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May, 2000 web edition

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Alcohol Abuse, Testing & Rehabilitation
Age Discrimination - Assignment
Bargaining Unit Determinations
Collective Bargaining - Duty to Bargain
Disciplinary Investigations
Domestic Partner Rights
First Amendment Related
Handicap Abilities/Discrimination - Psychiatric
Handicap Ability/Discrimination - TDD/Sign
National Origin Discrimination
Race Discrimination - Affirmative Action & Quotas
Racial Harassment
Sexual Harassment - By Inmates in Correctional Facilities
Telephone Monitoring - Auido & Video Taping
Visual Acuity Standards
Whistleblower Requirements & Protection
Cases Cited

Alcohol Abuse, Testing & Rehabilitation

Federal court refuses to dismiss a suit challenging a police dept. rule that authorizes suspicion-based alcohol testing of off-duty officers, even in their own homes.

     Several off-duty Milwaukee police officers were involved in nonviolent domestic disputes.  Superior officers suspected intoxication and ordered them to participate in breath testing.  A police regulation forbids off-duty intoxication and provides for mandatory testing at the request of two supervisors.  After a series of suspensions, a civil rights suit was filed in federal court.

     The court noted that government employees in safety- sensitive positions can be tested for on-duty impairment.  Off-duty use of a legal substance, such as alcohol, poses a different question, especially if the officer is not in a public place.  "... an off-duty police officer in a public place might reasonably encounter a situation requiring [him] to perform police duties."

     Although Milwaukee officers in their homes are subject to a call-back, this rarely occurs.  Nevertheless, the court denied a summary judgment to the plaintiffs.  The judge will take evidence before reaching a determination, but noted that to satisfy the "danger to public safety" test, management "must show that the danger presented is relatively immediate."  Grow v. City of Milwaukee, 84 F.Supp.2d 990, 2000 U.S. Dist. Lexis 2292 (E.D.Wis.).

Age Discrimination - Assignment

Federal court in Indiana rejects a claim that the city violated the ADEA when it laterally reassigned a detective and replaced him with a younger officer.

     The court said that a purely lateral transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.  The fact that the police chief referred to older officers at times as "dead wood," "dead weight," or "lazy" does not transform a reassignment into unlawful discrimination.

     Here, the transfer did not affect his rank, salary or other job criteria.  There was no proof that the new position was lacking in importance or that his advancement opportunities were more limited.  Bailey v. Canan, 82 F.Supp.2d 966, 2000 U.S. Dist. Lexis 2205, 81 FEP Cases (BNA) 1711 (S.D.Ind.).

Bargaining Unit Determinations

N.H. holds that irregularly scheduled part-time employees and "working supervisors" should not be included in a bargaining unit.

     The New Hampshire Supreme Court has overturned two holdings of the state's Public Employee Labor Relations Board.  The first pertained to irregular or "on call" officers.  Regularly scheduled part-time officers should be included in a bargaining unit, but not those who work only when a full-time officer is unavailable and no other full-time officer chooses to work it.

     The court also rejected inclusion of a lieutenant and sergeant in the bargaining unit.  These superior officers evaluate and oversee subordinates and can issue verbal or written warnings.  The fact that they have managerial authority, regardless of whether it is exercised, is sufficient.

     Although a sergeant and lieutenant might perform similar duties as their subordinates "does not diminish their supervisory authority."  Stratham (App. of Town of) and N.H.P.E.L.R.B., 743 A.2d 826, 1999 N.H. Lexis 136, 163 L.R.R.M. (BNA) 2502.

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

Collective Bargaining - Duty to Bargain

New Hampshire city was not required to bargain the abolition of a disciplinary hearing board when it replaced that step with a hearing before the chief of police.

     Prior to 1996, a Manchester, NH, police officer was entitled to challenge disciplinary action before a hearing board.  The city's police commission unilaterally changed that to a hearing before the chief of police.  The union demanded arbitration on the revision and the city responded by filing an unfair labor practice complaint with the state labor board.

     The Labor Board found that there was no proof that the parties intended to exclude from arbitration any changes in the disciplinary procedure.  The state supreme court reversed, with one dissent.  The majority said that to require arbitration of a change in the disciplinary procedure, the parties should have written an express provision in the bargaining agreement.   Manchester (App. of City of) and N.H.P.E.R.L.B., 743 A.2d 821, 1999 N.H. Lexis 127, 163 L.R.R.M. (BNA) 2568.

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

*    *    *    *    *    *

 » Editor's Note: When a bargaining agreement contains an arbitration clause, there is a legal presumption in favor of arbitrability.  Even past decisions in New Hampshire have recognized this principle, called the "positive assurance" standard.  See Appeal of AFSCME L-3657, 141 N.H. 291, 681 A.2d 100 (1996) ("only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail").


California appeals court holds that a predeprivation hearing is not required for a demotion or termination for economic reasons.

     A California state employee was one of 26 workers to be demoted for financial reasons.  He claimed the $1,508 per-month pay reduction was unlawfully implemented without a predemotion hearing.

     A three-judge appeals court held that the due process clause does not entitle a public employee to a predeprivation hearing before he is demoted in lieu of layoff.  Applying a multi-part test, the panel said that a post-demotion hearing is sufficient.

     -- Was the employee deprived of his livelihood?

     -- Did the action create a reputational stigma?

     -- What is the risk of an erroneous deprivation?

     -- Was immediate action needed under the circumstances?

     Financial cost is not a “controlling weight” when judging a procedural safeguard but the need to conserve fiscal resources “is a factor that must be weighed,” quoting the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (at 348), 96 S.Ct. 893 (1976).  Duncan v. Dept. of Personnel Administration, #B129036, 77 Cal.App.4th 1166, 2000 Cal. App. Lexis 60, 92 Cal.Rptr.2d 257, 15 IER Cases (BNA) 1753.

Full text: www.courtinfo.ca.gov/opinions/

Disciplinary Investigations

Federal appeals court upholds $669,000 in compensatory damages for a negligent internal investigation of employee drug use, accompanied by accusatory statements made by the employer's security manager to coworkers. Court remands action for the imposition of punitive damages.

     The human resources and security manager of an electronics firm claimed she had received a call from a reliable source who claimed to observe two workers injecting cocaine in a plant restroom; a used syringe was found.

     The manager told fellow employees that she had conducted a thorough investigation into the matter, knew who the caller was, and that the substance was cocaine. In fact, the accused worker's drug test was negative, and there was evidence that one employee gave another a vitamin  injection in the restroom.

     After the accusations, the plaintiff became depressed, with physical side effects, including loss of work.  She sued her employer for intentional infliction of emotional distress, defamation, and invasion of privacy.  The trial court granted the employer's motion to exclude punitive damages.  At the close of the evidence, the jury awarded the worker $669,000.

     On appeal, a three-judge federal appeals panel said that rather than waiting for the results of the drug test, the security manager:

... publicly vouched for the reliability of the anonymous caller and worsened the impact of the accusation by embellishing it with disparaging details. In addition ... [the security manager] conducted herself with contempt for [the plaintiff] and took pleasure in making these accusations.  [She] never apologized or attempted to correct the mistake ...  We conclude a reasonable jury could have determined, in light of all the circumstances surrounding [the security manager's] acts, that her conduct was reckless, extreme and outrageous.

     The panel also reversed the trial court's refusal to allow the jury to consider punitive damages.  A reasonable jury could have found that the manager acted "in reckless disregard for the truth or falsity" of the accusation.  Garcia v. Aerotherm Corp., #98-2214, 1999 WL 1244486, 1999 U.S. App. Lexis 33395 (Unpub. 10th Cir.).

Full text: www.kscourts.org/ca10/cases/1999/12/98-2214.htm

Domestic Partner Rights

Arbitrator opts for union's proposal to grant family health benefits to Connecticut state employees union members.

     An arbitrator has awarded family health and pension coverage to the same-gender domestic partners of unionized Connecticut state employees. The issue arose as a last best offer impasse.  Connecticut and SEBAC, 38 (1848) G.E.R.R. (BNA) 183 (Golick, 2000).


FLRA requires a federal law enforcement agency to bargain over the implementation, but not the substance, of a nondeadly force policy and associated weaponry.

     In 1993 the U.S. Border Patrol sought to implement a revised use of force policy which included use of the ASP sidehandle baton.  The union demanded that management begin bargaining sessions over the issue; the INS refused.

     In 1996 an Administrative Law Judge rejected management's claim that the policy change was "necessary for the functioning of the agency."  He also resisted the argument that to prove necessity, management must demonstrate only a "rational basis" for a policy.

      The ALJ concluded that while the INS was not obligated to bargain over the substance of its nondeadly force policy, management had a duty to bargain over the “impact and implementation” of that policy.

     On appeal, a FLRA panel of three adopted the ALJ's findings, conclusions, and remedy.  Because a nondeadly force policy affects conditions of employment, INS was ordered to cease and desist from refusing to bargain over the impact and implementation of its nondeadly force policy and to rescind the policy implemented in 1994.  INS and AFGE, #WA-CA-50048, 38 (1850) G.E.R.R. (BNA) 246, 55 FLRA No. 151, v.55/p.892 (9-29-1999) affirming OALJ #96-63, v.55/p.910 (8-27-1996).

     In an earlier ruling, management was ordered to stop implementation of its side handle baton program prior to completion of negotiations with the union.  INS and AFGE, #DA-CA- 30370, 1999 FLRA Lexis 201, ALJ Dec. No. 144, 55 FLRA 93 (9-17- 1999) and 1999 FLRA Lexis 4, 55 FLRA No. 20 (1-12-1999).

     Because of the union's actions, less than 15% of all Border Patrol agents were authorized to use a side handle baton, and the rest were without an intermediate force baton.  In late 1998 the parties agreed to an immediate implementation of the ASP collapsible steel baton, but continued to bargain over use of OC spray.  INS and AFGE, #WA-CA-7026, Complaint dismissed, 1999 FLRA Lexis 58 (2-26-1999), affirming ALJ Dec. No. 140 (1-5-1999).

Full text (of all decisions): www.flra.gov

*   *   *   *   *   *

 » Research Note: In 1986, New Jersey's Public Employment Relations Cmsn. ruled that management was not required to bargain over the types of guns, other weapons, and quantities of ammunition to be provided.  So. Brunswick (Twp. of) and PBA L-166, PERC #86-115 (1986), 12 NJPER (LRP) p17,138 {Lexis}.

     In 1978, a three-judge appellate panel in California held that a police dept's firearms use and deadly force policy was not a negotiable issue under state public employment bargaining laws.  San Jose POA v. City of San Jose, 144 Cal.Rptr. 638, 78 Cal.App.3rd 935 (Cal.App. 1978).

Text: www.findlaw.com/cacases/

First Amendment Related

Federal court refuses to dismiss suit of ex-officer who claims he was fired for cohabitation.

     A Kentucky sheriff terminated the employment of a deputy, allegedly because of his cohabitation with a woman and for "political" reasons.  He sued in federal court.  The judge ruled that a cohabitation relationship may be constitutionally protected.

     The judge relied, in part, on an Eleventh Circuit opinion that said "dating is a type of association ... protected by the First Amendment's Freedom of Association."  Wilson v. Taylor, 733 F.2d 1539 at 1544 (11th Cir. 1984).

     The court allowed the ex-deputy to proceed with his claim against the defendant in his official capacity.  Marcum v. Catron, 70 F.Supp.2d 728, 1999 U.S. Dist. Lexis 21005 (E.D.Ky.).

Handicap/ Abilities Discrimination - Psychiatric

Federal appeals court sustains the assignment of a police officer with severe depression to special monitoring unit.

     A Chicago Police officer was diagnosed with severe depression and began taking Prozac to alleviate his condition. Management placed him on medical leave, administered physical and psychological evaluations, and then assigned him to the "Personnel Concerns Program," a unit that is typically reserved for officers with disciplinary problems.

     The officer sued under the ADA and §1983. We previously reported [1998 FP 55-6] that the trial court ruled that placing an officer in a special monitoring unit because he uses Prozac violates the ADA, and that ordering a blood test for measuring his use of the drug infringed on his 4th Amendment and privacy rights.  See Krocka v. Bransfield, 958 F.Supp. 1333, 1997 U.S. Dist. Lexis 3510 {1st decis.}; 969 F.Supp. 1073, 1997 U.S. Dist. Lexis 9289 {2nd decis.}; 1997 U.S. Dist. Lexis 20739 {injunction}(N.D.Ill).

     An appellate panel agreed that clinically diagnosed severe depression is an impairment under the ADA.  However, management "may return [the plaintiff] to the PCP at any time without fear of incurring liability under the ADA."

     They said that it was reasonable and responsible for the officer's superiors to evaluate his fitness for duty once they learned of his treatment for depression.  The plaintiff, while on Prozac, received good evaluations and otherwise performed his job in acceptable manner.  Krocka v. City of Chicago, #98-2250, 203 F.3d 507, 2000 U.S. App. Lexis 1649, 10 AD Cases (BNA) 289 (7th Cir.).

Full text: www.kentlaw.edu/7circuit/

Handicap/ Abilities Discrimination - TDD/Sign Language

Federal court upholds the suit of a deaf person who was subjected to stationhouse questioning without the help of a certified sign language interpreter.

     A deaf and functionally illiterate woman sued a N.J. police dept. because they failed to provide her with an interpreter who was certified in American Sign Language.  The plaintiff went to the station to report an assault, but was questioned over possible misconduct herself.

     Although never arrested, her ability to communicate with detectives was thwarted because the interpreter was unqualified.  She alleged that she suffered extreme mental anguish in violation of Title II of the ADA and §504 of the Rehabilitation Act of 1973.

     The court ruled that it is a violation of federal disability laws to subject a hearing-impaired person to noncustodial "investigative questioning," without the assistance of a qualified interpreter.  "Investigative questioning" is an "activity under the Disability and Rehabilitation Acts."  Calloway v. Glassboro, 2000 WL 136837, 2000 U.S. Dist. Lexis 1141, 10 AD Cases (BNA) 302 (D.N.J.).

*    *    *    *    *    *

 » Research Note: In Rosen v. Montgomery Co., 121 F.3d 154 (4th Cir. 1997) a three-judge appellate panel held that the Disability and Rehabilitation acts do not apply in the context of an arrest.  However, in the following year, the Supreme Court unanimously found that the ADA applies to prisons.  Penn. Dept. of Corr. v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952 (1998).  In Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998), a three-judge panel upheld the suit by a prisoner who was injured while transported in a police van that lacked wheelchair restraints.

     Facilities discrimination also is enforced by the Justice Dept's Civil Rights Division.  The DoJ has published a document called "FAQ about the ADA and law enforcement" (9/12/96).  It says:

Police officers are required by the ADA to ensure effective communication with individuals who are deaf or hard of hearing. Whether a qualified sign language interpreter or other communication aid is required will depend on the nature of the communication and the needs of the requesting individual.  * * *

During interrogations and arrests, a sign language interpreter will often be necessary to effectively communicate with an individual who uses sign language.  * * *  Your department should have one or more interpreters available on call.  This is generally accomplished through a contract with a sign language interpreter service ... [and] your department should ensure that the interpreters it uses are familiar with law enforcement terms.

National Origin Discrimination

$1.2 million verdict awarded to a Hispanic former officer is settled for $400,000.  Two other similar suits against the same city are settled for $100,000 each plus $300,000 in legal fees

     In March [2000 FP 42-3] we reported that a Hispanic former police officer was awarded $1,179,000 in his discrimination and wrongful termination suit against a Chicago suburb.  $179,000 was in nontaxable compensatory damages and $1 million in taxable (and mostly uncollectable) punitive damages against three superior officers.  Under the terms of the post-verdict settlement, the village will pay $400,000 to the former officer, Javier Martinez.

     Two other officers will receive $100,000 each, and attorney's fees of $300,000 will be paid to end the appeal and additional litigation.  $600,000 of the $900,000 total is covered by insurance.

     A four-year study of traffic stops revealed that 18.5 percent of 9,100 citations were issued to Hispanics.  Martinez had claimed that 38 to 50 percent were Hispanic.  Martinez v. Mt. Prospect, 96 C 6027, 92 F.Supp.2d 780, 2000 U.S. Dist. Lexis 7456, 38 (1847) G.E.R.R. (BNA) 157 (N.D. Ill. 1/19/2000); Medrano and Moser v. Mt. Prospect.  Settlements rptd. at 38 (1855) G.E.R.R. (BNA) 395.

     The village is currently defending a class-action lawsuit filed by Hispanic residents; Romero v. Mt. Prospect.  The dept. also is facing a review by DoJ's Civil Rights Division.  All officers have received diversity training and the officer- evaluation system was changed.

Race Discrimination - Affirmative Action & Quotas

New Jersey State Police agree to lower its hiring standards to settle a lawsuit filed by the NAACP.  Four-year college requirement will be delayed until after a 22% black, 11% Hispanic quota is reached.

     In 1993 the New Jersey State Police adopted a requirement of a four-year college degree or 60 hours of college credits plus at least two years of police or military experience.  The NAACP sued, claiming that the college requirement has an adverse impact on African Americans and Hispanics.

     The NJSP has agreed to lower its hiring standards and use a different applicant test.  It will now accept applicants with 60 hours of college and two years of any suitable experience that indicates “the maturity of the applicant.”

     The NJSP agreed to postpone the planned implementation of a four-year college requirement until least 22 percent of the applicants with degrees are African American and 11 percent are Hispanic. The state also will pay $355,000 to 10 named plaintiffs plus attorneys' fees and costs.  NAACP v. New Jersey, Mercer Co. Super. Ct. #L-002687-96, 38 (1855) G.E.R.R. (BNA) 398.

*    *    *    *    *    *

 » Editor's Note: Recently the NJSP settled a civil rights suit filed by the  U.S. Dept. of Justice, which claimed that troopers engaged in racial profiling on their traffic stops.  In late March, the state appointed two outside monitors, as required under the consent decree.  U.S. v. New Jersey, #99-5970 (D.N.J.).

Text: www.usdoj.gov/crt/split/documents/jerseysa.htm

Racial Harassment

Federal appeals court affirms order that a sheriff's employee who brought a frivolous lawsuit against the county and her attorney must pay the defendants' legal costs.

     We previously reported [1998 FP 135-6] that a sheriff's employee lost her state FOIA lawsuit.  An Ohio appellate panel ruled that nonofficial e-mails between jail officers were not “public records.”  State ex rel Wilson-Simmons v. Lake Co. Sheriff's Dept., 82 Ohio St.3d 37, 693 N.E.2d 789, 1998 Ohio Lexis 1366.

     She also brought suit in federal court alleging that an unnamed coworker sent a racist e-mail about her, but refused to identify the parties. When her federal suit was dismissed, she and her lawyer were assessed $17,132 for the county's legal costs under §1988 and §1927.

     A federal appeals panel has affirmed. Wilson-Simmons v. Lake Co. Sheriff's Dept., #98-3553, 2000 U.S. App. Lexis 4648, 2000 FED App. 0104P (6th Cir.), affirming 982 F. Supp. 496, 1997 U.S. Dist. Lexis 17359 (N.D. Ohio).

Full text: pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0104p.06

Sexual Harassment - By Inmates in Correctional Facilities

Federal court dismisses woman correctional officer's claim against management because of inmate sexual harassment; her superiors were not negligent, and she should expect inmates to misbehave.

     Courts have repeatedly declined to impose sexual harassment liability upon correctional institutions for the sexually offensive conduct of inmates, as long as institution took preventive and remedial steps with regard to inmate behavior.  The court looked at six complaints by the plaintiff and said that correctional officers “inherently assume the risk of some rude inmates.”

     The judge added it would be “absurd to expect that a prison can actually stop all obscene comments and conduct from its inmates - people who have been deemed unsuited to live in normal society.”  Powell v. Morris, 37 F.Supp.2d 1011, 1999 U.S. Dist. Lexis 2454, 81 FEP Cases (BNA) 899 (S.D. Ohio).

*    *    *    *    *    *

Federal appeals court affirms a $125,000 verdict because a male coworker encouraged male inmates to engage in sexual harassment.

     A former woman corrections officer at a juvenile facility alleged that a male officer encouraged boys to drop their towels when their genitals were erect and when she was on shower duty.  He also intentionally sent her to check on an inmate who he knew was masturbating.

     The ex-officer sued, and a jury awarded her $125,000 on a hostile environment claim.  On appeal, the state argued that it was not liable for the actions of prison inmates.  A three-judge appeals panel agreed that correctional employees assume a risk of lewd behavior by inmates who have been found unsuitable to live in a free society.

     However, there is liability when the institution fails to take appropriate steps to remedy or prevent illegal inmate behavior. Here, the administration tolerated the encouragement of inmate misbehavior by her male coworker.  The conduct occurred over a four month period, on an almost daily basis.  Slayton v. Ohio Dept. of Youth Services, #98-4528, 2000 U.S. App. Lexis 3751, 2000 FED App. 0091P (6th Cir.).

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

Smoking Rights/Restrictions & Air Quality Claims

Federal labor panel holds that management must bargain for a smoke-free firehouse, even though the bargaining agreement bans smoking in the facility.  A past-practice of non enforcement overrides specific language in the C.B.A.

     The union complained that the new fire chief ended an existing practice of not en-forcing a rule against firehouse smoking.  Management cited the bargaining agreement which states that "smoking will be prohibited at all Fire Stations," but permits it while outdoors.

     The Federal Labor Relations Authority held that if the union's negotiation demand was properly made, management is required to bargain.  If the prior fire chief tolerated a nonenforcement policy, the smoking ban cannot be unilaterally implemented or enforced.  Dept. of Air Force, Wright-Patterson AFB and IAFF L-88, #CH-CA-70577, 38 (1850) G.E.R.R. (BNA) 248, 55 FLRA No. 159, v.55/p.968.

Full text: www.flra.gov/decisions/v55/55159ab.html

Telephone Monitoring, Audio & Video Taping

Federal appeals court overturns verdict against a municipality, but not the chief, for illegally taping personal calls on a non- emergency line.

     In 1991, an Illinois police chief issued a memo stating that all phone numbers except one were recorded.  He secretly hired a contractor to connect the line for personal calls to a recorder, without an audible beep, and without the approval of the Emergency Telephone System Board, the mayor or the village council.

     He and the village were sued; 87 plaintiffs won $10,000 each, the statutory amount in the Federal Wiretap Act, 18 U.S. Code §2510 et seq.  On appeal, the judgment against the village as codefendant was reversed.  The ETS Board was the final policymaking authority, there was no law enforcement reason for taping the phones.  The chief did not appeal the verdict against him in his personal capacity.  Abbott v. Winthrop Harbor, #98-3135, 2000 U.S. App. Lexis 3384 (7th Cir.); reh. den., 2000 U.S. App. Lexis 6359.

Full text: www.kentlaw.edu/7circuit/

Visual Acuity Standards

Rejected applicants cannot enhance their discrimination claim by pleading Section 1983 of the Civil Rights Act.

     We previously reported [1997 FP 76-7] that a federal court in Pennsylvania held that nearsightedness is a disability under the ADA. A group of state trooper applicants challenged a 20/70 - 20/200 eyesight requirement.

     Their chances of winning diminished after the Supreme Court's opinion in Sutton v. United Air Lines, 119 S.Ct. 2139, 1999 U.S. Lexis 4371 (discussed at 1999 FP 126-7).  Persons with corrected vision are not disabled for ADA purposes.

     The applicants amended their complaint to allege they were rejected because the State Police regards them as disabled for "a broad range of jobs in various classes," and in violation of their rights under 24 U.S. Code §1983.

     In the latest round, the trial magistrate rejected the §1983 claim because it "mirrors" the ADA.  Wilson v. Pa. St. Police, #94-6547, Unreported; prior decisions at 1999 WL 179692, 1999 U.S. Dist. Lexis 3165; 964 F.Supp. 898, 1997 U.S. Dist. Lexis 3795, 6 AD Cases (BNA) 1125; 1995 WL 422750; and 1995 WL 129202, 1995 U.S. Dist. Lexis 3788, 4 AD Cases (BNA) 396 (E.D. Pa.).

Whistleblower Requirements and Protection

Ninth Circuit reverses a trial judge that dismissed a suit by an officer who suffered anonymous retaliation and minor harassment after he reported misconduct by his coworkers.

     A California officer informed his superiors of “confidential” admissions made to him by a drugs task force officer.  The misdeeds included stealing money, misuse of force against a suspect, and taking heroin from one suspect and planting it on another.

     The chief disbanded the task force and five officers were suspended. Because his report was known to coworkers, a pattern of retaliation followed:

* A death threat message was sent to his pager;

* The words “rat” and “asshole” were scrawled on his police locker;

* Officers turned their backs on him in the station;

* His locker was wired shut and covered with spit;

* One shirt of his was found in a trash can and another in a urinal;

* His radio messages were blocked by "clicking mikes;"

* Trash was repeatedly put in his patrol vehicle;

* A soft drink was repeatedly poured on his driver's seat;

* Officers assigned to back up his investigations never arrived;

* A fellow officer made an obscene gesture to his wife and children;

     The officer finally broke under the stress, and then used up all of his accrued sick, vacation, and comp. time.  Thereafter he was on leave of absence without pay for several months.  In 1997, the City sent him a termination notice for his absence from duty.  He sued in federal court.

     The judge dismissed the suit because any interference with his civil rights was outside the scope of employment of the perpetrators, and the City could not be held liable for it.

     A three-judge appeals panel reversed, in part.  The plaintiff had a First Amendment right to inform his superiors of misconduct.  A jury could find, that over a five month period he was subjected to a series of acts, inflicted by coworkers, "with the knowledge and tacit connivance of those running the Department."

     This evidence, if true, would establish that the Police Dept. had a custom of chastising whistleblowers, had failed to train its members against retaliatory behavior, and had failed to discipline those who had.  A jury could find a deliberate indifference to the plaintiff's rights.  The appellate panel said:

From teenage gangs to adult associations, loyalty has a high place and often operates to discourage any breach of confidentiality thought to be a threat to the interests of the group. The group acts to maintain itself.  Understandable as this kind of loyalty is, it is not tolerable when preservation of the organization undercuts the central purpose of the organization.

The police are specially armed and empowered to act in order to combat crime. Their mission is subverted if they commit crimes and a code of silence protects the crimes. American police do not have the privileges of praetorians.

Silence to protect criminal policemen cannot be supported by a civilized community. Ingrained although such a custom may be, it cannot be a defense, and indeed it may be a cause of liability, for a city supporting it, when the custom leads to the disciplining of an officer brave and straight enough to challenge it as cowardly and perverse.

Blair v. City of Pomona, # 98-55548, 2000 U.S. App. Lexis 4304, 00 C.D.O.S. 2230 (9th Cir.).

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



Collective Bargaining - Duty to Bargain:  see  Firearms/Weapons and Smoking.
Disciplinary Investigations:  see  Alcohol Abuse, Testing & Rehabilitation.
Reductions in Force:  see  Demotions.
Transfers - Nondisciplinary:  see  Age Discrimination - Assignment.

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

Abbott v. Winthrop Harbor, #98-3135, 2000 U.S. App. Lexis 3384 (7th Cir.). [76-7]
Appeal of AFSCME L-3657, 141 N.H. 291, 681 A.2d 100 (1996). [68]
Bailey v. Canan, 82 F.Supp.2d 966, 2000 U.S. Dist. Lexis 2205 (S.D.Ind.). [67]
Blair v. City of Pomona, # 98-55548, 2000 U.S. App. Lexis 4304 (9th Cir.). [77-9]
Calloway v. Glassboro, 2000 WL 136837, 2000 U.S. Dist. Lexis 1141 (D.N.J.). [72-3]
Connecticut and SEBAC, 38 (1848) G.E.R.R. (BNA) 183 (Golick, 2000). [70]
Dept. of Air Force, Wright-Patterson AFB and IAFF L-88, #CH-CA-70577, 38 (1850) G.E.R.R. 248. [76]
Duncan v. Dept. of Personnel Admin., #B129036, 77 Cal.App.4th 1166, 2000 Cal. App. Lexis 60. [69]
Garcia v. Aerotherm Corp., 1999 WL 1244486, 1999 U.S. App. Lexis 33395 (Unpub. 10th Cir.). [69-70]
Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998). [73]
Grow v. City of Milwaukee, 2000 U.S. Dist. Lexis 2292 (E.D.Wis.). [67]
INS and AFGE, #WA-CA-7026, Complaint dismissed 1999 FLRA Lexis 58 (2-26-1999). [70-1]
INS and AFGE, #DA-CA-30370, 1999 FLRA Lexis 201, 55 FLRA No. 20 (1-12-1999). [70-1]
Krocka v. Bransfield, 958 F.Supp. 1333; 969 F.Supp. 1073 (N.D.Ill). [72]
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