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June, 2000 web edition

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AIDS/HIV Discrimination
Collective Bargaining - In General
Disciplinary Investigations
Disciplinary Punishment - In General
Disciplinary Punishment - Disparate Treatment
Disciplinary Procedures - Time Limits
E-Mail/Internet - Legal Issues
Emotional Distress
Fair Labor Standards - Overtime
Handicap Laws & Abilities Discrimination
- In General
- Accommodation
- Specific Disabilities
Race and Sex Discrimination
Race: Reverse Discrimination
Retirement Rts. & Benefits
Sex Discrimination - General
Sexual Harassment
Telephone / AV Taping
Whistleblower Requirements and Protection
Corrections & Updates
Articles Noted
Cross References
Cases Cited

AIDS/HIV Discrimination & Other Legal Issues

Federal appeals court upholds the suit by a police applicant who was summarily rejected because he is HIV seropositive.

     A Tennessee city rejected an HIV+ police applicant who is currently a Capitol Police officer.  City officials believed that the applicant would not be strong enough to withstand the rigors of police work and that other employees and members of the public would be put "at risk" by hiring him.

     A three-judge federal appeals panel noted that the ADA mandates an individualized determination of an applicant's disability.  There was no evidence the city attempted to see if the applicant experienced fatigue or other symptoms of weakness or lack of endurance.

     The applicant had passed an agility test that included running, jumping obstacles and carrying heavy weights.  Holiday v. Chattanooga, #98-5619, 206 F.3d 637, 2000 U.S. App. Lexis 3660, 10 AD Cases (BNA) 501 (6th Cir.).

Full text: pacer.ca6.uscourts.gov/opinions/main.php

Collective Bargaining - In General

Appellate court declines to enforce an amendment to the bargaining agreement, signed by the mayor, but not submitted to the city council.

     The outgoing mayor signed an agreement with a union that enlarged employee benefits far in excess of those negotiated and approved by the city council under the collective bargaining agreement. The new administration challenged the legality of the amendment.

     A three-judge appellate panel said that there was no attempt to have the second agreement ratified by the city council or have the necessary funds appropriated.  When a mayor attempts to bind the city by contract without prior or subsequent approval, as provided by state law, the contract is void and unenforceable.  Belleville (City of) v. FOP, #98-MR-286 2d Dist., 2000 Ill. App. Lexis 202.

Full text: www.state.il.us/court/2000/5990416.htm

Disciplinary Investigations

Federal court refuses to dismiss a sergeant's civil rights suit against investigators who, against his will, took him to a place where they interrogated him for more than 5 hours.

     The N.Y. State Police received a letter alleging that the brother of trooper left the scene of an accident and the facts were covered up by members of the NYSP Peekskill Barracks.  An investigation began.

     A sergeant from the barracks was stopped by investigators on his way home.  He was removed from his personal vehicle and the keys were taken; he was placed in the felony position, put in an unmarked unit under guard and was taken to a hotel.  He was told that he was the target of a criminal investigation and was given the Miranda warnings; he was interrogated for nearly six hours.  Investigators allowed him to leave after he agreed to take a polygraph test.

     The sergeant filed a federal civil rights damage suit claiming an unlawful 4th Amendment deprivation.  The NYSP responded that they did not need a warrant, probable cause, or even individualized suspicion to stop and question a trooper for a work-related investigation of misconduct.

     The NYSP relied on Biehunik v. Felicetta, 441 F.2d 228, 1971 U.S. App. Lexis 11503 (2d Cir.), cert. denied, 403 U.S. 932 (1971), which upheld a police chief's order requiring 62 police officers to stand in a lineup.  In that case the appeals court concluded that although a lineup is a 4th Amendment seizure and there was no individualized suspicion to believe that any of the officers committed an assault, it was "reasonable" because it served the public interest in promoting the appearance and actuality of police integrity.

     The NYSP also cited Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989), which held that probable cause is not necessary for a work-related investigation of misconduct, including the warrantless search of an employee's desk, his police vehicle, and a locked briefcase.

     In this case however, the court noted that the applicable CBA established specific procedures for administrative investigations that the investigators did not follow, e.g., a right to consult an attorney or a union rep. and management could not request him to take a polygraph exam. The focus of the investigation was criminal, not administrative.

     The decisions in Biehunik and Shields were work-related, rather than criminal investigations.  The court said:

The distinction between searches and seizures for the purpose of criminal prosecution and those undertaken for work-related or administrative purposes is critical and many courts upholding a standard lower than probable cause have recognized that the lower standard is not appropriate in the criminal arena ...

Traditional 4th Amendment safeguards applicable in the context of criminal investigations cannot be avoided simply because the agency conducting the search is ... a governmental employer ostensibly supervising its employees...

Accordingly, if [the sergeant] was seized or arrested without probable cause, his Fourth Amendment rights were violated. Defendants initiated their investigation of the alleged cover-up on the basis of uncorroborated allegations in a letter... [and] they were unable to ascertain his or her identity ...  The investigation ... revealed little evidence linking [the sergeant] ... to the cover-up. ...

Looking at the facts in the light most favorable to [the sergeant] it is not clear that Defendants had probable cause to seize and or arrest [him].

     The court denied a summary judgment for the defendant investigators.  Cerrone v. Cahill, #95-CV-241, 84 F.Supp.2d 330, 2000 U.S. Dist. Lexis 1328 (N.D.N.Y.).

Disciplinary Punishment - In General

Arbitrator reduces a termination to a long-term suspension for sending an e-mail with sexually offensive content.

     A private sector worker had downloaded sexually explicit adult graphics to his work computer and had sent an e-mail with sexual content, which was inadvertently viewed by a woman coworker.  The employer had a regulation prohibiting "conduct detrimental to [the] relationship with other employees."

     The arbitrator said that an employer that fails to strongly punish improper sexual conduct "is buying itself a lawsuit." The grievant misused his computer and violated the employer's Internet and sexual harassment policies.

     However, because the grievant was a first-time offender with nine years of service, the penalty of termination was reduced to a nine-month suspension.  PPG and Bro. of P. & A. Trades L-579, FMCS Case #99/08802, 113 LA (BNA) 833 (Dichter, 1999).

*    *    *    *    *    *

Appeals court overturns a civil service ruling that annulled a 5- day suspension of a lieutenant that used foul language to his superior.  There was no independent basis for rejecting the penalty.

     A Boston police lieutenant was charged with “disrespectful, discourteous, and inconsiderate” treatment of a superior officer, including the epithet “Fuck you!, Who do you think you're talking to?”

     The Police Commissioner imposed a five-day disciplinary suspension. The City's civil service cmsn. vacated the suspension.  The Commissioner appealed, and a Superior Court reinstated the punishment.

     On review, a three-judge appellate panel affirmed the lower court.  This is not a case where the civil service cmsn. found bias towards the lieutenant or that personalities played a motivating role. The commission did not conclude that the punishment was more harsh or unusual than imposed on others in like circumstances.

     “By engaging in a heated conversation with and cursing at a superior officer.. [he engaged] in substantial misconduct ... impairing the efficiency of the public service.”  Although the remarks were out of earshot of others and were made under stressful circumstances and lack of sleep, the commission and courts should defer punishment to the Police Commissioner.

     The commission's decision impermissibly substituted its judgment for that of the appointing authority.  Boston Police Dept. v. Collins, #97-P-1844, 48 Mass.App. 408, 721 N.E.2d 928, 2000 Mass. App. Lexis 4.

Full text: www.state.ma.us/courts/courts.htm

Disciplinary Punishment - Disparate Treatment

Federal appeals court upholds NYPD's Commissioner for terminating two minority officers who secretly had their precinct mascot euthanized.

     Two NYPD officers were annoyed when Fred the Beagle relieved himself in the stationhouse gymnasium.  They sneaked the precinct's dog to the ASPCA, where they reported it as a stray.  One of them gave a false name, phone number and badge number.  The dog was euthanized.

     The Deputy Commissioner for Trials recommended 20-day suspensions, but then Commissioner Bratton increased the penalties to termination, citing duplicity, untruthfulness, and deceit, which "raised serious doubts as to their ability to serve as professional police officers."

     The ex-officers sued for race and national origin discrimination. The U.S. District Court rejected their claims, and a three-judge panel has summarily affirmed.  The officers were AWOL while taking Fred to the ASPCA, lied to their superiors and the ASPCA, and risked conflict with their fellow officers.

     Although the sanction was more severe than the one recommended, there was no evidence to support the claim that the penalty was enhanced because of their race or national origin.  Collazo v. City of N.Y., #99-7967, 2000 U.S. App. Lexis 6120 (2nd Cir.).

Full text: www.tourolaw.edu/2ndCircuit/March00/s99-7967.html

Disciplinary Procedures - Delays & Time Limits

Appellate court overturns arbitrator's decision to reinstate an officer who had engaged in polygamy and made false statements.  The fact that the criminal statute of limitations had run has no application to employment terminations.

     A Michigan deputy sheriff was fired for having engaged in polygamy for over nine months and making related false statements in official documents.  The union grieved, and the arbitrator ordered reinstatement, back pay, benefits, and seniority.  He reasoned that because the criminal statute of limitations had passed, no administrative punishment was possible either.

     The sheriff sought judicial review, and a trial court vacated the award, finding that the award was contrary to public policy.  A three-judge appellate panel affirmed, saying:

The arbitrator's most egregious abuse of authority occurred when he disregarded an express provision of the collective bargaining agreement that mandates discharge when an employee knowingly makes a false statement on an official document.     *    *    *

Less egregious, but still beyond the granted authority, is the arbitrator's determination that ... violating a Michigan law by committing polygamy is assuaged merely because such information came to light after the period of limitation for criminal prosecution had expired.  ... the time limitations in the criminal code have no relevance to the rules set forth in the labor agreement.

Sheriff  of Lenawee Co v. Police Ofcrs. Labor Council, #211705, 239 Mich. App. 111, 607 N.W.2d 742, 1999 Mich. App. Lexis 334, 163 L.R.R.M. (BNA) 2952.

Full text: www.icle.org

E-Mail/Internet - Legal Issues

Federal appeals court affirms the criminal conviction of a CIA employee for downloading kiddy porn at work.  He lacked an expectation of privacy because CIA policy allowed electronic audits of computer usage.

     CIA policy restricted use the Internet to official government business and prohibited access of unlawful material.  Employees were advised that management would conduct electronic audits to ensure compliance, including e-mail traffic, the URLs of websites visited, and the identity of the users associated with each access.

     An auditor learned that one computer was used to access many websites that had the word "sex" embedded.  A copy was remotely made of that employee's hard drive.  Graphic images of kiddy porn were discovered in violation of 18 U.S. Code §2252A(a)(2)(A).

     A search warrant was obtained and the computer was seized.  In the criminal trial, the District Court denied a motion to suppress.  The employee was convicted and, took an appeal while in prison.

     Citing O'Connor v. Ortega, 480 U.S. 709 (1987), a three- judge panel said that a search by a government employer of work- related conduct does not violate the Fourth Amendment.  Management already knew that this employee had misused the Internet to download over a thousand pornographic images, some of which involved minors.

     The panel rejected an argument that O'Connor v. Ortega was not applicable because the evidence pertained to a criminal offense.  In New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987) the Supreme Court held that "the discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect."

     The appellate panel said a supervisor entered the employee's office and retrieved government equipment in which there was no legitimate expectation of privacy.  U.S. v. Simons, # 99-4238, 206 F.3d 392, 2000 U.S. App. Lexis 2877 (4th Cir.).

Full text: www.law.emory.edu/4circuit/feb2000/994238.p.html

Emotional Distress

Appeals court affirms award for black officer who suffered emotional distress when Rodney King's lawyer said he was a "House Negro."

     At a 1994 press conference, King's lawyer disparaged a black officer who testified for the defense, calling him a “House Negro.”  A jury awarded the officer $40,000 for the intentional infliction of emotional distress and the judge added an additional $20,000 in punitive damages.

     A three-judge appellate panel has affirmed.  They said the name was “a symbol of contempt and hatred” for Blacks who “betrayed their Black brethren in favor of the [slave] master.”  The attorney portrayed the officer as a liar who committed perjury to protect his white coworkers, but was unable to prove his accusations.  Love v. Grimes, #B122863 (Unpub., Cal. App. 2d Dist. 4/11/2000).

Fair Labor Standards Act - Overtime & in General

Border Patrol can be liable for double damages in supervisory overtime; no presumption of good faith.

     The U.S. Court of Federal Claims has ruled that the federal government is not entitled to the presumption of having acted in good faith in evaluating whether liquidated damages apply in an unpaid overtime claim.  Although the case involved only three agents, the total number of Border Patrol employees affected could be more than 900 because of a related lawsuit.  [The related case is Barnes v. U.S., #97-150 C (Fed.Cl. complaint filed 3/7/97)].

     An attorney for the claimants said the total back pay award could be as much as $75 million.  Adams v. U.S., #96-93C, 2000 U.S. Claims Lexis 58, 38 (1859) G.E.R.R.  513 (4/5/00).

Full text:  www.contracts.ogc.doc.gov/fedcl

Handicap Laws / Abilities Discrimination - In General

Supreme Court denies review of an appellate court holding that rejected the ADA claim of a state trooper who was not promoted, after he applied for disability benefits.

     While on duty, a NJSP detective was dragged 150 feet by a car, causing serious multiple injuries.  He failed the annual physical exam and was denied a promotion.  He sought and received a disability pension; he also sued the state police for refusing to promote him.

     His disability claim form alleged he was “totally and permanently disabled.”  However, in his ADA action, he alleged he was qualified for the job he had been denied.

     The Third Circuit said while there is no “per se rule” that a disability benefits application prevents an ADA claim from succeeding, but if the employee claims a medical deficiency in that disability application, he can be prevented from asserting he was physically qualified for a promotion he was denied.

     Here, the plaintiff was unable to provide a reasonable explanation of why he was qualified for promotion and also entitled to benefits for a total disability.  The Supreme Court has denied review.  Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122, 9 AD Cases (BNA) 1505 (3rd Cir.); cert. den. 99-1395, 2000 U.S. Lexis 2881 (4/24/2000).

Text: www.law.vill.edu/Fed-Ct/ca03.html

Handicap Laws / Abilities Discrimination - Accommodation

Federal panel upholds an arbitrator's decision not to accommodate a diabetic worker by assigning him permanently to the day shift.  Seniority systems prevail over disability legislation.

     In this case, the union filed a grievance claiming that the accommodation of a diabetic worker by a permanent day shift assignment adversely affected other employees, and contravened a past practice that was incorporated in the bargaining agreement.

     The Arbitrator ruled that it is a “per se rule that accommodations for disabled employees cannot violate a contractual seniority system.” Management challenged the award.  The Federal Labor Relations Authority split 2-to-1, holding that the Federal Rehabilitation Act did not supersede the bargaining agreement and other objections.  Veterans Aff. Med. Ctr. and AFGE L-2610, #0-AR-3090, 1999 FLRA Lexis 224, 55 FLRA No. 192.

Full text: www.flra.gov/

 » Research Note: We previously reported [1994 FP 119] that an arbitrator found that a sheriff's dept. violated the employment agreement by allowing a diabetic deputy to change to the day shift without regard to seniority rights.  Clark Co. Sheriff's Dept. and F.O.P., 102 LA (BNA) 193 (1994).

     However, another arbitrator upheld a permanent day assignment and found that the duty to accommodate superseded the bargaining agreement.  City of Dearborn Heights and D.H.P.S.A., 101 LA (BNA) 809 (Kanner, 1993), discussed at 1994 FP 24-5.

Handicap Laws / Abilities Discrimination - Specific Disabilities

Federal appeals panel rejects an ADA suit by an employee who has a fear of driving to new places.

     The plaintiff suffers panic attacks of distress, avoidance and “derealization” when she drives in an unfamiliar area. She refused to drive to certain assignments, and her employment was terminated.  Her ADA lawsuit was dismissed by the District Court and the 7th Circuit has affirmed.

     She failed to establish that the condition was disability under the ADA since the condition did not prevent her from taking a broad range of jobs. She also failed to show that her employer perceived her as handicapped.  Sinkler v. Midwest Prop. Mgmt., #99-1582, 2000 U.S. App. Lexis 6247, 10 AD Cases (BNA) 677 (7th Cir.).

Full text: www.kentlaw.edu/7circuit/2000/apr/99-1582.html

Race and Sex Discrimination

Supreme Court denies an enhanced disability claim brought by a former NYPD officer, who claimed she was the victim of racial and gender bias. She then alleged the federal appeals court is corrupt and racketeer influenced.

     A former woman police officer was given an ordinary disability pension, and appealed through the state courts, seeking line-of-duty benefits.  Unsuccessful, she filed suit in federal court, alleging that the denial of enhanced benefits was because of her gender and race.  The Second Circuit Court of Appeals rejected her claim as untimely filed.

     She then sought review by the Supreme Court, alleging that the Second Circuit was a “corrupt enterprise under the Racketeer Influenced and Corrupt Organizations Act,” and asked in her Petition, “Is there better resolution for people than to shut down the Second Circuit?”

     The Supreme Court denied review, without comment.  Brown v. N.Y.C. Police Dept., #99-7555, 1999 U.S. App. Lexis 30450 (2d Cir.); cert. den. #99-1352, 2000 U.S. Lexis 2605, 68 U.S.L.W. 3655 (4-17- 2000).

Text: www.tourolaw.edu/2ndCircuit

Race: Reverse Discrimination

Federal appeals court affirms most of a reverse discrimination judgment against Sheriff's Dept., but reduces the award from $833,660 to $530,960.

     Eighteen white current and former sheriff's officers sued the sheriff in Atlanta, claiming that he intentionally discriminated on the basis of race on discipline, promotions, transfers and appointments to unclassified positions.

     A major recovered $250,000 in compensatory damages, $50,000 in punitive damages and $2,800 in back pay for discriminatory assignments, transfers and unwarranted disciplinary action. Fourteen others were awarded lesser amounts, for a total of $340,000 in compensatory damages and $130,000 in punitive damages.

     A three-judge appellate panel overturned one officer's failure-to-promote claim, the transfer/assignment claims of six officers, a promotional claim of three officers, and a restoration-of-rank claims of two officers. The total damages was cut by $302,700 to a total of $530,960.  Alexander v. Fulton Co., #97-8189, 2000 U.S. App. Lexis 5803 (11th Cir.).

Full text: www.law.emory.edu/11circuit/index.html

Retirement Rights and Benefits

N.J. Supreme Court reinstates medical benefits for a retired police officer.  Although he was not legally entitled to the benefits, his superiors misunderstood the law at the time he retired and assured him that he was entitled to medical benefits.

     The plaintiff retired with 22 years of police service and four years in the Navy. The township provided free medical benefits for ten years and then stopped when officials learned that state law requires at least 25 years of actual service with the township, N.J.S.A. 40A:10-23.

     The N.J. Supreme Court reinstated the benefits.  The plaintiff paid into the retirement system for his naval service and he was repeatedly assured that he would receive free medical benefits for life, on retirement,

     The court said that Equitable Estoppel is rarely applied to a governmental entity.  Retirement is such an exception, because workers make irrevocable decisions about future employment opportunities.   Middletown Twp. PBA v. Twp. of Middletown, #A-116-98, 162 N.J. 361, 744 A.2d 649, 2000 N.J. Lexis 23.

Full text: lawlibrary.rutgers.edu/courts/supreme/a-116-98.opn.html

Sex Discrimination

Federal court rejects the Title VII lawsuit of a woman who was terminated after her male superior ended their romantic affair.

     At his wife's insistence, a superior fired a subordinate with whom he had been having a sexual relationship. The discharged worker sued, alleging unlawful sex discrimination.

     The federal court dismissed the action.  The sexual relationship was not unwelcome.  Rather, she was fired because her superior ended their relationship.  Rejection and discrimination are not synonymous.

     “Participation in a consensual office affair does not constitute actionable gender discrimination when the termination of the affair results in discharge.  It may constitute unfair and certainly unchivalrous behavior, but [it is] not discrimination because of gender.”  Kahn v. O.S.I., 86 F.Supp.2d 377, 2000 U.S. Dist. Lexis 2871, 82 FEP Cases (BNA) 495, 68 L.W. 1640 (S.D.N.Y.).

Sexual Harassment - Verdicts, Settlements & Indemnity

An appellate court in Wisconsin upholds a $389,434 verdict plus one year of future pay for a former paramedic who claimed she was sexually harassed by her supervisor.

     A jury awarded her $300,000 for pain and suffering, $16,220 for medical expenses, and $40,000 for lost future earnings. The judge capped the compensatory damages at $300,000 plus one year's front pay and $89,434 in back pay.

     The appeals court refused to reduce the back pay award by the amount of disability benefits she received.  Although federal law limits compensatory damages to $300,000, lost and future wages are in addition to that amount.  Salveson v. Douglas Co., #99-0946, 2000 Wisc.App. Lexis 267, 38 (1859) G.E.R.R. 518 (3/28/00).

Text: www.wisbar.org/legalres/

Telephone Monitoring, Audio & Video Taping

Note: A California private-sector employer engaged in secret videotaping of restrooms through two-way mirrors. Employees sued for invasion of privacy, emotional distress, and retaliatory discharge. After a 2-to-1 decision in the Ninth Circuit, the Court granted an en-banc review, which reversed the panel decision.  Because the article which appeared in the print edition is no longer valid, it was omitted from this online edition.

The en-banc decision is in the August, 2001 online edition.

     The employees had argued that a union and management cannot negotiate for activities that violate criminal statutes.  As part of an effort to deter the use of drugs, the employer installed video cameras and audio listening devices behind two-way mirrors in the restrooms at its trucking terminal.

     The bargaining agreement provided for the use of videocamera evidence for discipline and discharge.  It did not explicitly permit the use of restroom surveillance techniques or two-way mirrors.  Calif. Penal Code §632, §635, §647(k) and §653n make it a crime to install a two-way mirror in a bathroom, to view the interior of a bathroom, to eavesdrop by electronic recording devices, or to possess such devices.

     The Ninth Circuit affirmed 2-to-1, noting that the LMRA preempts state law claims which are founded on, or which are "substantially dependent on" a collective bargaining agreement.  Employee suits for violation of privacy interests or the infliction of emotional distress arising under state law are inextricably intertwined with the collective bargaining agreement.

     Moreover, state-law rights and obligations can be waived or altered by agreement of the union and management and are preempted by those agreements.  However, one worker complained of an assault; his right to sue was not preempted.

     A dissenting judge noted that the U.S. Supreme Court has held that the LMRA "does not grant the parties to a collective- bargaining agreement the ability to contract for what is illegal under state law," citing Allis-Chalmers v. Lueck, 471 U.S. 202 at 212 (1985).  Cramer v. Consol. Frtwys., #98-56154, 2000 U.S. App. Lexis 7759, 00 C.D.O.S. 3184, 16 IER Cases (BNA) 321 (9th Cir.).

*    *    *    *    *    *

 » Research Note: We previously reported [1997 FP 75-6] that a California appellate court rejected a suit by deputy sheriffs who were secretly videotaped in at the county jail. The taping was not in a "private" area, such as a lavatory.  Sacramento Co. Dep. Sheriffs Assn. v. Sacramento Co., 1996 Cal.App. Lexis 1216, 59 Cal.Rptr.2d 834, 12 IER Cases (BNA) 723.

     We also reported [1993 FP 86] that a federal court in San Francisco dismissed a suit by 33 police officers who were videotaped with a hidden camera installed in the stationhouse men's room. D'Ambrosio v. City of Concord, 1993 U.S. Dist. Lexis 2093, 31 (1504) G.E.R.R. (BNA) 290 (N.D.Cal. 1993).

     However, the Ninth Circuit has upheld the right of a California police officer to sue his department for secretly videotaping his conversation during an internal investigation, based on Cal. Penal Code §632, which specifically creates the right to bring a civil lawsuit.  Rattray v. City of National City, 51 F.3d 793 (2d opin., 9th Cir. 1995); 36 F.3d 1480 (1st opin.).

Text: www.ce9.uscourts.gov/opinions

Whistleblower Requirements and Protection

Jury awards union organizer $1.62 million after he was fired by the union for informing police and the FBI about illegal activity.

     A New Mexico public-employee union tried to transfer a 10-year veteran organizer after he reported allegedly unlawful union activities to the state police and FBI.  When the organizer refused the move, he was fired.  He sued the union and its state president for unlawful retaliation, seeking back pay and lost future wages.

     A federal jury in Albuquerque awarded him $624,740 in compensatory and $1 million in punitive damages, finding that the termination was "in violation of public policy."  The federal judge refused to set aside or reduce the verdict.  Silva v. AFSCME, #Civ 98-0579 JC/KBM, 43 (3) ATLA L. Rptr. 96 (D.N.M. 1999); 1999 (6-18) Albq. Journal p. C1.

*    *    *    *    *    *

State upholds award of $503,952 plus attorney's fees of $514,853 for two firefighters who reported misconduct of the city's Safety Director.

     In 1994 two firefighters in Fairbanks, Alaska claimed that the Director of Public Safety was overstating his “comp” time. The Safety Director allegedly threatened, in a telephone conversation, to retaliate against the two and insinuated that he might "set them up" or entrap them.

     Because the Safety Director also headed the police dept., the firefighters took the threats seriously. They resigned and filed suit for constructive discharge, alleging violations of the state Whistleblower Act and federal civil rights violations.

     A state court jury awarded $150,951 to one plaintiff and $353,001 to the other. The judge added attorney's fees of $514,853 ($168,114 and $346,739). All five justices of the Alaska Supreme Court voted to affirm the awards. Fairbanks (City of) v. Rice, #S-8469, 998 P.2d 419, 2000 Alas. Lexis 23, 16 IER Cases (BNA) 142.

Full text: www.alaska.net/~akctlib/homepage.htm



     In April [pp. 56-7] we reported that an Illinois appellate court recognized a cause of action for the invasion of privacy where investigators posed as coworkers and exceeded their duties in seeking information.  Johnson v. K Mart Corp., 2000 Ill. App. Lexis 16 will be reviewed later by the Illinois Supreme Court.


     "Post-secondary education of the police officer and its effects on the frequency of citizen's complaints," 33 (4) J. of Calif. Law Enf. 3-10.  C.P.O.A. (916) 263-0541.  A ten-year study of 500 officers revealed that "officers with fewer college units tended to have significantly more complaints than officers with higher numbers of units." Info: www.cpoa.org/

     "Safeguarding employee rights in a post-union world," vol. 30 (3) Columbia J. Law & Social Prob.,.

Info: www.columbia.edu/cu/jlsp/
Disciplinary Punishment:  see  Disciplinary Procedures - Delays & Time Limits
Disciplinary Searches:  see  E-Mail/Internet - Legal Issues.
E-Mail/Internet - Legal Issues:  see  Disciplinary Punishment.
Contracts, Consultants & Outsourcing:  see  Collective Bargaining.
Seniority:  see  Handicap/ Abilities Discrimination - Accommodation.

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

Adams v. U.S., #96-93C, 2000 U.S. Claims Lexis 58, 38 (1859) G.E.R.R. 513 (4/5/00). [88-9]
Alexander v. Fulton Co., #97-8189, 2000 U.S. App. Lexis 5803 (11th Cir.). [91]
Allis-Chalmers v. Lueck, 471 U.S. 202 at 212 (1985). [93]
Barnes v. U.S., #97-150C (Fed.Cl. 1997).[88]
Belleville (City of) v. FOP, #98-MR-286 2d Dist, 2000 Ill. App. Lexis 202. [83]
Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971). [84]
Boston Police Dept. v. Collins, 48 Mass.App. 408, 721 N.E.2d 928, 2000 Mass. App. Lexis 4. [85-6]
Brown v. N.Y.C. Police Dept., #99-7555, 1999 U.S. App. Lexis 30450; cert.den. #99-1352. [90]
Cerrone v. Cahill, #95-CV-241, 84 F.Supp.2d 330, 2000 U.S. Dist. Lexis 1328 (N.D.N.Y.). [83-5]
Clark Co. Sheriff's Dept. and F.O.P., 102 LA (BNA) 193 (1994). [90]
Collazo v. City of N.Y., #99-7967, 2000 U.S. App. Lexis 6120 (2nd Cir.). [86]
Cramer v. Consol. Frtwys., #98-56154, 2000 U.S. App. Lexis 7759 (9th Cir.). [92-3] « Removed
D'Ambrosio v. City of Concord, 1993 U.S. Dist. Lexis 2093 (N.D.Cal. 1993). [93]
Dearborn Heights and D.H.P.S.A., 101 LA (BNA) 809 (Kanner, 1993). [90]
Fairbanks (City of) v. Rice, #S-8469, 2000 Alas. Lexis 23, 16 IER Cases 142. [94]
Holiday v. Chattanooga, #98-5619, 206 F.3d 637, 2000 U.S. App. Lexis 3660 (6th Cir.).  [83]
Johnson v. K Mart Corp., 2000 Ill. App. Lexis 16. [94]
Kahn v. O.S.I., 86 F.Supp.2d 377, 2000 U.S. Dist. Lexis 2871, 82 FEP Cases (BNA) 495 (S.D.N.Y.). [92]
Love v. Grimes, #B122863 (Unpub., Cal. App. 2d Dist. 4/11/2000). [88]
Middletown Twp. PBA v. Twp. of Middletown, 162 N.J. 361, 744 A.2d 649, 2000 N.J. Lexis 23. [91]
Motley v. N.J. State Police, 196 F.3d 160, 1999 U.S. App. Lexis 28122 (3rd Cir.). [89]
New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636 (1987). [88]
O'Connor v. Ortega, 480 U.S. 709 (1987). [87]
PPG and Bro. of P. & A. Trades L-579, FMCS Case #99/08802, 113 LA (BNA) 833 (Dichter, 1999). [85]
Rattray v. City of National City, 51 F.3d 793 & 36 F.3d 1480 (9th Cir. 1995). [94]
Sacramento Co. Dep. Sheriffs Assn. v. Sacramento Co., 59 Cal.Rptr.2d 834 (Cal.App. 1996). [93]
Salveson v. Douglas Co., #99-0946, 2000 Wisc.App. Lexis 267, 38 (1859) G.E.R.R. 518 (3/28/00). [92]
Sheriff of Lenawee Co v. Police Ofcrs. Lab. Cncl., 239 Mich. App. 111, 607 N.W.2d 742 (1999). [86-7]
Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989). [84]
Silva v. AFSCME, #Civ 98-0579 JC/KBM, 43 (3) ATLA L. Rptr. 96 (D.N.M. 1999) [94]
Sinkler v. Midwest Prop. Mgmt., #99-1582, 2000 U.S. App. Lexis 6247 (7th Cir.). [90]
U.S. v. Simons, 206 F.3d 392, 2000 U.S. App. Lexis 2877 (4th Cir.). [87-8]
Veterans Aff. Med. Ctr. and AFGE L-2610, #0-AR-3090, 1999 FLRA Lexis 224, 55 FLRA No. 192. [89]

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