont has same-sex civil unions, and Massachusetts has legalized same-sex marriage. The New Jersey forms and certificates are similar to those used for marriage licenses, and residents can apply for a partnership in any municipality, not just the jurisdiction in which the couple lives. The law applies to same-sex adults and opposite-sex couples who are 62 and older. Last year, legislation was enacted that requires health service (N.J. Code §17:48E-35.26) and medical service corporations (§17:48A-7aa) to offer dependent coverage for the domestic partners of insured persons. The Domestic Partnership Act, which was passed in January 2004, took effect in July.

     By 41 to 4, the New York City council overrides the mayor's veto of a bill to require firms who have business contracts with the city (for $100,000 or more) to offer domestic partner benefits to their employees. The ordinance, known as "Dominique's Law," was modeled on similar legislation enacted in Los Angeles, San Francisco and Seattle. Equal Benefits Bill #137-B, 175 Lab. Rltns. Rep. (BNA) 33. [PDF]

     California Supreme Court invalidates same-sex marriages performed in San Francisco. The court did not reach the constitutional issues, and only addressed the narrow issue of whether the mayor could defy state statutes regulating marriage licenses. Lockyer v. C&C of San Francisco, #S122923, 2004 Cal. Lexis 7238 (2004). [PDF]      

     A trial court judge in Seattle, WA, has concluded that same-sex persons are entitled to marry for constitutional reasons. Andersen v. King County, #04-2-04964-4 (King. Co. Super. Ct. 2004). [PDF]

Handicap Laws / Abilities Discrimination - Accommodation - General

     President Bush has signed an Executive Order directing federal agencies to address the safety and security needs of people with disabilities during emergencies, including earthquakes, tornadoes, fires, floods, hurricanes and acts of terrorism. The Dept. of Homeland Security has created an Interagency Council to oversee the implementation of new policies resulting from the Executive Order.

     » Editor's Note: In 2002, FEMA published an Orientation Manual for First Responders on the Evacuation of People with Disabilities. [PDF]

     Federal appeals panel rejects a disabilities discrimination claim brought by a detention supervisor who was not promoted. She was off work due to an injury at the time, and the city had a rational policy of not promoting injured or ill candidates who had not returned to work with a medical fitness certificate. Kincaid v. City of Omaha, #03-3031, 2004 U.S. App. Lexis 16355 (8th Cir. 2004). [PDF]

Handicap Laws / Abilities Discrimination - Constitutionality

     State officials are not immune under the Eleventh Amendment from ADA litigation seeking only prospective (injunctive) relief. McCarthy v. Hawkins, #03-50608, 2004 U.S. App. Lexis 16538 (5th Cir. 2004). [PDF]

Hearing (Audio) Impairment

     Federal court finds that investigative questioning and the arrest of a deaf mute is a "government program" under the accommodations section of the ADA -- requiring the assistance of a certified sign language interpreter -- "but only when the circumstances surrounding the activity is 'secure' and no 'threat to human safety' is present. Summary judgment was given to police officers because it was unclear that the arrest was safely made. Longworth v. St. Louis Metrop. Police Dept., #4:03CV897 (E.D. Mo. 2004). [PDF]

Moonlighting (Secondary Employment)

     Arbitrator holds that a state agency had just cause to discipline an employee for violating a prohibition on outside employment. However, the suspension was reduced from 10 to 3 days, because a former supervisor had given him permission to do moonlighting in the past, and this contributed to employee's conduct. State of Ohio Bur. of Workers Comp. and Ohio Civil Serv. Employees Assn. AFSCME L-11, 119 LA (BNA) 1121 (Murphy, 2004).

Promotional Rights, Procedures and Performance Appraisals

     Federal appeals court affirms an order correcting the plaintiff's Air Force service record, but it was outside the scope of military review for the Court of Claims to order his reinstatement to active duty at the rank of major, with back pay. Roth v. U.S., #03-5116, 2004 U.S. App. Lexis 16548 (Fed. Cir. 2004).

Race: Reverse Discrimination

     Fifth Circuit affirms a $434,279 compensatory damage award to 35 white New Orleans police officers that were passed over for promotion because of their race. Management manipulated a consent decree to favor minority promotions to sergeant and lieutenant. Albright v. City New Orleans, #02-30499, 2004 U.S. App. Lexis 15123 (Unpub. 5th Cir. 2004). [PDF]

Religious Discrimination

     Wiccan paganist wins suit against city council members who ended their opening prayers with "In Christ's name we pray." Fourth Circuit affirms an injunction prohibiting the council "from invoking the name of a specific deity associated with any one specific faith or belief in prayers given at town council meetings." Wynne v. Town of Great Falls, S.C., #03-2069, 2004 U.S. App. Lexis 15186 (4th Cir. 2004). [PDF]

Residency Requirements

     Federal appeals court upholds the termination of a city employee for residency violations. Although the employee claimed that management had been aware that he lived only two days per week within the city limits he failed to prove that the city council was aware of or approved of his living arrangements. Gusewelle v. City of Wood River, #03-2100, 2004 U.S. App. Lexis 14088 (7th Cir. 2004). [PDF]

Resignations

     "An early retirement request, initiated by an employee, is presumed to be a voluntary act, and where an employee is faced merely with the unpleasant alternatives of resigning or being subject to removal for cause, such limited choices do not make the resulting resignation an involuntary act." Keyes v. Dist. of Columbia, #03-7155, 372 F.3d 434, 2004 U.S. App. Lexis 12851 (D.C. Cir. 2004). [PDF]

Sex Discrimination - Equal Pay & Opportunity Claims

     Private employer and the EEOC agree to a $54 million settlement of claims that women employees were the victims of pay and promotional discrimination. $12 million will go to a single employee, $40 million to other former and current women employees, and $2 million for diversity training. EEOC v. Morgan Stanley, #01 Civ. 8421 (Stlmt. 2004); prior interim decis. at 2004 U.S. Dist. Lexis 12724 and 12673; 211 F.R.D. 225; 2002 U.S. Dist. Lexis 23727, 17484 and 11877; 206 F.Supp.2d 559 and 132 F.Supp.2d 146 (S.D.N.Y.).

Sexual Harassment - In General

     Appeals court finds the city acted promptly and effectively, following the plaintiff's sexual harassment complaint, and her resignation was not a constructive discharge. A summary judgment for the city is affirmed. McPherson v. City of Waukegan, #03-2738, 2004 U.S. App. Lexis 16513 (7th Cir. 2004). [PDF]

     Federal court refuses to dismiss a suit against the city for sexual harassment. A male officer displayed a pornographic picture on a general-use computer and then laughed about the coworker's subsequent distress. Williams v. Chicago, N.D. Ill., #1:03-cv-2994, 2004 U.S. Dist. Lexis 13187 (N.D. Ill. 2004).

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RESOURCES

     Overtime: Article, "The Fair Labor Standards Act and Police Compensation," 73 (6) FBI Law Enforcement Bulletin 1, June, 2004. [PDF]

     Religious organizations: The President has issued an Executive Order to create "Centers for Faith-Based and Community Initiatives" within designated executive branch agencies, to reduce obstacles to the participation of faith-based organizations that provide social and community services.

     Stress Related: Article, "Issues in Small Town Policing: Understanding Stress," 73 (7) FBI Law Enforcement Bulletin 24, July, 2004. [PDF]

     Workplace violence: NIOSH has produced a training video on worksite violence: Publication No. 2004-100d.

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:

Access to Courts - see: National Security Issues
Pay Disputes - Overtime Claims - see: Educational Incentives
Disciplinary Offenses / Punishment - see: Stress Related
Vehicle Related - see: Disciplinary Offenses Whistleblower Protection - see: National Security Issues

Noted in Brief:
Disciplinary Punishment - see: Moonlighting
Handicap Discrimination - Accommodation - see: Hearing Impairment

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