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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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2005 FP Oct (web edit.)

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CONTENTS

Featured Cases with Links

Age Discrimination - Mandatory Retirement
Disciplinary Surveillance
FLSA - Overtime - in General
Family, Medical & Personal Leave
Firearms - Restrictions on Wearing
First Amendment Related
Homosexual & Transgendered Employee Rights
Religious Discrimination
Retaliatory Personnel Action
Sexual Harassment
Training Cost Reimbursement

Noted in Brief

Age Discrimination - Promotion
Arbitration Procedures (2 cases)
Criminal Liability
Disciplinary Evidence (2 cases)
Disciplinary Offenses - Proof

Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment
Discovery, Publicity and Media Rights
Emotional Distress
Family, Medical & Personal Leave
Hairstyle Regulations
Injuries to Employees
Pay Disputes - Overtime Claims
Product Liability
Promotional Rights & Procedures
Psychological Counseling
Reinstatement and Alternative Remedies
Retirement Rights and Benefits
Sex Discrimination
Workplace Violence

Resources

Cross_References

FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Age Discrimination - Termination / Mandatory Retirement

Editor's Case Alert

Prison doctor who was forced to retire at age 81 is awarded $20 million in an age discrimination suit.

     The plaintiff was chief physician and surgeon at Lancaster State Prison in Los Angeles County. The facility houses over 4,000 inmates and has over 800 corrections officers, more than 400 support staff, and has an annual operating budget of $92 million.

     At age 81, the doctor refused to voluntarily retire in 2001. Management complained to the California Medical Board that he suffered from memory loss which impaired his work. The Board cleared him of the allegations but he was involuntarily retired. He sued in state court.

     During a month-long civil rights trial, an expert testified that the plaintiff could have worked until age 96. The jury found that his work was satisfactory and that age was a motivating factor in workplace harassment, retaliatory action and forced retirement. They awarded $1,610,975 for loss of past and future earnings, and $18,389,025 for emotional injury. Johnson v. St. of Cal. Dept. of Corr., #BC288518, L.A. Co. Super. (verdict 2005).

     Click link to view the docket and the jury award [PDF] on the AELE website.

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Disciplinary Surveillance

Federal appeals court holds that an employer had a duty to bargain with the union over the installation of covert videocameras on the worksite, even if located in an elevator utility room. Reinstatement claims for terminated employees still pending resolution.

     In response to information that an elevator motor room on the roof of one of its buildings was being used for employee drug use, the employer installed hidden surveillance cameras. As a result, five employees were discharged and lesser discipline was imposed on eleven others.

     Acting on a union complaint, the National Labor Relations Board held that the employer violated section 8(a)(5) and (1) of the National Labor Relations Act (29 U.S. Code §158) by failing to bargain with the union over the installation and use of the hidden surveillance cameras.

     The Board did not order remedial relief for the workers who were fired or disciplined because "it is not consistent with the policies of the Act or public policy generally to reward [employees] who engage in unprotected conduct."

     On appeal, a three-judge panel of the D.C. Circuit affirmed the substantive holding that an employer has a legal duty to bargain with the union over the installation and use of hidden surveillance cameras in the workplace.

     The panel split 2-to-1, with the majority directing the NLRB to reexamine the issue of remedial relief for the fired and disciplined workers, and clarify a patchwork of prior decisions as to clarify the rule and exceptions. Brewers L-6 v. NLRB, #04-1278, 414 F.3d 36, 2005 U.S. App. Lexis 13292, 177 LRRM (BNA) 2705 (D.C. Cir.).

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

     Editor's Note: In its decision, the NLRB recognized that while an employer must bargain over a proposal to use hidden surveillance cameras, it need not "apprise the union of the location of the cameras or the time in which they will be in use." Anheuser-Busch and Brewers L-6, 2004 NLRB Lexis 404, 342 N.L.R.B. No. 49 (at n.7).

     An elevator motor room is not a normal employee recreational area. However, there was evidence that supervisors knew that it was used as a break area.

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FLSA - Overtime - in General

DoL rules that an employee performing two jobs for the same entity can be paid overtime based on two separate rates, provided that the employee and the employer have reached an agreement permitting such an arrangement.

     A recently released DOL Letter addresses the additional employment of firefighters on "special assignments" with two different rates of pay.

     Although an employer usually is required to pay the average total wage when an employee works two jobs at different pay levels, employers that take affirmative action to prove that multiple pay rates are not designed to avoid the Fair Labor Standards Act can pay overtime based on two separate wages. See 29 U.S. Code § 207(g)(2).

     The criteria used to determine whether an employer can pay two different rates includes:

     Wage and Hour Opinion Letter, 2005 DOLWH Lexis 22, 43 (2116) G.E.R.R. (BNA) 696 (Feb. 14, 2005).

     Click here to access the DoL's Opinion on the AELE website. [PDF]

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Family, Medical & Personal Leave

Seventh Circuit holds that an employer may not impose return-to-work standards that are more burdensome than the provisions of the Family Medical Leave Act, even if those requirements are embodied in a collective bargaining agreement.

     The FMLA requires workers to provide a simple statement from their health care provider that they are fit for duty.

     A worker sued the Postal Service for failing to restore him to work after he presented a medical clearance and requiring him to submit to a medical examination by an employer-designated physician before allowing him to return to work.

     At issue was the employer's claim that the bargaining agreement waived any conflicting rights specified in the FMLA.

     A three-judge appellate panel noted that the statute requires that "the terms of a collective bargaining agreement govern an employee's return to work," but 29 U.S. Code §2652(b) provides that "the rights established for employees under this Act or any amendment made by this Act shall not be diminished by any collective bargaining agreement or any employment benefit program or plan."

     Thus, any provision of a collective bargaining agreement that replaces provisions of the Act or its regulations "must grant more or equal, not less, protection to the employee." Harrell v. U.S. Postal Serv., #03-4204, 415 F.3d 700, 2005 U.S. App. Lexis 14550 (7th Cir. 2005).

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

     Research Note: Although not cited by the Seventh Circuit, a federal court in New Jersey came to the same conclusion in 2001. Marrero v. Camden County, #00-3233, 164 F.Supp.2d 455, 7 WH Cases2d (BNA) 670 (D.N.J. 2001). Also see, Aitchison, Understanding the FMLA at 144.

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Firearms - Restrictions on Wearing

Federal court in Kansas finds that an officer was disqualified from possessing a firearm after a misdemeanor conviction for slapping her husband.

     A deputy sheriff was fired after she slapped her husband, an off-duty police officer, who reported the incident and had her charged with a municipal ordinance violation of disorderly conduct by fighting.

     The deputy consulted her attorney and her supervisors. Believing that a conviction would not impair her right to carry a firearm under federal law, she did not contest the charge.

     The sheriff terminated her and she appealed. The civil service commission upheld her dismissal and a state district affirmed that holding. She then brought suit in federal court, claiming that her conviction did not constitute of crime of domestic violence within the meaning of 18 U.S. Code §922(g).

     She also alleged that her discharge was not prompted by the conviction, but was retaliation for her use of leave under the Family and Medical Leave Act.

     Without addressing the FMLA claim, the federal judge granted the sheriff a summary judgment on the firearm disqualification issue. He wrote:

     As for the misunderstanding surrounding her plea, he added:

     Prier v. Steed, #04-1387, 2005 WL 1162929, 2005 U.S. Dist. Lexis 10182 (D. Kan. 2005).

     Click here to view the ruling on the AELE website.

     Editor's Note: In a prior interim ruling, the judge noted that the deputy's termination "happened only a few weeks after the FMLA activity" and that a captain had "explicitly stated that one of the rationales for the termination was [her] absences." See 2004 U.S. Dist. Lexis 5093 (D. Kan. 2004).

     Should she prevail on the FMLA claim, it is possible she could win reinstatement as an unarmed deputy and even receive a back pay award. Most sheriff's depts. have a few unarmed positions, especially in the jail.

     In Ohio, an arbitrator reinstated a police officer who had to be disarmed following his conviction for a domestic misdemeanor; the penalty of termination was found to be excessive. City of Cleveland and Cleveland Police Patrolmen's Assn., 108 LA (BNA) 912, AAA #53-390-00549-96 (Skulina, 1997).

     In Nebraska, another arbitrator declined to reinstate a corrections officer who had been terminated because of a similar conviction. Ironically, the conviction was set aside after his termination, but before the grievance was arbitrated. The employer was under no duty to keep the officer in an unarmed position while he sought post-conviction relief. Nebraska Dept. of Correctional Services and Neb. Assn. of Public Employees L-61, AFSCME, 110 L.A. (BNA) 129 (Caffera, 1998).

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First Amendment Related

Florida Supreme Court strikes down a law prohibiting the wearing of clothing marked with words 'police', 'sheriff', etc.

     A woman entered a store wearing T-shirt that displayed a star and the words "Pinellas County Sheriff's Office." Florida Statutes §843.085 prohibits the unlawful use of police badges or other indicia of authority "which could deceive a reasonable person" or which displays the words police, sheriff, etc.

     The state's Supreme Court found the law unconstitutionally overbroad because it banned the wearing of any indicia of law enforcement authority regardless of the intent of the wearer and could be applied to conduct that is protected by the First Amendment.

     Without a specific intent requirement, the law did not distinguish between the innocent wearing or displaying of law enforcement indicia from that designed to deceive the public into believing that such display was official.

     The justices, with one dissenting vote, noted that since Sep. 11, 2001 clothing in support of the NYPD has be "widely seen." The majority added:

     "While there is certainly a legitimate interest in ensuring that the public not be deceived by law enforcement impersonators, we conclude that this statute must be narrowly tailored with an intent requirement so as not to run afoul of the rights guaranteed by the First Amendment."

     Sult v. State of Florida, #SC03-542, 894 So.2d 969,2005 Fla. Lexis 1343 (2005).

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

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Homosexual & Transgendered Employee Rights

Transgendered Border Patrol employee fails to prove that poor evaluations and suspensions were due to gender bias.

     A Border Patrol technician who underwent gender reassignment surgery during her employment sued, claiming retaliation for filing EEO complaints and experiencing sex discrimination because of a male to female sex change.

     The plaintiff had not notified management of her gender identity transition. She simply showed up at an assignment dressed as woman. She also changed her name from Ronald to Tracy.

     The court found that her bad work evaluations and suspensions were not motivated by her gender. The judge wrote:

     Although there was coworker animosity, "Title VII requires more than a difficult workplace." The judge added:

     The court also held that management's decision not to allow the plaintiff to wear a dress did not violate Title VII because it did not impose a greater burden on one sex than another.

     Finally, management's decision to require her to use a unisex restroom was not unreasonable, writing "the Court is unaware of any requirement imposed on an employer to permit a person in plaintiff's situation to use the women's restroom. Sturchio v. Ridge, #03-cv-0025, 2004 U.S. Dist. Lexis 27345 (E.D. Wash. 2004; rptd. 2005).

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

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Religious Discrimination

Editor's Case Alert

Federal court rejects a discrimination suit brought by an Orthodox Jew who sought appointment as a state trooper but refused to work on the Sabbath.

     The court noted that the only exception to the applicant's work restriction would have to involve a "catastrophic" occurrence such as September 11, 2001. During his deposition the applicant was unable to specify any other catastrophic happening in the history of New York City, where he resides, or New York State which would be of sufficient crisis to permit his working on the Sabbath.

     Because the State Police may be the only law enforcement entity in many communities, it is "crucial to this duty ... to properly staff each shift ...and it is critical that the State Police function at acceptable force levels."

     Moreover, seniority prevails on shift-swapping and probationary troopers may not swap at all. To accommodate the applicant, management would have to ignore the seniority system and violate the terms of the bargaining agreement.

     The judge recognized that the phrases "reasonable accommodation" and "undue hardship" are not defined in the statutes, and that each case depends upon its own facts. The Court found that "under the circumstances of this case" the State Police have demonstrated that any reasonable accommodation permitting plaintiff's religious observances would create undue hardship on their operations.

     Sides v. N.Y. Div. of State Police, #03-CV-153, 2005 U.S. Dist. Lexis 12635, 96 FEP Cases (BNA) 196 (N.D.N.Y. 2005).

     Click here to view the opinion on the AELE website.

     Research Note: The Second Circuit has concluded that a corrections management did not have a duty to breach the seniority provisions of a bargaining agreement to allow an Adventist to always take off on the Sabbath. Genas v. St. Dept. Corr. Serv., 75 F.3d 825 (2nd Cir. 1996).

     The Eleventh Circuit has upheld rotating shift schedules and management's refusal to further accommodate an officer who is a Seventh Day Adventist. Beadle v. Hillsborough Co. Sheriff's Dept., 29 F.3d 589 and 40 F.3d 391 (11th Cir. 1994), cert.den. 115 S.Ct. 2001 (1995).

     The Eighth Circuit has held that the Government did not violate Title VII when it refused to change an employee's work schedule to avoid the Sabbath. Mann v. Frank, 795 F.Supp. 1438 (W.D.Mo. 1992), affirmed 63 FEP Cases (BNA) 634 (8th Cir. 1993).

     In Illinois, a Seventh Day Adventist lost a wrongful termination suit brought against the Dept. of Corrections and his union for failing to accommodate his demand to not work on the Sabbath. Blair v. Graham Corr. Ctr., 782 F.Supp. 411 (C.D.Ill. 1992).

     In Pennsylvania, an appellate court held that an employer was not required to excuse sergeant from duty on Sabbath despite his sincere religious beliefs. His termination was upheld. Penn. St. Univ. v. Comm. Human Rel. Cmsn., 505 A.2d 1053 (Pa. Cmwlth. 1986).

     In the Tenth Circuit, a fire dept. prevailed in a civil rights suit filed by a Seventh Day Adventist firefighter over time-off for religious holidays. U.S. v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976).

     However, a state human rights agency ordered a transit authority to pay $50,000 to a Seventh Day Adventist who was required to work on the Sabbath, where the testimony revealed that management allowed other workers to swap days but ignored his requests to do so. Marquez v. Mass. Bay Transp. Auth., Mass. Cmsn. Against Discrim. #97-BEM-3223, 40 (1969) G.E.R.R. (BNA) 740 (MDAC 2002).

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Retaliatory Personnel Action

Alleged retaliatory transfer of an Illinois State police lieutenant results in a verdict for $210,000 in compensatory damages and $472,300 in punitive damages against two superiors.

An Illinois State Police lieutenant claimed that he was transferred in retaliation for concluding, during his reinvestigation of the two 1986 murders, that the two men who had been convicted were not guilty.

He alleged that he was prevented from investigating the possible involvement of a businessman in a double homicide because the man had donated money to the campaign fund of the then Governor. The Governor has been criminally charged with campaign improprieties, but not in connection with this dispute.

Management maintained that the transfer from an investigations supervisor to a patrol supervisor was a non-retaliatory lateral reassignment. However, a nine-person federal jury found that the transfer was as a result of his investigatory work and recommendations, and not over a personal grievance.

    In an earlier ruling, the judge refused to grant a summary judgment to the defendants as a matter of law, or to recognize a valid defense of qualified immunity. Callahan v. Brueggemann, #03-CV-2167 ( C.D. Ill. 2005).

     Click link to view the judgment and verdict and the prior ruling refusing to dismiss the action. [PDF]

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Sexual Harassment - In General

Editor's Case Alert

California Supreme Court concludes that favoritism, given by a prison warden to a subordinate because of their sexual involvement, can constitute sexual harassment of other workers under the state's employment civil rights law.

Two former California State Prison employees sued the DoC claiming the warden of the prison gave more favorable treatment to the women with whom he was having sexual affairs. This allegedly resulted in a "promotion despite lack of qualifications."

Reversing a line of cases holding that sexually motivated favoritism is not harassment of other workers, the justices distinguished "an isolated instance of favoritism" from widespread action where a demeaning message is conveyed to women employees that they are viewed by management as "sexual playthings" or that the path for promotion is to engaging in sexual conduct with their supervisors or upper management.

:

Purportedly, the then warden was sexually involved with at least three women at the same time. A lower court had found that the unfavored women "were not treated any differently than male employees," and had dismissed their lawsuit.

The decision increases potential employer liability and may prompt a ban on supervisors dating their subordinates or even coworkers. Miller v. Dept. of Corrections, #S114097, 36 Cal.4th 446, 115 P.2d 77, 2005 Cal. Lexis 7606 (2005).

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

     Research Note: Management lawyers have suggested this case could precipitate a ban on the dating of subordinates, and even coworkers. The Sixth Circuit has upheld a chief's order to a police officer that he stop dating a subordinate; the panel said that the no-dating order prevents favoritism and sexual harassment complaints. Anderson v. City of LaVergne, #02-6094, 371 F.3d 879, 2004 U.S. App. Lexis 11734, 2004 FED App. 0180P (6th Cir. 2004).

     Wal-Mart's antifraternization rule was upheld by a state appellate court in New York. New York v. Wal-Mart Stores, 621 N.Y.S.2d 158, 207 A.D.2d 150 (1995). In June 2005, a German Labor Court in Wupperthal held that the retailer could not ban inter-office dating among employees at its German stores.

     Return to the Contents menu.

Training Rights, Requirements and Cost Reimbursement

Feature Article

Dept. of Labor issues a precedent-setting opinion that public employers may not deduct from final paychecks, amounts due under training cost reimbursement clauses, except to the extent the compensation exceeds the federal minimum wage, including overtime.

     The DoL opinion makes clear, that under 29 C.F.R. §531.35, a non-exempt employee is entitled to earn the federal minimum wage, regardless of any monetary claims the employer might have against the employee.

     In this case, an Oklahoma police officer switched cities within one year after he became a state certified peace officer. Oklahoma Statutes, Title 70 §3311(M) provides that if an employing law enforcement agency has paid the salary of a person while attending a basic police course and that person resigns and is hired by another law enforcement agency in Oklahoma within one year, the second employing agency or the person who received the training must reimburse the original employment agency for the salary paid during training.

     The DoL addresses the issue of whether the second employing agency or the officer is required to reimburse the city the full amount of the salary the officer received while in training (as required by state statute) or only the amount of the salary in excess of the applicable minimum wage.

     The DoL opinion notes that the Supreme Court has held that an employee may not waive his or her rights to compensation due under the FLSA. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697 (1945).

     Moreover, a union may not negotiate a provision that waives an employee's statutory rights under the FLSA. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (198l).

     The DoL concluded that "any reimbursement paid by the officer that will result in payment of less than the amount required by the applicable minimum wage and/or overtime requirements will violate the ... FLSA." Wage & Hour Opin. Ltr. #FLSA 2005-18, 2005 DOLWH Lexis 20 (May 31, 2005).

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

     Click here to view a specimen training reimbursement agreement from St. Louis, Mo.

     Research Note: The DoL relied, in part, on an Seventh Circuit decision that involved an EMT training cost reimbursement provision that had been negotiated with the firefighters' union. It provided that any firefighter leaving the city's employ within three years after certification must reimburse the city for the total cost of the training.

     Two and a half years after beginning his training a firefighter switched jobs. The city claimed the cost of training, which was $1,400 and withheld payment of his final paychecks.

     The firefighter sued; the federal District Court held that any amounts owed by a firefighter must be amortized over the restriction period. In this case, the plaintiff would owe only 6/36ths of the training cost.

     On appeal, a three-judge panel said that the collective bargaining agreement was valid under state law, so that the plaintiff must repay the full cost of his books and tuition, $1,400. The panel reasoned that even after 30 months his EMT certificate was still valid, as a "portable credential" for employment purposes.

     They also said that the city must pay the plaintiff the minimum wage for the final pay period, but could deduct the excess compensation, and could sue the firefighter for the remainder in a breach of contract action. Heder v. City of Two Rivers, Wis., 295 F.3d 777 (7th Cir. 2002). Note -- Wage reimbursement laws vary state-by-state, and a prorata reduction may be required in other jurisdictions.

     In Illinois, a state 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 officer was entitled to retain the federal minimum wage amount during the training program. Vil. of Montgomery v. Thompson, #SC-KA-97-3820 (Ill.Cir.Ct., Kane Co. 1998).

     A federal District Court in Florida came to the same conclusion in an older case. Strong v. Williams, 1980 U.S. Dist. Lexis 14185 at 5-f (M.D.Fla.).

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NOTED IN BRIEF
(SOME WITH LINKS)

Age Discrimination - Promotion/Assignment

     Even though an officer promoted to sergeant was only six years younger than the plaintiff, there was sufficient evidence that the chief had manipulated an oral promotional exam to discriminate against older officers, and that the plaintiff experienced retaliation for complaining; the court denied a defense motion for summary judgment. McInnis v. Weston, #3:03CV1803, 375 F.Supp.2d 70, 2005 U.S. Dist. Lexis 12704 (D. Conn. 2005).

Arbitration Procedures

     Federal appeals court upholds mandatory arbitration remedy, where the employee received a copy of the rules and continued to work. Written acceptance of an arbitration agreement was unnecessary. Marino v. Dillard's, #04-30911, 413 F.3d 530, 2005 U.S. App. Lexis 11837 (5th Cir. 2005). [PDF]

     Ohio appellate court upholds a clause in the bargaining agreement requiring employees to arbitrate any wrongful termination claims. Knipp v. Lawrence County, #04CA34, 2005 Ohio 3103, 2005 Ohio App. Lexis 2888 (2005). [PDF]

Criminal Liability

     U.S. Attorney indicts two high-ranking City of Chicago officials for job rigging, conducting sham employment interviews, falsifying interview scores, and violating federal court orders, state laws and city codes. U.S. v. Sorich (N.D. Ill. 2005). [PDF]

Disciplinary Evidence-Admissibility/In General

     Arbitrator, in a private sector grievance, allows into evidence a private investigator's videotape of a worker that was later accused of sick leave abuse. Solutia and Pace Int. Union L-6-0196, 121 LA (BNA) 26, FMCS #04/07871 (Szuter, 2005).

     A double hearsay statement was inadmissible in a whistleblower lawsuit. Beasley v. Passaic County, #A-2780-03T3, 377 N.J. Super. 585, 873 A.2d 673, 2005 N.J. Super. Lexis 166, 22 IER Cases (BNA) 1836 ( N.J. App. Div. 2005).

Disciplinary Offenses - Sufficiency of Proof

     Arbitrator annuls the termination of an officer who made an allegedly unlawful entry into a residence to make an arrest without a warrant. "... it is most evident that had the Department thoroughly investigated, it too would have determined that this grievant could have reasonably believed he complied with Florida law. If F__'s training was flawed in some way, then the grievant cannot be blamed ..." City of Atlantic Beach, Fla. and FOP, 121 LA (BNA) 105, FMCS #04/06117 (Hoffman, 2005).

Disciplinary Punishment - In General

     N.H. Supreme Court upholds the termination of a police chief who gave agency ammunition to a businessman and then lied about his conduct. His "lack of candor was a violation of the police dept's policy of truthfulness in an investigation and fell below the standard of behavior appropriate for his position." Yoder v. Middleton, #2004-122, 876 A.2d 216, 2005 N.H. Lexis 101, 23 IER Cases (BNA) 90 (N.H. 2005).

Disciplinary Punishment - Disparate Treatment

     Federal appeals court overturns a jury verdict given a N.Y. court officer who was disciplined for allegedly pointing a firearm at a janitor and then denying doing so. Neilson v. d'Angelis, #03-9074, 409 F.3d 100, 2005 U.S. App. Lexis 9642, 22 IER Cases (BNA) 1864 (2nd Cir. 2005).

Discovery, Publicity and Media Rights

     In a defamation lawsuit, a judge in N.Y. City orders an Internet service provider to disclose the identity of a person that sent an e-mail to the governing board of a national organization that accused its chief executive of nonfinancial dishonesty. Public Rel. Soc. of Amer. v. Road Runner Online, #116210/04, 2005 NY Slip Op 25227, 2005 N.Y. Misc. Lexis 1155 (N.Y. Co. Sup. 2005) relying on the rationale established in Sony Music v. Does 1-40, 326 F.Supp2d 556 (S.D.N.Y. 2004). [PDF]

Emotional Distress

     In a FELA action, a federal appeals court holds that although an employee may recover damages for emotional injury that results from a fear of physical injury to himself, he cannot recover for emotional distress that results from seeing another person's violent death. Lukowski v. CSX Transp., #04-4141, 416 F.3d 478, 2005 U.S. App. Lexis 14520 (6th Cir. 2005).

Family, Medical & Personal Leave

     Fourth Circuit upholds a Dept. of Labor regulation that bars the waiver or release of a worker's FMLA rights, 29 C.F.R. §825.220(d). Taylor v. Progress Energy, #04-1525, 415 F.3d 364, 2005 U.S. App. Lexis 14650, 10 WH Cases2d (BNA) 1281 (4th Cir. 2005). [PDF]

Hairstyle and Appearance Regulations & Discrimination

     Citing the Pennsylvania Religious Freedom Protection Act of 2002, a Philadelphia trial court enjoins the city's fire dept. from disciplining a Muslim firefighter who refuses to shave his beard. DeVeaux v. City of Philadelphia, Docket #2005-3103, Control #021818, 2005 Phila. Ct. Com. Pl. Lexis 331 (Cm.Pls. Phila. Co. 2005). [PDF]

Injuries to Employees

     Anaheim police lieutenant, who suffered on-duty injuries and later was denied promotions and forced to take early retirement, wins a $5.2 million jury award. Welch v. City of Anaheim, (Orange Co. Super. Ct. 2005).

Pay Disputes - Overtime Claims

     Police association was entitled to a judgment that the city violated a state wage payment law when computer problems delayed processing of overtime pay during six pay periods. Association was entitled to recover statutory penalties, attorneys' fees, and liquidated damages. Milwaukee Police Assn. L-21 v. Hegerty, #03-3081, 2005 WI 28, 279 Wis. 2d 150, 693 N.W.2d 738, 2005 Wisc. Lexis 138 (2005).

Product Liability

     Illinois town files a federal class action suit claiming that Taser has misrepresented the safety of its pulsed energy weapons. Vil. of Dolton v. Taser Int., #05CV4126 (Compl. filed 7-18-2005) (N.D. Ill. 2005). [PDF]

Promotional Rights, Procedures and Performance Appraisals

     Although Ohio law "does not specifically order [a civil service] commission to allow police examinees to inspect and protest their exams, it does not mean they cannot." Unless prohibited by law, a commission may adopt appellate procedures for unsuccessful promotional candidates. Ohio ex rel. Fern v. Cincinnati, C-040570, 161 Ohio App.3d 804, 832 N.E.2d 106, 2005 Ohio 3168, 2005 Ohio App. Lexis 2950 (2005). [PDF]

Psychological Counseling

A deranged and suicidal gunman shot and killed three people and wounded two more. Although the gunman had been the patient of psychotherapists, he had not communicated any threats of physical violence, and the California legislature "has expressly precluded monetary recovery from psychotherapists in this situation." Calderon v. Glick, #B177040, 131 Cal. App.4th 224, 31 Cal.Rptr.3d 707, 2005 Cal. App. Lexis 1121 (2d App. Dist. 2005). [PDF]

Reinstatement and Alternative Remedies

     Federal court in D.C. holds that a public employee that was terminated in violation of the ADA is entitled to be reinstated to a "comparable position" if her old job was abolished. Glymph v. Dist. of Columbia, #01-1333, 374 F.Supp.2d 219, 2005 U.S. Dist. Lexis 12415, 16 AD Cases (BNA) 1663 (D.D.C. 2005).

Retirement Rights and Benefits

     Arbitrator concludes that a new management requirement, which was not based on an actuarial study, that police officers contribute 5% of their wages to the pension plan violates the bargaining agreement. Bor. of State College, Pa. and State College Police Assn., 121 LA (BNA) 188, FMCS Case No. 05/51261 (Felice, 2005).

Sex Discrimination - In General

     Heterosexual state employee loses her suit that her superior, a lesbian, failed to promote her. She only scored second and she failed to show that she was discriminated against because of her gender. Medina v. I.S.D. State of New Mexico, #04-2166, 413 F.3d 1131, 95 FEP Cases (BNA) 1765, 2005 U.S. App. Lexis 12786 (10th Cir. 2005).

Workplace Violence

     Federal appeals court holds that a death, which was the result of an intentional shooting by a coworker while both were on the job, is compensable under the state's Workers' Compensation Act. Tanks v. Lockheed Martin, #05-60028, 417 F.3d 456, 2005 U.S. App. Lexis 14539 (5th Cir. 2005). [PDF]

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RESOURCES

     IT security: To minimize Internet spam, phishing and spyware, the National Institute of Standards and Technology has issued a draft of Minimum Security Requirements for Federal Information and Information Systems.

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:
Criminal Liability - see: First Amendment Related
Transfers: Disciplinary or Punitive - see: Retaliatory Personnel Action
Collective Bargaining - see: Family, Medical & Personal Leave

Noted in Brief:
Handicap Discrimination - see: Reinstatement
Workplace Violence - see: Workers' Compensation - Claim Validity

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