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March, 2000 web edition

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Age Discrimination - General
Arbitration Procedures
Collective Bargaining - Duty to Bargain
Disciplinary Evidence - In General
Disciplinary Hearings
Disciplinary Procedures - General
Disciplinary Punishment
Domestic Partner Rights
Drug Abuse / Rehabilitation
National Origin Discrimination
Promotional Rights & Procedures
Psychological Counseling
Racial Discrimination
Racial Harassment
Sexual Harassment
Wrongful Discharge
Corrections & Updates
Cross References
Cases Cited

Age Discrimination - General

A divided Supreme Court holds that the ADEA cannot be constitutionally applied to state government employers.

     Under Seminole Tribe v. Florida, 517 U.S. 44 (1996) and City of Boerne v. Flores, 521 U.S. 507 (1997), Congress may abrogate a state's 11th Amendment immunity only by expressing a clear legislative statement and under a valid exercise of federal power.

     The Supreme Court recently concluded that while the Congress intended to waive state immunity under the ADEA, there were inadequate congressional findings of unconstitutional age discrimination by states and the abrogation exceeded Congressional power to enact legislation to enforce equal protection clause.

     The 5-to-4 majority said that state employees must look to state laws for age discrimination protection.  Kimel v. Florida Bd. of Regents, U.S., #98-791 & -796, 2000 U.S. Lexis 498, 81 FEP Cases (BNA) 970. 
Full text: www.law.vill.edu/Fed-Ct/sct.html

Arbitration Procedures

New York's highest court refuses to disturb an arbitration award exonerating a corrections officer who flew a Nazi flag outside his home.

     We previously reported [1997 FP 167] the arbitration award, which was later upheld by an appellate panel that divided 3-to-2 [1999 FP 101-2]. The DOC then asked the state's highest Court to reverse.
     A unanimous Court of Appeals rejected the plea and declined to “invade the province of the arbitrator under the guise of public policy, and to reexamine and redetermine the merits of the case.”  The seven judge panel said that a court may overturn an arbitrator only when the award violates a strong public policy, is irrational or clearly exceeds an arbitrator's power.
     Had the case not been arbitrated, the Court would have weighed the officer's free speech rights against the State's interest in maintaining safety in prisons.  Once decided by arbitration, a balancing test was no longer appropriate.  N.Y. St. Corr. PBA v. St. of N.Y., #201, 1999 N.Y. Lexis 3933. 
Full text: www.law.cornell.edu/ny/ctap/overview.html 
*    *    *    *    *    *
 »  Research Note: A federal appeals court affirmed the termination of two sheriff's officers that gave Nazi salutes and shouted German expressions while on duty.  The panel said termination was appropriate because the appellants held leadership positions.  Pruitt v. Howard Co. Sheriff's Dept., 1996 U.S.App. Lexis 1266 (Unrptd., 4th Cir.), discussed at 1996 FP 86- 7.
*    *    *    *    *    *
California appeals court overturns an arbitrator's award reinstating a municipal employee who threatened to kill a coworker because it would violate a court restraining order.  Employer's general duty to provide workplace safety was not enough, standing alone, to overturn the award.
     This model city worker bragged that he could kill a man at 600 yards, has a vanity license plate "SHOOOT" and owned 18 pistols and rifles (most with scopes).  He threatened to shoot B, a coworker, B's wife, and their new baby.
     Police arrested the grievant for threatening to kill a coworker; he later pled guilty to disturbing the peace. "B " obtained a Superior Court restraining order, requiring the grievant to stay at least 100 yards away from him, his residence, place of work, and city work crew sites.
     The arbitrator acknowledged workplace violence and that the City had experienced a fatal incident in 1988.  However, the prompt separation of the grievant from work violated his right to notice, to union representation and a right to a full and fair investigation. He concluded the removal violated the MOU between the City and Union and justified reinstatement and back pay.
     A three-judge appellate panel noted that Cal. Labor Code §6400 requires employers to furnish a safe workplace, including taking appropriate disciplinary action, but the law does not permit a city to ignore grievance procedures.  Moreover, reinstatement did not violate the public policy requiring employers to provide a safe workplace.
     Reinstatement violated the terms of the restraining order and was irreconcilable with the public policy requiring obedience to court orders.  Palo Alto v. SEIU L-715, #H019017, 00 C.D.O.S. 28, 91 Cal.Rptr.2d 500, 1999 Cal. App. Lexis 1128 (6th Dist). 
Full text: www.courtinfo.ca.gov/opinions/

Collective Bargaining - Duty to Bargain

Arbitrator rejects a grievance that a fire chief acted outside his managerial rights in issuing pagers to all members, and requiring a 20-minute callback response.
     A fire department unilaterally adopted a pager policy, which notes that "the frequency with which an employee returns for such duty may reflect on the employee's job performance review, promotional merit, assignment opportunities, and selection for attendance to schools or conventions."
     The chief testified that management would presume that a page had been received, that employees would be expected to be accessible at all times, and must respond by phone within 20 minutes, except when on approved leave.
     Improved technology (snap pagers) enables dispatchers to contact all or groups of firefighters and messages differentiate between emergencies and non-emergencies, using preset programs.  The arbitrator noted that a fire district must have sufficient staff on hand and response time is critical.
     He said the pager policy addressed a legitimate business objective.  The Union recognizes the need for a minimum staffing level, and therefore a dispatcher must be able to call back personnel, as needed.  A 20 minute pager response time is not unreasonable.
     The fact that a policy has a potential for inequitable results does not mean it exceeds the boundaries of a Management Rights clause.  Employees have the option of grieving any inequities, leading to impartial arbitration.   Pleasantview Fire Prot. Dist. and IFFA-SEIU L-73, 113 LA (BNA) 388 (Goldstein, 1999).

Disciplinary Evidence - In General

Management is not prevented from taking disciplinary action against an officer because the complaining witness withdraws her complaint.
     A NYPD probationary officer was accused of assault and attempted date rape.  The officer denied the allegations and the complainant later retracted her accusation and denied that any incident occurred.
     In affirming the officer's termination, New York's highest court said that internal affairs "was not compelled to accept the credibility of petitioner's former girlfriend's recantation." Moreover, the officer's own  dishonesty was an independent basis for dismissal.  Swinton v. Safir, #153, 720 N.E.2d 89, 93 N.Y.2d 758, 1999 N.Y. Lexis 3433. 
Full text: www.law.cornell.edu/ny/ctap/overview.html

Disciplinary Hearings - Untenured

New York holds that a “stigmatized” probationary employee is entitled to a name-clearing hearing, even if there is no unfavorable publicity, if there is a likelihood of the accusations becoming public.  Proof of dissemination still necessary in damage suits, however.
     In the above NYPD case, the ex-officer also complained that he should have been given a name-clearing hearing.  Management countered, that as of that time, there was no public disclosure of the allegations, outside the confines of the Police Dept.
     The panel of seven judges noted this was a new issue in New York, "whether actual dissemination is required to trigger the right to a name-clearing hearing."  They said that "where the discharged employee is seeking only expungement of stigmatizing material in a personnel file -- not reinstatement or damages -- a likelihood of dissemination is sufficient to trigger one's right to a departmental name-clearing hearing."
     Proof of actual dissemination would be the rule in cases where the employee seeks damages.  Defamation is not actionable before there has been publication and a discharged public employee "has not suffered any actual injury ... until actual dissemination."
     They noted that “the risk of a discharged employee's being forced to reveal potentially damaging information surrounding the loss of a prior job exists even when there are no stigmatizing materials in the personnel record, and is probably unavoidable.”  Swinton v. Safir, #153, 720 N.E.2d 89, 93 N.Y.2d 758, 1999 N.Y. Lexis 3433.
Text: www.law.cornell.edu/ny/ctap/overview.html
*    *    *    *    *    *
 »  Research Note: Four federal appellate circuits have held that a mere likelihood of dissemination triggers a right to a name- clearing hearing: Brandt v. Bd. of Ed., 820 F.2d 41, 1987 U.S. App. Lexis 7131; appeal after remand at 845 F.2d 416, 1988 U.S. App. Lexis 5820 (2d Cir).; Ledford v. Delancey, 612 F.2d 883, 1980 U.S. App. Lexis 21486 (4th Cir.); Rosenstein v. City of Dallas, 876 F.2d 392, 1989 U.S. App. Lexis 9232 (5th Cir.); and Buxton v. Plant City, 871 F.2d 1037, 1989 U.S. App. Lexis 5918 (11th Cir.).
     Three circuits insist upon actual public disclosure before a name-clearing hearing is required: Ortega-Rosario v. Alvarado- Ortiz, 917 F.2d 71, 1990 U.S. App. Lexis 18515 (1st Cir.); Copeland v. Phila. Police Dept., 840 F.2d 1139, 1988 U.S. App. Lexis 2839 (3d Cir.); and Olivieri v. Rodriguez, 122 F.3d 406, 1997 U.S. App. Lexis 21565 (7th Cir.).
Oliveri at: www.ca7.uscourts.gov/

Disciplinary Procedures - In General

New Jersey State Police enter into a court-approved consent decree that imposes disciplinary requirements on management.
     Under the terms of the decree, there is an affirmative duty to discipline any state trooper, who, after substantiation of the charges:
1. engaged in prohibited discrimination;
2. used unreasonable force or threat of force;
3. intentionally caused a constitutional violation;
4. intentionally failed to follow the documentation requirements in the decree;
5. provided false information in a misconduct investigation;
6. provided false information in a report, log, or transmission; or
7. failed to report misconduct by another trooper.
     The State Police must initiate disciplinary proceedings against a trooper who, in addition to the above:
a. is found guilty in a criminal case for on-duty misconduct;
b. is found civilly liable for misconduct (of the type identified above); or
c. is found to have intentionally violated the constitution in a criminal case.
     Management is required to implement a computerized tracking system.  After resolution, the State Police must inform complainants, in writing, whether discipline was imposed.  U.S. v. N.J. State Police, # 99-5970 (D.N.J. 12/29/1999). 
Full text: www.usdoj.gov/crt/split/documents/jerseysa.htm

Disciplinary Punishment - In General

Arbitrator reduces a termination to a 30 day pay forfeiture.  Corrections officer failed to report a coworker who flashed his genitals as a joke.
     The arbitrator noted the facility was “filled with joking of a sexual nature” which was tolerated and never reported.  While the agency properly requires officers to report misconduct they observe, it did not establish a policy of zero tolerance.
     The bargaining agreement required progressive discipline.  Here, termination was excessive, not progressive, and not related to the seriousness of the underlying offense.  No inmates saw the gesture.  It also was inconsistent with the grievant's clean record of seven years of service.
     The penalty was reduced to a 30 calendar day disciplinary suspension, requiring both reinstatement and partial back pay.  Oregon Dept. of Corr. and AFSCME C-75/L-3940, 113 LA (BNA) 374 (Skratek, 1999).
*    *    *    *    *    *
Divided Pennsylvania Supreme Court declines to set aside arbitration awards that reinstated two state troopers.  One terrorized an acquaintance with a firearm, the other shoplifted merchandise.
     An off-duty state trooper, who had been drinking, jammed a loaded, police-issued weapon into an ex girlfriend's mouth and threatened to kill her.  The trooper pled guilty to three counts of DUI and one count each of simple assault and making terroristic threats. 
     The trooper was terminated, and grieved.  The arbitrator noted that his 13 years of service were exemplary and that he had been under great deal of stress. He focused on the State Police disciplinary system and concluded that these actions were less egregious than others where management had only suspended the trooper. The arbitrator ordered the State Police to reinstate the trooper, but without back pay. 
     Another trooper with 16 years of service shoplifted some merchandise, was arrested for retail theft, and later paid $177.oo in restitution and civil penalties.  He, too, was fired and the union grieved.  The arbitrator determined that dismissal was not warranted since other troopers had committed more serious crimes but had received discipline less severe than dismissal.
     Management sought judicial review, but an intermediate appellate court found there was no basis upon which it could disturb the decisions of the arbitrators.  On appeal, the Pennsylvania Supreme Court affirmed, saying:
     We emphasize that these matters are not ... about whether this court finds the reinstatement of these troopers to be repugnant.  Rather, they concern the application of existing legislation.  If we were to [reverse] we would not be interpreting [the law] but rather would be rewriting it.  Clearly, such a legislative function is denied to the judiciary.
     In a concurring opinion, one justice wrote that:
     The citizens of Pennsylvania deserve the best ... [and] should not be forced to continue to employ those who are the subject of this case and who discredit the vast majority of officers....  I believe that a legislative scheme that insulates such decisions from appellate review should be revisited by our legislature.
     Another justice dissented, and said under no circumstances should criminals be reinstated as police officers.  Penn. State Police v. St. Pa. Troopers Assn., #28 (1998) and #29 (1998), 1999 Pa. Lexis 3531. 
Full text: www.aopc.org/OpPosting/index/SupremeOpindex.cfm
*    *    *    *    *    *
 »  Research Note: In another recent case the justices said that the sole reviewing test is two-prong.  First, to determine the issue is within the terms of the bargaining agreement and second, to see if the issue is appropriately before the arbitrator.  If so, the award will be upheld "if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement."  State (Cheyney Univ.) v. Univ. Prof. Assn., #69 (1998), 1999  Pa. Lexis 3783. 
Full text: www.aopc.org/OpPosting/index/SupremeOpindex.cfm
     Similarly, an intermediate appeals court refused to disturb an arbitrator's decision to reinstate a police officer who abused cocaine.  The strong public policy supporting arbitration superseded other considerations.  Philadelphia v. FOP, 711 A.2d 1060 (Pa. Commw. 1998); also see Penn Twp. v. AFSCME, 713 A.2d 1218 (Pa. Commw. 1998).
*   *   *   *   *
Arbitrator reinstates two Pittsburgh police officers convicted of stealing crack cocaine and insurance fraud.
     In Pittsburgh PA, an arbitrator has reinstated an officer who pleaded guilty in 1998 to stealing crack cocaine taken from a police evidence locker. He had been sentenced to 2-6 months in jail, but was placed on probation.  Comm. v. McAndrews, (Allegheny Co. Cm.Pl.Ct.).
     A second officer had reported his car stolen, but instead it was taken to a chop shop.  He was convicted of insurance fraud in a bench trial, and is awaiting sentencing.  Comm. v. Ross,  (Allegheny Co. Cm.Pl.Ct.).

Domestic Partners Rights

California enacts domestic partners health benefits law for government employees who are the same sex, and heterosexual couples over age 62.
     Same-gender domestic partner health insurance coverage is now available for the dependents of California government employees who participate in the state system.  Twelve California cities and four counties have their own policies giving health benefits to domestic partners.
     A California domestic partnership is recognized when both persons are of the same sex, share a common residence, are jointly responsible for each other's basic living expenses, neither is married or related, are at least 18, and file a "Declaration of Domestic Partnership" with the California Secretary of State.
     The new law also allows the registration of heterosexual couples over age 62, if they meet the eligibility criteria under the Social Security Act [42 U.S. Code §402(a) or §1381]. This provision averts some of the financial penalty affecting Social Security recipients who marry.  Cal. Family Code §297; Stats. 1999 ch. 588 §2 (AB 26). (Eff. Jan. 2000). 
Full text of statute: www.leginfo.ca.gov/calaw.html

Drug Abuse and Rehabilitation

Ohio appellate court sustains the termination of a firefighter who was in a drug abuse assistance program.

     An Ohio firefighter tested positive for cocaine use in July and September of 1996.  He was terminated and appealed.  The trial court concluded that an 18 year firefighter “deserves the opportunity for meaningful drug treatment... before he is dismissed.”
     A three-judge appeals panel has reversed.  Absent a contract provision, a city is not required to provide the opportunity for rehabilitation, even on a first offense.  Voluntary participation in a Employee Assistance Program does not foreclose the disciplinary action, unless this option was negotiated into the contract.  Allgood v. City of Akron, #19554, 2000 Ohio App. Lexis 183 (9th Dist.).  
Text: www.sconet.ohio.gov/DistrictCourts/AllListing/List.asp?DCN=9

Moonlighting (Secondary Employment)

Appellate court sustains an arbitration award of lost wages from outside employment where the denial of off-duty employment for disciplinary reasons was overturned.
     A Sheriff's lieutenant was disciplined for excessive absenteeism and was denied the opportunity to accept off-duty employment for six months.  An arbitrator struck down the regulation used to imposed discipline, and the grievant sought an award of lost wages from his secondary employment.
     The sheriff claimed that “lost pay” and “loss of pay” in the contract meant employee's pay from the Sheriff's office. The union claimed that "pay" means any pay, whether from the Sheriff's office or from a private employer, that is lost as a result of disciplinary action taken by the Sheriff.
     A second arbitrator concluded that because the grievant was not eligible for off-duty private employment, he had suffered a "loss of pay" under the terms of the contract.  A trial court affirmed the award and a three-judge appeals panel has affirmed the lost wages award.
     However, an award of attorney fees to the union violated the general rule that a prevailing party may not recover attorney fees as costs of litigation in the absence of statutory authority, unless provided for in the bargaining agreement.  The panel said that attorneys' fees would be appropriate only as a sanction when an employer's  position was legally unjustifiable, unreasonable, or frivolous.   Leis v. L-100 Teamsters, #C-981011, 1999 Ohio App. Lexis 4982, 162 L.R.R.M. (BNA) 3084.
Text: www.sconet.state.oh.us/District_Courts/
 »  Editor's Note: Contract language can provide that in litigation to enforce or set aside an arbitration award, the prevailing party shall recover reasonable and necessary legal fees and expenses.

National Origin Discrimination
Ex police officer recovers over $1 million for discriminatory treatment and discharge.

     A federal jury in Chicago has given a former police officer $1,179,000 in his discrimination and wrongful termination suit against a Chicago suburb. The Mexican born officer alleged that he endured ethnic slurs and disparate discipline.
     The jury awarded damages of $104,000 for lost wages and benefits, $75,000 for pain and suffering, $500,000 in punitive damages against a deputy chief and $250,000 in punitives against each of two commanders.  The jury cleared the chief of police and a sergeant.
     Racial profiling was alleged, and it was claimed that 45 percent of all persons arrested were Hispanic, although Hispanics are only 6 percent of city's 1990 population.  After the verdict, the judge - a former prosecutor - announced he would ask the Justice Dept. to investigate the department for civil rights violations.  One current officer acknowledged frequent ethnic slurs and groundless stops of Hispanic drivers.
     The ex-officer also is entitled to reinstatement to the force and attorney's fees.  Martinez v. Village of Mt. Prospect, #96 C-6027, 92 F.Supp.2d 780, 2000 U.S. Dist. Lexis 7456, 38 (1847) G.E.R.R. (BNA) 157; interim prior opin. at 1997 U.S. Dist. Lexis 18763 (N.D. Ill. 1997).

 » Update: Case settled for $400,000 plus attorney's fees.

Promotional Rights and Procedures

Appellate court strikes down a college requirement for police sergeants.  Management needed to have the city's personnel rules changed before imposing a new qualification for promotion.
     Chicago's Personnel Rule VI.3 allows employee promotions based on training, experience; examinations, performance evaluations and seniority.  The police superintendent added a new category: sergeant candidates must have a four-year college degree.
     A patrolman and the union sued for injunctive relief.  A three-judge appellate court said that the union could not sue for declaratory or injunctive relief because it lacks a "recognizable interest in the dispute," even if its members claim they are suffering a legal harm.
     However, a police department "exercises purely statutory powers and possess no inherent or common law powers." Moreover, civil service rules "are generally deemed part of the employment contract"  In finding the college requirement was unlawfully imposed, the panel said:
     We stress that the Department is under a legal duty to follow its own rules.  Such rules have the force and effect of law and, as such, are binding on the Department. ... Review of a candidate's educational background is not explicitly listed in the rules governing promotions, nor can we reasonably construe the rules to allow for such a consideration.
     The requirement that officers taking the 1998 sergeants exam successfully complete two years of college education as a precondition to promotion does not conform to the promotional process as described by the Personnel Rules. They directed that the department allow the named plaintiff to take the next sergeant's exam.  Nolan v. Hillard, #1-97-4659, 1999 Ill.App. Lexis 841. 
Full text: www.state.il.us/court/1999/1974659.htm

Psychological Counseling

Jury awards an ex-officer over $280,000; police psychologist informed potential victims of possible harm to them by the officer.
     A county police officer in Georgia told a psychologist, during a fitness-for-duty interview, that he had "vivid images of shooting" his captain, the chief, and up to 8 more persons.  The psychologist reported the fantasies and the officer was disarmed, demoted, and eventually fired.
     He and his wife sued, alleging negligence and defamation.  The defense unsuccessfully argued that the disclosures were appropriate, because a psychologist has a duty to prevent harm to third parties from a dangerous patient.  Georgia statutes, however, allow disclosure only to protect children from abuse. 
     A state court jury awarded the plaintiff and his wife $176,471 in damages and $103,779 in attorney's fees.  Garner v. Stone, #97A-30250-1 (DeKalb Co. Ga.).

Race Discrimination - In General

11th Circuit concludes that state governments lack 11th Amendment immunity from Title VII disparate impact lawsuits.
     The three-judge panel held that Congress intended to abrogate state immunity and enacting Title VII was a valid exercise of its 14th Amendment powers.  Crum v. Alabama, #98-6600, 1999 U.S. App. Lexis 34492, 81 FEP Cases (BNA) 950 (11th Cir.).
     In a 1969 report, the U.S. Commission on Civil Rights examined equal employment opportunity in public employment and found widespread discrimination against minorities in State and local government employment.  Government entities were included by an amendment to Title VII in 1972.  See H.R.Rep. #92-238 reprinted at 1972 U.S.C.C.A.N. 2152-53.

Racial Harassment

EEOC steps up lawsuits against employers that tolerate worksite racist and sexual graffiti. One firm has agreed to a $1.3 million settlement.  Union can be liable for failing to protect its members.

     EEOC believes that employee graffiti fosters a hostile work environment. They have sued employers for tolerating racist and sexual harassment writings on restroom walls and stalls, on changing room lockers, in portable toilets and in employee breakrooms.
     A New Jersey firm has agreed to pay $1,325,000 to approximately a hundred former black and female employees.  The firm also is required to implement an anti-harassment policy, provide training to its managers and workforce and make periodic reports to the EEOC for two years.  EEOC v. Foster Wheeler Const., #98 C-1601 (N.D. Ill.); prior rulings at 1999 U.S. Dist. Lexis 10610, 10565, 10993, and 11226; 1998 U.S. Dist. Lexis 19114.
     Another similar action is pending in Chicago.  The complaint alleges that management tolerated graffiti such as “kill niggers,” “KKK,” and “white power.”  One image portrayed  a noose around a black employee's child.  EEOC v. Scientific Colors (N.D. Ill.).
     In a similar case filed by a worker, the complaint alleges that management allowed a noose to hang from a worksite banister for two weeks.  Nelson v. Foster Wheeler Const., #97 C- 4658 (N.D. Ill.); prior ruling at 1998 U.S. Dist. Lexis 17923.
     In a prior case, the union also was named in the complaint.  The judge refused to dismiss the action and rejected the argument that "only employers are liable for hostile work environment claims" or that a union has no duty to correct hostile work environment at a worksite.  Harper v. Pipefitters L-597, #97 C- 4793, 1998 U.S. Dist. Lexis 11908 (N.D. Ill.).

Sexual Harassment - In General

Police dept's overly intrusive investigation of a complainant's personal life may lead to liability.

     A city's “relentless probe” of an employee who claimed she was sexually harassed by a police officer may have doomed the city's attempt to avoid liability.  The police dept's investigation of the complainant's past forced her to “relive painful memories, reveal details of her private life and [to] dispute humiliating accusations which were wholly unrelated to her claim.”
     Internal affairs investigators interviewed 5 witness relating to the reported assault, but interviewed 21 persons regarding the complainant's background.  Detectives also checked her fingerprints, investigated her purchases and probed the contents of her employment application.
     The investigators also asked her humiliating questions (whether she was wearing any underwear, whether she had ever danced while unclothed).  Detectives concluded her report was false; she was suspended without pay for 20 hours and reprimanded.
     To avoid liability for coworker harassment, a city must take corrective action reasonably calculated to end the current harassment and to deter future harassment from the same offender or others."  The judge said that "a reasonable factfinder could conclude that the City's actions were not reasonably calculated to deter future harassment."
     The IA investigation was an attempt to discredit, humiliate and embarrass the complainant while no witnesses were interviewed about the officer's credibility and background.  An intrusive investigation impairs the reporting of harassment and does not deter future harassment. 
     The city was granted a summary judgment on the complainant's retaliation claim, but not the harassment claim.  Sarro v. City of Sacramento, 1999 U.S. Dist. Lexis 19589, 81 FEP Cases 1142 (E.D. Cal. 1999). 
Full text: www.courtinfo.ca.gov/opinions/

Wrongful Discharge - In General

California appeals court upholds wrongful termination verdict of an untenured employee who was fired for hiring a lawyer to bring a claim against her employer.
     A three-judge appellate panel in California has upheld a $15,000 verdict for economic losses arising from the termination of an untenured employee, who was dismissed because she obtained legal assistance in asserting a claim against her employer.  California, like most states, has a law which allows collective bargaining.
     The panel said that prior interpretations of the statute make it clear that an “employee has the right to designate an attorney” and it is a violation of public policy to fire someone for hiring an attorney to assert a claim.  Gelini v. Tishgart, #A082565, 91 Cal.Rptr.2d 447, 1999 Cal. App. Lexis 1123, 81 FEP Cases 1477 (1st Dist.), relying on Montalvo v. Zamora, 7 Cal.App.3d 69 (1970). 
Full text: www.courtinfo.ca.gov/opinions/


     Handicap/ Abilities Discrimination - Constitutionality: The Supreme Court will decide whether the ADA can be applied to state governmental employers. Florida Dept. Corr. v. Dickson, #98-829 and Alsbrook v. Maumelle, Ark., 99-423, Rev. Gtd. 68 LW 3478 (1/21/2000).
     Residency: We reported [1999 FP 93] that three Calumet City IL officers were awarded $4.75 million because their terminations for residency violations were found to be a subterfuge for not supporting the mayor's reelection campaign.  The case has been settled for $1.25 million in lieu of a city appeal.  Mora v. Genova, # 97-C-7765 (N.D. Ill. 1999); prior decis. at 1998 U.S. Dist. Lexis 2258 and 13216. Chicago Tribune 10/2/1999.
     Sexual Harassment - Same Gender:  We previously reported [1997 FP 172] that a federal jury awarded a male, former California park ranger $415,000 because his male sergeant "stared" at him when he changed clothes, and called him at home.  The Ninth Circuit has affirmed the verdict against one defendant, but overturned against another defendant.  Kelly v. City of Oakland, 1999 U.S. App. Lexis 30402 (9th Cir.).

Text: www.ce9.uscourts.gov/opinions


Disciplinary Investigations: see Psychological Counseling.
Disciplinary Punishment: see Arbitration Procedures.
First Amendment Related: see Arbitration Procedures.
Privacy Rights: see Psychological Counseling.
Sexual Harassment: see Racial Harassment.
Workplace Violence: see Arbitration Procedures (2d case).

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

Allgood v. City of Akron, #19554, 2000 Ohio App. Lexis 183 (9th Dist.). [41-2]
Brandt v. Bd. of Ed., 820 F.2d 41 and 845 F.2d 416 5820 (2d Cir. 1987, 1988). [38]
Buxton v. Plant City, 871 F.2d 1037. 1989 U.S. App. Lexis 5918 (11th Cir.).  [38]
Comm. v. Ross, (Allegheny Co. Cm.Pl.Ct.). [41]
Comm. v. McAndrews, (Allegheny Co. Cm.Pl.Ct.). [41]
Copeland v. Phila. Police Dept., 840 F.2d 1139, 1988 U.S. App. Lexis 2839 (3d Cir.). [38]
Crum v. Alabama, #98-6600, 1999 U.S. App. Lexis 34492 (11th Cir.). [44]
EEOC v. Foster Wheeler Const., #98 C-1601 (N.D. Ill.). [44-5]
EEOC v. Scientific Colors (N.D. Ill.). [45]
Garner v. Stone, #97A-30250-1 (DeKalb Co. Ga.). [44]
Gelini v. Tishgart, #A082565, 91 Cal.Rptr.2d 447, 1999 Cal. App. Lexis 1123 (1st Dist.). [46]
Harper v. Pipefitters L-597, #97 C-4793, 1998 U.S. Dist. Lexis 11908 (N.D. Ill.). [45]
Kimel v. Florida Bd. of Regents, U.S., 2000 U.S. Lexis 498, 81 FEP Cases (BNA) 970. [35]
Ledford v. Delancey, 612 F.2d 883, 1980 U.S. App. Lexis 21486 (4th Cir.). [38]
Leis v. L-100 Teamsters, #C-981011, 1999 Ohio App. Lexis 4982. [42]
Martinez v. Vil. of Mt. Prospect, 92 F.Supp.2d 780 (N.D. Ill. 1/19/2000). [42-3]
N.Y. St. Corr. PBA v. St. of N.Y., #201, 1999 N.Y. Lexis 3933. [35]
Nelson v. Foster Wheeler Const., #97 C-4658 (N.D. Ill.). [45]
Nolan v. Hillard, #1-97-4659, 1999 Ill.App. Lexis 841. [43-4]
Olivieri v. Rodriguez, 122 F.3d 406, 1997 U.S. App. Lexis 21565 (7th Cir.). [38]
Oregon Dept. of Corr. and AFSCME C-75/L-3940, 113 LA (BNA) 374 (Skratek, 1999). [39]
Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 1990 U.S. App. Lexis 18515 (1st Cir.). [38]
Palo Alto v. SEIU L-715, 91 Cal.Rptr.2d 500, 1999 Cal. App. Lexis 1128. [36]
Penn. State Police v. St. Pa. Troopers Assn., 1999 Pa. Lexis 3531. [39-40]
Penn Twp. v. AFSCME, 713 A.2d 1218 (Pa. Commw. 1998). [40]
Philadelphia v. FOP, 711 A.2d 1060 (Pa. Commw. 1998). [40]
Pittsburgh and Grievances of McAndrews and Ross. [41]
Pleasantview Fire Prot. Dist. and IFFA-SEIU L-73, 113 LA (BNA) 388 (Goldstein, 1999). [36-7]
Pruitt v. Howard Co. Sheriff's Dept., 1996 U.S.App. Lexis 1266 (Unrptd., 4th Cir.). [35-6]
Rosenstein v. City of Dallas, 876 F.2d 392, 1989 U.S. App. Lexis 9232 (5th Cir.). [38]
Sarro v. City of Sacramento, 1999 U.S. Dist. Lexis 19589 (E.D. Cal. 1999). [45-6]
State (Cheyney Univ.) v. Univ. Prof. Assn., 1999  Pa. Lexis 3783. [40]
Swinton v. Safir, 720 N.E.2d 89, 93 N.Y.2d 758, 1999 N.Y. Lexis 3433. [37, 38]
U.S. v. N.J. State Police, # 99-5970 (D.N.J. 12/29/1999). [38-9]

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