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

ISSN 0164-6397

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2006 FP Jun (web edit.)

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CONTENTS

Featured Cases with Links

Disciplinary Investigations
FLSA Overtime
Hairstyle & Appearance Regulations
Homosexual & Transgendered Employee Rights
Inefficiency and Incompetence
Injuries to Trainees
Physical Agility Tests and Standards
Privacy Rights
Promotional Rights
Retirement Rights

Noted in Brief

Applicant Rejections
Attorneys' Fees
Civil Liability
Collective Bargaining - In General
Collective Bargaining - Duty to Bargain
Disability Benefits
Disciplinary Appeals
Disciplinary Punishment
FLSA - Overtime - Canine Officers
FLSA - Overtime - In General
Family, Medical & Personal Leave (2 cases)
Handicap Discrimination - Regarded as Disabled
Handicap Discrimination - Specific Disabilities (2 cases)
Light Duty Assignments
Race Discrimination - In General
Race Discrimination - Disparate Discipline
Retaliatory Personnel Action
Seniority
Sexual Harassment - Verdicts
Workers' Compensation

Resources

Cross_References

FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Disciplinary Investigations

Editor's Case Alert

Ex Florida deputy and his wife awarded $1,231,700 against the county. The plaintiffs were falsely accused of bringing drugs into the jail -- and management allegedly botched the internal investigation.

     A convicted felon falsely claimed jail deputies were dealing drugs so that he could get a reduced prison sentence. The plaintiff was suspended for five weeks during an investigation and also was arrested. His wife and several other officers were under suspicion.

     A state court jury found for the plaintiffs. The deputy was awarded $816,200 -- including $400,000 for mental anguish and reputational injuries, $400,000 for loss of future earnings, $6,200 for past and future mental health therapy and $10,000 for loss of consortium.

     His wife was awarded $415,500 -- including $400,000 for mental anguish and reputational injuries, $5,500 for past and future mental health therapy and $10,000 for loss of consortium.

     Femminella v. Palm Beach County, Docket #50-204 CA 002604, CFN 20060081517 (15th Circuit Court, Fla.).

      Click here to view the jury verdict on the AELE website.

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FLSA - Overtime - in General

Labor Dept. issues opinions that FLSA exempt employees cannot be docked for lost or broken equipment (including laptops and cell phones); exempt workers who fail to make up part of workday (because of a personal absence) cannot be disciplined; canine officers can be paid less than their regular rate for dog care; and a civilian code enforcement officer can volunteer as an unpaid police reserve officer without running afoul of the FLSA.

     Employers who want to dock exempt employees for loss of or damage to equipment could jeopardize the employees' exemption from overtime under the Fair Labor Standards Act, the Labor Dept. wrote in recently released opinion letters. DoL said that an employer cannot impose a penalty on exempt employees who lose or break equipment such as cellular telephones and laptop computers. Wage and Hour Opinion Letter, FLSA2006-7.

     In a second letter the DoL wrote that employers can insist that exempt employees work more than 40 hours per week and can discipline them for not fulfilling that requirement. However, employers cannot impose a suspension of one day or more for such an infraction.

     An employee can be told to make up work time lost for personal absences of less than a day, but management may not take any disciplinary action if the time is not made up. DoL wrote that "the failure to make up the time as required or to work the required number of hours does not constitute a violation of a 'workplace conduct rule' for which an employer may impose a disciplinary suspension ... " Wage and Hour Opinion Letter, FLSA2006-6, 2006 DOLWH Lexis 9.

     A third letter approves of agreements to compensate its law enforcement canine handlers at a different regular hourly rate for canine care (and time and one-half of that rate for canine care duties performed during overtime hours) from their regular and overtime pay rates as law enforcement officers. "A bona fide agreement to pay in accordance with the provisions of section 7(g)(2) may be made on an individual, group, or collective bargaining basis."

     Moreover, the DoL said that "there is no requirement that the agreement or understanding be in writing so long as the employee is notified." Wage and Hour Opinion Letter, FLSA2006-10.

     In a fourth letter, the DoL wrote that a civilian Code Compliance Officer (may volunteer as an unpaid reserve police officer for the police department without violating the minimum wage and overtime provisions of the FLSA. DoL noted that because the positions "do not involve the same type of services" a code enforcement officer may volunteer as a reserve police officer. Wage and Hour Opinion Letter, FLSA2006-2, 2006 DOLWH Lexis 2.

      Click links to access each DoL Letter.

      Return to the Contents menu.

Hairstyle and Appearance Regulations & Discrimination

In a 7-to-4 decision, the Ninth Circuit upholds the firing of a woman employee who refused to wear facial makeup.

     A casino bartender was fired for violating a grooming standard. Women are required to wear facial powder and lipstick at all times. A federal court rejected her sex discrimination lawsuit.

A three-judge panel affirmed 2--to-1, concluding that the appearance policy imposed no greater burden on women than on men. Jespersen v. Harrah's, 392 F.3d 1076 (9th Cir. 2004).

     The Ninth Circuit granted an en banc view. The divided holding was reaffirmed by a 7-to-4 holding. The majority said that employers may differentiate between men and women in appearance and grooming policies.

     The question, they said, was not whether the policies are different, but whether the policy imposed created an unequal burden for women. They noted that this was not a case where the dress or appearance requirement was intended to be sexually provocative or to stereotype women as sex objects.

     But a mere objection to a makeup requirement, without more, does not rise to a claim of sexual stereotyping under Title VII. They said:

     Jespersen v. Harrah's, #03-15045, 2006 U.S. App. Lexis 9307 (9th Cir. en banc 2006).

      Click here to view the opinion on the Internet.

      Return to the Contents menu.

Homosexual & Transgendered Employee Rights

Editor's Case Alert

Federal court refuses to dismiss a suit filed by a job applicant for a terrorism analyst position who was rejected because he was planning gender reassignment surgery.

     The plaintiff applied for a position as a terrorism research analyst with the Congressional Research Service, an arm of the Library of Congress. The plaintiff is a twenty-five year veteran of the U.S. Armed Services, is a graduate of the National War College and the Army Command and General Staff College, and has master's degrees in history and international relations.

     The plaintiff spent the last seven plus years with Special Operations Command which "plans, directs, and executes special operations in the conduct of the War on Terrorism." The plaintiff also headed a 120-person unit that tracks and targets high-threat international terrorist organizations.

     When offered the new job, the plaintiff used his male legal name and wore male clothing. As part of a treatment for gender dysphoria, the plaintiff was about to begin the initial stages of the sex-reassignment protocol. This meant using a feminine name, dressing full-time in traditionally feminine attire, and to begin living as a woman.

     On learning about the impending gender change a CRS official informed him that, "for the good of the service," the plaintiff would not be a "good fit" at CRS. A suit was filed in federal court alleging unlawful sex discrimination.

     The District Court examined the Complaint in light of the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The District Judge wrote that neither the logic nor the language of Price Waterhouse establishes a cause of action for sex discrimination in every case of sex stereotyping.

     Here, the plaintiff is not seeking acceptance as a man with feminine traits. The judge wrote:

     He concluded, after a long discussion of gender dysphoria, that there are facts that would support a claim that management refused to hire the plaintiff solely because of his/her sexual identity, and that in so doing, the agency discriminated against the plaintiff because of sex. Schroer v. Billington, #05-1090, 2006 U.S. Dist. Lexis 14278 (D.D.C. 2006).

      Click here to view the opinion on the AELE website.

     Editor's Note: The current edition of the Diagnostic and Statistical Manual of Mental Disorders has five criteria that must be met before a diagnosis of Gender Identity Disorder (302.85) is proper:

      Return to the Contents menu.

Inefficiency, Performance Standards, Negligence and Incompetence

Arbitrator declines to reduce the termination of a 17-year veteran officer that had a series of minor deportments and inefficiency problems. "It is not the arbitrator's role to impose his own standard of discipline ... unless ... the discipline imposed ... is so unreasonable as to warrant such intervention."

     Inefficiency or incompetency can be real, or they can be "code words" for an employee's attitude problem. In this case, it may have been a little of both. A Bay Area officer with 17 years on the job was fired because of several instances where there were minor performance problems.

     He recently had a 10-hour and a 30-hour suspension. In his performance rating, the evaluating officer noted "a common thread in all of the above was an attitude of trying to get by, by doing as little as possible."

     The arbitrator noted, perhaps with kindness, that the "grievant's work habits fluctuate from year to year without any particular consistency."

     The arbitrator said that he need not decide whether on incident by itself warranted termination or whether progressive discipline, when applied to the three remaining incidents, would reach the level of termination. He wrote:

     He therefore concluded, that the three acts, "in combination with the prior acts, justify termination." City of Vallejo and Vallejo P.O.A., 121 LA (BNA) 1659, CSMCS Case # ARB 04-2674 (Silver, 2006).

      Click here to view the opinion on the AELE website.

      Return to the Contents menu.

Injuries to Applicants, Trainees, Participants & Observers

Martial arts instructor was not liable for the injuries suffered by a student who was a willing participant.

An Illinois man had been studying various forms of martial arts for five years and Kajukenbo for nearly two years. He was to be promoted to an orange belt at a banquet.

     The dinner speaker was a Kajukenbo expert and an 8th degree black belt. He demonstrated his skills on the plaintiff, with the plaintiff's consent. Unfortunately the plaintiff was injured and incurred substantial losses. He filed suit against the instructor for negligence.

     The District court granted a summary judgment for the defendant instructor, and the plaintiff appealed.

     The appellate panel noted that the injuries arose during a martial arts event. The court said that in martial arts training, physical contact with other participants is the norm. In fact, the attendees were actually engaged in martial arts training that night. They wrote:

     Under Illinois law, there is a "contact sports exception" to negligence actions. Voluntary participants in contact sports may be held liable for injuries to co participants caused by willful and wanton or intentional misconduct, but they are not liable for injuries caused by ordinary negligence.

     Other states have a similar rule. Martial arts has a risk of injury "stemming from being punched, kicked or otherwise contacted by a fellow competitor or student," Rodrigo v. Koryo Martial Arts, 100 Cal.App.4th 946, 122 Cal.Rptr.2d 832 at 842 (Ct. App. 2002)

     Bevolo v. Carter, #04-4220, 2006 U.S. App. Lexis 9874 (7th Cir. 2006).

     Research Note: Ten years ago an Illinois appellate court struck down a "release" signed by a firefighter applicant who was injured during the agility test. However, the village was not liable under a statutory immunity law. White v. Village of Homewood, 628 N.E.2d 616 and 673 N.E.2d 1092 (Ill.App. 1996).

     Earlier this year AELE republished the Martinelli "Training Safety Protocol" and the "Normal Injury Assessment Protocol." Click here to access that document.

      Click here to view the martial arts decision on the Internet.

      Return to the Contents menu.

Physical Fitness Requirements, Agility Tests and Standards

Federal court rejects a police applicant test that disproportionately disqualified women applicants because it contained sit-ups and push-ups components that lacked criterion-related validity.

     A captain with no prior experience developing physical agility tests instructed a lieutenant "to use his experience as a police officer to develop a test that would simulate physical tasks that city police officers regularly encounter." The lieutenant "had no education in the area of industrial/organizational psychology, exercise physiology, test development or test validation."

     Based largely on his own extensive experience working the streets, the lieutenant attempted to construct a physical agility test which would simulate a foot pursuit containing common obstacles, followed by a demonstration that the individual taking the test had sufficient strength to apprehend and physically restrain a subject. He "did not rely on expert opinions or studies specific to the Erie police, nor did he conduct any formal study himself."

     He ultimately designed the test to consist of a 220-yard run with four obstacles, followed by a push-ups and sit-ups. Management included push-ups and sit-ups because it believed that push-ups and sit-ups measure upper and lower body strength.

     A principal expert, Dr. Paul Davis, called by the city to defend the test, admitted that did not perform or analyze any criterion-related validity study "because ... this would have been too costly."

     The court noted that Dr. Davis "never performed any content, criterion, or construct validity study." But Dr. Davis testified that there was no real need for a full-blown validation methodology such as was used in Lanning v. SEPTA, because it would not have added any particular insight.

     In finding for the Justice Dept, the court wrote:

     The court determined that the DoJ was entitled to a judgment in its favor with respect to the liability phase of the case. United States v. City of Erie, #04-4, 411 F.Supp.2d 524, 2005 U.S. Dist. Lexis 33397 (W.D. Pa. 2005).

      Click here to view the opinion on the AELE website.

      Click here to read the DoJ's Complaint.

      Return to the Contents menu.

Privacy Rights

DEA agent who was videotaped while he accidentally shot himself sues the federal government for privacy violations. Video was uploaded onto the Internet and was the subject of talk show hosts.

     In 2004 a DEA agent was videotaped while addressing Florida schoolchildren and unintentionally shot himself in the foot during a weapons demonstration. The tape was given to the DEA but also has appeared elsewhere.

     There were 347,000 hits on Google for the phrase "DEA Agent Shoots Himself." Videotape of the accidental shooting has been broadcast on Jay Leno's Tonight Show, CNN News, Fox News and elsewhere.

     The agent has sued his employer, claiming violations of the Privacy Act of 1974, 5 U.S. Code 552a. It restricts dissemination of an employee's photograph and other personal information.

     In his pro se lawsuit, the agent claims he has suffered "emotional and mental pain and suffering, mental anguish, loss of enjoyment of life, loss of reputation, loss of opportunity, loss of money, embarrassment, humiliation and anxiety." He seeks unspecified damages. Paige v. U.S., #1:06-cv-00644-EGS (D.D.C. 4/7/2006)

      Click here to view the pro se Complaint on the AELE website.

      Return to the Contents menu.

Promotional Rights, Procedures and Performance Appraisals

Appellate court rejects the claim that a "vacancy" is created in the ranks when a senior police officer is called up for temporary active duty in the military.

     A Texas patrol officer worked as a senior officer while a coworker served in the military. Although he was paid the senior officer's rate, the city declined to permanently promote him because there was no vacancy.

     The junior officer sued and won in the trial court. An appellate panel has reversed, writing:

     Under Federal and Texas law, at the end of active military service, a firefighter or police officer who received a military leave of absence "is entitled to be reinstated to the position [he or she] held in the department at the time the leave of absence was granted." Texas Local Government Code §143.072.

     McElroy v. City of Temple, #03-03-00741-CV, 2006 Tex. App. Lexis 2056 (2006).

      Click here to view the opinion on the Internet.

      Return to the Contents menu.

Retirement Rights and Benefits

Indiana holds that a mandatory retirement age still applies to employees who were enrolled in a five-year DROP program.

     Gary, Indiana, police officers who chose later retirement dates when they enrolled in a deferred retirement program were still required to retire on reaching age 65.

     The officers participated in a DROP plan and had selected retirement dates beyond their 65th birthdays. The officers had obtained a preliminary injunction preventing their forced retirement prior to their selected DROP dates. A three-judge appellate panel reversed, writing:

     City of Gary v. Mitchell, #45A03-0504-CV-192, 843 N.E.2d 929, 2006 Ind. App. Lexis 409 (2006).

      Click here to view the opinion on the Internet.

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NOTED IN BRIEF
(SOME WITH LINKS)

Applicant Rejections

     Federal court upholds the rejection of a black state trooper applicant who had an expunged record for theft. Foxworth v. Penn. State Police, #03-CV-6795, 402 F.Supp.2d 523, 2005 U.S. Dist. Lexis 30136, 97 FEP Cases (BNA) 505 (E.D. Pa.).

Attorneys' Fees and Legal Defense Rights

     Transsexual police officer, who won a jury verdict on her sex discrimination claim, recovers a supplemental award of attorneys' fees of $90,344 plus expenses of $2,540 for successfully defending the appeal before Sixth Circuit and U.S. Supreme Court. A lodestar multiplier of 1.75 that was applied to the trial-related legal fees should not apply to the appellate work. Barnes v. City of Cincinnati, #1:00-cv-780, 2006 U.S. Dist. Lexis 8826, 97 FEP Cases (BNA) 1168 (S.D. Ohio 2006).

Civil Liability

     Striking a subordinate employee with three-ring binder and loudly berating her was not a Fourth Amendment "seizure," that would entitle the sheriff's employee to recover against her supervisor. Reyes v. Maschmeier, #05-12720, 2006 U.S. App. Lexis 9886 (11th Cir. 2006).

Collective Bargaining - In General

     Oklahoma Supreme Court upholds a municipal employee collective bargaining law as constitutional. City of Enid v. PERB, #101,729, 2006 OK 16, 2006 Okla. Lexis 12, 179 LRRM (BNA) 2328

Collective Bargaining - Duty to Bargain

     New York municipalities have exclusive authority to make initial eligibility determinations, and it is not a mandatory subject of bargaining. Poughkeepsie Prof. Firefighters' Assn. v New York St. Pub. Empl. Relations Bd., #2006-33, 2006 N.Y. Lexis 569, 2006 NY Slip Op 2289 (2006).

Disability Rights and Benefits - Line of duty related / disputed

     Illinois court holds that a firefighter was entitled to have all of his sick leave and vacation benefits reinstated for the period of time that he was off work because of a work related injury that he incurred when he fell down the stairs while reporting for roll call. Mabie v. Vil. of Schaumburg, #1-05-2457, 2006 Ill. App. Lexis 259 (1st Dist. 2006).

Disciplinary Appeals & Challenges- In General

     Arizona appellate court holds that a merit or civil service commission has jurisdiction to hear the claim of a former employee who alleges that his or her resignation was coerced and was a constructive discharge. LaWall v. Pima County Merit Sys. Cmsn., #2 CA-CV 2005-0140, 2006 Ariz. App. Lexis 34.

Disciplinary Punishment - In General

     Termination of a public employee for repeated personal use of his government computer during work time was for just cause. Dept. of Veterans Affairs and AFGE L-1594, 122 LA (BNA) 106, FMCS Case #0503101 (Hoffman, 2006).

FLSA - Overtime - Canine Officers

     A bargaining agreement did not waive time-and-one-half overtime claims by U.S. Park Police canine officers. Long v. United States, #05-143C, 69 Fed. Cl. 566, 2006 U.S. Claims Lexis 36 (Fed. Cl. 2006).

FLSA - Overtime - In General

     Firefighters were entitled to have lump-sum buyouts of their sick leave included in their regular rate of pay, for purposes of calculating overtime under the Fair Labor Standards Act. Acton v. City of Columbia, #04-3985, 436 F.3d 969, 2006 U.S. App. Lexis 3005, 11 WH Cases2d (BNA) 359 (8th Cir. 2006).

Family, Medical & Personal Leave

     Federal appeals court rejects a claim that the FMLA covers unlimited break time to use toilet facilities because of diarrhea induced by diabetes medication. "We are unable to locate a case where temporary FMLA leave was awarded ... [for] periodic time away from a desk throughout the work day. Mauder v. Metro. Transit Auth., 2006 U.S. App. Lexis 9306 (5th Cir. 2006).

     Arbitrator holds that a county violated the law when it denied FMLA leave to employee to care for her grandmother with Alzheimer's disease; the employee was required to show that grandmother served as her parent when she was child and employee stood in loco parentis. County of Allegheny and A.C. Prison Employees, 122 LA (BNA) 155, Pa. Bur. of Mediation Grievance #5720 (Miles, 2005).

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     Rejected police applicant with missing fingers is awarded $500,000 damages. He had 10 years of experience as a police officer in other nearby communities. Kreger v. Baldwin, #05-0789 (W.D. Pa. 2006).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     D.C. Circuit reverses a verdict of $64,180 plus $157,397 in attorney's fees for a police officer with a blood disease. The evidence did not match the claimed impairment. Gasser v. Dist. of Columbia, #04-7018, 2006 U.S. App. Lexis 7893 (D.C. Cir. 2006).

     Firefighter with multiple sclerosis was a disabled person under Texas disability discrimination laws. Davis v. City of Grapevine, #2-05-145-CV, 2006 Tex. App. Lexis 1877 (2d App. Dist. 2006).

Light Duty Assignments

     Federal court finds that a police dept. policy abolishing permanent light-duty positions for disabled officers did not violate the ADA, even if officers were not individually assessed for suitable positions. Management's employment decisions were based on a reasonable physical criteria and applied on an individualized basis. Allen v. Hamm, #RDB 05-879, 2006 U.S. Dist. Lexis 6707, 17 AD Cases (BNA) 1206 (D. Md. 2006).

Race Discrimination - In General

     DoJ settles a lawsuit against the Virginia Beach Police Dept. The city had used a mathematics test to screen applicants where only 59% of African American applicants and 66% of Hispanic applicants passed, as opposed to 85% of the white applicants. U.S. v. Virginia Beach, #2:06-cv-00189, 44 (2153) G.E.R.R. (BNA) 422 (E.D. Va. 2006).

Race or Sex Discrimination - Disparate Discipline

     Eighth Circuit, in a 2-to-1 holding, denies a new trial in a civil suit brought by a police sergeant against the Board of Police Commissioners alleging that they violated his due process rights and maliciously prosecuted him for excessive force because of his race. Moran v. Clarke, #04-2902, 2006 U.S. App. Lexis 8794 (8th Cir. 2006).

Retaliatory Personnel Action

     A police chief was not entitled to dismissal of a suit claiming a retaliatory transfer where the officer's speech was on a matter of public concern, and where the unconstitutionality of the chief's actions was clearly established at the time they occurred. Miller v. Jones, #05-1932, 2006 U.S. App. Lexis 9566 (7th Cir. 2006).

Seniority

     Arbitrator concludes that seniority is measured from the date a person begins work, not the date that he or she was hired. Nationwide Parking Services and Teamsters L-961, 122 LA (BNA) 121, FMCS Case # 05/51375 (DiFalco, 2005).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Treasury Dept. agrees to settle a class action of 32 sexual harassment claims at the Denver Mint for $8,990,000. Wylie v. Treasury Dept., EEOC #07A4001244, 44 (2152) G.E.R.R. (BNA) 392 (EEOC 2006); Agency #03-0008C; prior decis, Appeal #07A40012 rptd. at 2004 EEOPUB Lexis 7016 (EEOC 2004).

Workers' Compensation - Exclusive Remedy

      Florida Supreme Court rules that the state's Worker's Comp. law did not bar a wrongful death suit filed by the family of a police crossing guard who was fatally injured because of a faulty county traffic signal. Although the county was the employer of the deceased and the defendants, they worked in different departments, at different locations, and had different job duties. Aravena v. Miami-Dade County, #SC04-2349, 2006 Fla. Lexis 556 (Fla. 2006).

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RESOURCES

   Race Discrimination: EEOC updates its Compliance Manual section addressing "Race and Color Discrimination." EEOC Manual §15 (2006).

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:

Age Discrimination/Mandatory Retirement - see: Retirement Rights
Defamation - see: Disciplinary Investigations
Military Leave - see: Promotional Rights
Sex Discrimination - see: Hairstyle & Appearance Regulations

Noted in Brief:

Free Speech - see: Retaliatory Personnel Action
Handicap Discrimination - see: Light Duty Assignments
Homosexual & Transgendered Employee Rights - see: Attorneys' Fees
Resignations - see: Disciplinary Appeals
Sick Leave - see: Disability Benefits

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© Copyright 2006 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.


Library of  Employment Law Case Summaries

 Search the Case Law Digest