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September, 2000 web edition

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Applicant Rejections
Bill of Rights Laws
Disciplinary Discovery
Disciplinary Evidence/In General
Disciplinary Interviews/Reports
Disciplinary Investigations
Drug Screening/Specimen Testing
E-Mail/Internet - Legal Issues
Handicap/Abilities Discrimination
Psychological Exams & Standards
Race and Sex Discrimination
Race: Reverse Discrimination
Whistleblower Requirements/ Protection
Articles Noted
Cross References
Cases Cited

Applicant Rejections

Federal judge refuses to dismiss a hiring discrimination lawsuit naming the city and a psychologist.  The plaintiff claimed the evaluation was a pretext for national origin and pregnancy discrimination.

     Following her rejection as a police officer applicant, a Puerto Rican woman sued the city of Albany, N.Y., a police commander and a police psychologist.  In a Title VII action filed in federal court, she alleged both pregnancy and national origin discrimination.
     The psychologist, who administered written tests to the applicant, had sent a negative evaluation.  He noted that she admitted to an “ongoing occasional use of marijuana,” and an alcohol problem.  He found a “pattern of substance abuse,'” which was “conceptually incongruent'” with police duties. 
     The plaintiff claimed her rejection was based on a discriminatory motive, not the psychological evaluation.  The psychologist sought dismissal because (a) he is a nongovernmental defendant and not subject to suit under the Civil Rights Act (Sec. 1983) and (b) there is no causal connection between his alleged conduct and plaintiff's occupational loss.
     The trial court has denied the psychologist's motion.   In a prior appellate case, it was held that a private psychiatrist, hired to evaluate officers, is subject to suit under Sec. 1983 “if he participates in a joint action with the state or its agents.”  Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998); also see Cheung v. Surles, 1991 WL 128761 (W.D.N.Y. 1991).
     The judge ruled that a psychologist can be liable to a rejected applicant if (a) the assessment is improperly performed or if (b) the psychologist acts jointly with police management to furnish a falsified basis for the rejection of an applicant.  Boyd v. Albany, #99-CV-1487, 2000 U.S. Dist. Lexis 8489 (N.D.N.Y.).

Bill of Rights Laws

California appeals court upholds and tightens an injunction against management attempts to deny the constitutional and statutory rights of corrections officers being interviewed as witnesses and targets in a criminal investigation.  Management cannot recast an internal inquiry as an independent or outside investigation when it enlists that investigation.
     Correctional officers at the Corcoran, California, state prison were subjected to a long-term and intensive criminal and legislative investigation.  Some officers allegedly abused inmates and covered up their misconduct.
     In August of 1998, the warden informed subordinates that state investigators would be conducting a criminal investigation and that officers who were to be interviewed would not be allowed legal representation during questioning or the opportunity to consult with counsel beforehand.
     The state “Public Safety Officers Procedural Bill of Rights” law allows the head of an agency to require “a public safety officer to cooperate with other agencies involved in criminal investigations.”' A failure to cooperate may be the basis of disciplinary action.  Cal. Govt. Code §3304.
     The warden cautioned that if state investigators indicated that an officer was a witness and refused to answer questions, he would be disciplined immediately.  If an officer was a target and refused to be interviewed, he would be handcuffed and arrested. 
     Correctional officers who wanted to tape record their interviews were told their cassette tapes would be seized as criminal evidence at the end of the interviews.  The union sought injunctive relief.  A Superior Court entered an order that:
1. Management must inform officers of the date, time, and place of the questioning, and whether they are targets of the investigation or only witnesses.
2. Management may not interrogate an officer as either a target or witness, without allowing the officer the right to consult with counsel before being questioned.
3. Officers could consult with counsel during questioning, and/or invoke the Fifth Amendment without fear of reprisal.
     Both sides appealed.  One issue was whether the state investigation, conducted by agents of the California Dept. of Justice, was an outside criminal investigation, or was intertwined with an ongoing internal disciplinary investigation.
     A three-judge appellate court agreed with the union.  Any administrative investigation “could be recast as a criminal investigation to avoid the requirements of the Act.”  Only criminal investigations (a) conducted primarily by outside agencies and (b) without significant active involvement or assistance by the employer are exempt from protections of the state's Bill of Rights law.  The appeals court also said the Act was violated when:
1. Officers were not told who would interrogate them or why.
2. Officers were prohibited from making their own tape recording of the interrogation.
3. Officers were not allowed to consult with counsel before the interrogation.
4. Officers who were targets were not allowed bring a representative to the interrogation.
5. Officers were not advised of their constitutional rights.
     In reaching its conclusions, the panel relied on the California Supreme Court's holding in Lybarger v. Los Angeles, 40 Cal.3d 822, 710 P.2d 329 (1985).  A law enforcement agency investigating its own peace officer employees must provide the rights accorded by the Act: notice of the nature of the investigation and the identity of the interrogators, the right to record the interrogation, admonishment of constitutional rights, and the right to representation.
     The appellate panel said that allowing these rights is unlikely to impede an agency's lawful criminal investigation of its employees.  Calif. Correctional POA v. St. of Calif., #A085064, 2000 Cal. App. Lexis 566 (1st App. Dist.). 
Full text: www.courtinfo.ca.gov/opinions/

Disciplinary Discovery

Michigan appeals court denies a union access to a law enforcement agency’s disciplinary records as part of a pre-arbitration grievance inquiry.
     A decade ago, a police union brought an action before the Michigan Employment Relations Cmsn., seeking the release of internal affairs records and witness statements, concerning an investigation of deputy sheriffs disciplined for violating agency rules. 
     The Commission ruled against the union, finding that the files were exempt from disclosure under the state's Public Employment Relations Act.  Kent Co. Sheriff and Kent Co. Dep. Sheriffs Assn., #C88-G-185, 4 MPER (LRP) 22,071, 1991 MPER (LRP) Lexis 50 (MERC 1991).
     The union then filed suit under the state's Freedom of Information and Employee Right to Know acts.  Because the union's request involved a potential grievance arbitration under a bargaining agreement, the trial court ordered the release of the documents.
     A three-judge appellate panel has reversed. The Employment Relations Cmsn. has exclusive jurisdiction over unfair labor practice claims. A union cannot disguise an unfair labor practice claim by styling it as a FOIA or ERKA claim.  Michigan's legislature, like those of most other states, enacted a comprehensive public employment relations scheme.  The courts have consistently held that such laws dominate public employee labor relations.
     The panel said that FOI laws were never intended to apply to the complex field of labor-management relations in the public sector.  “Rather, the FOIA was designed to help the citizen learn more about his government and to subject government to public scrutiny.”  They relied on Newark Morning Ledger v. Saginaw Co. Sheriff, 204 Mich.App. 215, 514 N.W.2d 213 (1994), which upheld the confidentiality of I-A files on four grounds:
1. Internal investigations are inherently difficult because employees are reluctant to give statements about the actions of fellow employees.
2. If statements become a matter of public knowledge, witnesses might refuse to give any statements at all or be less than totally forthcoming and candid.
3. Disclosure could be detrimental to some employees.
4. Disclosure could destroy or severely diminish an agency's ability to effectively conduct internal investigations.
     The appellate panel said that “requiring prearbitration disclosure of witness statements would not advance the grievance and arbitration process, on the ground that employee witnesses might be coerced or intimidated to change their testimony or not testify at all.'”  Kent Co. Dep. Sher. Assn. v. Kent Co. Sheriff, 605 N.W.2d 363, 238 Mich.App. 310, 1999 Mich. App. Lexis 323, 162 LRRM (BNA) 2977.
Full text: www.icle.org

Disciplinary Evidence - Admissibility/In General

Appeals court upholds termination of Sheriff's employee for drug violations, even though the criminal charges were dropped and the record was expunged.  Civil service commission relied on eyewitness testimony, not expunged records.
     The San Antonio Police executed a search warrant at the home of a Sheriff's Office employee with 14 years on the job.  They found marijuana and drug paraphernalia.  Later, the employee refused to give an I-A lieutenant an interview, even after he was administered the Garrity warning; she was terminated by the Sheriff’s Civil Service Cmsn. for:
     (1) Possessing marijuana and drug paraphernalia;
     (2) Refusing to cooperate with an I-A investigation;
     (3) Refusing to submit to a urine test when requested;
     Although she was charged with committing a criminal offense, the charges were dismissed and the arrest records were expunged, in an agreed order.  She appealed her dismissal, and claimed that the expunction served as “res judicata for the findings that served as the basis of her termination.”  Moreover, because the Sheriff's Office agreed to the order of expunction, it “waived its right to oppose her reinstatement.”
     The Texas Court of Appeals upheld the dismissal. The Sheriff's Commission relied on officers’ testimony about the marijuana at her home and about her conduct during the I-A and criminal investigations.  Bustamante v. Bexar Co. Sheriff's C.S.C., #04-99-00175-CV, 2000 WL 728997, 2000 Tex.App. Lexis 3727.
Full text: www.courts.state.tx.us/appcourt.htm 
*    *    *    *    *    *
 »  Editor's Note: An agreed order of expungement or settlement agreement should specifically establish that it does not affect employment-related proceedings.  Had this matter proceeded to arbitration instead of a civil service hearing and judicial appeal, the result could have been in the employee's favor.

Disciplinary Interviews -- Weingarten Rights

NLRB extends Weingarten Rights to nonunion worksites.
     Reversing a earlier decision, the National Labor Relations Board has ruled, 3-to-2, that Weingarten Rights applies to disciplinary interviews of employees in nonunion workplaces. 
     “Weingarten Rights” refers to the Supreme Court's decision in NLRB v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975).  In that case the Court affirmed an NLRB holding that a union employee is entitled to have a union representative present at a disciplinary interview.  State courts, except in NY and WV, have adopted the holding in Weingarten for public employees who are permitted to bargain under state laws.
     Until now, Weingarten rights did not apply to persons who were not members of a bargaining unit.  The majority concluded that Weingarten “should be extended to employees in nonunionized workplaces, to afford them the right to have a co-worker present at an investigatory interview which the employee reasonably believes might result in disciplinary action.”
     The current case involved a worker who was being investigated for discussing salaries with other employees.  She insubordinately refused to meet with the organization's chief executive, unless she was accompanied by a named coworker.  Both were terminated. 
     The Board has ordered the employer to cease interfering with the right of employees to discuss salaries, to reinstate the terminated employees and to pay back wages.  Epilepsy Fdn. of NE Ohio and Borgs, #8-CA-28169, 331 N.L.R.B. 92, 2000 NLRB Lexis 428, 69 LW 2038 (7/10/00). 
Full text: www.nlrb.gov/slip331.html
*    *    *    *    *    *
 »  Editor's Note: The NLRB previously held that the Weingarten decision protects members of a bargaining unit, and did not protect nonunion members, unless the bargaining agreement specifically includes them.  Sears R. & Co. and Intern. Union E.R.M.W., 274 NLRB 230, 1985 NLRB Lexis 745.  It is not clear how this new decision will be interpreted by state courts under public employment relations laws.
     The NLRB has consistently held that employees have the right to discuss and compare wage rates.  See, Main STC Ctr. and Craig, #9-CA-35620, 327 NLRB No. 101, 1999 NLRB Lexis 5, discussed in a prior article at 1999 FP 69.

Disciplinary Investigations

Federal court dismisses suit by an ex-officer, charging that his civil rights were violated when internal affairs officers delayed displaying their ID cards, removed his weapon and suspended him.  Court approves of the manner of the vehicle stop by an I-A unit.
     Conducting an internal investigation, NYPD officers targeted a police officer named Edwin Sanchez, and staked out his home. They planned to arrest him and search his home and car. Edwin's brother Fernando, also an officer, arrived at his brother's residence, driving his brother's car.
     When Fernando drove off, I-A officers stopped him using a siren on their unmarked unit.  A sergeant and lieutenant confronted him; although in plain clothes, they displayed their police badges.
     When Fernando identified himself as a NYPD officer, they demanded his weapon.  He insisted on seeing the I-A officers' ID cards and asked for a PBA representative.  After a 15-minute standoff, Fernando was disarmed and suspended.
     Fernando was administratively charged with refusing to comply with a lawful order. He was found guilty of the charges and placed on “dismissal probation” for one year.  He was later terminated for another deportment.
     In his federal civil rights lawsuit against the city, he alleged that because of the failure of the I-A officers to promptly produce their ID cards, he would have surrendered his firearm immediately, avoiding the confrontation and his ultimate suspension on charges of insubordination.  The federal court dismissed the suit, finding:
1. The initial roadside seizure of the plaintiff by I-A officers was constitutional.  They had a search warrant for the vehicle.
2. The I-A officers could take the precautionary measure of ordering the plaintiff out of the car.  Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977).
3. The I-A officers could briefly detain the driver until completing an investigation for weapons.  New York v. Class, 475 U.S. 106, 106 S.Ct. 960 (1986).
4. The I-A officers' initial, roadside seizure, lasting less than fifteen minutes, clearly fell within the scope of permissible police activity.  Having identified themselves with sirens, verbal statements, and the display of their police shields, they asked plaintiff to exit the car and surrender his weapon. The seizure continued for as long as plaintiff refused to yield his weapon.
5. The public's interest in maintaining the integrity and discipline of the police force is substantial, and a policeman's employment relationship by its nature implies that in certain aspects of his affairs, he does not have the full privacy and liberty from police officials that he would otherwise enjoy.  Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971); cert. den. 403 U.S. 932.
     The plaintiff, had only a speculative concern that the I-A badges might be counterfeit.  The I-A investigators did not violate the plaintiff's rights as a citizen or as an off-duty police officer, in delaying the display of their ID cards.  Sanchez v. City of New York, #96 Civ. 7254-SHS, 2000 WL 987288 (S.D.N.Y.).

Drug Screening and Specimen Testing

Federal court invalidates a city's pre-employment drug test required of all city applicants, whether the vacancy affects public safety or not.
     The court said that only in cases “where risk to public safety is substantial and real,” or where “public safety is genuinely in jeopardy” may suspicionless drug testing be considered reasonable for Fourth Amendment purposes. The plaintiff was seeking employment as an accountant.  Baron v. City of Hollywood, 93 F.Supp.2d 1337, 2000 U.S. Dist. Lexis 6133 (S.D. Fla.).

E-Mail/Internet - Legal Issues

For a second time, a federal appeals court upholds a ban on accessing porn sites by state employees, using state computers.
     We previously reported that a three-judge federal appeals court upheld a ban on the use of state computers to access porn sites on the Internet; see 1999 FP 56.  The full Fourth Circuit, sitting en banc, has affirmed in an 11-to-1 decision. 
     The en banc court said that speech could be restricted by the state without violating the First Amendment because it restricts the plaintiffs as state employees, and not as citizens.  Urofsky v. Gilmore, #98-1481, 2000 U.S. App. Lexis 14484 (4th Cir.).
Full text: www.law.emory.edu/4circuit
*    *    *    *    *    *
New Jersey holds that an employer can be liable for harassing content on an electronic bulletin board used by its employees, even though the employer is not the host of the EBB service.
     We previously reported [1999 FP 151-2] that a N.J. appeals court had exonerated an employer for defamatory and abusive computer messages posted by some employees about others, even though management arranged for the computer service.  A woman airline captain had sued seven coworkers and her employer.
     An appellate panel concluded that management was not required to monitor or respond to the contents.  Reversing, the New Jersey Supreme Court found that an electronic bulletin board can be closely related to a workplace and beneficial to an employer.  If so, harassment on an EBB “should be regarded as part of the workplace.”   
     The Supreme Court emphasized that “employers do not have a duty to monitor private communication of their employees ... [but they] do have a duty to take effective measures to stop co-employee harassment'” when they know or have reason to know about a pattern of workplace-related harassment.
     Although the justices cleared the way for an employee's suit to proceed, the plaintiff will still have to demonstrate that:
     * The messages were severe enough to constitute harassment,
     * The EBB site provided a benefit to the employer, and
     * The employer had notice of the conduct.
     The justices sidestepped the problem of the Court's “jurisdiction'” over nonresident users of an Internet site.  “Specific jurisdiction may be exercised over nonresident defendants by applying traditional principles of jurisdictional analysis irrespective of the medium through which the injury was inflicted.”
     What matters is the nature of the contact, not location of the EBB.  Blakey v. Continental Airlines, #A-5-99, 751 A.2d 538, 2000 N.J. Lexis 650, 68 L.W. 1759. 
Full text: lawlibrary.rutgers.edu/search.html

Handicap/ Abilities Discrimination - Accommodation

The 9th U.S. Circuit Court of Appeals rules that employers can't refuse permission to work even if the job duties pose a “direct threat” to an employee's health and safety.
     The plaintiff was denied a job after failing a pre-employment exam. The employer's doctors found that the applicant had a liver condition the company feared would worsen in the plant's harsh environment.
     A unanimous three-judge panel held that the employer could not withhold the job. The direct threat defense permits employers to impose a requirement that “an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.”  The ADA, as written, does not include direct threats to the health and safety of the disabled individual himself.
     Courts have interpreted federal employment discrimination statutes to prohibit paternalistic employment policies. The philosophy behind the decision has supported in two Supreme Court decisions.  The justices have twice rejected a paternalistic notion that a particular job may be too dangerous for a woman.  A woman should be able to make that choice for herself.  Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977); Int. Union, UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196 (1991).
     Although this case arose in an ADA setting, the underlying reasoning would apply to other situations, such as pregnancy discrimination.  Echazabel v. Chevron, #98-55551, 213 F.3d 1098, 10 AD Cases (BNA) 961, 2000 U.S. App. Lexis 11399.
Full text: www.ce9.uscourts.gov/opinions


Ninth Circuit holds that the use of height-weight tables for men and women, taken from the different sources, is gender discrimination.
     An employer used height-weight tables for men and women from different sources.  The male tables used a large frame category; the female tables used a medium frame category. In a 2-to-1 decision, the Ninth Circuit found than an inconsistent treatment was facially discriminatory against women.
     The majority said that some grooming and appearance standards may be gender different, e.g. hair length requirements, or to require men to wear neckties.  Weight standards are different and an employee might not be able to comply without severely restricting caloric intake, using diuretics, and purging.
     The majority said that “an appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment.''   Thus, an employer can require all employees "to wear contacts instead of glasses, but it cannot require only its female [employees] to do so.”
     The defendant dropped all weight requirements in 1994, before this suit was filed.  Frank v. United Airlines, #98-15638, 83 FEP Cases (BNA) 1, 2000 U.S. App. Lexis 14336 (9th Cir.). 
Full text: www.ce9.uscourts.gov/opinions

Psychological Exams and Standards

National retailer settles a class action for using the MMPI on applicants and employees.
     Hundreds of California job candidates and current employees sued the defendant firm in federal court, claiming that the Minnesota Multiphasic Personality Inventory unlawfully invaded their privacy. 
     The employer agreed to stop using the test at its 2,500 stores throughout the U.S.  It also will pay $2,000 to each California employee who took the test and failed and $1,250 to those who passed the test. The total payments will reach $2 million.
     The MMPI supposedly is the most commonly used psychological test in the U.S. and is given to an estimated 10 million persons a year.  Testees answered true or false to 502 statements about their religious and sexual practices and orientation.  Staples v. Rent-A-Center, #99-2987 (N.D.Cal.).  The news report did NOT indicate which version of the MMPI was the subject of this litigation.
*    *    *    *    *    *
 »  Research Note: We previously reported [1993 FP 139] that a California employer agreed to pay $1.54 million to settle a suit filed by security guard applicants.  They objected to the used of the MMPI-I and CPI, which contained questions of a personal nature.  An appellate court found the questions were too intrusive, and in violation of the state's constitutional protection of privacy.
     See: Soroka v. Dayton Hudson Corp., 8 (16) IER Summary (BNA) 1 (settlement 7/9/93); opinions at 18 Cal.App.4th 1200; 13 Cal.App.4th 192; 7 Cal.App.4th 203; and 235 Cal.App.3d 654.  The California Supreme Court declined review and ordered the appellate opinions to be depublished at 822 P.2d 1327 (1992).

     For a contrary ruling, see McKenna v. Fargo, 451 F.Supp. 1355, 1978 U.S. Dist. Lexis 17539 (D.N.J. 1978), aff'd w/o opin., 601 F.2d 575 (3rd Cir. 1979).  It involved a preemployment exam given to firefighter applicants, which was unsuccessfully challenged by the ACLU.  It also should be noted that California is one of ten states that protects individual privacy in its state constitution; the other nine are: AK, AZ, FL, HI, IL, LA, MT, SC & WA.

Race and Sex Discrimination

Seventh Circuit upholds Title VII suits by hired “testers” -- persons who do not actually want the jobs applied for, but are seeking to end discriminatory practices.
     A federal court in Chicago had ruled that two rejected applicants lacked standing to sue because they did not want actually want the job for which they applied -- and that they had applied solely to verify unlawful bias of the employer.
     In this case, a public-interest law firm paired black and white applicants and provided them with fictitious credentials, designed to be comparable in all respects (or favoring the minority applicant).
     A three-judge panel has reversed.  Title VII allows a civil suit to be maintained by a party “claiming to be aggrieved” by an employment practice.  “We find no support in Title VII for a requirement that a job applicant must have a bona fide interest in working for a particular employer if she is to make out a prima facie case of employment discrimination.”  Kyles v. JK Guardian Security, #98-3652, 2000 U.S. App. Lexis 15542 (7th Cir.). 
Full text: http://laws.findlaw.com/7th/983652.html
*    *    *    *    *    *
 »  Editor's Note: The 7th circuit's analysis also has been advanced by the EEOC. The Commission has issued two documents in support of the use of testers: No. 915-062, “Policy Guide on Use of Testers in Employment Selection Process” (1990) and N-915.002, Enforcement Guidance: “Whether Testers Can File Charges and Litigate Claims of Employment Discrimination” (1996); see FEP Manual (BNA) 405:6899 (2000).

Race: Reverse Discrimination

Appellate court reverses a summary dismissal of the lawsuit filed by a white officer, who claims he was fired for pretextual reasons because of his race.  Actions and statements by his supervisor raised a sufficient inference of discrimination.
     A white school police officer was fired for violating rules on equipment and grooming.  He sued for wrongful termination, alleging that his black superior officer frequently humiliated him in public, treated him differently than other officers, wears an anti-Caucasian tattoo, and stated he would “do whatever it took to get rid of [him].”
     The Texas appellate court found there was evidence of disparate treatment, and a jury could find the official reasons for his dismissal were a pretext for discrimination.  It reversed the trial court's dismissal of his claims.  Greathouse v. Alvin Sch. Dist., 01-99-00746-CV, 17 S.W.3d 419, 2000 Tex. App. Lexis 2943.
Full text: www.courts.state.tx.us/appcourt.htm

Transfers - Disciplinary or Punitive

Federal court in Chicago rejects suit by DEA instructors that were summarily transferred after they demeaned women, the Attorney General and the First Lady.
     Three women police officers from Madison, WI, attended Chicago-based U.S. Drug Enforcement Agency seminars on evidence gathering and prosecution.  In a lawsuit, they claimed the DEA instructors:
1. Glorified aggressive sexual acts by men against women;
2. Referred to Attorney General Janet Reno as a “fuckin’ dyke;”
3. Fantasized Ms. Reno and First Lady Hillary Clinton having sex together;
4. Boasted about how DEA agents get horny unless they can kill people on a regular
     basis and about having shot one person 16 times; and
5. Directed sexual comments to specific women participants.
     One DEA agent resigned; four others were reprimanded and transferred on short notice to other states. The Agents brought their own lawsuit and claimed that they were subjected to retaliation because they are white male victims of political correctness.  Specifically, they alleged that salty language and four letter words are necessary to control dangerous situations encountered while enforcing drug laws.
     The federal judge said that “it would not be retaliatory or otherwise illegal to transfer, reprimand, and even fire employees who had embarrassed the agency in the manner described.”  The judge also said that if the charges are true, the DEA agents should have been disciplined regardless of whether the agency was publicly embarrassed.
     The judge noted that “an employer has the right to discipline employees that disgrace it with shameful and ... possibly illegal conduct.  Exercise of that right is not retaliation.”  The court dismissed the agents' lawsuit, because they failed to show that the DEA acted for other than the entirely legitimate reasons stated.  Flanagan v. Reno, #97C2083, 2000 U.S. Dist. Lexis 8350 (N.D. Ill.).
*    *    *    *    *    *
 »  Editor's Note: In the separate suit brought by the Madison women police officers, complaining of sexual harassment, the U.S. Court of Appeals denied the DEA agents request for qualified immunity.  Markham v. White, #97-3060, 172 F.3d 486, 1999 U.S. App. Lexis 5788 (7th Cir.). 
Full text: www.ca7.uscourts.gov/

Whistleblower Requirements and Protection

Justice Dept. pays legal costs of a FOIA suit brought by FBI crime law whistleblower and others.  53,000 documents will be available on the plaintiffs' website.
     We previously reported [1998 FP 61-2] that the FBI agreed to pay $1,466,000 plus legal fees to an ex-agent who reported integrity problems in the crime lab.  Whitehurst v. Fed. Bur. of Inves., #96-CV-00572, (D.D.C. 1998).
     In July, the Justice Dept. agreed to pay $355,000 in FOIA legal fees to the plaintiffs.  More than 53,000 pages of internal investigation documents relating to the lab will be posted on the plaintiff's Internet site. 
     Members of the public and defense lawyers will be able to look for government errors. The DoJ claims that no defendant charged or convicted has been totally exonerated as result of lab improprieties.
     The DoJ has agreed that it will not charge for the documents and the DoJ's Inspector General's website will provide a direct link to the plaintiffs' website at: www.usdoj.gov/oig/


"Guarding the guardian: Police officer trust in internal affairs,'' and "Internal affairs investigation guidelines: The role of the supervisor,'' 34 (1) J. of Calif. Law Enf. (CPOA) 1- 7; 12-16 (2000). Info: www.cpoa.org; e-mail: cpoa@cpoa.org

Disciplinary Interviews:  see  Bill of Rights Laws.
Discovery, Publicity and Media Rights:  see  Disciplinary Discovery.
Employee Harassment:  see  E-Mail/Internet - Legal Issues.
Psychological Exams and Standards:  see  Applicant Rejections.

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

Baron v. City of Hollywood, 93 F.Supp.2d 1337, 2000 U.S. Dist. Lexis 6133 (S.D. Fla.). [137]
Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971); cert. den. 403 U.S. 932. [137]
Blakey v. Continental Airlines, #A-5-99, 751 A.2d 538, 2000 N.J. Lexis 650. [137-8]
Boyd v. Albany, #99-CV-1487, 2000 U.S. Dist. Lexis 8489 (N.D.N.Y.). [131]
Bustamante v. Bexar Co. Sheriff's C.S.C., 2000 WL 728997, 2000 Tex.App. Lexis 3727. [134]
Calif. Correctional POA v. St. of Calif., #A085064, 2000 Cal. App. Lexis 566. [131-3]
Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998). [131]
Cheung v. Surles, 1991 WL 128761 (W.D.N.Y. 1991). [131]
Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977). [139]
Echazabel v. Chevron, 213 F.3d 1098, 2000 U.S. App. Lexis 11399. [138-9]
Epilepsy Fdn. of NE Ohio and Borgs, 331 N.L.R.B. 92, 2000 NLRB Lexis 428. [135]
Flanagan v. Reno, #97C2083, 2000 U.S. Dist. Lexis 8350 (N.D. Ill.). [141-2]
Frank v. United Airlines, #98-15638, 2000 U.S. App. Lexis 14336 (9th Cir.). [139]
Greathouse v. Alvin Sch. Dist., 17 S.W.3d 419, 2000 Tex. App. Lexis 2943. [141]
Int. Union, UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196 (1991). [139]
Kent Co. Deputy Sheriffs' Assn. v. Kent Co. Sheriff, 605 N.W.2d 363 (1999). [133-4]
Kent Co. Sheriff and Kent Co. Dep. Sheriffs Assn., 1991 MPER Lexis 50 (MERC 1991). [133]
Kyles v. JK Guardian Security, #98-3652, 2000 U.S. App. Lexis 15542 (7th Cir.). [140-1]
Lybarger v. Los Angeles, 40 Cal.3d 822, 710 P.2d 329  (1985). [133]
Main STC Ctr. and Craig, #9-CA-35620, 327 NLRB No. 101, 1999 NLRB Lexis 5. [135]
Markham v. White, #97-3060, 172 F.3d 486, 1999 U.S. App. Lexis 5788 (7th Cir.). [142]
Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882 (1997). [136]
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