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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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2006 FP May (web edit.)

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CONTENTS

Featured Cases with Links

Arbitration Punishment Awards
Disciplinary Hearings (2 cases)
Disciplinary Surveillance
Military Leave
Pay Disputes
Teleworking
Uniforms, Clothing and Equipment
Union and Associational Activity
Vacancies

Noted in Brief

Arbitration Procedures
Attorneys' Fees (2 cases)
Civilian Review
Disciplinary Appeals
Disciplinary Hearings - Tenured
Disciplinary Hearings - Untenured
Discovery
Free Speech
Handicap Discrimination - Accommodation
Homosexual & Transgendered Rights (2 items)
Injuries to Employees
Military Leave
Pay Disputes
Past Practices Clauses
Political Activity
Privacy Rights
Race Discrimination
Retaliatory Personnel Action
Retirement Rights and Benefits
Smoking & Air Quality Claims
Training Cost Reimbursement

Resources

Cross_References

FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Arbitration Punishment Awards - Right of Courts to Interfere

Editor's Case Alert

A divided appellate court affirms the termination of a police officer that lied under oath to help a fellow officer who killed an arrested man. In a 2-to-1 holding, the court set aside the arbitrator's award reducing the punishment to a three-day suspension because a penalty matrix used in deciding disciplinary punishment was not referenced in the bargaining agreement.

     A Cincinnati police officer used a chokehold on an arrestee who ultimately died. Another officer (the appellant) was on the scene and later described the events to investigators. The first officer was prosecuted for manslaughter and the appellant testified as a witness.

     On direct examination, the appellant was asked to describe the hold that he had witnessed the officer demonstrate on the night the arrestee died. For the first time, the appellant demonstrated a different hold than the one he had previously demonstrated.

     Following that testimony, the Internal Investigation Section questioned him. When asked specifically about the change in his demonstration of chokehold, the appellant responded that he had intentionally changed his demonstration of the hold so that it did not "look as threatening as the other movement" to the jury. He thus admitted that he had lied.

     The appellant was fired and sought arbitration. The arbitrator agreed with the city that termination was possible under the bargaining agreement, but a disciplinary matrix written in a manual provided progressive punishment for deportments. He imposed a three-day suspension.

     The city successfully challenged the award in Common Pleas Court. On appeal, the termination was affirmed, 2-to-1. The majority wrote:

     The majority noted that the arbitrator had departed from the terms of the bargaining agreement by resorting to the disciplinary Matrix in its Rules Manual, even though the Rules Manual was "nowhere referenced in or required by the terms of the Agreement itself."

     The bargaining agreement expressly allowed the city to terminate an employee for just cause. The majority said that the agreement "expressly restricted the arbitrator to the interpretation and application of its own terms, and not to the terms of the Rules Manual or its Matrix."

     Because the arbitrator relied on a source "outside" the agreement, the arbitrator's modification could not be "rationally derived from the terms of the agreement." City of Cincinnati v. Queen City Lodge (Spellen), #C- 040454, 2005 Ohio 1560, 2005 Ohio App. Lexis 1522, 177 LRRM (BNA) 2021 (2005).

     Following that decision, the appellant again sought arbitration, on the theory that the earlier award was vacated by the appellate court. The city filed a suit for declaratory and injunctive relief. A Common Pleas judge agreed, noting that the "grievance at issue has been arbitrated, appealed and decided."

     The grievant and union were enjoined from further proceedings on the grounds of res judicata. City of Cincinnati v. Queen City Lodge (Spellen), #A0509129 (Cm.Pl. Hamil. Co. 2006).

      Click links to view the appellate court's opinion and the subsequent injunction on the AELE website.

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Disciplinary Hearings - Tenured/General

New York's highest court finds a strong public policy supporting management authority, and holds that a city has no duty to bargain with the unions over disciplinary procedure or review by arbitration.

     Two cases involved bargaining issues relating to police discipline -- one from N.Y. City and the other from Orangetown. In both instances, the union failed to persuade the state's Employment Relations Board or the lower courts that management had a duty to bargain over mandatory disciplinary procedures or appeals.

     The state's highest court unanimously affirmed. In the N.Y. City case, an expired bargaining agreement had provided:

     In Orangetown, the PBA unsuccessfully sought arbitration pursuant to the collective bargaining agreement between the town and the union, which prescribed detailed procedures, culminating in an arbitration, for any "dispute concerning the discipline or discharge" of an Orangetown police officer.

     The high court acknowledged "a tension between the strong and sweeping policy to support collective bargaining and a competing policy favoring strong disciplinary authority for those in charge of police forces.

     Management won out. The argument belongs in the state legislature, and absent a revised law, New York's police chiefs and sheriffs are not required to bargain disciplinary procedures or arbitral review.

     Patrolmen's Benev. Assn. of City of N.Y. v. N.Y. State Pub. Empl. Relations Bd.; Town of Orangetown v. PBA, #32 & 34, 2006 N.Y. Lexis 584 (2006).

      Click here to view the opinion on the Internet.

» Research Note: In New York, a 1994 appellate court panel held that a city was not required to bargain with a union over a proposal to submit disciplinary matters to binding arbitration. City of N.Y. v. MacDonald, 607 N.Y.S.2d 25 (A.D. 1994). Four years later, the state's Employment Relations Board ruled that binding arbitration, in lieu of Civil Service disciplinary trials, was mandatorily negotiable. Creedon PBA and City of Utica, NY PERB, #U-19283, 1998 NYPER (LRP) Lexis 196 (1998). That ruling was later overturned.

     In Illinois, non home rule communities cannot be forced to bargain over arbitration to replace civil service, for disciplinary actions. Adams Co. Sheriff (Nall) v. IAMAW, L-822, 719 N.E.2d 300, 1999 Ill. App. Lexis 769; appeal denied, 724 N.E.2d 1266 (2000).

     In 1994, New Hampshire held that a city may, but need not, bargain over discipline and discharge standards. City of Concord v. N.H.P.E.L.R.B., 651 A.2d 944 (N.H. 1994). Six years later the New Hampshire Supreme Court held that a city was not required to bargain the abolition of a disciplinary hearing board when it replaced that step with a hearing before the chief of police. City of Manchester and N.H.P.E.R.L.B., 743 A.2d 821 (1999).

« « « « « « » » » » » » »

Missouri appellate court strikes down a procedure where a board of police commissioners requires disciplinary hearings to be heard by a hearing officer. Delegation of quasi-judicial functions must be specifically authorized by statute.

A City of St. Louis police officer sought a hearing to set aside his termination before the Board of Police Commissioners. The Board, which consists of the Mayor and four appointed citizens, had adopted a rule providing for a trial before a hearing officer

When his request for a board rehearing was rejected, he appealed to the Circuit Court. The judge upheld the delegation rule. He again appealed and a three-judge panel reversed.

     Although arising under another statute, the panel cited a similar holding in from Kansas City. State ex rel. Rogers v. Bd. of Police Cmsnrs. of K.C., 995 S.W.2d 1, 1999 Mo. App. Lexis 664 (Mo. App. 1999).

     The rule authorizing trials before hearing officers was an improper delegation of statutory authority. The case was remanded with directions to require a hearing before the full board or a quorum of members.

     State ex rel. McGull v. St. Louis Bd. of Police Cmsnrs., #ED85838, 178 S.W.3d 719; 2005 Mo. App. Lexis 1629 (2005).

      Click here to view the opinion on the Internet.

     Editor's Comment: St. Louis had five years after the Kansas City decision to seek a change in the statute concerning disciplinary hearings.

     In Illinois, an appellate court ruled that disciplinary board members need not be present at a trial before a hearing officer, if the board has a procedure to review the testimony and other evidence. Serio v. Police Bd. Chicago, 655 N.E.2d 1005 (Ill.App. 1995). The Missouri appellate court rejected that argument.

     Hearing officers are usually lawyers, and like federal Administrative Law Judges, must be impartial and familiar with procedural rules and due process. A trial before citizen commissioners or city council members is less likely to be heard by persons with formal legal training and offers no greater assurances of impartiality.

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Disciplinary Surveillance

Arbitrator sustains the termination of an employee who had asked for FMLA leave to care for his sick wife and was videotaped going off on a hunting trip. The taping occurred outdoors, negating any privacy issues.

     A private sector employee had asked his employer for two days off under the Family and Medical Leave Act so that he could care for his sick wife. Management granted the request, but was suspicious because the employee had previously indicated that he planned to go hunting on the same two days.

     The employer conducted a surveillance of the worker's activities. Scenes of the grievant wearing camouflage, buying beer, and loading guns into a truck were filmed on videotape.

     Management terminated the employee for having accumulated too many absences and dishonesty. The union grieved. The arbitrator rejected the union's claim that the videotaping violated the grievant's right to privacy because the taping was outdoors. The termination was upheld. Interstate Brands Corp. and Int. Assn. of Machinists L-1363, 121 LA (BNA) 1580, FMCS #05 (1228)/0317-8 (Skulina, 2005).

      Click here to view the opinion on the AELE website.

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Military Leave

Arbitrator rejects a union grievance that management improperly allowed a sergeant, who was on military duty, to take a promotional exam at an off-site location. Federal laws protecting military leave rights supercede the bargaining agreement and administrative rules.

     A Florida sheriff's sergeant was on military leave when a promotional opportunity became available. The county arranged to let him take the test in his hotel near Washington, D.C. The union grieved, arguing that the bargaining contract made no reference to off-site promotional testing. The county maintained that off-site promotional testing of employees on military leave is required by the federal Uniform Services Employment and Reemployment Rights Act.

     The arbitrator agreed with the union that the contract provided for "special testing arrangements" for promotional candidates in only three specific circumstances, which did not include military leave.

     However, to invalidate the off-site exam in this case "would lead to a harsh, absurd, and nonsensical result that would preclude employees on military leave from participating in the promotional exams, unless they were able to participate in Palm Beach County."

     Palm Beach County Sheriff's Office and PBC Police PBA, AAA Case No. 32-390-100713-04, 121 LA (BNA) 1624 (Smith, 2005; rptd. 2006).

      Click here to view the opinion on the AELE website.

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Pay Disputes

Who is liable for overtime payments to injured officers that are treated at the hospital? The city or the Workers' Comp. plan? Arbitrator finds this city had an established past practice of paying salaries to officers undergoing treatment, and is enforceable even if the payments might have been made on an erroneous legal assumption.

     Police officers, firefighters and correctional officers are often injured, and not released from an E.R. or urgent care facility until after their shifts have ended. Is the employer liable for overtime?

     In this case the village claimed that once a shift ends, workers' comp. benefits kick in, and the employer is not obligated to pay overtime. The union proved an existing past practice of paying those claims.

     An arbitrator summarized management's position thusly:

     Because of a "unilateral mistake," management contended, there is a "lack of mutuality or meeting of the minds between the employer and the union, and without mutuality a past practice cannot be established."

     Management also contended that because an emergency room doctor decides how long an employee should remain in the ER deprives management of its "right to control the compensation of its employees."

     The arbitrator noted that the village could require officers to seek treatment from approved providers. A doctor's decision about the duration of an examination "cannot defeat in arbitration the established existence of the practice."

     He sustained the grievances and ordered the payment of the disputed overtime claims. Vil. of Romeoville and Metrop. Alliance of Police, 121 LA (BNA) 1797, FMCS #05/00563 (Wolff, 2006).

      Click here to view the award on the AELE website.

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Teleworking

Arbitrator rejects a grievance that management failed to grant a short-term request to allow a union employee to telework while recuperating from surgery. Although non union employees were subject to a teleworking policy, the union contract was silent on the topic. "It is a well established principle of labor arbitration that a party may not obtain through arbitration what it could not acquire through negotiation."

     A federal worker in St. Louis sought permission to telework for six weeks while recovering from major surgery. The grievant was president of the union local, and the bargaining agreement was silent on teleworking. A teleworking policy did apply to non union workers.

     The union had received a proposal from management regarding teleworking but negotiations on that issue were still ongoing. Management had denied the grievant's request because her work could be distributed to fifteen other employees, without working overtime.

     The arbitrator noted that there is law or provision in the bargaining agreement or rule, regulation, policy requiring management to grant a telework request. He wrote:

     U.S.D.A. and AFGE L-3354, 121 LA (BNA) 1537, FMCS #05/54792 (Fitzsimmons, 2005).

      Click here to view the opinion on the AELE website.

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Uniforms, Clothing and Equipment

Editor's Case Alert

Federal appeals court affirms verdicts for two women firefighters of $265,000 for not being issued protective clothing designed for females, and another $70,000 for retaliation.

     Two Kansas City, MO, women firefighters were successful in prior litigation claims of sex discrimination. They filed a second federal suit, alleging ongoing sex discrimination through the city's failure to provide them with adequately fitting protective clothing or adequate facilities (toilet areas, shower facilities, and changing areas).

     A jury awarded one plaintiff $40,000 on her clothing and facilities claim and $10,000 on a retaliation claim. A separate jury awarded the other plaintiff $225,000 on her clothing and facilities discrimination claim and $60,000 on her retaliation claim. The city appealed and a three-judge appellate court has affirmed.

     The panel noted that firefighters are issued two sets of bunker gear, consisting of a coat, pants, boots, helmet, gloves, a tool belt, and a self-contained breathing apparatus.

     Protective clothing must fit properly to ensure that the body is protected from smoke, water, heat, gasoline, and chemicals and to ensure the mobility needed while fighting a fire. The city issued the "ill-fitting male" firefighting clothing. Although female clothing and gear was available and management knew of sources where female gear could be obtained.

     Because the protective clothing did not fit the plaintiffs, they "suffered injuries from fire and chemicals when the coats would not close properly, or too large hats and boots would fall off while fighting a fire." Their movements were "cumbersome and restricted by pants that caused them to trip or prevented them from easily climbing ladders."

     They also complained of a lack of adequate restrooms, showers, and private changing facilities. Their restrooms were located in the male locker rooms, doors were not secure, and where female restrooms existed, they were unsanitary and often used as storage rooms. Most of the female restrooms that existed did not contain shower rooms and in some stations, the women's shower could be accessed only through the male bunkroom.

     Management submitted yearly budgets to the city requesting money for female locker room upgrades, and every year the city allocated money for this purpose. However, the money was diverted to a whole-station upgrade at station 4, which already had a female restroom.

     The panel rejected the city's defense that the clothing and facilities complaints stem from earlier discrimination. The jury verdicts and judicial rulings were affirmed, in full. Wedow v. City of Kansas City, #04-1443, 2006 U.S. App. Lexis 7297 (8th Cir. 2006).

      Click here to view the opinion on the Internet.

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Union and Associational Activity

Washington Supreme Court strikes down a requirement that a public employee's union must rebate to all nonunion members of a bargaining unit, the prorata share of amounts spent on nonbargaining political activity, unless the nonunion members have given their written permission.

     The Supreme Court of the U.S. has ruled that unions may mandatorily collect the equivalent of dues from nonunion workers who are part of a bargaining unit, but must refund the portion of the fees that are used for political purposes, if the nonmember objects to the expenditure.

     In Washington, a state teachers union was hit with $590,375 in penalties because it required nonmembers to send in a form objecting to the use of any of their bargaining unit fees for political purposes. The rebates, if requested, ranged from $44 to $76 a year.

     An appellate court found the assessment unconstitutional. With a single dissent, the state supreme court has affirmed.

     The difference between an affirmative authorization requirement and acquiescence is that the person must say "yes," instead of failing to say "no." Under a Washington state law, a union is prevented from spending any portion of a nonmember's agency fees for political causes without the affirmative authorization of the nonmember.

     The state supreme court said that the statute is unconstitutional because a requirement of obtaining an affirmative authorization "amounts to an impermissible presumption that each nonmember objects to the union's use of his or her fees for political activities." The majority added:

     Washington State Public Disclosure Cmsn. v. Wash. Educ. Assn., #74268-5, 2006 Wash. Lexis 260 (2006).

      Click here to view the opinion on the Internet.

     Research Note: The Ninth Circuit came to the same conclusion in Mitchell v. L.A. Unified School Dist., 963 F.2d 258 (9th Cir.), cert. den. 506 U.S. 940 (1992). The Mitchell plaintiffs were nonmembers who failed to object to the union's use of a portion of agency shop fees for nonchargeable expenditures.

     The district court issued an injunction, but the Ninth Circuit reversed, holding that requiring an opt-in system "would unduly impede the union in order to protect 'the relatively rare species' of employee who is unwilling to respond to the union's notifications but nevertheless has serious disagreements with the union's support of its political and ideological causes." 963 F.2d at 263.

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Vacancies

Management did not have just cause to discharge a part-time police officer with an excellent record who had been unable to perform his duties for medical reasons for 17 months, where the bargaining contract provided that a break in seniority occurs only after two-year period.

     Two years is a long absence for a police force that consists of two full time and six to eight part time officers. The arbitrator noted that "filling all the shifts is a challenge, and occasionally a shift is not staffed."

     In this case, the grievant suffered multiple leg fractures while subduing a psychiatric patient. He had surgery that same day, and three months later he underwent a second surgery. He was immobilized and unable to fulfill the duties of a police officer.

     The bargaining agreement clearly referred to a two-year absence period. "A break in seniority is equivalent to the loss of employment status," said the arbitrator. Because the injured officer returned within two years from a medical leave, there was no a break in service.

     The arbitrator agreed with the union that if management wanted to fill vacant shifts, it could have done so without terminating the grievant. Bor. of East Conemaugh and Teamsters L-110, 121 LA (BNA) 1693 (Franckiewicz, 2005; reported 2006).

      Click here to view the opinion on the AELE website.

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NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Procedures

     Illinois rules that workers are bound by a mandatory arbitration agreement when they sign an employer's form to that effect. Illinois does not require a "knowing and voluntary" waiver, because that is not a condition that applies to contracts generally. Melena v. Anheuser-Busch, #99421, 2006 Ill. Lexis 329 (2006).

Attorneys' Fees and Legal Defense Rights

     In a termination suit where the employee was fired for an unlawful reason, the jury can refuse to award damages if there is proof the plaintiff would have been discharged for a valid reason. The 8th Circuit also affirmed a denial of attorney's fees because the plaintiff was not a prevailing party. Garner v. Missouri, #04-3013, 439 F.3d 958, 2006 U.S. App. Lexis 6037 (8th Cir. 2006).

     Seventh Circuit upholds an award to a union, assessed against the employer, for filing a lawsuit to overturn an arbitration award. Cuna Mutual Insur. v. Office & Prof. Employees L-39, #05-1021, 2006 U.S. App. Lexis 6390 (7th Cir. 2006).

Civilian Review

    A badly divided Nevada Supreme Court rules that the Las Vegas Citizen Review Board has authority to subpoena police officers to answer questions on whether they have violated department policies. Las Vegas Police Prot. Assn. v. Eighth Jud. Dist. Court, #44677, 2006 Nev. Lexis 32, 122 Nev. Adv. Op. No. 21 (2006).

Disciplinary Appeals

     California appellate court holds that a civil service commission loses jurisdiction of a disciplinary suspension if the employee resigns his employment before the appeal process is concluded. Zuniga v. Los Ang. Co. Civil Cmsn, #B179975, 2006 Cal. App. Lexis 410 (2d App. Dist. 2006).

Disciplinary Hearings - Tenured/General

     Louisiana appellate court annuls disciplinary action taken against a police lieutenant; management failed to provide him with a copy of a disciplinary report prior to the hearing. A public employee accused of misconduct "must be provided with the details of his alleged offense ... [which] must not be so short of details as not to amount to notice..." Appeal of Naretto, #2003 CA 2199, 916 So.2d 1091, 2005 La. App. Lexis 1754 (2005).

Disciplinary Hearings - Untenured

     A non-tenured police officer (or other public employee) must ask for a name-clearing post-termination hearing and cannot later sue for having been deprived of it. Winskowski v. City of Stephen, #05-2777, 2006 U.S. App. Lexis 7655 (8th Cir. March 29, 2006)

Discovery, Publicity and Media Rights

     Florida appellate court holds that the financial supporters to a website that was used to fund litigation against a city government are entitled to remain anonymous. Discovery would have a chilling effect on anonymous supporters of political causes that feared retaliation. Matthews v. City of Maitland, #5D05-2716, 2006 Fla. App. Lexis 4224 (5th App. Dist. 2006).

Free Speech

     Federal court refuses to dismiss a suit filed by four current and former Michigan firefighters who claim that the township officials retaliated against them for speaking out about safety and training concerns. Habel v. Macomb Twp., #04-60160, 2006 U.S. Dist. Lexis 11249 (E.D. Mich. 2006).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Texas appellate court concludes that a city could have reasonably accommodated the plaintiff by assigning him to a light-duty firefighter/paramedic position, as the city did for another firefighter/paramedic who had been diagnosed with multiple sclerosis. Davis v. City of Grapevine, 2-05-145-CV, 2006 Tex. App. Lexis 1877 (2d App. Dist. 2006).

Homosexual & Transgendered Employee Rights

     Cincinnati, Ohio, city council adds "sexual orientation or transgendered status" to the ordinance that prohibits employment discrimination on the basis of race, gender, age, color, religion, disability, marital status, or ethnic, national, or Appalachian regional origin. In 2004, voters repealed an amendment to the city charter that prohibited protected status to persons "because of homosexual, lesbian, or bisexual orientation." 2006 Amendment to Munic. Code §914-1-D1, 44 (2149) G.E.R.R. (BNA) 312.

     Virginia Attorney General declares that the Governor's Executive Order banning sexual orientation discrimination violates the state's constitution as an executive encroachment on legislative power. Virginia Attorney General Opinion #05-094 (2006).

Injuries to Employees

     Arizona Supreme Court holds that the firefighter's rule did not bar an off-duty firefighter, who volunteered at the scene of an accident, from suing the person whose negligence caused the accident. Espinoza v. Schulenburg, #CV-05-0158-PR, 2006 Ariz. Lexis 27 (2006).

Military Leave

     On a petition to award attorney's fees to a reservist that challenged his agency's policies, the Merit Systems Personnel Board holds that USERRA [38 U.S. Code § 324(c)(4)] contains neither a "prevailing party" requirement nor an "interest of justice" requirement. Glassman v. Dept. of Labor, DC-3443-05-0255-A-1, 2006 MSPB 59 (2006) reversing 2006 MSPB Lexis 6966 (ALJ 2005).

Pay Disputes - In General

     A sheriff's dept. that erroneously overpaid an employee was entitled to a summary judgment to recover the overpayments. Gibson v. Ada County, #29694, 2006 Ida. Lexis 12 (2006).

Past Practices, Precedents & Zipper Clauses

     Arbitrator finds that management violated the bargaining agreement when it denied a health claim. Although there was a 27-year past practice of not providing dental benefits to part-time employees, the bargaining agreement unambiguously provided dental insurance benefits for all full time and regular part-time employees. Zane Trace Bd. of Educ. and School Support Personnel Assn., AAA #52-390-00213-05, 121 LA (BNA) 1756 (Fullmer, 2005).

Political Activity/Patronage Employment

     Merit Systems Personnel Board dismisses a wrongful termination claim by a probationary federal worker who alleged she was discharged for partisan political reasons, because she failed to show her separation was a result of an affiliation with a particular political party or candidate. McCall-Scovens v. Merit Systems Protection Board, # 05-3238, 2006 U.S. App. Lexis 7936 (Fed Cir. 2006), relying on Mastriano v. Fed. Aviation Adm., 714 F.2d 1152 (Fed. Cir. 1993).

Privacy Rights

     Police supervisors had qualified immunity in a right of privacy lawsuit filed after his personnel file was released to the media. The officer had voluntarily released personal information to media sources, and there was no increased risk to him or his family. Hall v. City of Cookeville, #04-6133, 157 Fed. Appx. 809, 2005 U.S. App. Lexis 24616 (6th Cir. 2005); cert. den. Hall v. Shipley, #05-1008, 2006 U.S. Lexis 2282, 74 U.S.L.W. 3530 (2006).

Race Discrimination - In General

     Cleveland settles a harassment and discrimination suit filed by 32 black firefighters for $650,000; 15 plaintiffs will be promoted immediately. Luke v. City of Cleveland, 1:02-cv-01225, 44 (2150) G.E.R.R. (BNA) 340, Settlement & dismissal order, Doc. #496 (N.D. Ohio 03/14/2006).

Retaliatory Personnel Action

     Unlike a hostile workplace environment claim, minor acts cannot be combined with older events to create a continuing pattern of retaliation, allegedly inflicted because of a lieutenant's cooperation in a federal corruption probe. O'Connor v. City of Newark, #05-2237, 440 F.3d 125, 2006 U.S. App. Lexis 6050 (3rd Cir. 2006).

Retirement Rights and Benefits

     Second Circuit rules that former New York City Transit employees are not entitled to lifetime health benefits under a plan sponsored by their union; the retirees lacked a vested right to such benefits. Silence in a health plan cannot be read as a promise that retiree benefits have vested. Bouboulis v. TWUA, #04-4241, 2006 U.S. App. Lexis 6120 (2d Cir. 2006).

Smoking Rights/Restrictions & Air Quality Claims

     A federal court has dismissed a lawsuit filed by Federal Bureau of Prisons employees seeking hazardous duty pay for exposure to secondhand cigarette smoke at the Federal Correctional Institute in Jesup, Ga. Adair v. United States, #05-392-C, 2006 U.S. Claims Lexis 49 (Fed. Cl. 2/28/06).

Training Rights, Requirements and Cost Reimbursement

     City of Los Angeles is suing 53 former police officers for $1.6 million, claiming that they broke their employment contracts by leaving within five years after graduating from the Police Academy and working elsewhere in law enforcement. Source: 44 (2151) G.E.R.R. (BNA) 370 (4/4/06); L.A. Times (3/23/06).

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RESOURCES

     Compensation - Report: Designing an Effective Pay-for-Performance Compensation System, Merit Systems Protection Board (2006).

     Dress codes - Article: Spit and Polish: A Critique of Military Off-Duty Personal Appearance Standards, 184 Military Law Review - Summer 2005

     Investigations - Report: "Administrative Subpoenas in Criminal Investigations: A Brief Legal Analysis," Congressional Research Service, Doc. #RL33321 (2006)

     Psychological screening - police applicants - Article: "Police Officer Selection: History and Forensic Implications" and "The M-PULSE Methodology and Inventory," 6 (2) Law Enforcement Executive Forum 27, 32 (Feb. 2006).

     Transparency - Book: The American Bar Assn. has updated its 1978 book, "An Interpretive Guide to the [Federal] Government in the Sunshine Act."

Reference:

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

CROSS REFERENCES

Featured Cases:
Disciplinary Punishment - see: Arbitr. Punishment Awards
Duty to Bargain - see: Disciplinary Hearings
Promotional Rights & Procedures - see: Military Leave
Past Practices - see: Pay Disputes
Rulemaking - see: Disciplinary Hearings
Sex Discrimination - see: Uniforms & Equipment
Untruthfulness & Resume Fraud - see: Arbitr. Punishment Awards
Workers Comp. - see: Pay Disputes

Noted in Brief:
Arbitration Procedures - see: Attorneys' Fees
Racial Harassment - see: Race Discrimination

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