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Fire and Police Personnel Reporter
An Employment Law Publication
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August, 2000 web edition

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Age Discrimination - Promotion
Arbitration Procedures
Attorneys Fees
Certification Standards & Procedures
Criminal Liability
Damages & Remedies
Disciplinary Offenses - General
Fair Labor Standards - Overtime
Hairstyle/Appearance Regulations
Handicap/Abilities Discrimination
Mental Illness & Instability
Political Activity/Patronage
Race and Sex Discrimination
Racial Harassment
Sexual Harassment
Telephone / AV Taping
Workers' Compensation
Articles Noted
Cross References
Cases Cited

Age Discrimination - Promotion/Assignment

Jury awards a district fire chief $109,222 because he was repeatedly passed over for promotion because of his age.

     A 57 year-old district chief with 31 years experience and outstanding or very good past evaluations was rejected six times for promotion in favor of a significantly younger and less experienced candidates.  The $109,222 award was for past wage differential.  Witnesses testified that they overheard the chief comment that he would not promote older candidates to assistant chief.

     Because the fire dept. has indicated it will not promote the plaintiff in the future, he will now make a claim for future wage losses, attorneys’ fees, interests and costs.  Julian v. City of Houston, #H-99-0628, 38 (1866) G.E.R.R. (BNA) 719 (S.D. Tex.).

*    *    *    *    *    *

» Editor's Note: It is more difficult to impose discipline for substandard performance or to justify rejecting an employee for promotion when a worker has been given persistent ratings as superior or outstanding.  When management disputes the accuracy of past favorable evaluations during litigation, a judge or jury is more likely to perceive employer bad faith, vindictiveness and retaliation.

Arbitration Procedures

N.H. Supreme Court upholds a law providing for automatic forfeiture of employment for a felony conviction.  The fact the law was passed while the criminal charges were still pending does not provide the defense of ex post facto legislation.

     Two firefighters were charged with feloniously embezzling funds from the Firefighters Association.  While the charges were pending, the town amended its charter to include automatic dismissal for employees who either plead guilty or enter a plea of no contest to any felony charge.

     Both firefighters pled nolo contendere, were sentenced to probation and both firefighters were fired.  The union then demanded arbitration and the town obtained a judicial stay in Superior Court.

     The New Hampshire Supreme Court has affirmed.  “A valid employment requirement prescribed by state law cannot be negotiated and is not a proper subject for arbitration.”  The justices said the ex post facto clauses in the state and federal constitutions only prohibit retroactive penal legislation.  Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990).

     The town charter amendments "provide no criminal penalties and the loss of em-ployment, at most, was merely a civil penalty."  West Warwick v. L-1104 IAFF, #98-453, 745 A.2d 786, 2000 R.I. Lexis 48, 164 LRRM (BNA) 2063.

Full text: www.ribar.com/Courts

Attorney's Fees and Legal Defense Rights

N.Y. Court denies attorney's fees to an officer accused of misconduct, because he failed to pursue his claim under procedures embodied in the PBA bargaining agreement.

     Although a grand jury declined to indict, a NYPD officer was terminated after raping an 18 year-old woman in the back seat of his car. He requested legal defense at the disciplinary proceeding from the Patrolmen's Benevolent Association.

     Instead of appealing the denial administratively, he filed suit in state court.  The judge concluded that "his failure to exhaust the administrative remedies ... mandates dismissal" of his lawsuit.  Dobrin v. PBA of NYC, QDS: 22702603 (Sup.Ct. N.Y. Co. 2000).

Text at www.nyqds.com (fee to retrieve).

Certification Rights, Standards and Procedures

Pennsylvania upholds the revoking of a police recruit's certification for the commission of a military offense, punishable by imprisonment for more than one year.

     A police recruit in Pennsylvania appealed the revocation of his attendance at the academy, as required for his employment as a Philadelphia police officer.  In 1992 he was convicted of aggravated assault, 10 U.S. Code §928(b), while serving in the Marine Corps.  He had shot a corporal in the groin with a 9 mm. pistol.  Although subject to eight years imprisonment under a General Court Martial, he was sentenced to only four months confinement.

     In Pennsylvania, certification as a police officer can be denied upon conviction of an offense punishable by more than one year in prison.  The applicant claimed that (1) the Uniform Code of Criminal Justice is not a “criminal code” for the purpose of applying civilian disabilities, and (2) the punishment was less than one year.

     The appellate court held the General Court Martial was a criminal conviction, citing Brown v. U.S., 508 F.2d 618 (3rd Cir. 1975), U.S. v. MacDonald, 992 F.2d 967 (9th Cir. 1993) and U.S. v. Martinez, 122 F.3d 421 (7th Cir. 1997).  Additionally, the issue not how long the appellant was actually imprisoned, but whether the offense for which he was convicted carried a possible punishment of more than one year in confinement.

     A dissenting judge noted that a Special Court Martial allows punishment for only six months, and the applicant's light sentence was recorded as a Special, and not a General Court Martial.  DiSalvatore v. Mun. Police Off. Educ. Cmsn., #1984 C.D. 1999, 2000 WL 664358 (Pa. Cmwlth.).

Full text:  www.courts.state.pa.us/opposting/cwealth/out/1984cd99.pdf

Criminal Liability

Supreme Court holds that the constitution prevents the government from compelling the production of unknown documents and then using them against the same person in a criminal proceeding.

     In a divided decision, the court held that the Fifth Amendment protects a suspect from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity.  If the documents are produced under a promise or grant of immunity, they may not furnish the basis of criminal charges against the suspect.

     The Government unsuccessfully argued that the act of producing ordinary business records was insufficiently "testimonial" to support a claim of privilege, because the existence and possession of such records was presumed.  U.S. v. Hubbell, #99-166, 2000 U.S. Lexis 3768.

Full text: www.supremecourtus.gov

Damages and Remedies

Supreme Court decision on punitive damages in ADA cases applied to a Chicago verdict.  To recover, a claimant must prove that management knew that it was violating federal law.

     A night-shift clerical worker had depression, insomnia anxiety, spontaneous crying or sleep. Instead of a transfer, the employer terminated her.  She sued for failure to accommodate an ADA recognized disability.  The jury awarded $800,000: $200,000 in compensatory and $500,000 in punitive damages — which the trial court reduced to $300,000, as required by federal law, 42 U.S. Code §1981a(b)(3).

     A federal court may award punitive damages for an ADA claim when the employer engaged in a discriminatory practice with malice or reckless indifference.  However, the Supreme Court said in 1999 that establishing malice or reckless indifference depends not on the egregiousness of the employer's misconduct, but on the employer's knowledge that it may be acting in violation of federal law.  Kolstad v. A.D.A., 527 U.S. 526, 119 S.Ct. 2118 at 2124-5 (1999).

Full text:  www.supremecourtus.gov

     The employer believed her psychological condition was a nonoccupational, personal problem. A three-judge appeals panel said:

[The employer's] failure to accommodate [the plaintiff's] disability amounted to negligence because it misunderstood [her] difficulties ... Although [the employer] wrongly believed that [she] was not disabled ... [management] did not exhibit the requisite reckless state of mind ...

     They said that the trial court should have granted the employer's motion to dismiss the claim for punitive damages, leaving her with a verdict of $200,000 in compensatory damages.  Gile v. United Airlines, #99-2509, 2000 U.S. App. Lexis 11354 (7th Cir).

Full text: www.kentlaw.edu/7circuit

*    *    *    *    *    *

» Editor's Note: A recent DoJ Bureau of Justice Statistics study shows that only 3.3% of cases result in any punitive award. The study also found that juries are less likely (2.5%) than judges (7.9%) to impose punitive damages.

     The majority of all punitive awards were less than $40,000. Judges awarded a median punitive verdict of $75,000, compared to $27,000 imposed by a jury.  The Wall Street Journal, 6/12/2000.  www.wsj.com/  (fee to retrieve).

Disciplinary Offenses - In General

Maryland upholds the suspension of an officer who engaged in a fatal chase outside of his jurisdiction.  His conduct was not justified as a “citizen's arrest” or “to neutralize risks to life” by allowing an impaired motorist to continue driving.

     A county police officer in Maryland was suspended for five days for engaging in a pursuit to enforce State motor vehicle laws in a neighboring jurisdiction.   The pursued motorist, who was drug impaired, collided with a taxicab, killing the passenger.

     He attempted to defend his action by suggesting that there is a duty for law enforcement officers “to neutralize risks to life presented by an impaired driver” and to use lights and siren to either stop the driver or warn other motorists of potential dangers.

     The state's highest court noted that the Maryland legislature has repeatedly rejected granting officers extraterritorial powers.  The officer's claim that he was merely following the vehicle is ludicrous.   “Unquestionably, [his] pursuit of the driver ... represented an enforcement of the State motor vehicle laws.”

     Nor could his actions be justified as a “citizen's arrest.”  “He was a police officer on active duty, driving a marked police car with overhead lights flashing and siren intermittently blaring.”  Boston v. Baltimore Co. Police Dept., #75-1999, 357 Md. 393, 744 A.2d 1062, 2000 Md. Lexis 37.

Full text: www.courts.state.md.us/T40

Fair Labor Standards Act - Overtime & in General

Federal court in New Jersey finds that officers who voluntary work secondary employment, when the jobs are assigned and paid by the city, are entitled to time-and-one-half compensation under the FLSA.

     When a person or business in New Brunswick, N.J., wants to employ a police officer for private functions, the department's Extra-Duty Job Coordinator locates an available officer from a master list.  Officers on secondary jobs are paid by the city, which then bills the outside parties.  However, the city did not pay time-and-one-half rates, and after protests, a suit was filed in federal court.

     The city claimed the officers worked extra-duty job assignments as independent contractors, and not as city employees.  The court rejected this defense because extra-duty officers received their assignments from the city, were subject to discipline and supervision by their superiors, and were paid directly by the city.

     Moreover, the department's regulations provided that “extra-duty police employment is considered on-duty status, and therefore all ... Department regulations shall apply ... whenever a member is on extra-duty assignment.”  Cahill v. City of New Brunswick, 99 F.Supp.2d 464, 2000 U.S. Dist. Lexis 7193 (D.N.J.).

Hairstyle and Appearance Regulations

Ohio Supreme Court generally upholds appearance standards for corrections officers, but allows an officer to have long hair for religious reasons, if concealed neatly under his hat.

     An Ohio corrections officer wore his hair long as a part of his practice of Native American Spirituality.  Regulations provide that certain hairstyles are “incompatible with a professional and dignified appearance.”  The state did not contend that the grooming policy is necessary as a safety or security measure.

     There was no evidence that his hairstyle has impaired his duties, or that inmates disrespected him, or the hairstyle affected coworker esprit de corps.  At no time has there been a problem with the officer’s job performance.

     When disciplinary action was initiated, he obtained injunctive relief in state court.  The court of appeals reversed, finding that the state did not need to show a compelling interest.  On final review, the Ohio Supreme Court said:

We are satisfied that the state does have a compelling interest in establishing a uniform and grooming policy for its guards. Maintenance of a prison system is a central role of government, an area it is uniquely suited for. It is an undertaking essential to justice and to the safety of the citizenry, but by its nature is fraught with danger and thus must be tightly controlled. A prison is a dangerous, potentially explosive environment.  *  *  *

The appearance of an organized, disciplined front could aid in squelching thoughts of organized unrest by prisoners. Prisons by their nature are filled with people who have rejected the structure of civilized society, and a heightened sense of order is necessary to maintain stability.

     However, six of the court's seven justices said the state “can further its compelling interest of a uniform grooming policy through a less restrictive means than the policy currently employs.”

     A compelling interest is not enough under the state constitution.  The state also must show that the policy to be enforced is the least restrictive means of furthering that interest.

     Allowing the officer to wear his hair pinned under his uniform cap was a less restrictive means of furthering the state’s interest.  The trial court found that “it is impossible to tell that his hair is longer ... when worn in this fashion ... [and it] does not appear ragged, unkempt or extreme.”

     The majority said the state's grooming policy should include an accommodation for persons who grow their hair long for religious reasons, allowing them to tuck their hair under their uniform caps.

     The state can discipline employees who, even after that accommodation, cannot achieve a uniform professional and dignified image.  Humphrey v. Lane, #99-206, 89 Ohio St.3rd 62, 728 N.E.2d 1039, 2000 Ohio Lexis 1283.

Full text: www.sconet.ohio.gov

Handicap/ Abilities Discrimination - Specific Disabilities

Refusal to waive a peace officer certification requirement so that a one-handed civilian communications employee could be promoted violated the ADA.

     An eight-year veteran communications employee with a sheriff's dept. sought a promotion.  Communications supervisors must be sworn officers, so he enrolled in the academy.

     After 16 weeks the academy dismissed him because he could not shoot with his left hand and had difficulty subduing suspects. He sued under the ADA.  The District Court found that the certification requirement was not essential to the position.

     The county has preserved supervisory positions for certified peace officers.  A supervisor also directs, assists, and monitors the civilian employees, such as the plaintiff.

     The county offered several experts to explain why communications supervisors need to be capable of firing with both hands or handcuffing prisoners.  The court rejected these reasons, because communications employees do not handle prisoners or engage in armed conflicts.

     Although the division is attached to the county jail, it is no more threatened by wayward criminals than any other workplace.  Mathes v. Harris Co., 2000 U.S. Dist. Lexis 7335 (S.D.Tex.).

Mental Illness and Instability

A California county settles an employee's PTSD disability discrimination complaint for $425,780.

     The claimant suffered from post-traumatic stress disorder.  After taking a medical leave, the county disputed her physician's report that she was ready to resume employment.  One of the county's doctors disagreed.  As an employer, the county made no efforts to either accommodate her condition or to return her to work.

     The county has agreed to pay her $80,000 in wage losses and a retirement annuity worth $345,780 (purchased at a cost of $126,000).  Cal. FEHC ex rel. Gundy v. Tulare Co., #E98-99-H-0120-00, 38 (1866) G.E.R.R. (BNA) 722 (Cal. FEHC).

Political Activity/Patronage Employment

Federal appeals courts are badly split on whether a deputy sheriff is a “policymaker” and can be terminated for political reasons.

     Initially the U.S. Supreme Court held, except for policymaking and confidential employees, that untenured deputies could not be terminated for political reasons.  Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673 (1976).

     The justices have since eroded the holding in Elrod in two cases: Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287 (1980) and O'Hare Truck v. Northlake, 518 U.S. 712, 116 S.Ct. 2353 (1996).  www.supremecourtus.gov/

     Three circuits have upheld politically motivated dismissals of deputy sheriffs, on the ground that they are policymakers and subject to political action.  Jenkins v. Medford, 119 F.3d 1156 (en banc, 4th Cir. 1997); Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989). The 4th, 7th and 11th circuits cover AL, CO, FL,  GA, IL, IN, KS, MD, NM, NC, OK, SC, UT, VA, WV, WI and WY.

     Two circuits have held that deputy sheriffs are not policymakers and cannot be fired for political reasons: Burns v. Co. of Cambria, 971 F.2d 1015 (3rd Cir. 1992); Hall v. Tollett, 128 F.3d 418 (6th Cir. 1997).  The 3rd and 6th circuits cover DE, KY, MI, NJ, OH, PA, and TN.

     Two circuits require a fact-specific balancing test: McBee v. Jim Hogg Co., 730 F.2d 1009 (en banc, 5th Cir. 1984); Thomas v. Carpenter, 881 F.2d 828 (9th Cir. 1989), holding “there is no per se rule in this circuit based solely on job title.  The critical inquiry is the job actually performed.”  The 5th and 9th circuits cover AZ, CA, GU, HI, ID, LA, MS, MT, NV, OR and WA (AK has no sheriffs).

     The most recent case in the 9th Circuit said it was unclear as a matter of law, whether any or all of 78 deputies in the Tehama County Sheriff's Dept. are policymakers.  It was error for the District Court to dismiss a politically motivated wrongful termination suit without a trial.  DiRuzza v. Co. of Tehama, #98-15997, 206 F.3d 1304, 2000 U.S. App. Lexis 430, 16 IER Cases (BNA) 15 (9th Cir.).

Full text: www.ce9.uscourts.gov/opinions

Race and Sex Discrimination

Federal appeals court upholds content-based exam for Chicago police lieutenants, including an eligibility list based on test results, except for a small number of set-asides for minority candidates.

     To construct a valid police lieutenant’s exam, the City of Chicago retained a human resource consulting firm that specialized in promotional testing.  The principal consultant was Gerald Barrett, Ph.D. with degrees in law and psychology.  He teaches testing and measurement, personnel selection, performance evaluation, personnel psychology and law at the University of Akron.

     Dr. Barrett interviewed sergeants, lieutenants and captains (including minorities); toured the districts and rode with lieutenants on duty; reviewed documents, reports, and orders; created a job descriptions, including tasks and responsibilities of lieutenants; measured the importance and frequency of tasks; and, consulted source materials which were made available to promotional candidates.

     The exam had three components: (1) a written job-knowledge test with 150 questions derived from the source materials; (2) a simulated emergency situation which lieutenant might face, also based on materials provided the candidates; and (3) an assignment to prepare and give an oral briefing, based on provided materials about gang activity.

     Minorities did not score well, and the city proposed to modify the results by including additional promotions for minorities based on a merit assessment system.  Because of litigation, thirteen officers who were chosen for "merit" promotion were not promoted.

     Forty-four unsuccessful candidates filed a suit in federal court, seeking injunctive relief against promotions from the list.  The judge determined that the exam measured a significant portion of the knowledge, skills, and abilities necessary for a police lieutenant and was content valid. Injunctive relief was refused.

     However, the court ordered the City to promote the thirteen sergeants to lieutenants, with differential back pay and benefits.  Brown v. Chicago, 8 F.Supp.2d 1095, 1998 U.S. Dist. Lexis 10721 and 19 F.Supp.2d 890, 1998 U.S. Dist. Lexis 14963 (N.D. Ill.).  The city did not contest this part of the holding.

     On appeal, a three-judge appellate panel found that the city's examination expert was well-qualified, the test was a valid measure of job content and the use of a rank-order system was not invalid.  Bryant v. Chicago, #99-1272, 200 F.3d 1092, 2000 U.S. App. Lexis 528 (7th Cir.).

Full text: www.kentlaw.edu/7circuit/2000/jan/99-1272.html

Racial Harassment

Black officer loses harassment suit against her dept.  Although a fellow officer had called her a “dumb nigger,” she had used similar language herself.  Seven minor incidents in seven years does not create an intolerable workplace.

     The plaintiff alleged that coworkers referred to her as “a dumb nigger”, “cruiser butt” and “Zulu,” but not in her presence.  She found a dead mouse in her mailbox at the police station.  An I-A investigation ensued in which 27 people were interviewed and 3 given polygraph examinations, without success.

     The court noted the plaintiff herself has used both the terms “nigger” and “bitch” when referring to others. More importantly, if her complaints are true, they were not “severe.”  Seven incidents in a seven-year period is not “pervasive.”

     An appellate panel divided 2-to-1, upholding the dismissal of her lawsuit.  Patterson v. Fairfax Co., #99-1738, 2000 U.S. App. Lexis 11009, 38 (1866) G.E.R.R. (BNA) 717 (4th Cir.).

Full text: www.law.emory.edu/4circuit

Sexual Harassment - In General

A single episode of sexual harassment, followed by a prompt removal of the harasser from the workplace, prevented a successful claim of hostile work environment.  Her claim of later being shunned by male coworkers did not rise to the level of a compensable claim.

     A male 911 dispatcher forced his hand underneath the clothing of a woman dispatcher and fondled her breast.  The woman immediately reported the incident and the next day, the city placed the male dispatcher on administrative leave pending an investigation.

     The investigation revealed two other instances of improper advances to women co-workers, which were unreported at the time.  The offender resigned, pled no contest to sexual assault charges and spent 120 days in jail.

     Despite the city's prompt remedial action, the victim took a six-month leave of absence and obtained treatment from a psychologist. She claimed that when she returned, male employees ostracized her and her supervisors mistreated her. She alleged in her subsequent lawsuit that the city delayed approval of her sick leave benefits, reprimanded her for minor misconduct and gave her an unwarranted negative performance evaluation.

     A three-judge appeals panel said that while she alleged the incident pervaded her work environment the question remains whether her apprehension was objectively reasonable.  The coworker only touched her on her breast.  “No reasonable woman in [her] position would consider that [the] misconduct had altered the terms or conditions of her employment.”

     As for her retaliation claim, she failed to show an adverse employment action such as termination, a negative employment reference, or refusal to consider for promotion.  The panel said that badmouthing an employee outside the job reference context or transferring an employee where salary is unaffected do not constitute adverse employment actions.  Brooks v. City of San Mateo, #98-15818, 00 C.D.O.S. 4361, 2000 U.S. App. Lexis 12165 (9th Cir.).

Full text: www.ce9.uscourts.gov/opinions

*    *    *    *    *    *

Teasing and isolated conduct were insufficient to prove a woman officer's claims of hostile work environment, disparate treatment, and constructive discharge.

     A woman police officer in Florida claimed she was subjected to a hostile work environment, prompting her resignation.  She sued for sexual harassment, retaliation and constructive discharge.  In the lawsuit, she claimed that she was subjected to demeaning comments about blacks and lesbians and was threatened with unfounded disciplinary action.

     The city denied the allegations and claimed that she failed to report the purported instances of misconduct.  The court noted, however, that the plaintiff kept a notebook of her complaints to supervisors. But teasing and isolated incidents did not create a severely hostile workplace or prove continuing violations.

     She failed to meet the burden of establishing a prima facie case of hostile work environment, disparate treatment, constructive discharge, and negligent retention.  The judge granted the city's motion for summary judgment.  Matthews v. City of Gulfport, 72 F.Supp.2d 1328, 1999 U.S. Dist. Lexis 16919, 82 FEP Cases (BNA) 1603 (M.D.Fla.).

*    *    *    *    *    *

» Research Note: If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.  In one case where a single incident was sufficient the assailant tore off the plaintiff's shirt, beat her, hit her on the head, choked her with a phone cord, held her captive overnight and forced her to have sex with him.   Al-Dabbagh v. Greenpeace, 873 F.Supp. 1105, at 1108 (N.D. Ill. 1994).

     In another case, where the defendant pressed the plaintiff against the door with his body causing her to feel his "erect sexual organ against her body" the court found the conduct was not severe or pervasive enough to create a hostile working environment.  Del Valle Fontanez v. Aponte, 660 F.Supp. 145, at 146-149 (D.P.R. 1987).

*    *    *    *    *    *

Federal appeals court upholds a $100,000 harassment verdict because a coworker glared at her.

     A woman D.C. police officer ended an intimate relationship with a male officer.  She alleged, in her lawsuit against the dept., that her former lover verbally harassed and “glared at her in a harassing manner.”  Some of the conduct was reported, and some not.  Management warned the male officer against harassment.

     The jury found that management failed to adequately respond, and awarded her $100,000.  The department appealed, but the appellate panel affirmed, 2-to-1.  One judge said the award was “grossly excessive,” and another called it “generous,” but not “so unreasonably high as to result in a miscarriage of justice.”

     The verdict was upheld because the dept. took four months to investigate and confirm her complaint.  Management was unable to discipline or transfer the offender, because of a 45 working day period of limitations on disciplinary actions.  The only remedy offered was a transfer of the victim.

     There were three separate opinions in the appellate court. One judge wrote that a mere request that an offender cease engaging in misconduct is not enough to avoid liability.  “Employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment.”  A juror might have concluded that “admonitions” are sufficient to deter future harassment, but would not be compelled to reach that conclusion.

     The Supreme Court has declined to review the verdict.  Curry v. Dist. of Col., #98-7121, 195 F.3d 654, 1999 U.S. App. Lexis 29442, 81 FEP Cases (BNA) 307 (D.C. Cir); cert. den. 2000 U.S. Lexis 3838, 68 L.W. 3747.

Full text: www.ll.georgetown.edu:80/Fed-Ct/cadc.html

Telephone Monitoring, Audio & Video Taping

N.H. upholds use of a concealed videocamera in the nonprivate areas of worksites in public buildings.

     To determine the source of petty thefts, a police sergeant installed a videocamera in a classroom, at the request of school officials.  The tapes revealed a culprit, the head custodian.

     At the criminal trial, the defendant successfully filed a motion to suppress, based on a reasonable expectation of privacy.  On appeal, the State argued that video surveillance does not constitute a “search” within the meaning of the state and federal constitutions.

     The N.H. Supreme Court assumed it was a search, but said that workplace searches are lawful if the area is non-private and open to fellow employees or the public.  A “classroom in this case was not an area over which the defendant enjoyed exclusive use and control.”  State v. McLellan, #98-239, 744 A.2d 611, 1999 N.H. Lexis 162.

Full text: www.state.nh.us/courts/supreme/opinions.htm

Workers' Compensation - Exclusive Remedy

Connecticut rejects a worker's damage suit for emotional trauma, suffered as a consequence of being forced to perform oral sex on her superior.  The act also involved a physical assault and a workers' comp. claim was an exclusive remedy.

     A clerical worker sued her employer for emotional distress, claiming that her superior forced her to perform oral sex on him at the worksite.  The employer claimed that the state workers' compensation laws provided the sole and exclusive remedy for any monetary recovery.

     Worker's compensation laws in most states prohibit an employee suit against the employer or a coworker for physical injuries suffered in the workplace.  Here, the plaintiff sought to avoid the restriction by seeking damages for her emotional injuries.

     The state's supreme court rejected the end-run.  “It would be difficult to conjure up a case in which the involuntary act of fellatio would not be a physical as well as an emotional assault.”

     The legislature intended to limit a worker’s  remedies as a tradeoff for generous workers’ comp. benefits.  Driscoll v. GNC, #SC-16090, 252 Conn. 215, 2000 Conn. Lexis 34, 16 IER Cases (BNA) 587.

Text: www.jud.state.ct.us/external/supapp/aro.htm



     “Arbitrating sexual harassment grievances; Defense of mandatory arbitration of employment disputes,” Univ. of Penn. J. of Labor and Empl. Law Vol. 2 No. 1.  www.law.upenn.edu/labor

     “Communications technology in the workplace," Amer. Bar Assn., available in PDF format at www.bna.com/bnabooks/ababna/stdev/2000/stdevplace.pdf

     “Privacy in the workplace: On the frontier between the rights of employees and employers,” Amer. Bar Assn., available in PDF format at:


     “States as defendants in employment litigation: Beyond Alden v. Maine,” 88 (5) Ill. Bar J. 280 (May 2000); www.isba.org


Handicap/ Abilities Discrimination:  see  Damages and Remedies.
Moonlighting:  see  Fair Labor Standards Act - Overtime.
Sexual Harassment:  see  Workers' Compensation - Exclusive Remedy.

Page numbers in [brackets] refer to the print edition.

Al-Dabbagh v. Greenpeace, 873 F.Supp. 1105 (N.D. Ill. 1994).  [125]
Boston v. Baltimore Co. Police Dept., #75-1999, 357 Md. 393, 744 A.2d 1062, 2000 Md. Lexis 37. [118]
Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287 (1980). [121]
Brooks v. City of San Mateo, #98-15818, 00 C.D.O.S. 4361, 2000 U.S. App. Lexis 12165 (9th Cir.). [123-4]
Brown v. Chicago, 8 F.Supp.2d 1095 and 19 F.Supp.2d 890 (N.D. Ill. 1998). [123]
Brown v. U.S., 508 F.2d 618 (3rd Cir. 1975). [116]
Bryant v. Chicago, #99-1272, 200 F.3d 1092, 2000 U.S. App. Lexis 528 (7th Cir.). [122-3]
Burns v. Co. of Cambria, 971 F.2d 1015 (3rd Cir. 1992). [122]
Cahill v. City of New Brunswick, 2000 U.S. Dist. Lexis 7193 (D.N.J.). [119]
Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990). [115]
Curry v. Dist. of Col., 195 F.3d 654, 1999 U.S. App. Lexis 29442 (D.C. Cir). [125]
Driscoll v. GNC, #SC-16090, 252 Conn. 215, 2000 Conn. Lexis 34, 16 IER Cases (BNA) 587. [126]
Del Valle Fontanez v. Aponte, 660 F.Supp. 145 (D.P.R. 1987).  [125]
DiRuzza v. Co. of Tehama, #98-15997, 206 F.3d 1304, 2000 U.S. App. Lexis 430 (9th Cir.).  [121-2]
DiSalvatore v. Mun. Police Off. Educ. Cmsn., #1984 C.D. 1999, 2000 WL 664358 (Pa. Cmwlth.). [116-7]
Dobrin v. PBA of NYC,  QDS: 22702603 (Sup.Ct. N.Y. Co. 2000). [116]
Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673 (1976). [121]
Gile v. United Airlines, #99-2509, 2000 U.S. App. Lexis 11354 (7th Cir). [117-8]
Gundy v. Tulare Co., #E98-99-H-0120-00, 38 (1866) G.E.R.R. (BNA) 722 (Cal. FEHC). [121]
Hall v. Tollett, 128 F.3d 418 (6th Cir. 1997). [122]
Humphrey v. Lane, #99-206, 89 Ohio St.3rd 62, 728 N.E.2d 1039, 2000 Ohio Lexis 1283. [119-120]
Jenkins v. Medford, 119 F.3d 1156 (en banc, 4th Cir. 1997). [121]
Julian v. City of Houston, #H-99-0628, 38 (1866) G.E.R.R. (BNA) 719 (S.D. Tex.). [115]
Kolstad v. A.D.A., 527 U.S. 526, 119 S.Ct. 2118 (1999). [117]
Mathes v. Harris Co., 2000 U.S. Dist. Lexis 7335 (S.D.Tex.). [120-1]
Matthews v. City of Gulfport, 72 F.Supp.2d 1328, 1999 U.S. Dist. Lexis 16919 (M.D.Fla.). [124-5]
McBee v. Jim Hogg Co., 730 F.2d 1009 (en banc, 5th Cir. 1984). [122]
O'Hare Truck v. Northlake, 518 U.S. 712, 116 S.Ct. 2353 (1996). [121]
Patterson v. Fairfax Co., #99-1738, 2000 U.S. App. Lexis 11009 (4th Cir.). [123]
State v. McLellan, #98-239, 744 A.2d 611, 1999 N.H. Lexis 162. [126]
Terry v. Cook, 866 F.2d 373 (11th Cir. 1989). [121]
Thomas v. Carpenter, 881 F.2d 828 (9th Cir. 1989). [122]
U.S. v. Hubbell, #99-166, 2000 U.S. Lexis 3768. [117]
U.S. v. MacDonald, 992 F.2d 967 (9th Cir. 1993). [116]
U.S. v. Martinez, 122 F.3d 421 (7th Cir. 1997). [116]
Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991). [121]
West Warwick v. L-1104 IAFF, #98-453, 745 A.2d 786, 2000 R.I. Lexis 48. [115-6]

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